Judgment of the Court (Sixth Chamber) 15 December 1994
In Joined Cases C-399/92, C-409/92, C-425/92, C-34/93, C-50/93 and C-78/93, REFERENCE to the Court under Article 177 of the EEC Treaty by the Landesarbeitsgericht Hamm (C-399/92), the Arbeitsgericht Hamburg (C-409/92 and C-425/92), the Arbeitsgericht Bochum (C-34/93), the Arbeitsgericht Elmshorn (C-50/93) and the Arbeitsgericht Neumünster (C-78/93) for a preliminary ruling in the proceedings pending before those courts between
THE COURT (Sixth Chamber), composed of: F. A. Schockweiler, President of the Chamber, P. J. G. Kapteyn, G. F. Mancini, C. N. Kakouris and J. L. Murray (Rapporteur), Judges, Advocate General: M. Darmon, Registrar: H. A. Rühi, Principal Administrator,
after considering the written observations submitted on behalf of: Elke Herzog (Case C-425/92), by Max Gussone, the person responsible for such matters at the Gewerkschaft Öffentliche Dienste, Transport und Verkehr, Bezirksverwaltung Hamburg, the Arbeiter-Samariter-Bund Landesverband Hamburg eV (Case C-425/92), by Tay Eich, Rechtsanwalt, Hamburg, the Bundesknappschaft Bochum (Case C-34/93), by U. Bielefeld, Rechtsanwalt, Hamm, Ursula Ludewig (Case C-78/93), by Dorothea Goergens, Rechtsanwalt, Hamburg, Kreis Segeberg (Case C-78/93), by Gerion Mihr, Adviser to the Kreisausschuß, the Commission of the European Communities, by Karen Banks, of its Legal Service, and Horstpeter Kreppel, a German civil servant seconded to the Commission's Legal Service, acting as Agents (Cases C-399/92, C-409/92, C-425/92, C-34/93, C-50/93 and C-78/93), the German Government, by Ernst Röder, Ministerialrat at the Federal Ministry of the Economy, and Claus-Dieter Quassowski, Regierungsdirektor at the same Ministry, acting as Agents (Cases C-399/92, C-409/92, C-425/92, C-34/93, C-50/93 and C-78/93), the French Government, by Claude Chavance, Principal Attache in Central Administration at the Ministry of Foreign Affairs, and Jean-Pierre Puissochet, Director of Legal Affairs at the Ministry of Foreign Affairs, acting as Agents (Case C-78/93), the Greek Government, by Nikolaos Mavrikas, Assistant Legal Adviser at the State Legal Council, and Kyriaki Grigoriou, legal assistant at the State Legal Council (Case C-399/92), Fokionas Georgakopoulos, Assistant Legal Adviser at the State Legal Council (Case C-409/92), Dimitrios Raptis, State Legal Adviser (Case C-425/92), Vassileios Kondolaimos, Assistant Legal Adviser at the State Legal Council, and Maria Basdeki, legal assistant at the State Legal Council (Case C-34/93), acting as Agents, the United Kingdom, by S. Lucinda Hudson, Treasury Solicitor, and David Pannick, Barrister (Cases C-399/92, C-409/92, C-425/92 and C-50/93), John Collins, Treasury Solicitor, and David Pannick, Barrister (Case C-34/93), and S. Lucinda Hudson, Treasury Solicitor (Case C-78/93), acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Elke Herzog; Dagmar Lange, represented by Max Gussone, the representative of the Gewerkschaft Öffentliche Dienste, Transport und Verkehr, ÖTV, Bezirksverwaltung Hamburg; Angelika Kussfeld, represented by Ute Lorenz, Rechtssekretärin of the DGB (Deutscher Gewerkschaftsbund), Düsseldorf; Detlef Bogdol GmbH, represented by Johannes Bungart, Rechtsanwalt, Bonn; Ursula Ludewig, the German Government, the Greek Government, the French Government, the United Kingdom and the Commission of the European Communities at the hearing on 10 March 1994,
after hearing the Opinion of the Advocate General at the sitting on 19 April 1994,
gives the following
Judgment
— In Case C-399/92:
— In Case C-409/92:
— In Case C-425/92:
— In Case C-34/93:
— In Case C-50/93:
— In Case C-78/93:
Jurisdiction of the Court
Whether there is discrimination prohibited by Article 119 of the Treaty and the directive
The other questions referred to the Court
Costs
1. By six orders of 22 October, 4 and 6 November and 18 December 1992, 21 January and 1 February 1993, the Landesarbeitsgericht Hamm, the Arbeitsgericht Hamburg, the Arbeitsgericht Elmshorn, the Arbeitsgericht Bochum and the Arbeitsgericht Neumünster referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a number of questions concerning the interpretation of 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 (OJ 1975 L 45, p. 19, hereinafter the directive)
2. The questions were raised in the course of proceedings between women working part-time and their employers. The women claim that they are entitled to overtime supplements for hours worked in addition to their individual working hours at the same rate as that applicable for overtime worked by fulltime employees in addition to normal working hours. Under the relevant collective agreements fulltime or part-time employees are entitled to overtime supplements only for time worked in addition to the ordinary working hours laid down by those agreements, but part-time employees are not entitled to the supplements for hours they work over and above their individual working hours.
3. The applicants in the main proceedings consider that the relevant provisions of the collective agreements discriminate against them in breach of Article 119 of the EEC Treaty and the directive by restricting overtime supplements to overtime worked in excess of the normal working hours.
4. The national courts consider that the proceedings raise questions regarding the interpretation of Community law and therefore decided to refer the following questions to the Court of Justice for a preliminary ruling:
5. By two orders of 5 March and 15 July 1993 made in accordance with Article 43 of the Rules of Procedure the Court joined Cases C-399/92, C-409/92, C-425/92 and C-34/93, and Cases C-50/93 and C-78/93, for the purposes of the oral procedure and the judgment.
6. The defendant in the main proceedings in Case C-78/93 submits that the reference for a preliminary ruling is inadmissible because even if the provisions are incompatible with Article 119 of the EEC Treaty the plaintiff in the main proceedings could not obtain payment of the overtime supplements she seeks: were the national court to annul the contested provisions the result would be a legal vacuum which could not be filled by the Court of Justice, which would be unable to ascertain how the parties would have settled the matter had they been aware of the alleged breach of Community law.
7. The Court notes that by virtue of Article 177 of the EEC Treaty whenever a question concerning the interpretation of the Treaty or of acts of the institutions of the Community based thereon is raised before a court or tribunal of a Member State that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.
8. As regards references for preliminary rulings the national court, which alone has direct knowledge of the facts of the case, is best placed to appreciate in the light of the circumstances of the case the necessity of obtaining a preliminary ruling before it gives judgment (Case 83/78 Pigs Marketing Board [1978] ECR 2347 and Case C-186/90 Duńghello [1991] ECR I-5773).
9. Consequently, provided that the questions raised by the national court or tribunal have to do with the interpretation of a provision of Community law the Court of Justice is, in principle, bound to rule (see Case C-231/89 Gmurzynska [1990] ECR I-4003, paragraph 20).
10. In these proceedings, both the questions raised in Case C-78/93 and those raised in Cases C-399/92, C-409/92, C-425/92, C-34/93 and C-50/93 are undoubtedly germane to the disputes before the German courts.
11. Accordingly, the Court of Justice cannot refuse to supply those courts with the elements of Community law they seek on the basis of the argument that should they annul the relevant provisions the result might be a legal vacuum.
12. As regards the existence of this legal vacuum, it should be noted at the outset that the prohibition on discrimination between men and women at work is mandatory and therefore applies not only to public authorities but also to any agreement which seeks to govern employment in a collective fashion as well as to contracts between individuals (Case 43/75 Defrenne [1976] ECR 455). Moreover, Article 119 is sufficiently precise to be relied upon before the national courts by individuals seeking to have set aside any provision of national law, including if necessary a collective agreement, which proves to be incompatible with that article (Defrenne, cited above).
13. As the Court emphasized in Case C-33/89 Kowalska [1990] ECR I-2591, if the national courts set aside the provisions of a collective agreement because they are incompatible with Article 119 of the Treaty the category of persons discriminated against are entitled to enjoy thenceforth the benefit of the provisions applicable to other workers, in proportion to their working hours.
14. Consequently, contrary to the submissions of the defendant in the main action in Case C-78/93, the annulment of such provisions by the national courts would not create a legal vacuum.
15. In the light of those considerations the Court is bound to rule on the questions referred.
16. The national courts first query the compatibility with Article 119 of the Treaty and with the directive of provisions in collective agreements which provide for the payment of overtime supplements only for hours worked in excess of the normal working hours fixed by those agreements (that is to say, the working hours of the fulltime employee) and which exclude any overtime supplement for part-time employees for hours worked in excess of their individual working hours if those hours do not exceed the number determined by those agreements.
17. The Commission and the plaintiffs in the main actions submit that collective agreements, like statutory and administrative provisions, are subject to the principle of nondiscrimination laid down in Article 119 of the Treaty, which prohibits the application of any provision which, though formulated and applied in a manner which does not discriminate between men and women, entails de facto indirect discrimination because it places many more women than men at a disadvantage as a result of the fact that part-time employees are predominantly women.
18. As the Court has already had occasion to recall in the context of the issue of admissibility, it has been established that by reason of its mandatory character Article 119 of the Treaty must be applied not only to statutory and administrative provisions but also to collective agreements and individual employment contracts.
19. Article 119 of the Treaty lays down the principle of equal pay for men and women for equal work. Article 1 of the directive states that that principle means, for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration. As the Court emphasized in Case 96/80 Jenkins [1981] ECR 911, Article 1 is principally designed to facilitate the practical application of the principle of equal pay outlined in Article 119 of the Treaty, but in no way alters the content or scope of that principle as defined in the latter article.
20. The principle of equal pay excludes not only the application of provisions leading to direct sex discrimination, but also the application of provisions which maintain different treatment between men and women at work as a result of the application of criteria not based on sex where those differences of treatment are not attributable to objective factors unrelated to sex discrimination.
21. It is common ground that the provisions criticized by the Commission and the plaintiffs in the main actions do not entail direct sex discrimination.
22. It must therefore be considered whether those provisions may constitute indirect discrimination incompatible with Article 119 of the Treaty.
23. To that end it must be determined whether they establish different treatment for fulltime and part-time employees and whether that difference affects considerably more women than men.
24. That is the nature of the review traditionally exercised by the Court of Justice in this area (see inter alia Kowalska, cited above, and Case 170/84 Bilka [1986] ECR 1607).
25. Only if those two questions are answered in the affirmative does the question arise of the existence of objective factors unrelated to discrimination which may justify such a difference in treatment.
26. There is unequal treatment wherever the overall pay of fulltime employees is higher than that of part-time employees for the same number of hours worked on the basis of an employment relationship.
27. In the circumstances considered in these proceedings, part-time employees do receive the same overall pay as fulltime employees for the same number of hours worked.
28. A part-time employee whose contractual working hours are 18 receives, if he works 19 hours, the same overall pay as a fulltime employee who works 19 hours.
29. Part-time employees also receive the same overall pay as fulltime employees if they work more than the normal working hours fixed by the collective agreements because on doing so they become entitled to overtime supplements.
30. Consequently, the provisions at issue do not give rise to different treatment as between part-time and fulltime employees and there is therefore no discrimination incompatible with Article 119 of the Treaty and Article 1 of the directive.
31. It must therefore be stated in reply to the first question that Article 119 of the EEC Treaty and Article 1 of 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 does not prevent collective agreements from restricting payment of overtime supplements to cases where the normal working hours fixed by them for fulltime employees are exceeded.
32. In the light of the reply to the first question it is not necessary to reply to the questions concerning the existence of objective factors unrelated to discrimination based on sex capable of justifying different treatment or the appropriate method of calculating supplements to which part-time employees would be entitled.
33. The costs incurred by the German, French and Greek Governments and by the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
On those grounds, THE COURT (Sixth Chamber), in answer to the questions referred to it by the Landesarbeitsgericht Hamm, the Arbeitsgericht Hamburg, the Arbeitsgericht Elmshorn, the Arbeitsgericht Bochum and the Arbeitsgericht Neumünster by orders of 22 October 1992 (Case C-399/92), 4 November 1992 (Case C-425/92), 6 November 1992 (Case C-409/92), 18 December 1992 (Case C-50/93), 21 January 1993 (Case C-34/93) and 1 February 1993 (Case C-78/93), hereby rules:
1 Language of the case: German.