Opinion of Advocate General Lenz delivered on 14 July 1993
1 Original language: German
2 Sec the Report for the Hearing at p. I-5540 et seq.
3 Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member Stales relating to the application of the principle of equal pav for men and women (OJ 1975 1. 45, p. 19).
4 Case 96/80 Jenkim v Kingsgate [1981] ECR 911. at para graph 22.
5 Case 83/78 Pigs Marketing Board [1978] ECR 2347; Case 283/81 Cilfit [1982] ECR 3415.
6 Case 231/89 Gmitrzynska-Bseber [1990] ECR I-4003, at paragraph 15 et seq.
7 Judgment of 26 January 1993 in Joined Cases C-320/90, C-321/90 and C-322/90 Telemarsicabruzzo [1993] ECR I-393, at paragraph 6.
8 See the Report for the Hearing, p. 4.
9 Opinion in Case 109/88 Handels- og Kontorfunkdonaeremes Forbund i Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss [1989] ECR3209, point 25 et seq.
10 See in particular Article I of Directive 75/117 and Article 2 of Council Directive 76/207 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).
11 In the Court's earlier case-law it was at least doubtful whether both direct and indirect discrimination fell directly within the scope of Article 119 of the EEC Treaty- See the judgment in Case 43/75 Defrenne [1976] ECR 455, at para graph 23, and Case 129/75 Macarthys [1980] ECR 1275, at paragraph 15. Since the judgments in Case 69/80 Wor ringhimi and Humphreys v Lloyds Bank [1981] ECR 767, at paragraph 23, and Case 96/80 Jenkins v Kingsgate [1981] ECR 911, at paragraph 17, the Court has regarded indirect discrimination as being expressly caught by Article 119 of the EEC Treaty.
12 On the obligation as to the result to be achieved laid down in Article 119 of the EEC Treaty, see the judgment in Case 43/75 De/renne, cited above; judgment in Case 171/88 Rinner Kuhn [1989] ECR 2743, at paragraph 9, and the case law on indirect discrimination in general: Case 96/80 Jen kins, cited above; Case 170/84 Buka v Weber von Hartz [1986] ECR 1607; Case C 33/89 Koualska [1990' ECR 1 2591; Case C 184/89 Nunz [1991] ECR I 297 and Case C 360/90 Botel [1992] ECR I 3591
13 In cases of direct discrimination on the basis of the criterion of sex the requirement for a male comparator to be adduced may even not apply. Sec judgment in Case C-177/88 Dekker [1990] ECR I-3941, at paragraph 17 et seq.
14 On the permissible distinctions in rates of pay and on a non-discriminatory arrangement of the pay-rate classification system, see the judgment in Case 237/85 Rummler v Dato-Druck [1986] ECR 2101, at paragraph 24 et seq.
15 Case 237/85 (Rummler, cited above, at paragraph 11 et seq.).
16 Case 61/86 Commission v United Kingdom [1982] ECR 2601 and Case 143/83 Commission v Denmark [1985] ECR 427.
17 See point 19 above.
18 This is the position adopted by the United Kingdom and the defendant in these proceedings.
19 Case 96/80 Jenkins, cited above; Case 170/84 Bilka, cited above; Case 171/88 Rinner-Kubn, cited above; Case C-33/89 Kowalska, cited above; Case C-184/89 Nimz, cited above, and Case C-360/90 Botel, cited above.
20 Case 170/84 Bilka, cited above, at paragraph 29; a substantivelv similar approach was set out in Case 96/80 Jenkins, cited above, at paragraph 13; see also judgment in Case 360/90 Bötel, cited above, at paragraph 18, with reference to the judgment in Case 171/88 Rinner-Kuhn, cited above.
21 On the obligation as to the result to be achieved, sec judgment in Case 43/75 Defrenne, cited above, and Case 171/88 Rinner-Kühn, cited above, at paragraph 9.
22 Case 171/88 Rinner-Kühn, cited above.
23 Case 96/80 Jenkins, cited above, at paragraph 13; Case 170/84 Bilka, cited above, at paragraph 31; Case 171/88 Rmner-Ktihn, cited above, at paragraph 12; Case C-33/89 Kowalska, cited above, at paragraph 13; Case C-184/89 Nimz, cited above, at paragraph 14, and Case C-360/90 Botel, cited above, at paragraph 21.
24 Case 170/84 Bilka, cited above.
25 Case 96/80 Jenkins, cited above, at paragraph 13; Case 170/84 Bilka, cited above, at paragraph 29.
26 Case 171/88 Rinner-Kuhn, cited above; Case C-360/90 Sole/, cited above.
27 Case 43/75 Defrenne, cited above, at paragraph 39.
28 Case 43/75 Defrenne, cited above; Case C-33/89 Kowalska, cited above, at paragraph 12. Sec Article 4 of Directive 75/117; see also Article 5 of Directive 76/207 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).
29 Case 143/83 Commission v Denmark, cited above, on the relevant provisions of Directive 75/117; Case 165/82 Commission v United Kingdom [1983] ECR 3431, at paragraph 11, and Case 312/86 Commission v France [1988] ECR 6315, at paragraph 23, on the relevant provisions of Directive 76/207; Case 109/88 Danfoss, cited above; Case C-33/89 Kowalska, cited above, and Case C-184/89 Nimz, cited above.
30 Opinion in Case 109/89 Danfoss, cited above, at point 46.
31 Case 43/75 Defrenne, cited above; Case 171/88 Rinner-Kühn, cited above.
32 Case 170/84 Bilka, cited above, at paragraph 31.
33 The plaintiffs contention; also reproduced in the judgment of the Court of Appeal preceding the reference for a preliminary ruling (Annex 2 to the plaintiffs written observations, at p. 32).
34 Case 129/79 Macarthys, cited above, at paragraph 15.
35 Case 129/79 Macarthys, cited above.