Hellen Gerster v Freistaat Bayern.
Date: 1997-10-02
17 Article 119 of the Treaty lays down the principle that men and women should receive equal pay for equal work.  As the Court has already pointed out in Defrenne II (Case 43/76 Defrenne v Sabena [1976] ECR 455), paragraph 12, this principle forms part of the foundations of the Community.
18 To exclude the public service from the scope of Article 119 would run counter to that provision's objective. Moreover, the Court stated in Case 248/83 Commission v Germany [1985] ECR 1459, paragraph 16, that both Directive 76/207 and Directive 75/117 apply to employment in the public service.  It further stated that those directives - like Article 119 - are of general application, a factor inherent in the very nature of the principle which they lay down.
21 First of all, the Court emphasized in Defrenne III (Case 149/77 Defrenne v Sabena [1978] ECR 1365), paragraph 20, that the scope of Article 119 cannot be extended to aspects of the employment relationship other than those expressly referred to.
30 According to settled case-law, indirect discrimination arises where a national measure, although formulated in neutral terms, works to the disadvantage of far more women than men (see, to that effect, Case C-444/93 Megner and Scheffel v Innungskrankenkasse Rheinhessen-Pfalz [1995] ECR I-4741, paragraph 24; and Case C-343/92 De Weerd (née Roks) and Others [1994] ECR I-571, paragraph 33).
34 In a situation of that kind, it must be concluded that in practice provisions such as those at issue in the main proceedings result in discrimination against women employees as compared with men and must in principle be regarded as contrary to Directive 76/207.  The position would be different only if the distinction between those two categories of employee were justified by factors unrelated to any discrimination on grounds of sex (see inter alia Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607, paragraph 29; Case 171/88 Rinner-Kühn v FWW Spezial-Gebäudereinigung [1989] ECR 2743, paragraph 12; and Case C-457/93 Kuratorium für Dialyse und Nierentransplantation v Lewark [1996] ECR I-243, paragraph 31).
35 The Court has consistently held that it is for the national court, which alone has jurisdiction to assess the facts and interpret the national legislation, to determine in the light of all the circumstances whether, and to what extent, a legislative provision which, although applying irrespective of gender, actually affects a greater number of women than men, is justified by objective reasons unrelated to any discrimination on grounds of sex (see Case 96/80 Jenkins v Kingsgate [1981] ECR 911, paragraph 14; Bilka, paragraph 36, and Rinner-Kühn, paragraph 15).
39 In Nimz, moreover, the Court took the view that it is impossible to identify objective criteria unrelated to any discrimination on the basis of an alleged special link between length of service and acquisition of a certain level of knowledge or experience, since such a claim amounts to no more than a generalization concerning certain categories of worker.  Although experience goes hand in hand with length of service, and experience enables the worker in principle to improve performance of the tasks allotted to him, the objectivity of such a criterion depends on all the circumstances in each individual case, and in particular on the relationship between the nature of the work performed and the experience gained from the performance of that work upon completion of a certain number of working hours.