Opinion of the Advocate-General
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Mr President,
Members of the Court,
1 . The Raad van Beroep te Groningen has submitted for a preliminary ruling a question intended essentially to determine what influence the principle of non-discrimination between male and female workers has on a legislative provision relating specifically to part-time workers .
2 . The facts are as follows . Mrs Ruzius-Wilbrink worked part time for 18 hours a week as an administrative assistant in the public school system in Groningen . On 9 March 1981 she became subject to an incapacity rendering her unable to work .
3 . In the Netherlands, the Algemene Arbeidsongeschiktheidswet ( 1 ) ( Law on incapacity for work ) of 11 December 1975 ( hereinafter referred to as "the 1975 Law "), which establishes a general insurance scheme against incapacity for work, grants an allowance for incapacity to work to every insured person over 17 years of age who received income from employment during the year before the incapacity arose . ( 2 ) Until 1 January 1987, the allowance was calculated by reference to a basic amount which varied from HFL 43.22 to 87.79 according to the age and family situation of the insured person . ( 3 ) But the income received by the insured person from his or her employment before the incapacity arose did not affect the amount of the allowance . Those who, during the year before their incapacity, received income of less than 15% of an amount equal to 260 times the basic amount of HFL 87.79 were deemed to have no earnings . ( 4 ) Finally - and this is the provision at issue in this case - an insured person who "in the year immediately before the day on which he became incapable of working ... did not work for the period to be considered normal in his occupation" and who had therefore earned during the period in question "less than an amount 260 times the basic amount" applicable to him received an allowance calculated by reference to the average daily income received by him during the year prior to the onset of his disability . ( 5 )
4 . The Law of 6 November 1986 ( 6 ) changed the situation as from 1 January 1987 . As from that date, the allowance is calculated on the basis of the minimum salary fixed by the Wet Minimumloon en Minimumvakantiebijslag ( Law on the minimum wage and minimum holiday pay ). ( 7 ) The insured person' s previous income continues to be disregarded . The same exclusion from the system under the 1975 Law applies to very low income, which is now defined as less than 48 times the minimum wage . ( 8 ) The provision concerning part-time work now appears in Article 10(3 ) and ( 4 ) of the 1975 Law, as amended . It covers any "entitled person who, in the year immediately prior to the onset of his disability, did not work for the period to be considered normal in his occupation and partly as a result thereof earned less than an amount 260 times" the minimum daily wage . In such circumstances, by virtue of Article 10(4 ) "the basic amount for calculation of the allowance shall be the average daily income" which the insured is deemed to have earned in the year prior to his becoming incapable of working .
5 . Special conditions apply to certain groups of insured persons . ( 9 ) Thus, an Order of 28 April 1980 lays down an exception for self-employed persons, students and persons caring for members of their families . Such people may claim an allowance based on the minimum wage .
6 . Mrs Ruzius-Wilbrink was therefore granted, as from 1 January 1985, an allowance for incapacity to work calculated by reference to her previous income from part-time work . She challenged that decision before the Raad van Beroep te Groningen, claiming that the relevant provision of the 1975 Law was contrary to Council Directive 79/7/EEC of 19 December 1978 ( 10 ) ( hereinafter referred to as "the Directive "), Article 4 of which prohibits "any discrimination whatsoever on grounds of sex either directly, or indirectly by reference in particular to marital or family status", since the number of female part-time workers is much higher than that of male part-time workers .
7 . The national court therefore submitted two questions for a preliminary ruling, one concerning the compatibility of a system like that provided for by the 1975 Law with Article 4(1 ) of the Directive and the other concerning the effect of any such incompatibility on the amount of the allowance for incapacity for work payable to part-time workers .
8 . The Court has already examined the situation of part-time workers in the light of the requirements of the Community principle of equality of treatment for male and female workers . I had occasion to express my views on the matter in my Opinion in Case 171/88 Rinner-Kuehn . ( 11 )
9 . Let me point out, to dispose of the matter immediately, that the Court has held that Article 4(1 ) of the Directive has direct effect . In its judgment in FNV, it stated that
"Article 4(1 ) ... is sufficiently precise and unconditional to allow individuals, in the absence of implementing measures adopted within the prescribed period, to rely upon it before the national courts as from 23 December 1984 ". ( 12 )
10 . It seems that the present case is the first in which the Court has had to consider, in the light of the Directive, a legislative provision on social security relating essentially to part-time workers . However, previous decisions of the Court have already dealt with similar difficulties in the neighbouring area covered by Article 119 of the Treaty, which lays down the principle of equality of treatment regarding pay .
11 . In its judgment in Jenkins, ( 13 ) the Court stated that
"the fact that part-time work is paid at an hourly rate lower than pay for full-time work does not amount per se to discrimination prohibited by Article 119 provided that the hourly rates are applied to workers belonging to either category without distinction based on sex ". ( 14 )
It added that such a difference of pay was not contrary to the principle of equality of pay provided that it was attributable
"to factors which are objectively justified and are in no way related to any discrimination based on sex", ( 15 )
but that
"by contrast, if it is established that a considerably smaller percentage of women than of men perform the minimum number of weekly working hours required in order to be able to claim the full-time hourly rate of pay, the inequality of pay will be contrary to Article 119 of the Treaty where ... the pay policy of the undertaking in question cannot be explained by factors other than discrimination based on sex ". ( 16 )
And it was left to the national court to reach a decision on the latter point .
12 . In its judgment in Bilka, the Court confirmed that decision, declaring that
"if ... 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 account of 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 ". ( 17 )
13 . That dictum was transposed to the field of social security, at issue here, when the Court stated in its judgment in Teuling that
"a system of benefits in which ... supplements are provided for which are not directly based on the sex of the beneficiaries but take account of their marital status or family situation and in respect of which it emerges that a considerably smaller proportion of women than of men are entitled to such supplements is contrary to Article 4(1 ) of the Directive if that system of benefits cannot be justified by reasons which exclude discrimination on grounds of sex ". ( 18 )
14 . However, in Bilka the Court brought about a reversal of the onus of proof since, in the operative part of that judgment, it stated 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 ". ( 19 )
There also the Court left it to the national court to decide whether the reasons given to account for the measure at issue exclude any discrimination .
15 . In the present case, as mentioned at the hearing, part-time workers are the only ones to receive an invalidity allowance which depends on previous income, whilst all other categories of persons to whom the system under the 1975 Law applies receive an allowance based on the minimum wage . Moreover, it seems that certain full-time workers may have received pay lower than the minimum wage without that fact affecting their entitlement, under the 1975 Law, to something approaching a "complete" allowance . It therefore seems that the situation of part-time workers is less favourable than that of full-time workers . It is not disputed that in 1974, the only year for which statistics were produced, 79.6% of part-time workers in the Netherlands were women . ( 20 )
16 . In Bilka, the Commission drew a distinction between the discriminatory intent and effect of the measure in the hope that the Court would declare unlawful not only intentionally discriminatory measures but also those which, although wholly untainted by any such intent, were discriminatory in their effect . The Court did not deal with the matter expressly but it seems that paragraph 30 of its judgment, which states that there is no discrimination
"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",
rejects by implication the thesis advanced by the Commission .
17 . A measure does not therefore seem to me to be incompatible merely because it has a discriminatory effect, provided that it is explained by objective factors and does not derive from any discriminatory intention .
18 . Furthermore - and I have already raised this question with regard to the Rinner-Kuehn case - is it desirable for the Court to establish a presumption that the national law is incompatible merely because one of its provisions affects a much larger number of women than men? Such a presumption is wholly justified in relation to a practice adopted by an undertaking or to any agreement between employers, that is to say rules of law lower in rank in the hierarchy of legal provisions and, above all, of very limited scope . I do not think that the same applies to a legislative provision . There is a difference in nature between an employer for whom pay policy is one of the most important parts of his business strategy and the legislature, the trustee of the public interest, which must take account of a very large number of social, economic and political factors, of which the ratio between male and female workers is just one aspect . Consequently, although it may be legitimately presumed that an undertaking cannot have been unaware of the unequal ratio between male and female workers in certain jobs within it and therefore to raise the presumption that a wage measure adopted by it is unlawful, the same does not apply to a national legislature which is required to take account of a much wider range of matters and which cannot be presumed to be guilty of discriminatory conduct . ( 21 )
19 . In the present case, having regard to the statistics produced, the first condition laid down by decisions of this Court concerning a significant disproportion between the numbers of male and female workers is fulfilled .
20 . As regards the second point, the Court has held that it is for the national court to determine whether or not the contested provision was adopted for purposes which are in no way related to discrimination based on sex .
21 . That is what I propose as the tenor of the Court' s answer to the first question . By virtue of the direct effect of Article 4(1 ) of the Directive upheld by the Court, the national court is entitled to apply the domestic law in accordance with the requirements of Community law and, if necessary, to refrain from applying any national rule contrary to it .
22 . That brings me immediately to the second question submitted by the national court . If it were obliged to treat the national provision in question as unlawful, would it follow that part-time workers are entitled to an allowance calculated in the same way as that granted to full-time workers?
23 . The Court has delivered numerous judgments which deal with this point . It has often stated that, in the absence of measures implementing Article 4(1 ) of the Directive,
"women are entitled to be treated in the same manner, and to have the same rules applied to them, as men who are in the same situation, since, where the said directive has not been implemented, those rules remain the only valid point of reference ". ( 22 )
24 . Therefore, if the national court finds that the derogating provisions of the 1975 Law are unlawful, it must refrain from applying them . Pending the adoption of such specific measures as the Netherlands legislature may take in order to remedy the situation, the national court can only apply the other provisions of the 1975 Law and therefore ensure that part-time workers are treated in the same way as full-time workers . That is the answer that I propose that the Court should give to the second question .
25 . I therefore consider that the Court should rule as follows :
"( 1 ) A legislative provision which, in the event of incapacity for work, does not grant part-time workers the allowances calculated by reference to the basic minimum wage is compatible with Article 4(1 ) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security where that provision affects a much larger number of women than men, unless it is established before the national court that the provision was adopted for purposes which are not entirely unrelated to any discrimination on grounds of sex .
( 2 ) If itis so established, it is for the national court to refrain from applying the rule of domestic law which is contrary to Article 4(1 ) of the said directive ."
(*) Original language : French .
( 1 ) Staatsblaad 674, No 151 .
( 2 ) Article 6(1)(a ) of the 1975 Law .
( 3 ) Article 10(1 ) to ( 4 ) of the 1975 Law .
( 4 ) Article 6(2 ) of the 1975 Law .
( 5 ) Article 10(5 ) of the 1975 Law .
( 6 ) Staatsblaad 567 .
( 7 ) Article 10(1 ) and ( 2 ) of the 1975 Law, as amended .
( 8 ) Article 6(2 ) of the 1975 Law, as amended .
( 9 ) Article 6(3 ) of the 1975 Law, as amended .
( 10 ) On the progressive implementation of the principle of equal treatment for men and women in matters of social security ( OJ L 6, 10.1.1979, p . 24 ).
( 11 ) Of 19 April 1989 (( 1989 )) ECR 2743, at p . 2749 .
( 12 ) Judgment of 4 December 1986 in Case 71/85 (( 1986 )) ECR 3855, paragraph 21; see also judgments of 24 March 1987 in Case 286/85 McDermott and Cotter (( 1978 )) ECR 1453, of 24 June 1987 in Case 384/85 Borrie Clarke (( 1987 )) ECR 2865, paragraph 9 and of 8 March 1988 in Case 80/87 Dik and Menkutos-Demirci (( 1988 )) ECR 1601, paragraph 8 .
( 13 ) Judgment of 31 March 1981 in Case 96/80 (( 1981 )) ECR 911 .
( 14 ) Paragraph 10, emphasis added .
( 15 ) Paragraph 11 .
( 16 ) Paragraph 13 .
( 17 ) Judgment of 13 May 1986 in Case 170/84 (( 1986 )) ECR 1607, paragraph 29 .
( 18 ) Judgment of 11 June 1987 in Case 30/85 (( 1987 )) ECR 2497, paragraph 13 .
( 19 ) Emphasis added .
( 20 ) Applicant' s observations, p . 5 of the French translation; it should be noted that in Case 171/88, the statistics for 1987 produced by the Commission show a rate of 83% of part-time female workers in the Netherlands .
( 21 ) In that connection, I pointed out in the Rinner-Kuehn case that a proposal for a directive submitted by the Commission provided in certain circumstances for a reversal of the burden of proof and I expressed the view that accordingly, as Community law stands at present, such a reversal could not be presumed .
( 22 ) Case 71/85, supra, paragraph 23; Case 384/85, supra, paragraph 13; see also Case 286/85, supra, paragraph 17, and Case 80/87, supra, paragraph 10 .
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