Helga Kutz-Bauer v Freie und Hansestadt Hamburg.
Date: 2003-03-20
44.  In that regard, the scheme of part-time work for older employees is intended to reduce the normal working time, either by reducing the working hours at a uniform rate throughout the entire period concerned, or by allowing the person concerned to cease work at an earlier date.  In each case the scheme affects the exercise of the occupation of the workers concerned by adjusting their working time.
45.  The Court therefore finds that the scheme at issue in the main proceedings established rules relating to working conditions for the purposes of Article 5(1) of Directive 76/207.
50.  In those circumstances, provisions of the kind at issue in the main proceedings result in discrimination against female workers by comparison with male workers and must in principle be treated as contrary to Articles 2(1) and 5(1) of Directive 76/207.  It would be otherwise only if the difference of treatment found to exist between the two categories of worker were justified by objective factors unrelated to any discrimination based on sex (see, in that regard, Case 171/88   Rinner-Kühn   [1989] ECR 2743, paragraph 12; Case C-457/93   Lewark   [1996] ECR I-243, paragraph 31; Case C-243/95   Hill and Stapleton   [1998] ECR I-3739, paragraph 34; and Case C-226/98   Jørgensen   [2000] ECR I-2447, paragraph 29).
51.  It is for the national court, which alone has jurisdiction to assess the facts and to interpret the national legislation, to determine whether that is so.  It is necessary in that regard to ascertain, in the light of all the relevant factors and taking into account the possibility of achieving by other means the aims pursued by the provisions in question, whether such aims appear to be unrelated to any discrimination based on sex and whether those provisions, as a means to the achievement of certain aims, are capable of advancing those aims (see, in that regard, Case C-167/97   Seymour-Smith and Perez   [1999] ECR I-623, paragraph 72).
52.  However, although in preliminary ruling proceedings it is for the national court to establish whether such objective reasons exist in the particular case before it, the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance based on the documents in the file and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see   Hill and Stapleton  , cited above, paragraph 36, and   Seymour-Smith and Perez  , cited above, paragraph 68).
55.  As regards the argument which the German Government derives from the encouragement of recruitment, it is for the Member States to choose the measures capable of achieving the aims which they pursue in employment matters.  The Court has recognised that the Member States have a broad margin of discretion in exercising that power (see   Seymour-Smith and Perez  , paragraph 74).
56.  Furthermore, as the Court stated at paragraph 71 of its judgment in   Seymour-Smith and Perez  , it cannot be disputed that the encouragement of recruitment constitutes a legitimate aim of social policy.
57.  However, the fact remains that the broad margin of discretion which the Member States enjoy in matters of social policy cannot have the effect of frustrating the implementation of a fundamental principle of Community law such as that of equal treatment for men and women (see   Seymour-Smith and Perez  , paragraph 75).
58.  It follows from the rule referred to at paragraph 51 of this judgment that mere generalisations concerning the capacity of a specific measure to encourage recruitment are not enough to show that the aim of the disputed provisions is unrelated to any discrimination based on sex or to provide evidence on the basis of which it could reasonably be considered that the means chosen are or could be suitable for achieving that aim.
59.  As regards the German Government's argument concerning the additional burden associated with allowing female workers to take advantage of the scheme at issue in the main proceedings even where they have acquired entitlement to a retirement pension at the full rate, the Court observes 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).
60.  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, and   Jørgensen  , cited above, paragraph 39).
61.  Nor can the City of Hamburg, whether as a public authority or as an employer, justify discrimination arising from a scheme of part-time work for older employees solely because avoidance of such discrimination would involve increased costs (see, to that effect,   Hill and Stapleton  , paragraph 40).
62.  It is therefore for the City of Hamburg to prove to the national court that the difference in treatment arising from the scheme of part-time work for older employees at issue in the main proceedings is justified by objective reasons unrelated to any discrimination on grounds of sex.  Should it succeed in doing so, the mere fact that the provisions of that scheme which preclude access by workers who have acquired entitlement to a retirement pension at the full rate affect a considerably higher percentage of female workers than of male workers could not be regarded as infringing Articles 2(1) and 5(1) of Directive 76/207.
69.  Furthermore, the Court has consistently held that wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by individuals as against the Member State before the national court (see, in particular, Case C-188/89   Foster and Others   [1990] ECR I-3313, paragraph 16).
70.  With regard to Article 5(1) of Directive 76/207, which prohibits any discrimination on grounds of sex with regard to working conditions, including the conditions governing dismissal, the Court has already held it to be sufficiently precise to be relied upon by an individual as against the State and applied by a national court in order to prevent the application of any national provision which is inconsistent with Article 5(1) (see Case 152/84   Marshall   [1986] ECR 723, paragraphs 52 and 56 ( "Marshall I "  ), and   Seymour-Smith and Perez  , paragraph 40).
71.  Furthermore, a person such as Ms Kutz-Bauer would be able to rely on Article 5(1) of Directive 76/207 as against a public authority such as the City of Hamburg (see, in that regard,   Marshall I  , paragraph 49, and Case C-188/89   Foster and Others   [1990] ECR I-3133, paragraphs 19 and 21).
72.  The Court has also held that, in a case of indirect discrimination in a provision of a collective agreement, the members of the class of persons placed at a disadvantage must be treated in the same way as other workers (see, to that effect, Case C-33/89   Kowalska   [1990] ECR I-2591, paragraph 19, and   Nimz  , paragraph 18).
73.  According to the Court's case-law (see, in particular, Case 106/77   Simmenthal   [1978] ECR 629, paragraph 24), a national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means.
74.  It is equally necessary to apply such considerations to the case where the provision at variance with Community law is derived from a collective agreement.  It would be incompatible with the very nature of Community law if the court having jurisdiction to apply that law were to be precluded at the time of such application from being able to take all necessary steps to set aside the provisions of a collective agreement which might constitute an obstacle to the full effectiveness of Community rules (see   Nimz  , paragraph 20).
75.  In the light of those considerations, the answer to the second question must be that, in the case of a breach of Directive 76/207 by legislative provisions or by provisions of collective agreements introducing discrimination contrary to that directive, the national courts are required to set aside that discrimination, using all the means at their disposal, and in particular by applying those provisions for the benefit of the class placed at a disadvantage, and are not required to request or await the setting aside of the provisions by the legislature, by collective negotiation or otherwise.