Birgitte Jørgensen v Foreningen af Speciallæger and Sygesikringens Forhandlingsudvalg.
Date: 2000-04-06
27 As the Court explained in paragraphs 34 and 35 of its judgment in Case C-262/88 Barber [1990] ECR I-1889, if national courts were under an obligation to make an assessment and a comparison of all the various types of consideration granted, according to the circumstances, to men and women, judicial review would be difficult and the effectiveness of the principle of equal pay would be diminished as a result. Genuine transparency, permitting an effective review, can therefore be assured only if the principle of equal pay applies to each of the elements of remuneration granted to men or women, and not only on the basis of a comprehensive assessment of the consideration paid to workers.
29 According to the Court's case-law, national provisions or rules relating to pay or social security benefits, access to employment and working conditions discriminate indirectly against women where, although worded in neutral terms, they work to the disadvantage of a much higher percentage of women than men, unless that difference in treatment is justified by objective factors unrelated to any discrimination on grounds of sex (see, in particular, Case 171/88 Rinner-Kühn v FWW Spezial-Gebäudereinigung [1989] ECR 2743, paragraph 12, and Case C-189/91 Kirsammer-Hack v Sidal [1993] ECR I-6185, paragraph 22).
33 As the Court stated in paragraphs 16 and 17 of its judgment in Case C-127/92 Enderby [1993] ECR I-5535, a situation may only reveal a prima facie case of indirect discrimination if the statistics describing that situation are valid, that is to say, if they cover enough individuals, do not illustrate purely fortuitous or short-term phenomena, and appear, in general, to be significant.
39 It must be observed in this regard that, although budgetary considerations may underlie a Member State's choice of social policy and influence the nature or scope of the social protection measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and cannot therefore justify discrimination against one of the sexes (Case C-343/92 De Weerd and Others [1994] ECR I-571, paragraph 35). Moreover, to concede that budgetary considerations may justify a difference in treatment between men and women which would otherwise constitute indirect discrimination on grounds of sex would mean that the application and scope of a rule of Community law as fundamental as that of equal treatment between men and women might vary in time and place according to the state of the public finances of Member States (De Weerd and Others, cited above, paragraph 36).
41 As Community law stands at present, social policy is a matter for the Member States, which enjoy a reasonable margin of discretion as regards the nature of social protection measures and the detailed arrangements for their implementation (Case C-229/89 Commission v Belgium [1991] ECR I-2205, paragraph 22, and Case C-226/91 Molenbroek [1992] ECR I-5943, paragraph 15). If they meet a legitimate aim of social policy, are suitable and requisite for attaining that end and are therefore justified by reasons unrelated to discrimination on grounds of sex, such measures cannot be regarded as being contrary to the principle of equal treatment (Commission v Belgium, cited above, paragraphs 19 and 26, and Molenbroek, cited above, paragraphs 13 and 19).