OPINION OF ADVOCATE GENERAL
STIX-HACKL
delivered on 29 April 2004(1)



Case C-196/02



Vasiliki Nikoloudi
v
Organismos Tilepikinonion Ellados (OTE)


(Request for a preliminary ruling from the Irinodikio Athinion (Greece))

(Social policy – Equal treatment of men and women – Article 141 EC – Directive 75/117/EEC – Directive 76/207/EEC – Rules concerning appointment to established posts – Exclusion of part-time employees – Calculation of pay – Burden of proof)






I –  Introduction

1.        In essence, the five questions referred by the national court concern the compatibility of national rules with Community law relating to equality between men and women. Those rules provide in particular that part-time employees are excluded from appointment to established posts, while one category of part-time employment is reserved in any event for women.

2.        Clause 1(a) of the Annex to Council Directive 97/81/EC on part-time work  (2) states that the Framework Agreement is intended to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work.

3.        Clause 4(1) of the Annex to Directive 97/81 provides:

‘In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds.’

4.        In the present case it is therefore reasonable to assume that the exclusion of part-time workers from provisions for appointment to an established post constitutes treatment in a less favourable manner within the meaning of that provision. Since, ratione temporis, Directive 97/81 is not, however, applicable to the facts in the present case,  (3) this question need not be considered in any more detail.

II –  Legal framework

A – National law

5.        Article 2(1) of the General Staff Regulations of the Organismos Tilepikinonion Ellados (hereinafter ‘the OTE General Staff Regulations’) provides that OTE’s staff is to consist of established staff and temporary staff. Established staff are employed only full-time. Temporary staff are either employees on fixed-term contracts or, in exceptional cases, employees on contracts of indefinite duration employed part-time as cleaners (in Greek, katharistries, i.e. female cleaners) under Article 24a(2)(a) of the OTE General Staff Regulations.

6.        Under Article 3(v)(d) of the OTE General Staff Regulations, only women may be employed in half-time cleaning posts.

7.        Article 5(9) of the OTE General Staff Regulations as in force until 1 January 1996 excluded periods of part-time employment completely from the computation of length of service, but following amendment with effect from 1 January 1996 it provides that they be taken into account proportionately. As regards temporary cleaners, the amended version expressly provides that the three-hour working day is to be regarded as half of the full-time working day.

8.        Article 66(1) of the OTE General Staff Regulations provides that full-time temporary staff taken on by OTE under employment contracts of indefinite duration may, by way of exception, be appointed to established posts. Therefore, temporary employees must be employed full-time in order to be able to be appointed to an established post.

9.        The specific collective agreements of 2 November 1987 and 10 May 1991 (hereinafter ‘the disputed collective agreements’), which were concluded by OTE and the Omospondia Ergazomenon OTE (OTE Workers’ Federation), govern the conditions for the appointment of temporary employees to established posts, in accordance with Article 66(1) of the OTE General Staff Regulations.

10.      The first disputed collective agreement made applications by temporary employees conditional on full-time employment and two years’ continuous service.

11.      The second disputed collective agreement did not contain any equivalent conditions; however, it was applied by OTE in such a way that establishment was reserved for full-time employees.

B – Community law

12.      Article 141 EC provides:

‘1.     Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

2.       For the purpose of this article, “pay” means 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.

…’

Directive 75/117/EEC 4  –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).

13.      Article 1 of Directive 75/117 provides that the principle of equal pay for men and women 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.

14.      Article 3 of Directive 75/117 provides that Member States are to abolish all discrimination between men and women arising from laws, regulations or administrative provisions which is contrary to the principle of equal pay.

Directive 76/207/EEC 5  –Council Directive 76/207/EEC 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 (OJ 1976 L 39, p. 40).

15.      According to Article 1(1) of Directive 76/207, the purpose of the directive is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the conditions referred to in Article 1(2), social security.

16.      Article 2(1) and (2) of Directive 76/207, in the version in force until Directive 2002/73/EC of the European Parliament and of the Council, (6) provided:

‘1.     For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.

2.       This Directive shall be without prejudice to the right of Member States to exclude from its field of application those occupational activities and, where appropriate, the training leading thereto, for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor.’

17.      Until Directive 2002/73, Article 3 in the version relevant in the present case provided inter alia as follows:

‘1.     Application of the principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity, and to all levels of the occupational hierarchy.

2.       To this end, Member States shall take the measures necessary to ensure that:

(a)

(b)
any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended;

...’

18.      Article 5 of Directive 76/207 provides:

‘1.     Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on the grounds of sex.

2.       To this end, Member States shall take the measures necessary to ensure that:

(a)
any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished;

(b)
any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended;

(c)
those laws, regulations and administrative provisions contrary to the principle of equal treatment when the concern for protection which originally inspired them is no longer well founded shall be revised; and that where similar provisions are included in collective agreements labour and management shall be requested to undertake the desired revision.’

III –  Facts, procedure and the questions referred

19.      According to the order for reference, Ms Nikoloudi was taken on by OTE on 1 September 1978 under an employment contract of indefinite duration as a temporary cleaner. Until 28 November 1996 her working hours amounted to half of the standard full working hours, but with effect from that date her contract was converted to a full-time contract. On 17 August 1998 she was released from service having reached the age-limit. At the time of her retirement she was still employed on a temporary basis.

20.      Before the national court, Ms Nikoloudi contended that her exclusion from the provisions – which were to her advantage – of the specific collective agreements in relation to appointment to an established post constituted discrimination on grounds of sex. The second disputed collective agreement, if not the first, ought to have been applied to her. Furthermore, Article 5(9) of the OTE General Staff Regulations, both in its original form and as amended on 1 January 1996, was incompatible with Community law. In her submission, if the entire period of her part-time employment were included when calculating her length of service, there arose to her advantage a difference in pay totalling EUR 5 834.43 for the period from 28 November 1996 to 17 August 1998.

21.      By her action, Ms Nikoloudi seeks payment of that amount, together with interest.

22.      OTE contends that Ms Nikoloudi could not have been appointed to the established staff since she did not fulfil the condition of full-time employment, which applied regardless of the person’s sex. Moreover, Article 5(9) of the OTE General Staff Regulations permitted the period of her part-time employment to be counted only with effect from 1 January 1996.

23.      The national court came to the view that the dispute before it required Community law to be interpreted; for that reason, it stayed the proceedings in order to refer the following questions to the Court for a preliminary ruling pursuant to Article 234 EC:

‘(1)
Are the existence and operation of a rule, such as, in the present case, Article 24a(2)(a) of the [OTE] General Staff Regulations …, under which it is laid down that (only) women are taken on as cleaners on employment contracts of indefinite duration for part-time or intermittent employment, consistent with the requirements which arise from Article 119 of the EEC Treaty and Directives 75/117 and 76/207?

Under the case-law of the Court of Justice, given that reduced working hours are tied to reduced pay can the rule at issue be interpreted as automatically constituting direct discrimination on grounds of sex, since it immediately and directly ties part-time employment to the sex of the (female) employees and thus places only women at a disadvantage?

(2)
Does the exclusion of temporary part-time cleaners employed for an indefinite duration from the benefits of the specific collective agreement of 2 November 1987 between OTE and the Omospondia Ergazomenon OTE (OTE Workers’ Federation) with regard to their appointment as established members of staff (and indeed irrespective of the duration of the part-time employment contract), as in the present case, on the ground that that specific collective agreement required at least two years’ full-time service infringe Article 119 of the EEC Treaty and the abovementioned directives or another rule of Community law, as indirect discrimination on grounds of sex, on the assumption that those rules (notwithstanding their ostensibly neutral character since no link is made to the employees’ sex) excepted exclusively female cleaners, because no men worked part-time under a contract of indefinite duration either in the General Services Sector (to which cleaners belong) or in any other OTE staff sector?

(3)
When applying the specific collective agreement of 10 May 1991 between OTE and the OTE Workers’ Federation, OTE required temporary staff who were to become (probationary) members of the established staff to have a contract of indefinite duration and to be employed full-time.

Does the exclusion of part-time cleaners (irrespective of the duration of their contract), as in the present case, constitute impermissible indirect discrimination on grounds of sex falling within provisions of Community law (Article 119 and Directives 75/117 and 76/207), given that the specific collective agreement excepted exclusively female cleaners because no men worked part-time for an indefinite duration in any OTE staff sector?

(4)
Under Article 5(9) of the [OTE] General Staff Regulations …, as in force until 1 January 1996, part-time employment was not included at all when calculating length of service for the purpose of determining better conditions of pay. Thereafter, from 1 January 1996, that provision was amended by a specific collective agreement and it was laid down that part-time employment is regarded as equivalent to half of an equal period of full-time employment.

On the basis that part-time employment exclusively or mainly concerned women, can the provisions under which part-time employment is entirely excluded (until 1 January 1996) or taken into account in proportion to full-time employment (from 1 January 1996) be interpreted, in the light also of the case-law of the Court of Justice, as introducing indirect discrimination on grounds of sex prohibited under the rules of Community law and, consequently, should the entire period of part-time employment be added to their length of service?

(5)
If the Court of Justice answers Questions 1 to 4 in the affirmative, in the sense that the contested rules and provisions of collective agreements in fact contravene Community law, who bears the burden of proof when employees plead that the principle of equal treatment has been infringed to their detriment?'

IV –  The first question

24.      By its first question, the national court asks in substance whether Article 24a(2)(a) of the OTE General Staff Regulations constitutes direct discrimination on grounds of sex in that it allows only women to be employed part-time, to their disadvantage.

A – The substance of the parties’ submissions

25.      Ms Nikoloudi suggests that the question should be answered in the affirmative. OTE denies that there is any direct discrimination and, referring to Article 2(2) of Directive 76/207, emphasises that the disputed provision was enacted for socio-political reasons to support women and to meet their particular needs. The Greek Government and the Commission submit that the question of discrimination cannot arise, since there was no situation comparable to the plaintiff’s.

B – Analysis

26.      Article 24a(2)(a) of the OTE General Staff Regulations provides that only women may be taken on as cleaners on (part-time) employment contracts of indefinite duration.

27.      The first question requires consideration of whether Community law precludes the exclusion of men from specified categories of part-time employment – in particular as part-time cleaners. In any event, the national court clearly assumes that part-time employment is disadvantageous to women in that it attracts reduced pay.

28.      In so far as Article 24a(2)(a) of the OTE General Staff Regulations affects access to employment – for men – it is to be analysed by reference to Directive 76/207, and in particular Articles 1 and 2(2) and (3) thereof.

29.      It is clear from the very way in which the question has been formulated in the order for reference that in principle the exclusion of men constitutes direct discrimination against men, and not against women, in so far as preventing access to a part-time post is to be regarded as a disadvantage. The exclusion of men does not appear to be justified pursuant to Article 2(2) of Directive 76/207, since it probably cannot be said that the nature of the cleaning activities or the context in which they are carried out makes the sex of the worker a determining factor. However, the facts of the present case mean that this question need not be answered.

30.      It should also be noted that the disputed provision apparently does not prevent women from engaging in full-time employment, at least as temporary staff. The Commission rightly points out that from 1996 Ms Nikoloudi herself was employed full-time.

31.      In so far as the disputed provision in Article 24a(2)(a) of the OTE General Staff Regulations affects the pay entitlement of the cleaners concerned, it is to be assessed by reference to Article 141 EC and Directive 75/117.

32.      In general, women in part-time employment might suffer unequal treatment in light of the principle of equal pay by virtue of the fact that they earn less than men in part-time employment, or that they do not have access to full-time employment, or have such access only under more difficult conditions, and thereby suffer a loss of income.

33.      The latter consideration seems not to the point, given that the national court states that women are not excluded from full-time employment. (7) Furthermore, in Jenkins (8) the Court held that in principle the correct approach is to treat part-time employment as involving doing the same work as comparable full-time employment. For there to be a disadvantage on grounds of sex, the pay per unit of time would have to be less for part-time employees. In Jenkins the Court indeed stated that the fact that hourly pay for part-time employment is lower than for full-time employment does not necessarily justify a finding of discrimination.

34.      It follows that the answer to the first question should depend on whether women employed part-time receive less pay than men in a comparable situation without any objective justification.

35.      The question arises as to what comparator group is to be used. The Commission – and the Greek Government – submit that there can be no comparison if only because no men are employed part-time as cleaners.

36.      It is correct that Article 141 EC – and Directive 75/117 – can apply only where it is possible to make a comparison with a male employee. Accordingly, the case-law precludes comparison with a ‘hypothetical employee’. (9)

37.      Nevertheless, a difference in working hours does not make it impossible to compare work done in employment paid by reference to a period of time, and in principle a comparison between part-time and full-time employees is accordingly not hypothetical. It is, however, for the national court to determine – by reference to well-known criteria (10) – whether men perform equal work or work of equal value in the undertaking in question. (11) In Lawrence, (12) for example, the national court held that it was possible to compare work in cleaning and canteen operations with that of other workers engaged in gardening, refuse collection and sewage treatment.

38.      Therefore, the mere fact that only women can be employed part-time as cleaners does not preclude the existence in principle of comparable full-time work. However, the order for reference does not contain any grounds for finding that women employed part-time and men employed full-time as temporary staff performing the same work or, as the case may be, work of equal value are not treated equally.

V –  The second and third questions

39.      By its second and third questions, which are to be considered together, the national court asks in substance whether the exclusion under the disputed collective agreements of part-time employees from the field of application of the rules on appointment to the established staff constitutes indirect discrimination on grounds of sex, for the reason that this exclusion affects only female workers. (13)

A – The substance of the parties’ submissions

40.      Ms Nikoloudi and the Commission submit that there is indirect discrimination on grounds of sex, because the exclusion affects only women. The Commission emphasises that the issue is not equal pay but the application of Directive 76/207. It also observes that although it is for the national court to assess whether there are any objective factors that may justify such unequal treatment, the work in question, namely cleaning, does not require any particular experience.

41.     OTE and the Greek Government submit that the lack of a comparator means that there cannot be discrimination. Moreover, the disputed collective agreements have generally favoured women. Finally, OTE relies on objective grounds which, in its view, are to explain the apparently unequal treatment arising under the disputed collective agreements, for example different working conditions, the different number of hours worked and the relationship between length of service and experience which enables an employee to perform his work better. OTE refers in conclusion to its company policy and economic reasons.

B – Analysis

42.      The second and third questions concern the conditions applicable under the two disputed collective agreements for appointment to an established post. The 1987 collective agreement required full-time employment and two years’ service. The 1991 collective agreement maintained the requirement of full-time employment.

43.      Appointment to an established post concerns principally conditions of employment, and the disputed collective agreements are therefore to be analysed by reference to Directive 76/207.

44.      The Court has consistently held that there is indirect discrimination ‘where a national measure, although formulated in neutral terms, works to the disadvantage of far more women than men.’ (14)

45.      In the present case, the fact that by virtue of the disputed rules part‑time employees are treated less favourably than full-time employees could disadvantage a much higher proportion of women than of men. In view of Paragraph 24a(2)(a) of the OTE General Staff Regulations, discussed above, it is reasonable to assume that many more women than men are affected by the conditions in question for appointment to an established post. Even though it could be argued that the fact that part-time cleaning posts are reserved for women does not preclude the possibility that men are employed part-time elsewhere, in the questions posed the national court expressly states that no men are employed part-time. In any event, it is for the national court to make findings as to the proportion of women affected. It is unnecessary to explain in more detail that the existence of indirect discrimination is all the clearer where rules cause disadvantage only to women.

46.      Therefore, in the present case women suffer a disadvantage on grounds of sex because part-time cleaners are excluded by the part-time nature of their employment from appointment to an established post, and thus from the advantages associated with such a post in terms of working conditions and security of tenure.

47.      However, there may be an objective justification for the unequal treatment I consider to exist between men and women as regards appointment to an established post. In that regard, it is apposite to refer to the Court’s settled case-law, according to which differentiating measures are lawful, ‘[in so far as they are] based on objectively justified factors unrelated to any discrimination on grounds of sex’. (15)

48.      A factor falling to be considered in particular in the present case is the relationship between the duration of professional activity (length of service) and the acquisition of professional experience or of knowledge that is relevant to the activity concerned.

49.      The Court has already had repeated opportunity to express its view on equivalent submissions. It initially stated that to differentiate on the basis of training and knowledge is lawful only if these factors are objectively necessary for the particular post. (16)

50.      The Court likewise pointed out that length of service ‘goes hand in hand with experience, and … experience generally enables the employee to perform his duties better.’ (17) The Court initially concluded therefrom that the employer is free to reward length of service without having to establish the importance it has in the performance of specific tasks entrusted to the employee. (18) In subsequent judgments, (19) however, the Court introduced a distinction, according to which, while experience goes hand in hand with length of service and enables the worker in principle to improve performance of the tasks allotted to him, the objectivity of such a criterion depends on all the circumstances in each individual case, and in particular on the relationship between the nature of the work performed and the experience gained from the performance of that work over a period of time.

51.      In relation to the present case, these statements create doubt that the disputed rules can be justified. In any event, any justification on the basis that part-time employees are less motivated or less attached to the company is inadequate. (20)

As regards professional experience, it is to be observed that even though in Danfoss 21  –Cited above, footnote 16. the Court allowed a distinction by reference to length of professional experience, with regard to the encouragement of part-time employees it has opposed the application of the pro rata temporis principle. It appears appropriate to apply these considerations to the present case concerning appointment to an established post.

52.      It is for the national court to determine the extent to which, in the light of the nature of the work performed (cleaning), there is a relationship between length of service, as required by the disputed 1987 collective agreement, and professional experience in connection with appointment to an established post. In addition, the Commission is right to observe that the disputed 1987 collective agreement did not take length of service fully into account in connection with appointment to an established post, since only full-time employment was taken into account, as is also the case under the disputed 1991 collective agreement. (22)

VI –  The fourth question

53.      In substance, the fourth question concerns whether completely excluding part-time employment when computing length of service, or taking it into account on a proportionate basis, constitutes indirect discrimination on grounds of sex, on the basis that the part-time employment concerns only or principally women.

A – The substance of the parties’ submissions

54.      Ms Nikoloudi submits that it would be illogical to find there to be discrimination but to take part-time employment into account only on a proportionate basis. OTE disagrees, relying on the abovementioned arguments, in particular the relationship between length of service and experience which in turn enables employees to perform their work better.

55.      The Commission is of the opinion that in failing to take part-time employment into account in computing length of service pursuant to the disputed rules the principle of equal pay is infringed, assuming OTE does not employ any men part-time, unless those rules are justified by objective factors unrelated to any discrimination on grounds of sex. On the other hand, the principle of equal pay is not infringed if part-time employment is taken into account on a proportionate basis.

B – Analysis

56.      First of all, it is necessary to consider the criteria by reference to which the disputed provision (Article 5(9) of the OTE General Staff Regulations) is to be assessed.

57.      Article 5(9) of the OTE General Staff Regulations lays down what working time is to be taken into account in computing length of service. In that regard, the version in force until 1 January 1996 left part-time employment completely out of account, whereas the version in force from 1 January 1996 has provided for it to be taken into account pro rata.

58.      It appears from the question referred that in this context length of service affects pay. Accordingly, the disputed provision is to be assessed against Article 141 EC and Directive 75/117. The judgment in Gerster, (23) according to which a national provision concerning the means of calculating periods of service did not fall within Article 119 of the EC Treaty (now Article 141 EC) or Directive 75/117, does not gainsay this conclusion, since that case concerned access to promotion. In the present case, it is to be assumed that the disputed provision directly affects the amount of pay.

59.      In the context of the principle of equal pay too, indirect discrimination exists where ‘an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex’. (24)

60.      If one accepts the national court’s assumption that only women were employed part-time by OTE, it is immediately clear that Article 5(9) of the OTE General Staff Regulations affects only women.

61.      The complete exclusion of part-time employment from the computation of length of service up to 1 January 1996 constitutes a clear disadvantage to the women who are – alone – affected by it.

62.      However, the situation is more complex with regard to the proportional inclusion applied after that date. There should be no real doubt that the fact that women alone are affected is insufficient to constitute unequal treatment. (25) As regards the wages paid, the Commission is not wrong in pointing out that if the wages paid per unit of time to full-time and part-time employees is the same, there is no unequal treatment. (26) However, in the present case there could be unequal treatment because the length of service used for determining the wage to be paid is not computed by reference to appropriate criteria. In this context, one must recall the case-law cited above, (27) according to which it is in particular the relationship between the nature of the work performed and the experience gained from the performance of that work upon completion of a certain number of working hours that determines whether the length-of-service criterion is objective. In other words, part-time employees could still suffer unequal treatment in the context of computing length of service even though the hours they work are taken into account pro rata, because the conferral of a financial advantage thereby ultimately depends on a longer period of service than in the case of full-time employees. Whether this distinction is appropriate depends on the purpose for which length of service is taken into account: to reward company loyalty or to make a more or less flat rate payment for experience gained; in the latter case regard would then have to be had to the extent to which there is a relationship between experience and hours worked in the light of the nature of the work performed. (28)

63.      Since it is for the national court to determine whether and to what extent the grounds relied on by OTE as justifying its pay policy may be regarded as objectively justified economic grounds, (29) it is also for the national court to make findings as to the purposes pursued by taking length of service into account.

64.      If the purpose of taking length of service into account is to reward company loyalty, the foregoing considerations make it appear questionable whether the distinguishing criterion is appropriate, whereas a flat-rate reward for the experience acquired by means of the period of service appears in principle more likely, provided that due regard is had to the relationship between the amount of time worked and the experience gained, a relationship which is not entirely free from doubt given the nature of the work performed and the requirements for it.

VII –  The fifth question

65.      The fifth question concerns who bears the burden of proof in cases where employees consider themselves wronged by a failure to apply the principle of equal treatment.

A – The substance of the parties’ submissions

66.      All the parties who participated in the written procedure submit that the burden of proof rests with the employer. With the exception of Ms Nikoloudi, they all rely on Directive 97/80. They state, however, that it is necessary that the employee establishes facts from which it may be presumed that there has been direct or indirect discrimination in order that it be for the respondent employer to prove that there has been no breach of the principle of equal treatment.

B – Analysis

67.      The answer to the fifth question flows directly from the case-law of the Court, according to which ‘the onus may shift when that is necessary to avoid depriving workers who appear to be the victims of discrimination of any effective means of enforcing the principle of equal pay. Accordingly, when a measure distinguishing between employees on the basis of their hours of work has in practice an adverse impact on substantially more members of one or other sex, that measure must be regarded as contrary to the objective pursued by Article 119 of the Treaty, unless the employer shows that it is based on objectively justified factors unrelated to any discrimination on grounds of sex’. (30)

68.      Article 4 of Directive 97/80 codified this case-law, while Article 3(1)(a) provides that these principles are to apply to inter alia situations covered by Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) and Directives 75/117 and 76/207.

69.      It is to be concluded from the foregoing that where a female worker who considers herself wronged because the principle of equal treatment has not been applied to her establishes, before a court, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the employer to prove that there has been no breach of the principle of equal treatment.

VIII –  Costs

70.      The costs of the Greek Government and of the Commission, 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.

IX –  Conclusion

71.      On the basis of the foregoing, I propose that the Court should answer the questions referred as follows:

(1)
On the assumption that part-time employees receive less remuneration per unit of time than full-time employees in temporary posts performing equal work or work of equal value, Article 141 EC and Article 1 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 prohibit a national provision, such as Article 24a(2)(a) of the OTE General Staff Regulations, under which only women are taken on as cleaners on employment contracts of indefinite duration for part-time or intermittent employment.

(2)
Articles 2(1) and 3(1) of Council Directive 76/207/EEC 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 prohibit national provisions, such as those in the collective agreements of 2 November 1987 and 10 May 1991, under which full-time employment is required in order to be appointed to the established staff, in so far as the provisions are not justified by objective factors unrelated to any discrimination on grounds of sex.

(3)
Article 141 EC and Article 1 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 prohibit a national provision, such as Article 5(9) of the OTE General Staff Regulations, under which, when computing length of service in relation to fixing remuneration, time spent in part-time employment is not taken into account at all, or is taken into account only pro rata, in so far as the provision is not justified by objective factors unrelated to any discrimination on grounds of sex.

(4)
In accordance with Article 4(1) of Council Directive 97/80/EC of 12 December 1997 on the burden of proof in cases of discrimination based on sex, where a female worker who considers herself wronged because the principle of equal treatment has not been applied to her establishes, before a court, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent employer to prove that there has been no breach of the principle of equal treatment.


1
Original language: German.


2
Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC – Annex: Framework Agreement on part-time work (OJ 1998 L 14, p. 9).


3
Article 2(1) of Directive 97/81 provided that the directive was to be transposed into national law not later than 20 January 2000, and Ms Nikoloudi’s employment terminated on 17 August 1998.


4
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).


5
Council Directive 76/207/EEC 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 (OJ 1976 L 39, p. 40).


6
Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC 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 (OJ 2002 L 269, p. 15).


7
As regards the problem concerning appointment to an established post, see below in relation to the second and third questions.


8
Case 96/80 Jenkins [1981] ECR 911, paragraphs 9 and 10.


9
Case 129/79 Macarthys [1980] ECR 1275, paragraph 15, and Case C-200/91 Coloroll Pension [1994] ECR I-4389, paragraph 100 et seq.


10
In substance, these criteria relate to the nature of the work to be performed and the conditions in which it is performed.


11
Case C-236/98 Jämställdhetsombudsmannen [2000] ECR I-2189, paragraph 48.


12
Case C-320/00 Lawrence and Others [2002] ECR I-7325.


13
The national court proceeds on the footing that OTE does not employ any men part-time on a contract of indefinite duration.


14
Case C-1/95 Gerster [1997] ECR I-5253, paragraph 30.


15
Case C-343/92 Roks and Others [1994] ECR I-571, paragraphs 33 and 34, and Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623, paragraph 67. See also Article 2(2) of Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex (OJ 1998 L 14, p. 6): ‘… indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex’ (emphasis added).


16
Case 109/88 Danfoss [1989] ECR 3199, paragraph 23.


17
.Danfoss (cited above, footnote 16), paragraph 24.


18
.Danfoss (cited above, footnote 16), paragraph 24.


19
Case C-184/89 Nimz [1991] ECR I-297, paragraph 14, Gerster (cited above, footnote 14), paragraph 39, and Case C-100/95 Kording [1997] ECR I-5289, paragraph 23.


20
Schwarze, EU-Kommentar, Baden Baden, 2000, Article 141 of the EC Treaty, paragraph 33.


21
Cited above, footnote 16.


22
In the disputed 1991 collective agreement, the criterion of length of service was omitted, so that a distinction is drawn only between full-time and part-time employees.


23
Cited above, footnote 14.


24
Article 2 of Directive 97/80 (cited above, footnote 15). This substantially corresponds to the Court’s consistent case-law since Case 170/84 Bilka [1986] ECR 1607, paragraphs 29 to 31.


25
In this regard, the Commission rightly refers to Gerster (cited above, footnote 14), paragraph 40.


26
See also Joined Cases C-399/92, C-409/92, C-425/92, C-34/93, C-50/93 and C-78/93 Helmig and Others [1994] ECR I-5727, paragraph 26: ‘There is unequal treatment wherever the overall pay of full-time employees is higher than that of part-time employees for the same number of hours worked on the basis of an employment relationship’.


27
See above, footnote 19.


28
In the case of activity as a cleaner, it appears at least doubtful that experience gained through performing the activity increases strictly proportionately to the amount of time spent performing it.


29
In this regard, the case-law of the Court requires there to be a ‘real need’ (see Bilka (cited above, footnote 24), paragraphs 36 and 37).


30
Case C-127/92 Enderby [1993] ECR I-5535, paragraph 14, with further references.