Opinion of Mr Advocate General Darmon
Mr President,
Members of the Court,
1. By order of 5 June 1984 the Bundesarbeitsgericht [Federal Labour Court] referred the following questions to the Court for a preliminary ruling:
2. The defendant and appellant in the main proceedings, Bilka-Kaufhaus GmbH (hereinafter referred to as Bilka), is part of a chain of department stores in the Federal Republic of Germany, the Hertie group, which employs several thousand people.
3. The question of indirect discrimination against female workers was raised by the Bundesarbeitsgericht in an earlier appeal on a point of law [Revision] in this case. The Landesarbeitsgericht [Higher Labour Court] to which the case was remitted upheld the respondent's claim, but did so on the ground that the agreement of 26 October 1973 had reinstated part-time employees in the pension scheme to a limited extent, and that it was arbitrary to use a reference date (30 September 1966) which resulted in discrimination against fulltime employees who only later began to work part-time. It held, however, that there had been no breach of the principle of equal treatment or of the principle of equal pay for men and women.
4. It considered that according to the judgment of the Court of 11 March 1981 in Woningham and Humphreys v Lloyds Bank Ltd (Case 69/80 [1981] ECR 767) retirement benefits constitute paywithin the meaning of the second paragraph of Article 119 of the EEC Treaty. It then analysed the facts of the case with reference to the judgment of the Court in the Jenkins case, referring first of all to paragraph 13 of the decision which reads as follows:
5. In its written and oral observations the United Kingdom raises a preliminary issue. It argues that neither the conditions of access to a pension scheme nor the benefits paid under such a scheme come within the scope of Article 119.
6. Only the Commission has submitted argument on the problems raised by the conditions of access to the retirement benefits in question and their legal nature.
7. Let me deal first with this preliminary issue.
8. In the respondent's view, the Jenkins judgment implies that no distinction should be made between directand indirectdiscrimination. In this case the company staff structure is sufficient to show that discrimination exists. Part-time work consolidates the traditional division of rôles between men and women, without making women economically independent. It is thus, she says, a manifestation of the conflict inherent in the situation faced by women: home and family on the one hand, employment on the other. Furthermore, in the present economic circumstances it encourages the employment of men in fulltime positions.
9. Bilka argues that before 1977 labour was scarce, especially in the retail trade, where working hours, particularly in the late afternoon and on Saturdays, were unattractive to jobseekers. It was therefore necessary to give preference to the employment of fulltime workers. That preference, which did not depend on the worker's sex, should be regarded as an objectively justified economic reason of the kind referred to in paragraph 12 of the decision in Jenkins.
10. At the hearing the United Kingdom made an alternative submission regarding the question of possible indirectdiscrimination, arguing that the judgment in Jenkins clearly states that Article 119 applies only where there is an element of intention. Intention may be inferred from the absence of any other plausible reason for the contested measure. It cannot be inferred from the fact that the result expected was not achieved, or even from the existence of another way of achieving it. That is, the Court cannot step into the shoes of the employer in assessing his choice of business policy.
11. Referring to paragraphs 10 and 11 of the decision in Jenkins, the Commission considers that the terms covert discriminationand indirect discriminationused by the Bundesarbeitsgericht are not particularly useful in defining the scope of the principles laid down by the Court in previous cases.
12. In the second Dejrenne judgment the Court held that
13. However that issue may be resolved, the Bundesarbeitsgericht must examine the contested measure taken by Bilka, taking into account the particular composition of that company's part-time staff.
14. Question 2 (b) requires little discussion. Whatever the merits and importance of initiatives in this area, an employer cannot be required to take over the rôle of the authorities in constructing a pension scheme which will compensate for the special difficulties faced by workers who have family responsibilities. Article 119 lays positive duties only on the Member States and not on commercial undertakings, which are subject, within the limits described above, only to an obligation not to discriminate.
15. Having regard to the foregoing, I propose that the Court give the following answers to the questions referred to it by the Bundesarbeitsgericht:
1 Translated from the French.