(i)

may be executed with moderate previous knowledge and instruction or training related to the particular job;

(ii)

make moderate demands as regards accuracy or conscientiousness;

(iii)

require moderate or occasionally great muscular effort; ( 1 )

(iv)

involve slight or occasionally moderate responsibility for equipment and/or own work.’

(i)

require previous knowledge on the basis of instruction or training related to the particular job, occasionally a fair degree of occupational experience;

(ii)

make moderate demands as regards accuracy or conscientiousness;

(iii)

involve moderate, occasionally great effort 1 of different kinds, particularly as a result of work dependent on machines;

(iv)

involve moderate responsibility for equipment and/or the product of the work.’

‘3.

Adjustment and operation of simple machines and processing apparatus.

4.

Heavy packing, dispatch and loading work.

7.

Counting and sorting proof sheets by hand.’

‘(1)

Does it follow from the provisions of Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women that in job classification systems no distinction may be made on the basis of:

(2)

If Question (1) is answered essentially in the negative:

As regards the decision as to:

(3)

If Question (2) is answered in the affirmative:

Does a job classification system which uses the criterion of demand on or effort of the muscles or the criterion of heaviness of work but does not make clear that it is significant to what extent the work makes demands on or requires an effort of the muscles as regards women or whether the work is heavy for women satisfy the requirements of the directive?’

1.

Let me refer first of all to two judgments of the Bundesarbeitsgericht [Federal Labour Court] of 17 April 1985, sent to us by that court, which throw light on the question what the practice in the Federal Republic of Germany with regard to such assessment criteria now is and what it will become in the future under the influence of the Bundesarbeitsgericht's decisions. That is relevant because, as we have seen, the Arbeitsgericht is concerned with such considerations drawn from the practice of other courts. It is not clear from the documents before the Court whether or not the Arbeitsgericht was aware of those judgments. I shall therefore summarize their content.

Both judgments concern the framework wage agreement for the printing industry of 1 April 1980, that is to say, a predecessor of the agreement at issue in the main proceedings. Both cases dealt with the question whether the female plaintiffs carried out heavy work for the purposes of Wage Group IV and could therefore claim to be paid accordingly (in the result their claims were dismissed). In interpreting the term ‘heavy work’ the Bundesarbeitsgericht attributes particular importance to heavy demands on physical strength. According to the identical wording of both judgments, the key factor is the physical effort involved, in which the expenditure of energy, the rhythm of the work, the speed and pattern of movement and the posture required are all elements. When those criteria are used (and the repeated movement of lighter loads for a longer period is also taken into account) there is no danger, says the Bundesarbeitsgericht, of any discrimination between women and men as prohibited by Article 3 of the Grundgesetz [German Basic Law]. That is of course true, as the Bundesarbeitsgericht also emphasizes, only where due account is taken of the fact that women are physically less strong, that is to say, when lower average values of physical capacity are laid down for women and lower average values for expenditure of energy are applied.

It is thus clear that the Bundesarbeitsgericht applies the second of the four possibilities put forward by the Arbeitsgericht in the context of its second question, ( 2 ) a possibility which the latter dismisses as unacceptable in the light of the principle of equal treatment. In its order the Arbeitsgericht states: ‘the second alternative is not compatible with the principle of equal pay’ (at p. 17).

2.

Turning now to the Question (1) posed by the Arbeitsgericht, whether Council Directive 75/117 prohibits the making of distinctions in job classification systems according to the heaviness of the work and its demands on muscles, it will be recalled first of all that according to the defendant in the main proceedings that question should be answered in the negative. It takes the view that the needs of industry require such criteria; otherwise the wage structure would be unfair. It emphasizes, however, that the application of such criteria cannot be restricted to certain types of muscular demands; the muscular demand associated with work performed in a standing position and work with the fingers must also be taken into account.

The United Kingdom takes a similar attitude. In its view classification criteria in respect of which members of one sex maybe regarded as having more natural ability cannot be ignored when they are necessary for an objective assessment of the work. To hold otherwise would be to ignore reality and to tolerate discrimination against the sex having more natural ability (a view which cannot be ascribed to the authors of the directive). The United Kingdom would perhaps have doubts if there were in fact a tendency in German practice, in the application of criteria such as those in issue here, to ignore the movements of small muscle groups and thus treat less favourably activities which are primarily carried out by members of one sex.

The Commission's view is along the same lines, and let me say right away that I think our assessment should take the same approach.

That follows directly from examination of the scheme of Article 1 of the directive, which I have quoted above. Its effect, with regard to job classification systems, is that common criteria must be used for men and women workers and that the system must be organized in such a way as to exclude discrimination on grounds of sex.

That can only mean that it is not merely through the use of common criteria, which the framework wage agreement concerned in the main proceedings contains, that discrimination must be excluded. In other words, it is not necessary for each individual criterion to be drawn up in such a manner as to rule out discrimination, but the system as a whole must be framed with that purpose in mind.

If it appeared that, in spite of the guidelines for their application laid down by the Bundesarbeitsgericht, the use of common criteria, such as those in this case (demand on muscles, heaviness of the work), would probably lead to a degree of discrimination against women in this more narrow domain, that would not mean that under the principles of the directive such criteria could not be applied. The important question is whether discrimination is inherent in the general scheme of the agreement or whether the common criteria as a whole are selected, defined and weighted in such a way as to avoid discrimination on grounds of sex. If some work requirements are more easily fulfilled by men, they must be balanced by other requirements, carrying approximately the same wage, which are more easily fulfilled by women, so that in the aggregate men and women will have the same opportunities under the agreement.

From the point of view of Community law nothing more can be said in that regard. As may be inferred from Article 2 of the directive, any further findings are a matter for the national court. It is thus for the national court to decide whether the wage agreement in question meets these criteria.

3.

In Question (2) the Arbeitsgericht wishes to know whether the view to which it inclines is correct: that is to say, whether it follows from the directive that in deciding to what extent a job makes demands on the muscles and whether or not it is heavy, reference must be made to whether or not that is the case for women.

The defendant in the main proceedings has argued in that regard that if it is assumed that the key factor is the job carried out and not the qualification for the job, the directive does not require that female values should be used or that different standards should apply for men and for women. The calculation of wages in such a manner would not be consistent with the requirement of equal treatment.

The United Kingdom takes a similar view. It argues first of all that the fact that the first paragraph of Article 1 of the directive speaks of work to which equal value is attributed does not mean that an assessment must be made on the basis of the relative demands which a job makes on the physical resources of men and women.

If that were the case, an employer could not pay particularly high wages for jobs which were particularly strenuous but would have to pay a considerable number of workers at the highest rate. That could not have been the intention of the authors of the directive.

In the view of the United Kingdom it is quite permissible, under the directive, to establish wage classifications reflecting demand on the muscles and the heaviness of the work and to use male values as a reference if those wage rates correspond to the effort actually required in carrying out the job. The question is thus whether classifications of that kind are based on objectively justifiable grounds. If there are such grounds, that is to say, if a job is in fact particularly strenuous, it must be possible to pay higher wages for such a job according to corresponding criteria since that may be economically necessary in order to attract the relatively few persons who are able to do such a job.

The Commission, finally, has argued that the directive does no more than lay down the principle that a job classification system must be organized in such a manner as to preclude discrimination on grounds of sex; it thus requires that the system as a whole should entail no discrimination and that it should be organized in such a manner that individual classification decisions are in accordance with the principle of equal treatment. As is clear from Article 2, the directive assumes that its application in particular cases is a matter for the national courts; no precise rules can be inferred from the directive to the effect that in using the classification criterion of ‘demand on the muscles’ female values must be used. At most it may be said that the application of the principle of nondiscrimination and the avoidance of discrimination in individual cases may require that female values should be given particular weight or allowed to prevail in the assessment of specific cases.

With regard to the issues addressed by Question (2), the Arbeitsgericht's remarks may be found quite convincing; it said that discrimination against women could arise not only when in using the classification criteria of ‘heaviness of the work’ and ‘demand on the muscles’, reference was made to male values or to average values common to both sexes (which will in general probably be more difficult for women to achieve than men, as the United Kingdom correctly pointed out) but also where special female values are used only for women, as the judgments of the Bundesarbeitsgericht suggest. Since under such a system women may obtain a higher classification for a job requiring relatively little effort, the result may be that women have less chance of obtaining such jobs because preference is given to men, who will be paid less because the demand on their muscles is lower.

Although the Arbeitsgericht's view (reference only to female values) is certainly attractive, it must not be forgotten that the result could be that above a relatively low level of muscular demand — from the point of view of male values — there would be no further wage differentiation. Differentiation may however be essential for a fair and appropriate wage structure, in part because it might otherwise be difficult to find persons willing to take particularly heavy jobs.

It may be imagined that problems of that kind became apparent during the preparation of the directive and that is why no specific rules were laid down for the practical application of the principle of equal treatment in the establishment of classification criteria. Indeed, all that can be drawn from the directive — and here one must agree with the Commission — is the general principle that a classification system as a whole must not be discriminatory (which may for instance be the case, as the United Kingdom has pointed out, where such a system attaches too much importance to criteria such as the heaviness of work and demands on the muscles to the detriment of other criteria). It is also implicit in the directive that in each individual case efforts must be made to avoid discrimination, and as the Commission pointed out, it may sometimes be appropriate to apply female values in the use of criteria such as those at issue in the main proceedings.

There is little more that can be said with regard to Question (2) as it is phrased; that is to say, it does not appear possible to answer it generally in the affirmative.

4.

If it is desired to go on to consider Question (3) (I need not repeat it here), which was raised only in the event that an affirmative answer should be given to Question (2), I can but adopt the position proposed by the Commission.

It is clear that the directive does not lay down the principle that in applying the criterion of demand on or effort of the muscles or the criterion of heaviness of work, reference must be made to the extent to which the work makes demands on or requires an effort from women or whether it is heavy for women. It follows that there is no general requirement that anything of that nature should be expressed in a job classification system.

If in a particular case (again following the Commission's point of view) it appears that discrimination against women can be avoided only if reference is made to their capacities, the question arises, if such a procedure is not expressly provided for, whether the scheme can be interpreted in such a nondiscriminatory manner. If so, there is nothing to stop the system from being applied in a manner free of discrimination, and it is in no way at variance with the directive. If not, however, and if discrimination cannot be avoided in a particular case by appropriate interpretation, it can only be held that such a system is not in conformity with the directive and must therefore be changed so as to lay down criteria which do not discriminate against women.

That is probably all that needs to be said with regard to Question (3).

(1)

A job classification system in which distinctions are made according to the extent to which a job makes demands on or requires an effort of the muscles or to whether or not the work is heavy is not contrary to Council Directive 75/117 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 if the system as a whole is so structured as to preclude discrimination on grounds of sex.

(2)

Directive 75/117 contains no general principle to the effect that the decision as to what extent a job makes demands on or requires an effort of the muscles or whether or not the work is heavy must always be based exclusively or primarily on the extent to which the job is demanding or heavy for women. The principle of nondiscrimination may however require in particular cases that in order to avoid discrimination against women in classification particular reference should be made to their physical performance.

(3)

A job classification system which uses the criterion of demand on or effort of the muscles or the criterion of heaviness of work but does not make clear that it is significant to what extent the work makes demands on or requires an effort of the muscles as regards women or whether the work is heavy for women is compatible with the principles laid down in Directive 75/117. That may not be so, however, when in a particular case differentiation between the physical capacities of men and women is necessary in order to preclude discrimination on grounds of sex and such an interpretation of the system in question is not possible.