1 By order of 24 October 1990, received at the Court Registry on 10 December 1990, the Landesarbeitsgericht (Higher Labour Court) Berlin referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 119 of the EEC Treaty and of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19) in order to decide whether certain provisions of the Betriebsverfassungsgesetz 1972 (Law on industrial relations within undertakings) complied with that principle.
2 That question has been raised in proceedings concerning compensation which Monika Boetel, a part-time home help, is claiming from her employer, the Arbeiterwohlfahrt der Stadt Berlin e.V., an association providing welfare services in the Land of Berlin, for attending training courses.
3 The average weekly hours worked by Mrs Boetel are 29.25. Since 1985 she has chaired a staff council of one of her employer' s branches. In 1989 she attended six training courses covering, in particular, employment law and industrial relations law, knowledge of which is necessary for working on a staff council (Betriebsrat) within the meaning of Paragraph 37(6) of the abovementioned Law.
4 Under the combined provisions of Article 37(2) and (6), staff council members attending such training courses must be released from their duties by their employers without loss of pay.
5 Pursuant to those provisions Mrs Boetel' s employer paid her, up to the limit of her individual working week, for the hours she had not worked owing to her attendance of the courses. She therefore received no compensation for the hours of training completed outside her individual working hours.
6 It is common ground that if Mrs Boetel had been working on a full-time basis, her employer would have been obliged, under the abovementioned national provisions, to grant her compensation up to the limit of the full-time working week, which would have entailed further compensation of 50.3 hours.
7 Mrs Boetel brought proceedings against her employer before the Arbeitsgericht (Labour Court) Berlin for compensation in the form of paid leave or overtime pay for those additional hours. By a judgment of 18 May 1990, the Arbeitsgericht ordered the employer to grant Mrs Boetel 50.3 hours of paid leave.
8 The employer appealed to the Landesarbeitsgericht which decided to stay proceedings and to refer the following question to the Court for a preliminary ruling: "Is it compatible with Article 119 of the EEC Treaty and Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women for legislative provisions to guarantee staff council members compensation (according to the loss of pay principle) for work time lost by reason of attendance of courses (which provide knowledge necessary for working on staff councils) but not allow compensation, in the form of leave or money, up to a level corresponding to full working hours, for staff council members who work on a part-time basis and who are obliged to devote further time in addition to their individual working hours to such courses, even though the proportion of women affected by these provisions is significantly higher than that of men?"
9 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the relevant provisions, the procedure and the written observations submitted to the Court, which are mentioned or discussed below only in so far as is necessary for the reasoning of the Court.
10 As is apparent from the order for reference, the national court is essentially seeking to ascertain whether, if staff council members employed on a part-time basis are normally women, the principle of equal pay laid down in Article 119 of the Treaty and in Directive 75/117 precludes application of national legislation limiting to their individual working hours the compensation which staff council members working on a part-time basis are to receive from their employer for attending training courses which impart the knowledge necessary for working on staff councils and are held during the full-time working hours applicable in the undertaking but which exceed their own part-time working hours, when staff council members employed on a full-time basis are compensated for attendance of the same training courses on the basis of full-time working hours.
11 The first point to be determined is whether compensation in the form of paid leave or overtime pay for training courses imparting the knowledge necessary for working on staff councils constitutes "pay" for the purposes of Article 119 of the Treaty and Directive 75/117.
12 As the Court has consistently held (see the judgment in Case 171/88 Rinner-Kuehn v FWW Spezial-Gebaeudereinigung [1989] ECR 2743 and in Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889), the concept of pay, within the meaning of the second paragraph of Article 119, comprises any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer, and irrespective of whether the worker receives it under a contract of employment, by virtue of legislative provisions or on a voluntary basis.
13 That definition is applicable to a case such as that before the national court.
14 Although compensation such as that at issue in the main proceedings does not derive as such from the contract of employment, it is nevertheless paid by the employer by virtue of legislative provisions and under a contract of employment. Staff council members are necessarily employees of the undertaking and are entrusted with the task of safeguarding staff interests, thus promoting harmonious working relationships within the undertaking, which is in its interests.
15 The compensation paid under legislation such as that in issue in the main proceedings is also intended to ensure that staff council members receive income even where during periods of training they are not performing any work as stipulated in their contracts of employment.
16 The second point to be determined is whether staff council members employed on a part-time basis are treated differently under national legislation from those employed on a full-time basis as regards compensation for participation in training courses.
17 It appears that both categories of staff council members devote the same number of hours to attending the training courses. However, once the duration of training courses held during the full-time working hours applicable in the undertaking exceeds the individual working hours of staff council members employed on a part-time basis, the latter receive from their employer compensation which is less than that received by staff council members employed on a full-time basis and they are therefore treated differently.
18 Thirdly, if it were to prove that the percentage of female staff council members employed on a full-time basis is much lower than the percentage of male members, the difference of treatment suffered by staff council members employed on a part-time basis would be contrary to Article 119 of the Treaty and to Directive 75/117 where, having regard to the difficulties encountered by female workers in working on a full-time basis, that lower level of compensation cannot be accounted for by factors other than discrimination on grounds of sex (see the judgment in Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607 and the judgment in Case 171/88 Rinner-Kuehn, cited above).
19 The national court points out that staff council members working on a part-time basis for their employer are generally women. The documents relating to the main proceedings also show that amongst the members of the employer' s staff council there is a much greater number of women than men who work on a part-time basis.
20 Consequently, where compensation for participation in training courses is concerned, the application of legislative provisions such as those at issue in the main proceedings in principle entails indirect discrimination against female workers in relation to male workers in the matter of pay, contrary to Article 119 of the Treaty and Directive 75/117.
21 The position would be different only if the difference of treatment of the two categories of staff council members were justified by objective factors unrelated to any discrimination based on sex (see, in particular, the judgment in Rinner-Kuehn, cited above).
22 It was argued before the Court that the difference of treatment was solely due to the difference in working hours, since under the German legislation compensation is granted without distinction only in respect of working hours not worked owing to participation in training courses. Therefore, discrimination could not be regarded as established unless serving on staff councils were considered to be a particular form of work to be performed under the contract of employment.
23 It must be observed first of all that legal concepts and definitions established or laid down by national law do not affect the interpretation or binding force of Community law, or, consequently, the scope of the principle of equal pay for men and women laid down in Article 119 of the Treaty and Directive 75/117 and developed by the Court' s case-law (on the concept of worker, see the judgment in Case 75/63 Hoekstra v Bedrijfsvereniging Detailhandel [1964] ECR 177).
24 Moreover, the argument that compensation for participation in training courses granted under national legislation is calculated solely on the basis of working hours not worked does not alter the fact that staff council members who work on a part-time basis receive less compensation than their full-time colleagues when in fact both categories of workers receive without distinction the same number of hours of training in order to be able effectively to look after the interests of employees for the sake of good working relations and for the general good of the undertaking.
25 Finally, such a situation is likely to deter employees in the part-time category, in which the proportion of women is undeniably preponderant, from serving on staff councils or from acquiring the knowledge needed in order to serve on them, thus making it more difficult for that category of worker to be represented by qualified staff council members.
26 To that extent, the difference of treatment in question cannot be regarded as justified by objective factors unrelated to any discrimination on grounds of sex, unless the Member State concerned proves the contrary before the national court.
27 The reply to be given to the national court must therefore be that Article 119 of the Treaty and Council Directive 75/117/EEC preclude national legislation applicable to a much greater number of women than men from limiting to their individual working hours the compensation, in the form of paid leave or overtime pay, which staff council members employed on a part-time basis are to receive from their employer for attending training courses which impart the knowledge necessary for working on staff councils and are held during the full-time working hours applicable in the undertaking but which exceed their own part-time working hours, when staff council members employed on a full-time basis are compensated for attendance of the same courses on the basis of full-time working hours. It remains open to the Member State to prove that such legislation is justified by objective factors unrelated to any discrimination on grounds of sex.