Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

The proceedings before us today arise out of a reference by the Arbeitsgericht Oldenburg and concern the interpretation 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.

The facts of the case to which that directive is to be applied are as follows.

The plaintiff in the main proceedings is a skilled worker in the printshop operated by the defendant in the main proceedings. According to the Arbeitsgericht's order, she operates a simple folding machine, which she adjusts herself, and several smaller machines. Her duties also include the packing of prospectuses and forms ready for dispatch. In the plaintiff's view, work with the folding machine occupies 30 to 50% of her working hours. She says that she also adjusts the smaller machines herself and that some of the parcels she has to pack weigh well over 20 kg. In the proceedings before the national court, however, the defendant has asserted that the plaintiff works only 10% of the time on the folding machine and 20% of the time on the smaller machines. According to the defendant, the adjustment of the smaller machine is not done by the plaintiff, 70% of the plaintiff's duties are so-called sedentary work and the parcels packed by her weigh no more than one kilogram.

The employment relationship is governed by the framework wage agreement entered into on 6 July 1984 between the Bundesverband Druck eV and the trade union for the printing and paper industry, on which individual rights could be based as from 1 October 1984. The agreement contains a description of wage groups, the criteria for which, according to the order for reference, are not to be understood as being cumulative in all cases. Wage Group III (according to which the plaintiff is paid) covers

Wage Group IV covers

Considerable assistance in the interpretation of the framework wage agreement is afforded by the examples given in the annex to the agreement, according to which the following activities, inter alia, fall under Wage Group IV:

It must also be borne in mind, according to the order for reference, that where an employee performs several activities, his wage classification should be made according to the main activity.

The plaintiff takes the view that if the wage agreement were correctly interpreted and applied in the light of the principle of equal treatment she should have been paid in accordance with Wage Group IV since 1 October 1984; she has therefore brought a claim for the difference between that wage and her actual wage. The defendant does not consider that justified. It takes the view that the plaintiff's job involves only slight demand on the muscles, so that she should in fact be paid in accordance with Wage Group II, which covers activities which place a slight to moderate demand on the muscles.

The Arbeitsgericht has misgivings, first of all, as to whether the framework wage agreement is compatible with Directive 75/117, Article 1 of which provides that:

Those misgivings arise from the fact that the agreement refers to criteria such as demand on the muscles, muscular effort and heavy work. According to the Arbeitsgericht, in practice reference is made only to significant expenditure of energy, typical of men's work, and to the use of large muscle groups (in determining demand on the muscles) or, with regard to the more general concept of heavy work, to the level of demand on muscles. In general women are less able to meet such criteria, since their muscle power is lower, and those criteria might therefore be discriminatory for the purposes of the directive referred to above.

Leaving aside the question of compatibility, the problem arises whether the directive requires a particular interpretation of the framework wage agreement with regard to the question on what performance, that of men or that of women, such criteria should be based. Of the four possible standards — male values for all jobs; male values for male employees and female values for female employees; average values; female values for all jobs — the first two, in the view of the Arbeitsgericht, may be ruled out as incompatible with the principle of equal pay for men and women. The Arbeitsgericht considers that the fourth possibility gives women a better chance of earning the same as men and therefore inclines toward that interpretation as a means of avoiding discrimination.

Finally, the Arbeitsgericht states that when it is not expressly laid down in wage agreements that the performance of women is to be taken as a standard, the general practice is to refer to that of men. In a case in which it is not made clear that reference should be made to the performance of women, it may therefore be appropriate to hold that such agreements are incompatible with the principles laid down in the directive.

The Arbeitsgericht was not itself able to draw reliable conclusions from Community law by an order made on the basis of the hearing of 25 June 1985, registered at the Court of Justice on 31 July 1985, it stayed the proceedings and referred the following questions to the Court for a preliminary ruling under Article 177 of the EEC Treaty:

Observations were submitted by the defendant in the main proceedings, the United Kingdom and the Commission of the European Communities. I shall discuss those observations in Part B.

In my view the following remarks are appropriate.

1. Let me refer first of all to two judgments of the Bundesarbeitsgericht [Federal Labour Court] of 17 April 1985, sent to us by that court, which throw light on the question what the practice in the Federal Republic of Germany with regard to such assessment criteria now is and what it will become in the future under the influence of the Bundesarbeitsgericht's decisions. That is relevant because, as we have seen, the Arbeitsgericht is concerned with such considerations drawn from the practice of other courts. It is not clear from the documents before the Court whether or not the Arbeitsgericht was aware of those judgments. I shall therefore summarize their content.

2. Turning now to the Question (1) posed by the Arbeitsgericht, whether Council Directive 75/117 prohibits the making of distinctions in job classification systems according to the heaviness of the work and its demands on muscles, it will be recalled first of all that according to the defendant in the main proceedings that question should be answered in the negative. It takes the view that the needs of industry require such criteria; otherwise the wage structure would be unfair. It emphasizes, however, that the application of such criteria cannot be restricted to certain types of muscular demands; the muscular demand associated with work performed in a standing position and work with the fingers must also be taken into account.

3. In Question (2) the Arbeitsgericht wishes to know whether the view to which it inclines is correct: that is to say, whether it follows from the directive that in deciding to what extent a job makes demands on the muscles and whether or not it is heavy, reference must be made to whether or not that is the case for women.

4. If it is desired to go on to consider Question (3) (I need not repeat it here), which was raised only in the event that an affirmative answer should be given to Question (2), I can but adopt the position proposed by the Commission.

In view of all the foregoing, I propose that the Court reply to the questions referred by the Arbeitsgericht Oldenburg in the following manner:

1 Translated from the German.

2 Emphasis added.

3 See above, at p 2104.