Instantie

Hof van Justitie EG

Samenvatting

Het Hof verklaart voor recht:
1. De aan een vrouwelijke of mannelijke werknemer toegekende compensatie
wegens deelneming in een bij de wet ingestelde personeelsvertegenwoordiging
vormt een beloning in de zin van artikel 119 EEG-verdrag en van richtlijn
75/117/EEG van de Raad van 10 februari 1975 betreffende het nader tot elkaar
brengen van de wetgevingen der Lid-Staten inzake de toepassing van het
beginsel van gelijke beloning van mannelijke en vrouwelijke werknemers.
2. Indien de groep van deeltijdwerknemers een veel groter aantal vrouwen dan
mannen telt, verzet het verbod van indirecte discriminatie op het gebied van
de beloning, zoals vervat in artikel 119 van het Verdrag en in richtlijn
75/117, zich tegen een nationale wettelijke regeling die, zonder geschikt en
noodzakelijk te zijn ter verwezenlijking van een legitieme doelstelling van
sociaal beleid, tot gevolg heeft dat de compensatie die in deeltijd werkzame
leden van de personeelsraad van hun werkgever moeten ontvangen bij deelneming
aan vormingscursussen waarbij de nodige kennis voor de werkzaamheid van de
personeelsraad wordt overgedragen en die tijdens de volle werktijd van de
onderneming georganiseerd worden, maar waarvan de duur de individuele
werktijd van deze deeltijdwerknemers overschrijdt, wordt beperkt tot hun
individuele werktijd, terwijl de voor de volle tijd werkzame leden van de
personeelsraad bij deelneming aan dezelfde cursussen een compensatie
ontvangen overeenkomend met hun werktijd.

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1. By order of 5 May 1993, received at the Court on 14 May 1993, the
Arbeitsgericht Bremen (Bremen Labour Court) referred to the Court for a
preliminary ruling under Article 177 of the EEC Treaty three questions on the
interpretation of Article 119 of the EEC Treaty and 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 (OJ 1975 L 45, p. 19, hereinafter `the Directive’).
2. Those questions were raised in proceedings between Edith Freers and
Hannelore Speckmann (hereinafter `the plaintiffs’) and Deutsche Bundespost
(hereinafter `the defendant’) concerning compensation for the time spent by
the plaintiffs on a training course which was necessary for the performance
of their staff committee functions but which took place outside their
individual working hours.
3. The plaintiffs are employed part-time by the defendant for 18 hours a
week. As members of the staff committee (Personalrat), they attended a
training course from 9 to 14 February 1992 which lasted for approximately
38.5 hours, which are the weekly hours laid down for full-time employees in
the collective agreement.
4. During the training course the defendant continued to pay the plaintiffs
their normal wages calculated on the basis of their part-time work. Relying
on the German legislation, it did not, however, give them any additional pay,
nor did it offer them paid leave in respect of the time spent on the course
outside their normal working hours.
5. Staff committees in Federal administrative bodies, which include the
defendant, are subject to the Bundespersonalvertretungsgesetz (Law on Federal
staff representation, hereinafter `the BPersVG’) of 15 March 1974 (BGBI. I,
p. 693) in the version of 16 January 1991 (BGBI, I, p. 47).
6. Paragraph 46(1), (2), (5) and (6) of the BPersVG provides:
‘1. The members of the staff committee shall perform their function as an
unpaid honorary office.
2. Where it is necessary for the proper performance of staff committee
functions for members to miss working hours, this shall not entail any
reduction of salary or wages. If staff committee members are required to
spend longer than their normal working hours to perform their functions, they
shall be given corresponding time off.
…
5. Staff committee members who are entirely exempted from their work duties
shall receive a monthly compensation for the time spent. Members who are
partially so exempt, provided that it is for at least half of the normal
working hours, shall receive half of the compensation referred to in the
first sentence. The amount of the compensation shall be fixed by the Federal
Government by regulation which does not require the approval of the
Bundesrat.
6. The members of the staff committee are to be exempted from work duties,
without loss of pay, in order to attend training courses providing them with
the knowledge necessary for their staff committee functions.’
7. The wording of that provision is similar to that of Paragraph 37 of the
Betriebsverfassungsgesetz (Industrial Relations Law, hereinafter `the
BetrVG’) of 15 January 1972 (BGBI, I, p. 13) in the version of 23 December
1988 (BGBI, 1989, I. p. I, correction on p. 902), as amended by the law of 18
December 1989 (BGBI, I. p. 2386), relating to staff councils (Betriebsrat).
8. Paragraph 37(1), (2), (3) and (6) provides:
‘1. The member of the staff council shall perform their functions as an
unpaid honorary office.
2. Staff council members shall be released without loss of pay from their
employment obligations if and in so far as the size and nature of the
undertaking make such release necessary in order to perform their duties
properly.
3. As compensation for staff council work which, for reasons connected with
the undertaking, takes place outside working hours, staff council members
shall be entitled to a corresponding amount of paid leave. The leave shall be
granted within one month; if for reasons connected with the undertaking that
is not possible, the time spent shall be paid as overtime.
…
6. Subparagraph 2 shall apply mutatis mutandis to attendance at training
courses which provide knowledge necessary for the staff council’s work. The
staff council shall take account of the undertaking’s requirements in
determining the time for participation at training courses. It shall inform
the employer in good time of participation in and times of training courses.
If the employer considers that insufficient account has been taken of the
undertaking’s requirements, he can refer the matter to the conciliation body.
The conciliation body’s decision shall take the place of agreement between
the employer and the staff council.’
9. The order for reference indicates that Paragraph 46 of the BPersVG and
Paragraph 37 of the BetrVG have been interpreted by the Bundesarbeitsgericht
(Federal Labour Court) and the Bundesverwaltungsgericht (Federal
Administrative Court) as meaning that staff committee members and staff
council members are not entitled to paid leave and compensation for
attendance and training courses outside their normal working hours.
10. In Case C-360/90 Arbeiterwohlfahrt der Stadt Berlin v Bötel (1992) ECR
I-3589 the Court held that Article 119 of the Treaty and the Directive
preclude national legislation applicable to a much greater number of women
than men from limiting to their individual working hours the compensation, in
the form of paid leave or overtime pay, which staff council members employed
on a part-time basis are to receive from their employer for attending
training courses which impart the knowledge necessary for working on staff
councils and are held during the full-time working hours applicable in the
undertaking but which exceed their own part-time working hours, when staff
council members employed on a full-time basis are compensated for attendance
of the same courses on the basis of full-time working hours.
11. The Court stated, however, that it remains open to the Member State to
prove that such legislation is justified by objective factors unrelated to
any discrimination on grounds of sex.
12. The national court considers that the judgment in Bötel does not take
account of the special features of the system of staff committees in German
law and calls into question the principle of unpaid honorary office, which is
intended to guarantee the independence of staff committee members.
13. In those circumstances the Arbeitsgericht Bremen stayed the proceedings
and referred the following questions to the Court for a preliminary ruling:
‘1. Does the economic compensation accorded to a male or female employee in
respect of work on a statutorily established employee representation body
constitute pay within the meaning of the European provisions on equal pay for
men and women (Article 119 of the EEC Treaty and Council Directive 75/117/EEC
of 10 February 1975)?
2. If the answer to Question 1 is yes:
Does the fact that under national law work on an employee representation body
is unpaid, being governed essentially by the loss-of-pay principle
(Lohnausfallprinzip), constitute an objective ground for unequal treatment
which is in no way connected with discrimination against women?
3. If the answer to Question 2 is no:
Is it an objective ground for unequal treatment of this kind that whereas
part-time employees continue to receive pay in respect of their attendance at
an all-day training course only in accordance with their part-time working
hours, employees who normally work overtime are paid for that overtime even
if the duration of the training course corresponds to that of the normal
working day?’
Question 1
14. The German Government considers that the compensation referred to in the
provisions in question does not constitute pay within the meaning of Article
119 of the Treaty. Staff committee functions are performed on an unpaid
honorary basis and the compensation received is intended only to make good
the loss of earnings suffered by staff committee members when staff
representation functions or information or training courses needed for the
proper performance of those functions take place during working hours.
15. The German Government considers, moreover, that the fact that staff
representation functions are in the general interest of the employer is not
enough to give the compensation for those functions the character of pay. The
essence of the function of staff committee is to represent the staff.
16. It must be observed first of all that legal concepts and definition
established or laid down by national law cannot affect the interpretation of
binding force of Community law, or, consequently, the scope of the principle
of equal pay for men and women laid down in Article 119 of the Treaty and in
the Directive and developed by the Court’s case-law (see, most recently, Case
C-457/93 Kuratorium fur Dialyse und Nierentransplantation v Lewark (1996) ECR
0000, paragraph 20).
17. It is settled law that the concept of `pay’ within the meaning of Article
110 of the Treaty comprises any consideration, whether in cash or in kind,
whether immediate or future, provided that the worker receives it, albeit
indirectly, in respect of his employment from his employer, and irrespective
of whether the worker receives it under a contract of employment, by virtue
of legislative provisions of on a voluntary basis (see Lewark, paragraph 21,
and Case C-262/88 Barber v Guardian Royal Exchange Assurance Group (1990) ECR
1-1889, paragraph 12).
18. As the Court held in Bötel, paragraph 14, although compensation such as
that at issue in the main proceedings does not derive as such from the
contract of employment, it is nevertheless paid by the employer by virtue of
legislative provisions and under a contract of employment. Staff committee
members must necessarily be employees of the undertaking, to be able to serve
on that undertaking’s staff committee.
19. It follows that compensation received for loss of earnings due to
attendance at training courses imparting the information necessary for
performing staff committee functions must be regarded as pay within the
meaning of Article 119 and the Directive, since it constitutes a benefit paid
indirectly by the employer by reason of the existence of an employment
relationship.
20. Consequently, the compensation paid to a male or female worker for taking
part in statutory established staff representation constitutes pay within the
meaning of Article 119 of the Treaty and the Directive.
Questions 2 and 3.
21. By its second and third questions the national court essentially asks
whether Article 119 of the Treaty and the Directive preclude national
legislation which limits to their individual working hours the compensation
which staff committee members employed on a part-time basis are to receive
from their employer for attending training courses which impart the knowledge
necessary for serving on staff committees and are held during the full-time
working hours applicable in the undertaking but which exceed their individual
part-time working hours, when staff committee members employed on a full-time
basis receive compensation for attendance at the same courses on the basis of
their full-time working hours.
22. It must be observed first that the exclusion of part-time workers from
certain benefits is in principle contrary to Article 119 of the Treaty if it
is the case that a much higher proportion of women than men work part-time.
It would be otherwise only if the difference of treatment found to exist was
justified by objective factors unrelated to any discrimination based on sex.
23. The Court held in Bötel and Lewark, with reference to national provisions
similar to those at issue in the main proceedings, firstly that in principle
they caused discrimination against women workers, contrary to Article 119 of
the Treaty and the Directive, and secondly that it remained open to the
Member State to prove that the legislation was justified by objective factors
unrelated to any discrimination on grounds of sex.
24. It is settled law that although in preliminary-ruling proceedings it is
for the national court to establish whether such objective factors exist in
the particular case before it, the Court of Justice, which has to provide
answers of use to the national court, may provide guidance based on the
documents before the national court and on the written and oral observations
which have been submitted to it, in order to enable the national court to
give judgment (see inter alia, Case C-328/91 Secretary of State for Social
Security v Thomas and Others (1993) ECR 1-1247, paragraph 13).
25. The German Government observes that, if there were a difference of
treatment, it would be justified by the principle that staff committee
members are not paid, which is intended to ensure their independence. The
unpaid nature of staff committee functions and the principle that they must
not confer any benefit or entail any disadvantage have the purpose of
ensuring members `independence. They thus ensure that the decision to stand
for election to a staff committee is guided by concerns of the general
interest and not by the wish to obtain a financial benefit.
26. Moreover, it is also apparent from the Lewark judgment, cited above, that
the Bundesarbeitsgericht considered, with respect to similar provisions on
staff councils, that the German legislature’s wish to place the independence
of staff council members above financial inducements for performing staff
council functions, as expressed in the provisions at issue, was an aim of
social policy.
27. Such an aim appears in itself to be unrelated to any discrimination on
grounds of sex. It cannot be disputed that the work of staff committees does
indeed promote harmonious labour relations within undertakings, in particular
by ensuring that the workers’ interest are represented. The concern to ensure
the independence of the members of those committees thus likewise reflects a
legitimate aim of social policy.
28. If a Member State is able to show that the measures chosen reflect a
necessary aim of its social policy and are suitable and necessary for
achieving that aim, the mere fact that the legislative provision affects far
more women workers than men cannot be regarded as a breach of Article 119 and
the Directive (see Case C-343/92 De Weerd and Others v. Bestuur van de
Bedrijfsvereniging voor de Gezondheid, Geestelijke en Maatschappelijke
Belangen and Others (1994) ECR 1-571 and Case C-444/93 Megner and Scheffel v.
Innungskrankenkasse Vorderpfalz (1995) ECR 1-0000).
29. It is for the national court to ascertain, in the light of all the
relevant factors and taking into account the possibility of achieving the
social policy aim in question by other means, whether the difference of
treatment in question is suitable and necessary for achieving that aim.
30. In so doing the national court must bear in mind that, as the Court held
in Bötel, paragraph 25, legislation such as that at issue is likely to deter
workers in the part-time category, in which the proportion of women is
undeniably preponderant, from performing staff committee functions or from
acquiring the knowledge necessary for performing them, thus making it more
difficult for that category of workers to be represented by qualified staff
committee members.
31. Consequently, where the category of part-time workers includes a much
higher number of women than men, the prohibition of indirect discrimination
in the matter of pay, as set out in Article 119 and in the Directive,
precludes national legislation which, not being suitable and necessary for
achieving a legitimate social policy aim, has the effect of limiting to their
individual working hours the compensation which staff committee members
employed on a part-time basis are to receive from their employer for
attending training courses which impart the knowledge necessary for serving
on staff committees and are held during the full-time working hours
applicable in the undertaking but which exceed their individual part-time
working hours, when staff committee members employed on a full-time basis
receive compensation for attendance at the same courses on the basis of their
full-time working hours.
Costs
32. The costs incurred by the German Government 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 action 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 Arbeitsgericht Bremen by
order of 5 May 1993, hereby rules:
1. The compensation paid to a male or female worker for taking part in
statutorily established staff representation constitutes pay within the
meaning of Article 119 of the EEC Treaty and 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.
2. Where the category of part-time workers includes a much higher number of
women than men, the prohibition of indirect discrimination in the matter of
pay, as set out in Article 119 of the Treaty and in Directive 75/117/EEC,
precludes national legislation which, not being suitable and necessary for
achieving a legitimate social policy aim, has the effect of limiting to their
individual working hours the compensation which staff committee members
employed on a part-time basis are to receive from their employer for
attending training courses which impart the knowledge necessary for serving
on staff committees and are held during the full-time working hours
applicable in the undertaking but which exceed their individual part-time
working hours, when staff committee members employed on a full-time basis
receive compensation for attendance at the same courses on the basis of their
full-time working hours.
Zie ook HvJ EG 4 juni 1992 (Bötel), RN 1992, 282, m.nt. Elies Steyger.

Rechters

Mrs. Kakouris, Kapteyn, Mancini, Murray, Schockweiler