Debra Allonby v Accrington & Rossendale College, Education Lecturing Services, trading as Protocol Professional and Secretary of State for Education and Employment.
Date: 2004-01-13
45. Admittedly, there is nothing in the wording of Article 141(1) EC to suggest that the applicability of that provision is limited to situations in which men and women work for the same employer.  The principle established by that article may be invoked before national courts, in particular in cases of discrimination arising directly from legislative provisions or collective labour agreements, as well as in cases in which work is carried out in the same establishment or service, whether private or public (see, inter alia, Case 43/75  Defrenne II  [1976] ECR 455, paragraph 40, and Case C-320/00  Lawrence and Others  [2002] ECR I-7325, paragraph 17).
52. First, it must be borne in mind that, according to settled case-law, a pension scheme such as the TSS at issue in the main proceedings, which essentially relates to the employment of the person concerned, forms part of the pay received by that person and comes within the scope of Article 141 EC (to that effect, see in particular Case 170/84  Bilka  [1986] ECR 1607, paragraph 22, Case C-262/88  Barber  [1990] ECR I-1889, paragraph 28, Case C-7/93  Beune  [1994] ECR I-4471, paragraph 46, and Joined Cases C-234/96 and C-235/96  Deutsche Telekom  [2000] ECR I-799, paragraph 32).
53. Moreover, Article 141 EC covers not only entitlement to benefits paid by an occupational pension scheme but also the right to be a member of such a scheme (see, in particular, Case C-128/93  Fisscher  [1994] ECR I-4583, paragraph 12).
Part (a) of the second question
62. The criterion on which Article 141(1) EC is based is the comparability of the work done by workers of each sex (see, to that effect, Case 149/77  Defrenne III  [1978] ECR 1365, paragraph 22).  Accordingly, for the purpose of the comparison provided for by Article 141(1) EC, only women and men who are workers within the meaning of that article can be taken into consideration.
63. In that connection, it must be pointed out that there is no single definition of worker in Community law: it varies according to the area in which the definition is to be applied (Case C-85/96  Martínez Sala  [1998] ECR I-2691, paragraph 31).
65. According to Article 2 EC, the Community is to have as its task to promote, among other things, equality between men and women.  Article 141(1) EC constitutes a specific expression of the principle of equality for men and women, which forms part of the fundamental principles protected by the Community legal order (see, to that effect, Joined Cases C-270/97 and C-271/97  Deutsche Post  [2000] ECR I-929, paragraph 57).  As the Court held in  Defrenne II , cited above (paragraph 12), the principle of equal pay forms part of the foundations of the Community .
67. For the purposes of that provision, there must be considered as a worker a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration (see, in relation to free movement of workers, in particular Case 66/85  Lawrie-Blum  [1986] ECR 2121, paragraph 17, and  Martínez Sala , paragraph 32).
68. Pursuant to the first paragraph of Article 141(2) EC, for the purpose of that article,   " pay"  means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.  It is clear from that definition that the authors of the Treaty did not intend that the term   " worker" , within the meaning of Article 141(1) EC, should include independent providers of services who are not in a relationship of subordination with the person who receives the services (see also, in the context of free movement of workers, Case C-337/97  Meeusen  [1999] ECR I-3289, paragraph 15).
70. Provided that a person is a worker within the meaning of Article 141(1) EC, the nature of his legal relationship with the other party to the employment relationship is of no consequence in regard to the application of that article (see, in the context of free movement of workers, Case 344/87  Bettray  [1989] ECR 1621, paragraph 16, and Case C-357/89  Raulin  [1992] ECR I-1027, paragraph 10).
71. The formal classification of a self-employed person under national law does not exclude the possibility that a person must be classified as a worker within the meaning of Article 141(1) EC if his independence is merely notional, thereby disguising an employment relationship within the meaning of that article.
72. In the case of teachers who are, vis-à-vis an intermediary undertaking, under an obligation to undertake an assignment at a college, it is necessary in particular to consider the extent of any limitation on their freedom to choose their timetable, and the place and content of their work.  The fact that no obligation is imposed on them to accept an assignment is of no consequence in that context (see to that effect, in relation to free movement of workers,  Raulin , paragraphs 9 and 10).
─ The category of persons who may be included in the comparison
73. When it is necessary to consider whether a set of rules conforms with the requirements of Article 141(1) EC, it is in principle the scope of those rules which determines the category of persons who may be included in the comparison.
74. Thus, in the case of company pension schemes which are limited to the undertaking in question, the Court has held that a worker cannot rely on Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) in order to claim pay to which he could be entitled if he belonged to the other sex in the absence, now or in the past, in the undertaking concerned of workers of the other sex who perform or performed comparable work (Case C-200/91  Coloroll Pension Trustees  [1994] ECR I-4389, paragraph 103).  On the other hand, in the case of national legislation, in Case 171/88  Rinner-Kühn  [1989] ECR 2743 (paragraph 11), the Court based its reasoning on statistics for the numbers of male and female workers at national level.
77. Where it is found that the requirement of being employed under a contract of employment as a precondition for membership of a pension scheme is not in conformity with Article 141(1) EC, the condition concerned must be disapplied, in view of the primacy of Community law (see, to that effect, Case 106/77  Simmenthal  [1978] ECR 629, paragraph 24).