3 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT
THAT FOR SEVERAL YEARS BILKA , WHICH BELONGS TO A GROUP OF DEPARTMENT
STORES IN THE FEDERAL REPUBLIC OF GERMANY EMPLOYING SEVERAL THOUSAND
PERSONS , HAS HAD A SUPPLEMENTARY ( OCCUPATIONAL ) PENSION SCHEME FOR ITS
EMPLOYEES . THIS SCHEME , WHICH HAS BEEN MODIFIED ON SEVERAL OCCASIONS ,
IS REGARDED AS AN INTEGRAL PART OF THE CONTRACTS OF EMPLOYMENT BETWEEN
BILKA AND ITS EMPLOYEES .
4 ACCORDING TO THE VERSION IN FORCE SINCE
26 OCTOBER 1973 , PART-TIME EMPLOYEES MAY OBTAIN PENSIONS UNDER THE SCHEME
ONLY IF THEY HAVE WORKED FULL TIME FOR AT LEAST 15 YEARS OVER A TOTAL
PERIOD OF 20 YEARS .
5 MRS WEBER WAS EMPLOYED BY BILKA AS A SALES
ASSISTANT FROM 1961 TO 1976 . AFTER INITIALLY WORKING FULL TIME , SHE
CHOSE TO WORK PART TIME FROM 1 OCTOBER 1972 UNTIL HER EMPLOYMENT CAME TO
AN END . SINCE SHE HAD NOT WORKED FULL TIME FOR THE MINIMUM PERIOD OF 15
YEARS , BILKA REFUSED TO PAY HER AN OCCUPATIONAL PENSION UNDER ITS SCHEME
.
6 MRS WEBER BROUGHT PROCEEDINGS BEFORE THE GERMAN LABOUR COURTS
CHALLENGING THE LEGALITY OF BILKA ' S REFUSAL TO PAY HER A PENSION . SHE
ARGUED INTER ALIA THAT THE OCCUPATIONAL PENSION SCHEME WAS CONTRARY TO THE
PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN LAID DOWN IN ARTICLE 119 OF THE
EEC TREATY . SHE ASSERTED THAT THE REQUIREMENT OF A MINIMUM PERIOD OF
FULL-TIME EMPLOYMENT FOR THE PAYMENT OF AN OCCUPATIONAL PENSION PLACED
WOMEN WORKERS AT A DISADVANTAGE , SINCE THEY WERE MORE LIKELY THAN THEIR
MALE COLLEAGUES TO TAKE PART-TIME WORK SO AS TO BE ABLE TO CARE FOR THEIR
FAMILY AND CHILDREN .
7 BILKA , ON THE OTHER HAND , ARGUED THAT IT
WAS NOT GUILTY OF ANY BREACH OF THE PRINCIPLE OF EQUAL PAY SINCE THERE
WERE OBJECTIVELY JUSTIFIED ECONOMIC GROUNDS FOR ITS DECISION TO EXCLUDE
PART-TIME EMPLOYEES FROM THE OCCUPATIONAL PENSION SCHEME . IT EMPHASIZED
IN THAT REGARD THAT IN COMPARISON WITH THE EMPLOYMENT OF PART-TIME WORKERS
THE EMPLOYMENT OF FULL-TIME WORKERS ENTAILS LOWER ANCILLARY COSTS AND
PERMITS THE USE OF STAFF THROUGHOUT OPENING HOURS . RELYING ON STATISTICS
CONCERNING THE GROUP TO WHICH IT BELONGS , BILKA STATED THAT UP TO 1980
81.3% OF ALL OCCUPATIONAL PENSIONS WERE PAID TO WOMEN , ALTHOUGH ONLY 72%
OF EMPLOYEES WERE WOMEN . THOSE FIGURES , IT SAID , SHOWED THAT THE SCHEME
IN QUESTION DOES NOT ENTAIL DISCRIMINATION ON THE BASIS OF SEX .
8
ON APPEAL THE PROCEEDINGS BETWEEN MRS WEBER AND BILKA CAME BEFORE THE
BUNDESARBEITSGERICHT ; THAT COURT DECIDED TO STAY THE PROCEEDINGS AND
REFER THE FOLLOWING QUESTIONS TO THE COURT :
( 1 ) MAY THERE BE AN
INFRINGEMENT OF ARTICLE 119 OF THE EEC TREATY IN THE FORM OF ' INDIRECT
DISCRIMINATION ' WHERE A DEPARTMENT STORE WHICH EMPLOYS PREDOMINANTLY
WOMEN EXCLUDES PART-TIME EMPLOYEES FROM BENEFITS UNDER ITS OCCUPATIONAL
PENSION SCHEME ALTHOUGH SUCH EXCLUSION AFFECTS DISPROPORTIONATELY MORE
WOMEN THAN MEN?
( 2)IF SO :
( A ) CAN THE UNDERTAKING JUSTIFY
THAT DISADVANTAGE ON THE GROUND THAT ITS OBJECTIVE IS TO EMPLOY AS FEW
PART-TIME WORKERS AS POSSIBLE EVEN THOUGH IN THE DEPARTMENT STORE SECTOR
THERE ARE NO REASONS OF COMMERCIAL EXPEDIENCY WHICH NECESSITATE SUCH A
STAFF POLICY?
( B)IS THE UNDERTAKING UNDER A DUTY TO STRUCTURE ITS
PENSION SCHEME IN SUCH A WAY THAT APPROPRIATE ACCOUNT IS TAKEN OF THE
SPECIAL DIFFICULTIES EXPERIENCED BY EMPLOYEES WITH FAMILY COMMITMENTS IN
FULFILLING THE REQUIREMENTS FOR AN OCCUPATIONAL PENSION?
9 IN
ACCORDANCE WITH ARTICLE 20 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF
JUSTICE OF THE EEC WRITTEN OBSERVATIONS WERE SUBMITTED BY BILKA , MRS
WEBER VON HARTZ , THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN
COMMUNITIES .
THE APPLICABILITY OF ARTICLE 119
10 THE UNITED
KINGDOM PUTS FORWARD THE PRELIMINARY ARGUMENT THAT THE CONDITIONS PLACED
BY AN EMPLOYER ON THE ADMISSION OF ITS EMPLOYEES TO AN OCCUPATIONAL
PENSION SCHEME SUCH AS THAT DESCRIBED BY THE NATIONAL COURT DO NOT FALL
WITHIN THE SCOPE OF ARTICLE 119 OF THE TREATY .
11 IN SUPPORT OF
THAT ARGUMENT IT REFERS TO THE JUDGMENT OF 15 JUNE 1978 ( CASE 149/77
DEFRENNE V SABENA ( 1978 ) ECR 1365 ), IN WHICH THE COURT HELD THAT
ARTICLE 119 CONCERNS ONLY PAY DISCRIMINATION BETWEEN MEN AND WOMEN WORKERS
AND ITS SCOPE CANNOT BE EXTENDED TO OTHER ELEMENTS OF THE EMPLOYMENT
RELATIONSHIP , EVEN WHERE SUCH ELEMENTS MAY HAVE FINANCIAL CONSEQUENCES
FOR THE PERSONS CONCERNED .
12 THE UNITED KINGDOM CITES FURTHER THE
JUDGMENT OF 16 FEBRUARY 1982 ( CASE 19/81 BURTON V BRITISH RAILWAYS BOARD
( 1982 ) ECR 555 ) WHERE THE COURT HELD THAT ALLEGED DISCRIMINATION
RESULTING FROM A DIFFERENCE IN THE AGES OF ELIGIBILITY SET FOR MEN AND
WOMEN FOR PAYMENT UNDER A VOLUNTARY REDUNDANCY SCHEME WAS COVERED NOT BY
ARTICLE 119 BUT BY 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 ( OFFICIAL JOURNAL 1976 , L 39 , P . 40 ).
13 AT
THE HEARING THE UNITED KINGDOM ALSO REFERRED TO THE PROPOSAL FOR A COUNCIL
DIRECTIVE ON THE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR
MEN AND WOMEN IN OCCUPATIONAL SOCIAL SECURITY SCHEMES SUBMITTED BY THE
COMMISSION ON 5 MAY 1983 ( OFFICIAL JOURNAL 1983 , C 134 , P . 7 ).
ACCORDING TO THE UNITED KINGDOM , THE FACT THAT THE COMMISSION CONSIDERED
IT NECESSARY TO SUBMIT SUCH A PROPOSAL SHOWS THAT OCCUPATIONAL PENSION
SCHEMES SUCH AS THAT DESCRIBED BY THE NATIONAL COURT ARE COVERED NOT BY
ARTICLE 119 BUT BY ARTICLES 117 AND 118 , SO THAT THE APPLICATION OF THE
PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN IN THAT AREA REQUIRES THE
ADOPTION OF SPECIAL PROVISIONS BY THE COMMUNITY INSTITUTIONS .
14
THE COMMISSION , ON THE OTHER HAND , HAS ARGUED THAT THE OCCUPATIONAL
PENSION SCHEME DESCRIBED BY THE NATIONAL COURT FALLS WITHIN THE CONCEPT OF
PAY FOR THE PURPOSES OF THE SECOND PARAGRAPH OF ARTICLE 119 . IN SUPPORT
OF ITS VIEW IT REFERS TO THE JUDGMENT OF 11 MARCH 1981 ( CASE 69/80
WORRINGHAM AND HUMPHREYS V LLOYDS BANK ( 1981 ) ECR 767 ).
15 IN
ORDER TO RESOLVE THE PROBLEM OF INTERPRETATION RAISED BY THE UNITED
KINGDOM IT MUST BE RECALLED THAT UNDER THE FIRST PARAGRAPH OF ARTICLE 119
THE MEMBER STATES MUST ENSURE THE APPLICATION OF THE PRINCIPLE THAT MEN
AND WOMEN SHOULD RECEIVE EQUAL PAY FOR EQUAL WORK . THE SECOND PARAGRAPH
OF ARTICLE 119 DEFINES ' PAY ' AS ' THE ORDINARY BASIC OR MINIMUM WAGE OR
SALARY AND ANY OTHER CONSIDERATION , WHETHER IN CASH OR IN KIND , WHICH
THE WORKER RECEIVES , DIRECTLY OR INDIRECTLY , IN RESPECT OF HIS
EMPLOYMENT FROM HIS EMPLOYER ' .
16 IN ITS JUDGMENT OF 25 MAY 1971
( CASE 80/70 DEFRENNE V BELGIUM ( 1971 ) ECR 445 ), THE COURT EXAMINED THE
QUESTION WHETHER A RETIREMENT PENSION PAID UNDER A STATUTORY SOCIAL
SECURITY SCHEME CONSTITUTES CONSIDERATION RECEIVED BY THE WORKER
INDIRECTLY FROM THE EMPLOYER IN RESPECT OF HIS EMPLOYMENT , WITHIN THE
MEANING OF THE SECOND PARAGRAPH OF ARTICLE 119 .
17 THE COURT REPLIED
IN THE NEGATIVE , TAKING THE VIEW THAT , ALTHOUGH PAY WITHIN THE MEANING
OF ARTICLE 119 COULD IN PRINCIPLE INCLUDE SOCIAL SECURITY BENEFITS , IT
DID NOT INCLUDE SOCIAL SECURITY SCHEMES OR BENEFITS , IN PARTICULAR
RETIREMENT PENSIONS , DIRECTLY GOVERNED BY LEGISLATION WHICH DO NOT
INVOLVE ANY ELEMENT OF AGREEMENT WITHIN THE UNDERTAKING OR TRADE CONCERNED
AND ARE COMPULSORY FOR GENERAL CATEGORIES OF WORKERS .
18 IN THAT
REGARD THE COURT POINTED OUT THAT SOCIAL SECURITY SCHEMES GUARANTEE
WORKERS THE BENEFIT OF A STATUTORY SCHEME TO WHICH WORKERS , EMPLOYERS AND
IN SOME CASES THE AUTHORITIES CONTRIBUTE FINANCIALLY TO AN EXTENT
DETERMINED LESS BY THE EMPLOYMENT RELATIONSHIP BETWEEN THE EMPLOYER AND
THE WORKER THAN BY CONSIDERATIONS OF SOCIAL POLICY , SO THAT THE EMPLOYER
' S CONTRIBUTION CANNOT BE REGARDED AS A DIRECT OR INDIRECT PAYMENT TO THE
WORKER FOR THE PURPOSES OF THE SECOND PARAGRAPH OF ARTICLE 119 .
19
THE QUESTION THEREFORE ARISES WHETHER THE CONCLUSION REACHED BY THE COURT
IN THAT JUDGMENT IS ALSO APPLICABLE TO THE CASE BEFORE THE NATIONAL COURT
.
20 IT SHOULD BE NOTED THAT ACCORDING TO THE DOCUMENTS BEFORE THE
COURT THE OCCUPATIONAL PENSION SCHEME AT ISSUE IN THE MAIN PROCEEDINGS ,
ALTHOUGH ADOPTED IN ACCORDANCE WITH THE PROVISIONS LAID DOWN BY GERMAN
LEGISLATION FOR SUCH SCHEMES , IS BASED ON AN AGREEMENT BETWEEN BILKA AND
THE STAFF COMMITTEE REPRESENTING ITS EMPLOYEES AND HAS THE EFFECT OF
SUPPLEMENTING THE SOCIAL BENEFITS PAID UNDER NATIONAL LEGISLATION OF
GENERAL APPLICATION WITH BENEFITS FINANCED ENTIRELY BY THE EMPLOYER
.
21 THE CONTRACTUAL RATHER THAN STATUTORY NATURE OF THE SCHEME IN
QUESTION IS CONFIRMED BY THE FACT THAT , AS HAS BEEN POINTED OUT ABOVE ,
THE SCHEME AND THE RULES GOVERNING IT ARE REGARDED AS AN INTEGRAL PART OF
THE CONTRACTS OF EMPLOYMENT BETWEEN BILKA AND ITS EMPLOYEES .
22 IT
MUST THEREFORE BE CONCLUDED THAT THE SCHEME DOES NOT CONSTITUTE A SOCIAL
SECURITY SCHEME GOVERNED DIRECTLY BY STATUTE AND THUS OUTSIDE THE SCOPE OF
ARTICLE 119 . BENEFITS PAID TO EMPLOYEES UNDER THE SCHEME THEREFORE
CONSTITUTE CONSIDERATION RECEIVED BY THE WORKER FROM THE EMPLOYER IN
RESPECT OF HIS EMPLOYMENT , AS REFERRED TO IN THE SECOND PARAGRAPH OF
ARTICLE 119 .
23 THE CASE BEFORE THE NATIONAL COURT THEREFORE FALLS
WITHIN THE SCOPE OF ARTICLE 119 .
THE FIRST QUESTION
24 IN THE
FIRST OF ITS QUESTIONS THE NATIONAL COURT ASKS WHETHER A STAFF POLICY
PURSUED BY A DEPARTMENT STORE COMPANY EXCLUDING PART-TIME EMPLOYEES FROM
AN OCCUPATIONAL PENSION SCHEME CONSTITUTES DISCRIMINATION CONTRARY TO
ARTICLE 119 WHERE THAT EXCLUSION AFFECTS A FAR GREATER NUMBER OF WOMEN
THAN MEN .
25 IN ORDER TO REPLY TO THAT QUESTION REFERENCE MUST BE
MADE TO THE JUDGMENT OF 31 MARCH 1981 ( CASE 96/80 JENKINS V KINGSGATE (
1981 ) ECR 911 ).
26 IN THAT JUDGMENT THE COURT CONSIDERED THE
QUESTION WHETHER THE PAYMENT OF A LOWER HOURLY RATE FOR PART-TIME WORK
THAN FOR FULL-TIME WORK WAS COMPATIBLE WITH ARTICLE 119 .
27 SUCH A
PRACTICE IS COMPARABLE TO THAT AT ISSUE BEFORE THE NATIONAL COURT IN THIS
CASE : BILKA DOES NOT PAY DIFFERENT HOURLY RATES TO PART-TIME AND
FULL-TIME WORKERS , BUT IT GRANTS ONLY FULL-TIME WORKERS AN OCCUPATIONAL
PENSION . SINCE , AS WAS STATED ABOVE , SUCH A PENSION FALLS WITHIN THE
CONCEPT OF PAY FOR THE PURPOSES OF THE SECOND PARAGRAPH OF ARTICLE 119 IT
FOLLOWS THAT , HOUR FOR HOUR , THE TOTAL REMUNERATION PAID BY BILKA TO
FULL-TIME WORKERS IS HIGHER THAN THAT PAID TO PART-TIME WORKERS
.
28 THE CONCLUSION REACHED BY THE COURT IN ITS JUDGMENT OF 31
MARCH 1981 IS THEREFORE EQUALLY VALID IN THE CONTEXT OF THIS CASE
.
29 IF , THEREFORE , IT SHOULD BE FOUND THAT A MUCH LOWER
PROPORTION OF WOMEN THAN OF MEN WORK FULL TIME , THE EXCLUSION OF
PART-TIME WORKERS FROM THE OCCUPATIONAL PENSION SCHEME WOULD BE CONTRARY
TO ARTICLE 119 OF THE TREATY WHERE , TAKING INTO ACCOUNT THE DIFFICULTIES
ENCOUNTERED BY WOMEN WORKERS IN WORKING FULL-TIME , THAT MEASURE COULD NOT
BE EXPLAINED BY FACTORS WHICH EXCLUDE ANY DISCRIMINATION ON GROUNDS OF SEX
.
30 HOWEVER , IF THE UNDERTAKING IS ABLE TO SHOW THAT ITS PAY
PRACTICE MAY BE EXPLAINED BY OBJECTIVELY JUSTIFIED FACTORS UNRELATED TO
ANY DISCRIMINATION ON GROUNDS OF SEX THERE IS NO BREACH OF ARTICLE 119 .
31 THE ANSWER TO THE FIRST QUESTION REFERRED BY THE NATIONAL COURT
MUST THEREFORE BE THAT ARTICLE 119 OF THE EEC TREATY IS INFRINGED BY A
DEPARTMENT STORE COMPANY WHICH EXCLUDES PART-TIME EMPLOYEES FROM ITS
OCCUPATIONAL PENSION SCHEME , WHERE THAT EXCLUSION AFFECTS A FAR GREATER
NUMBER OF WOMEN THAN MEN , UNLESS THE UNDERTAKING SHOWS THAT THE EXCLUSION
IS BASED ON OBJECTIVELY JUSTIFIED FACTORS UNRELATED TO ANY DISCRIMINATION
ON GROUNDS OF SEX .
QUESTION 2 ( A )
32 IN ITS SECOND QUESTION
THE NATIONAL COURT SEEKS IN ESSENCE TO KNOW WHETHER THE REASONS PUT
FORWARD BY BILKA TO EXPLAIN ITS PAY POLICY MAY BE REGARDED AS '
OBJECTIVELY JUSTIFIED ECONOMIC GROUNDS ' , AS REFERRED TO IN THE JUDGMENT
OF 31 MARCH 1981 , WHERE THE INTERESTS OF UNDERTAKINGS IN THE DEPARTMENT
STORE SECTOR DO NOT REQUIRE SUCH A POLICY .
33 IN ITS OBSERVATIONS
BILKA ARGUES THAT THE EXCLUSION OF PART-TIME WORKERS FROM THE OCCUPATIONAL
PENSION SCHEME IS INTENDED SOLELY TO DISCOURAGE PART-TIME WORK , SINCE IN
GENERAL PART-TIME WORKERS REFUSE TO WORK IN THE LATE AFTERNOON AND ON
SATURDAYS . IN ORDER TO ENSURE THE PRESENCE OF AN ADEQUATE WORKFORCE
DURING THOSE PERIODS IT WAS THEREFORE NECESSARY TO MAKE FULL-TIME WORK
MORE ATTRACTIVE THAN PART-TIME WORK , BY MAKING THE OCCUPATIONAL PENSION
SCHEME OPEN ONLY TO FULL-TIME WORKERS . BILKA CONCLUDES THAT ON THE BASIS
OF THE JUDGMENT OF 31 MARCH 1981 IT CANNOT BE ACCUSED OF HAVING INFRINGED
ARTICLE 119 .
34 IN REPLY TO THE REASONS PUT FORWARD TO JUSTIFY THE
EXCLUSION OF PART-TIME WORKERS MRS WEBER VON HARTZ POINTS OUT THAT BILKA
IS IN NO WAY OBLIGED TO EMPLOY PART-TIME WORKERS AND THAT IF IT DECIDES TO
DO SO IT MAY NOT SUBSEQUENTLY RESTRICT THE PENSION RIGHTS OF SUCH WORKERS
, WHICH ARE ALREADY REDUCED BY REASON OF THE FACT THAT THEY WORK FEWER
HOURS .
35 ACCORDING TO THE COMMISSION , IN ORDER TO ESTABLISH THAT
THERE HAS BEEN NO BREACH OF ARTICLE 119 IT IS NOT SUFFICIENT TO SHOW THAT
IN ADOPTING A PAY PRACTICE WHICH IN FACT DISCRIMINATES AGAINST WOMEN
WORKERS THE EMPLOYER SOUGHT TO ACHIEVE OBJECTIVES OTHER THAN
DISCRIMINATION AGAINST WOMEN . THE COMMISSION CONSIDERS THAT IN ORDER TO
JUSTIFY SUCH A PAY PRACTICE FROM THE POINT OF VIEW OF ARTICLE 119 THE
EMPLOYER MUST , AS THE COURT HELD IN ITS JUDGMENT OF 31 MARCH 1981 , PUT
FORWARD OBJECTIVE ECONOMIC GROUNDS RELATING TO THE MANAGEMENT OF THE
UNDERTAKING . IT IS ALSO NECESSARY TO ASCERTAIN WHETHER THE PAY PRACTICE
IN QUESTION IS NECESSARY AND IN PROPORTION TO THE OBJECTIVES PURSUED BY
THE EMPLOYER .
36 IT IS FOR THE NATIONAL COURT , WHICH HAS SOLE
JURISDICTION TO MAKE FINDINGS OF FACT , TO DETERMINE WHETHER AND TO WHAT
EXTENT THE GROUNDS PUT FORWARD BY AN EMPLOYER TO EXPLAIN THE ADOPTION OF A
PAY PRACTICE WHICH APPLIES INDEPENDENTLY OF A WORKER ' S SEX BUT IN FACT
AFFECTS MORE WOMEN THAN MEN MAY BE REGARDED AS OBJECTIVELY JUSTIFIED
ECONOMIC GROUNDS . IF THE NATIONAL COURT FINDS THAT THE MEASURES CHOSEN BY
BILKA CORRESPOND TO A REAL NEED ON THE PART OF THE UNDERTAKING , ARE
APPROPRIATE WITH A VIEW TO ACHIEVING THE OBJECTIVES PURSUED AND ARE
NECESSARY TO THAT END , THE FACT THAT THE MEASURES AFFECT A FAR GREATER
NUMBER OF WOMEN THAN MEN IS NOT SUFFICIENT TO SHOW THAT THEY CONSTITUTE AN
INFRINGEMENT OF ARTICLE 119 .
37 THE ANSWER TO QUESTION 2 ( A ) MUST
THEREFORE BE THAT UNDER ARTICLE 119 A DEPARTMENT STORE COMPANY MAY JUSTIFY
THE ADOPTION OF A PAY POLICY EXCLUDING PART-TIME WORKERS , IRRESPECTIVE OF
THEIR SEX , FROM ITS OCCUPATIONAL PENSION SCHEME ON THE GROUND THAT IT
SEEKS TO EMPLOY AS FEW PART-TIME WORKERS AS POSSIBLE , WHERE IT IS FOUND
THAT THE MEANS CHOSEN FOR ACHIEVING THAT OBJECTIVE CORRESPOND TO A REAL
NEED ON THE PART OF THE UNDERTAKING , ARE APPROPRIATE WITH A VIEW TO
ACHIEVING THE OBJECTIVE IN QUESTION AND ARE NECESSARY TO THAT END
.
QUESTION 2 ( B )
38 FINALLY , IN QUESTION 2 ( B ), THE
NATIONAL COURT ASKS WHETHER AN EMPLOYER IS OBLIGED UNDER ARTICLE 119 OF
THE TREATY TO ORGANIZE ITS OCCUPATIONAL PENSION SCHEME IN SUCH A MANNER AS
TO TAKE INTO ACCOUNT THE FACT THAT FAMILY RESPONSIBILITIES PREVENT WOMEN
WORKERS FROM FULFILLING THE REQUIREMENTS FOR SUCH A PENSION .
39 IN
HER OBSERVATIONS MRS WEBER VON HARTZ ARGUES THAT THE ANSWER TO THAT
QUESTION SHOULD BE IN THE AFFIRMATIVE . SHE ARGUES THAT THE DISADVANTAGES
SUFFERED BY WOMEN BECAUSE OF THE EXCLUSION OF PART-TIME WORKERS FROM THE
OCCUPATIONAL PENSION SCHEME MUST AT LEAST BE MITIGATED BY REQUIRING THE
EMPLOYER TO REGARD PERIODS DURING WHICH WOMEN WORKERS HAVE HAD TO MEET
FAMILY RESPONSIBILITIES AS PERIODS OF FULL-TIME WORK .
40 ACCORDING
TO THE COMMISSION , ON THE OTHER HAND , THE PRINCIPLE LAID DOWN IN ARTICLE
119 DOES NOT REQUIRE EMPLOYERS , IN ESTABLISHING OCCUPATIONAL PENSION
SCHEMES , TO TAKE INTO ACCOUNT THEIR EMPLOYEES ' FAMILY RESPONSIBILITIES .
IN THE COMMISSION ' S VIEW , THAT OBJECTIVE MUST BE PURSUED BY MEANS OF
MEASURES ADOPTED UNDER ARTICLE 117 . IT REFERS IN THAT REGARD TO ITS
PROPOSAL FOR A COUNCIL DIRECTIVE ON VOLUNTARY PART-TIME WORK SUBMITTED ON
4 JANUARY 1982 ( OFFICIAL JOURNAL 1982 , C 62 , P . 7 ) AND AMENDED ON 5
JANUARY 1983 ( OFFICIAL JOURNAL 1983 , C 18 , P . 5 ), WHICH HAS NOT YET
BEEN ADOPTED .
41 IT MUST BE POINTED OUT THAT , AS WAS STATED IN
THE JUDGMENT OF 15 JUNE 1978 , THE SCOPE OF ARTICLE 119 IS RESTRICTED TO
THE QUESTION OF PAY DISCRIMINATION BETWEEN MEN AND WOMEN WORKERS .
PROBLEMS RELATED TO OTHER CONDITIONS OF WORK AND EMPLOYMENT , ON THE OTHER
HAND , ARE COVERED GENERALLY BY OTHER PROVISIONS OF COMMUNITY LAW , IN
PARTICULAR ARTICLES 117 AND 118 OF THE TREATY , WITH A VIEW TO THE
HARMONIZATION OF THE SOCIAL SYSTEMS OF MEMBER STATES AND THE APPROXIMATION
OF THEIR LEGISLATION IN THAT AREA .
42 THE IMPOSITION OF AN
OBLIGATION SUCH AS THAT ENVISAGED BY THE NATIONAL COURT IN ITS QUESTION
GOES BEYOND THE SCOPE OF ARTICLE 119 AND HAS NO OTHER BASIS IN COMMUNITY
LAW AS IT NOW STANDS .
43 THE ANSWER TO QUESTION 2 ( B ) MUST
THEREFORE BE THAT ARTICLE 119 DOES NOT HAVE THE EFFECT OF REQUIRING AN
EMPLOYER TO ORGANIZE ITS OCCUPATIONAL PENSION SCHEME IN SUCH A MANNER AS
TO TAKE INTO ACCOUNT THE PARTICULAR DIFFICULTIES FACED BY PERSONS WITH
FAMILY RESPONSIBILITIES IN MEETING THE CONDITIONS FOR ENTITLEMENT TO SUCH
A PENSION .
COSTS
44 THE COSTS INCURRED BY THE UNITED KINGDOM
AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED
OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE
, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE
NATURE OF 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 ,
IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE
BUNDESARBEITSGERICHT BY ORDER OF 5 JUNE 1984 , HEREBY RULES :
( 1 )
ARTICLE 119 OF THE EEC TREATY IS INFRINGED BY A DEPARTMENT STORE COMPANY
WHICH EXCLUDES PART-TIME EMPLOYEES FROM ITS OCCUPATIONAL PENSION SCHEME ,
WHERE THAT EXCLUSION AFFECTS A FAR GREATER NUMBER OF WOMEN THAN MEN ,
UNLESS THE UNDERTAKING SHOWS THAT THE EXCLUSION IS BASED ON OBJECTIVELY
JUSTIFIED FACTORS UNRELATED TO ANY DISCRIMINATION ON GROUNDS OF SEX
.
( 2)UNDER ARTICLE 119 A DEPARTMENT STORE COMPANY MAY JUSTIFY THE
ADOPTION OF A PAY POLICY EXCLUDING PART-TIME WORKERS , IRRESPECTIVE OF
THEIR SEX , FROM ITS OCCUPATIONAL PENSION SCHEME ON THE GROUND THAT IT
SEEKS TO EMPLOY AS FEW PART-TIME WORKERS AS POSSIBLE , WHERE IT IS FOUND
THAT THE MEANS CHOSEN FOR ACHIEVING THAT OBJECTIVE CORRESPOND TO A REAL
NEED ON THE PART OF THE UNDERTAKING , ARE APPROPRIATE WITH A VIEW TO
ACHIEVING THE OBJECTIVE IN QUESTION AND ARE NECESSARY TO THAT END
.
( 3)ARTICLE 119 DOES NOT HAVE THE EFFECT OF REQUIRING AN EMPLOYER
TO ORGANIZE ITS OCCUPATIONAL PENSION SCHEME IN SUCH A MANNER AS TO TAKE
INTO ACCOUNT THE PARTICULAR DIFFICULTIES FACED BY PERSONS WITH FAMILY
RESPONSIBILITIES IN MEETING THE CONDITIONS FOR ENTITLEMENT TO SUCH A
PENSION .
MACKENZIE STUART KOOPMANS EVERLING BAHLMANN JOLIET BOSCO
DUE GALMOT KAKOURIS DELIVERED IN OPEN COURT IN LUXEMBOURG ON 13 MAY 1986 .
P . HEIM A . J . MACKENZIE STUART
