Nimz v Freie und Hansestadt Hamburg
I — Relevant Community Law
Article 1 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 states that:
Article 4 of that directive provides that:
Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40) stipulates in Article 1 that:
while Article 3 provides that:
II — Facts and procedure
Mrs Helga Nimz, the plaintiff in the main proceedings (hereinafter referred to as the plaintiff), has been employed since 1 January 1977 in the public service of the Freie und Hansestadt Hamburg, the defendant in the main proceedings (hereinafter referred to as the defendant). The employment relationship in question is governed by the Collective Wage Agreement for Federal Employees (Bundesangestelltentarifvertrag, hereinafter referred to as the BAT). Since 1 January 1983, the plaintiff has worked 20 hours a week and has been classified in salary grade V b, case 1 a, of the BAT. On completion of a probationary period of six years, staff coming within that salary grade are reclassified in the next higher salary grade, that is to say, grade IV b, case 2, of the BAT.
Point 6 of Paragraph 23 a of the BAT, in the version in force until 31 December 1987, provided as follows:
The parties to the BAT amended Point 6 of Paragraph 23 a with effect from 1 January 1988. That provision now reads as follows:
By letter of 28 January 1988, the plaintiff asked to be reclassified in grade IV b, case 2, of the BAT. The defendant, by letter of 28 January 1988, refused to classify her in the higher salary grade and referred to Paragraph 23 a of the BAT, in the version in force until 31 December 1987.
The proportion of women among public service staff in the Federal Republic of Germany who work on a part-time basis is appreciably greater than that of women working full time. Women make up approximately 55% of full-time staff and 77.3% of pan-time staff in what may be referred to as the public service. Among pan-time staff working 20 or more hours per week, the proportion of women reaches 90.2%.
As she believed that she had been the victim of discrimination against women, Mrs Nimz applied to the Arbeitsgericht Hamburg for a declaration that the defendant was under a duty to pay her according to salary grade IV b, case 2, of the BAT with effect from 1 January 1989. She submits in particular that the fact that full-time employees can be reclassified in the next higher salary grade after a qualifying period of six years, while employees working for three-quarters or less of the normal working hours must wait 12 years in order to qualify for the same salary increase, amounts to indirect discrimination against women in breach of, inter alia, Article 119 of the EEC Treaty. The national court took the view that the application raised problems concerning the interpretation of Community law and it therefore decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:
The national court believes that the effect of the contested provisions of the BAT is that employees whose working hours are less than three-quarters of the normal working hours are paid proportionately less than a full-time employee. Those provisions, in its opinion, amount to indirect discrimination against women contrary to Article 119 of the Treaty, when account is t aken of the appreciably lower percentage of men than women who work part time in the German public service. Furthermore, the national court does not believe that there is any cogent reason why part-time and full-time employees should be treated differently. In view of the high number of part-time staff, it cannot accept that there is a particular need for public employers to accord preferential treatment to full-time staff. However, it is uncertain as to whether the existence of indirect discrimination means that part-time staff are entitled in law to a particular salary or whether the autonomy enjoyed by parties to collective wage agreements precludes it from filling the legal lacuna which results from the incompatibility of the collective wage agreement with Community law.
The order for reference from the Arbeitsgericht Hamburg was received at the Court Registry on 25 May 1989.
In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community, written observations were submitted by the plaintiff in the main proceedings, represented by Klaus Bertelsmann, Rechtsanwalt, Hamburg, and by Professor Heide Pfarr; by the defendant in the main proceedings, represented by Wolfgang Scheer and Rolf Stahmer, Rechtsanwälte, Hamburg; by the German Government, represented by Ernst Roder, Regierungsdirektor in the Federal Ministry of Economic Affairs; by the United Kingdom, represented by Mr. Hussein A. Kaya, of the Treasury Solicitor's Department, acting as Agent; and by the Commission of the European Communities, represented bv Karen Banks, a Member of its Legal Department, acting as Agent, assisted by Elisabeth Hoffmann, of the Brussels Bar.
Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the- Court decided to open the oral procedure without any preparatory inquiry. B\decision of the Court of 22 May 1990, the case was assigned to the Sixth Chamber.
III — Written observations submitted to the Court
The first question
The plaintiff in the main proceedings submits that part-time employees were paid the same hourly wage for the same work as a full-time employee until the end of the sixth year of service; from the seventh year until the end of the twelfth year, however, hourly pay for part-time employees was less than that for full-time employees. The plaintiff claims essentially that the doubling of the qualifying period which part-time employees must complete in order to gain promotion constitutes indirect discrimination against women, in view of the much higher proportion of women who are affected thereby When account is taken of the difficulties which prevent women from working on a full-time basis, the doubling of the disputed period to be completed prior to promotion cannot be justified by factors which arc in no way connected with discrimination based on sex. There are no reasons which objectively justify the unfavourable treatment suffered by part-time employees by virtue of the aforementioned doubling of the period which must be completed prior to promotion.
The defendant in the main proceedings believes that the real question at issue is whether the provision in the collective wage agreement in question can be justified objectively; that is a question which, in its view, falls within the exclusive competence of the national court. In the alternative, it points out in that regard that the procedure for promotion to the next higher salary grade on completion of a qualifying period enables an employee who has satisfactorily performed his or her duties over a given period to be classified in the next higher salary grade. By doubling the qualifying period for part-time employees who worked for only half of the normal working hours, Point 6 of Paragraph 23 a of the BAT, in its old version, took account in this connection of the differences arising from the considerable discrepancy between the actual work-load of employees working half-time and that of employees working on a full-time basis. The system was therefore based on factors which had nothing whatever to do with discrimination based on sex.
The parties to the BAT collective wage agreement had as their point of departure the principle laid down in Paragraph 23 a of the BAT in connection with the system under which promotion to the next higher salary grade is granted on completion of a qualifying period, that an employee acquires through time, in the course of the tasks to which he or she is assigned, abilities and skills which increase his or her personal qualifications and which justify that employee being reclassified in the next higher salary grade.
Promotion to the next higher salary grade on completion of a qualifying period is thus designed to accord recognition to more extensive and greater experience. The material justification for higher pay on completion of the qualifying period in the case of full-time employees, as opposed to part-time employees, therefore lies in the additional experience acquired during that qualifying period.
As a preliminary point, the Commission submits that there is an appreciable difference between the hourly wage rate of staff who work at least three-quarters of the normal working time and those who work less than that amount; that is a difference which results directly from the classification made in accordance with the rules relating to seniority in the collective wage agreement. Such a system of quasi-automatic classification of pay on the basis of seniority, unlike conditions of employment which have no more than an indirect connection with pay as such (see the judgment of 15 June 1978 in Case 149/77 Defrenne III [1978] ECR 1365), comes within the concept of pay under Article 119 of the EEC Treaty. The system in the present case is not a classical system of promotion, based on competition among employees and on subjective factors, such as to be governed by Directive 76/207; that directive should be used only in cases of promotion within the true meaning of the term, and in any other case whose complexity precludes the application of Article 119.
In any event, the contention that it would be contradictory to apply Article 119 in the present case, even though Directive 76/207 may also be applied, is without foundation. The Commission stresses that even though such a directive may supplement specific provisions of the Treaty, it cannot restrict the scope of the basic legal rules.
In the alternative, the Commission suggests that Article 3(1) of Directive 76/207 might be applied to the present case. That provision may be relied upon by the plaintiff against the State which is party to the collective wage agreement; in practice, this would have the same result as the application of Article 119.
The Commission goes on to state that the autonomy of management and labour in negotiating collective wage agreements is restricted by the fundamental principle that there should be no discrimination based on sex. In support of its view that Article 119 of the EEC Treaty applies to collective wage agreements, the Commission refers in particular to the judgment delivered in Defrenne II (judgment of 8 April 1976 in Case 43/75 [1976] ECR 455).
On the basis of the case-law of the Court, the Commission believes that the provision in question may potentially constitute indirect discrimination based on the sex of employees, as prohibited under Article 119, and that in the present case the defendant, who bears the onus of proving that such discrimination is objectively justified, has failed to do so. Point 1 of Paragraph 23 a of the BAT provides that the qualifying period may be deemed to have been properly completed if the member of staff has, during that period, proved capable of coping with the requirements connected with the performance of the tasks to which he or she has been assigned. That provision thus lays down the conditions which must be satisfied, during a period determined by other articles in the BAT, in order to gain promotion to a higher salary grade, bearing in mind the fact that there is a consistent standard to be met in the work carried out, which, from the outset, requires of a part-time employee the same abilities as of a full-time employee engaged in the same type of work and which does not mention knowledge gained through experience.
On the other hand, Point 1 of Paragraph 23 a lays down a requirement of suitability which must be satisfied by all members of staff from the time at which they begin their employment, even though part-time staff have available to them only a limited number of hours within which to prove their abilities. Since the attributes required do not obviously differ according to the length of time worked, in view of the fact that the tasks carried out are the same, the hourly rate of pay ought to be the same for all staff engaged in the same type of work, irrespective of their working hours. That implies that the conditions governing promotion to a higher salary grade should be the same for all employees in the same grade.
The Commission concludes by submitting that, in the absence of any objective justification, the first question referred by the national court ought to be answered in the affirmative.
In the view of the German Government, the case turns on the question of whether the disputed rules are objectively justified; that, it submits, is a question within the jurisdiction of the national court. However, the German Government draws attention to the fundamental principles of the wages system under the BAT; promotion to a higher grade is, strictly speaking, only possible if the employee concerned is carrying out an activity classified at a level higher than that of the activity in which he or she was previously engaged. Promotion on completion of a qualifying period represents an exception to that principle. However, even in the case of that exception, it is necessary on the basis of the principle that reclassification on a higher level should be justified by an increased importance in the work concerned. The distinction first drawn by the original version of Point 6 of Paragraph 23 a of the BAT between full-time employees and part-time employees does result in equal treatment in respect of the total period of work to be completed, since that period represents the precondition for classification in a higher grade, bearing in mind the experience gained during it.
In the view of the United Kingdom, there is no discrimination in the case of a qualifying period concerning promotion to a higher salary grade which is based on the length of service, if that period — expressed in years — reflects the actual length of service when calculated in hours. If that is not the case, the United Kingdom believes that this could constitute discrimination against part-time employees, unless the measure can be justified.
The second question
According to the plaintiff in the main proceedings, discrimination in cases where collective agreements infringe Community law must be removed in such a way that those people who have suffered discrimination may have the advantages which they would have enjoyed had it not been for such discrimination. In the present case, part-time employees are entitled to be classified in a higher grade on completion of the same qualifying period as full-time employees. She refers in particular to the judgments of 8 April 1976 in Case 43/75 (Defrenne v Sabena [1976] ECR 455), of 4 December 1986 in Case 71/85 (Netherlands v Federatie Nederlandse Vakbeweging [1986] ECR 3855), and of 24 June 1987 in Case 384/85 (Borrie Clarke v Chief Adjudication Officer [1987] ECR 2865).
On the other hand, the defendant in the main proceedings submits that it is always national law which determines in particular the effects which an infringement of rules of superior law by provisions in collective agreements might have in a case where, as in the present, the national legal system provides an adequate panoply of instruments to guarantee the direct and binding effect of European Community law.
In the alternative, it takes the view that it is not the function of courts or tribunals to supplement or replace provisions in collective agreements, since that would infringe the autonomy of parties to such agreements. It would be at variance with that autonomy for the Court to adopt a most-favoured category clause under which the category which has been the object of discrimination would be entitled in full to the advantage which the other category enjoys.
The Commission points out that according to the case-law of the Court the autonomy of parties to collective agreements is limited by the fundamental rule prohibiting discrimination contained in Article 119 of the Treaty, which is itself of direct effect. Article 119, as confirmed by Article 4 of Directive 75/117, obliges the Member State — which is also the employer party to the disputed collective agreement — to respect and maintain the principle of equal pay for men and women by taking, in particular, the necessary measures to ensure that provisions appearing in collective agreements, wage scales, wage agreements or individual contracts of employment which are contrary to the principle of equal pay shall be, or may be declared, null and void or may be amended.
In those circumstances, the national court which rules that there has been a breach of Article 119 of the Treaty ought to examine the existing collective agreement for those elements which make it possible to maintain the principle of equal pay in conjunction with that of the improvement of living and working conditions contained in Article 117 of the Treaty. In the present case, the Commission suggests that the national court should apply the basic rule relating to salary grade V b, case 1 a, which provides for a qualifying period of six years, and that it should set aside the rule relating to pan-time staff on the ground that it infringes the principle of equal pay in the Community; the proven discrimination can thus be set aside in a straightforward manner. It refers in this regard to the judgment of 8 March 1988 in Case 80/87 (Dik v College van Burgemeester en Wethouders [1988] ECR 1601).
The United Kingdom submits that the national court may determine that a provision of a collective agreement which infringes Article 119 is discriminatory. It refers to Article 4 of Directive 75/117, under which Member States are required to take the necessary measures to ensure that provisions appearing in inter alia collective agreements which are contrary to the principle of equal pay shall be, or may be declared, null and void or may be amended. If, therefore, there is discrimination covered by that article in every other way, the fact that the discriminatory provision applies by virtue of a collective agreement should make no difference.
IV — Question put by the Court
By a letter of 11 June 1990, the Court requested the German Government to provide figures of male and female staff in the German public service, including details of the hours worked per week by male employees and those worked by female employees.
The German Government replied as follows to the question put by the Court:
Staff employed in the public service in the Federal Republic of Germany
Federal State staff (not including railways and postal services)
1 Language of the case German