61993J0297

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Social policy ° Equal pay for men and women ° Equal treatment for men and women in matters of social security ° Assimilation of a retirement pension reduced by loss of earnings as a result of time spent bringing up a child to pursuit of a main occupation affording social security ° Whether permissible ° Obligation of Member States to grant advantages in respect of old-age pension schemes to persons who have brought up children ° None

(EEC Treaty, Art. 119; Council Directives 75/117 and 79/7)

It is not incompatible with the principle of equal pay for men and women laid down in Article 119 of the Treaty and in Directive 75/117 to assimilate receipt of a retirement pension to pursuit of a main occupation affording social security, when that pension has been reduced by loss of earnings as a result of time spent bring up a child.

The fact that such assimilation may enable part-time work done by the recipient of the pension to be paid at less than the normal rate cannot be regarded as incompatible with the principle of equal pay for men and women because Directive 79/7 on equal treatment in matters of social security does not require the Member States to grant advantages in respect of old-age pension schemes to persons who have brought up children or to provide benefit entitlements where employment has been interrupted in order to bring up children.

In Case C-297/93,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Arbeitsgericht Bremen (Germany) for a preliminary ruling in the proceedings pending before that court between

Rita Grau-Hupka

and

Stadtgemeinde Bremen

on the interpretation of Article 119 of the EEC Treaty, 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) and 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),

THE COURT (Fifth Chamber),

composed of: G.C. Rodríguez Iglesias, President of the Court acting as President of the Chamber, R. Joliet (Rapporteur), President of Chamber, and J.C. Moitinho de Almeida, Judge,

Advocate General: F.G. Jacobs,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

° the Stadtgemeinde Bremen, defendant in the main proceedings, by V. Schottelius, Rechtsanwalt, Bremen,

° the German Government by E. Roeder, Ministerialrat at the Federal Ministry of the Economy, and C.D. Quassowski, Regierungsdirektor at the same Ministry, acting as Agents,

° the Commission of the European Communities, by K. Banks, of its Legal Service, and H. Kreppel, a national civil servant on secondment to the Commission' s Legal Service, acting as Agents,

having regard to the Report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 29 June 1994,

gives the following

Judgment

1 By order of 12 May 1993, which was received at the Court on 21 May 1993, the Arbeitsgericht (Labour Court) Bremen referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Article 119 of the EEC Treaty, Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19, hereinafter referred to as "the equal pay directive") and 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, hereinafter referred to as "the equal access directive").

2 The questions were raised in the course of a dispute between Mrs Grau-Hupka, a contractual employee in the public sector, and her employer, the Stadtgemeinde Bremen (the Municipality of Bremen), regarding the calculation of her pay.

3 Mrs Grau-Hupka worked full-time from 1956 to 1991 as a music teacher at the Bremen Academy of Music. Since 1991 she has been drawing a statutory retirement pension together with a monthly supplement from the Civil Servants' Supplementary Pension Fund. Although she receives those benefits she continues to teach, but only part-time.

4 When she was in full-time employment she was paid by the hour as provided for by the Bundes-Angestellten-Tarifvertrag (Collective Wage Agreement for Federal Employees, hereinafter referred to as "the collective agreement") for persons pursuing their main occupation either half-time or full-time. Since she commenced working part-time her pay has been lower; she therefore wrote to her employer on 14 December 1992 asking to be paid by the hour as before. The Municipality of Bremen replied by letter of 21 December 1992 rejecting her request on the basis clause 3(n) of the collective agreement, which states that the agreement does not cover employees pursuing a secondary activity. It considers that drawing a pension must be treated in the same way as pursuing a main occupation, that Mrs Grau-Hupka is therefore employed part-time in a secondary activity and that she is therefore not covered by the collective agreement.

5 Mrs Grau-Hupka then pursued her claim before the Arbeitsgericht Bremen. In her action she challenged the validity of clause 3(n) of the collective agreement excluding persons pursuing a secondary activity from the scope of the agreement. She argued that the provision was incompatible with Paragraph 2(1) of the Beschaeftigungsfoerderungsgesetz (a law containing measures to promote employment, hereinafter referred to as "the BFG"), which prohibits employers from exercising any form of unequal treatment based on length of working hours as between full-time and part-time workers, save where justified by objective reasons.

6 The Arbeitsgericht considers that clause 3(n) of the collective agreement is not incompatible with Paragraph 2(1) of the BFG. The cases decided by the Bundesarbeitsgericht (Federal Labour Court) indicate that the "objective reasons" referred to in Paragraph 2 of the BFG include the pursuit of a main occupation affording social security. The Arbeitsgericht points out that retirement pensions, whether statutory or from a pension fund, are intended to provide social security for the aged. The plaintiff' s situation ° as a pensioner ° thus constitutes an "objective reason" for the purposes of Paragraph 2 of the BFG which justifies the difference in treatment as between full-time and part-time workers. It is therefore compatible with German law for Mrs Grau-Hupka to be paid for her part-time work at a lower rate than the normal one.

7 The Arbeitsgericht considers, however, that the dispute raises questions of Community law which might defeat the outcome produced by the application of national case-law.

8 It points out that what constitutes an "objective reason" justifying differences of treatment as between full-time and part-time workers is not dictated by the law but is based on an interpretation of the law by the courts. The EEC Treaty stipulates, however, that provisions of national law must be interpreted in accordance with Community law, to which they are subject.

9 Consequently, the court considers that before applying the case-law of the Federal Labour Court on the meaning of "objective reason" in Paragraph 2 of the BFG it must be ascertained whether it is in conformity with certain provisions of Community law.

10 In the light of those considerations the national court decided to stay the proceedings and to seek a preliminary ruling from the Court of Justice on the following questions:

"1. Does the principle of equal treatment for men and women as regards access to employment under Article 1(1) and Article 3 of Council Directive 76/207/EEC of 9 February 1976 require a national law which prohibits discrimination without objective reason against part-time employees to be interpreted as meaning that the fact that such an employee also has a main occupation affording him social security does not constitute an objective reason for paying him less in respect of the part-time employment?

2. If Question 1 is answered in the negative:

Does the principle of equal pay for men and women in Article 119 of the EEC Treaty and Council Directive 75/117/EEC of 10 February 1975 prohibit drawing a pension from being treated in the same way as a main occupation affording social security if that pension is reduced by loss of earnings as a result of bringing up children?"

First question

11 The first question seeks essentially to ascertain whether the fact that a part-time employee receives a pension and may thus be assimilated to an employee enjoying social security in the same way as if he was pursuing a main occupation constitutes an objective reason justifying different treatment as regards access to employment.

12 It should be noted that according to clause 3(n) of the collective agreement all employees whose activity is a secondary one are excluded from the agreement and therefore may receive pay which is lower than the hourly pay provided for by the agreement for employees pursuing their main occupation, regardless of whether they are part-time or full-time employees.

13 The discrimination alluded to by the court which has made the reference therefore lies in the difference in pay as between employees pursuing a secondary activity and those pursuing a main occupation, rather than between part-time and full-time employees. There is therefore discrimination between part-time and full-time employees only to the extent that, for instance, persons who work part-time more frequently pursue a main occupation in addition to that than do full-time employees.

14 The court explains the first question in three steps.

15 It assumes, first, that employees working part-time as a secondary activity are mostly men. It maintains that experience has shown that because of the twin responsibilities which women have to bear ° career and family ° it is often not possible for them to work full-time, still less to pursue a full-time occupation in addition to a secondary one.

16 Secondly, as a result of the case-law of the Bundesarbeitsgericht and clause 3(n) of the collective agreement, part-time employees whose activity is a secondary one may be paid at a lower rate than full-time employees.

17 Thirdly, it points out that employers would prefer to take on part-time employees whose work is accessory to their main occupation ° that is to say men ° because they are permitted to conclude agreement with them for pay lower than the normal rate. Consequently, women have less chance of obtaining part-time employment, thus exposing them to indirect discrimination as regards access to employment.

18 Apart from the fact that Mrs Grau-Hupka falls precisely into that category of part-time workers which the German court considers to have an advantage as regards access to employment, the case-file indicates that the subject-matter of the main action is the claim by that part-time employee to pay higher than that which she receives as a result of her being entitled, in addition to her wages, to old-age pensions guaranteeing her social security; it is not a dispute concerning discrimination against her as regards access to employment. The interpretation of the equal access directive is therefore not relevant to the outcome of the main action.

19 The Court has consistently held that there is no need to rule on a question referred by a national court if it appears that the interpretation of Community law or the examination of the validity of a Community rule sought by that court has no connection with the facts or issues of the main proceedings (Case C-343/90 [1992] ECR I-4673).

20 Accordingly, it is not necessary to rule on the first question.

The second question

21 The first question concerned access to employment; the second concerns the principle of equal pay.

22 It seeks to know whether it is incompatible with the principle of equal pay for men and women for receipt of a retirement pension to be assimilated to the pursuit of a main occupation affording social security if that pension has been reduced by loss of earnings as a result of bringing up children.

23 Unlike the first question, the second is related to the subject-matter of the main proceedings. To assimilate receipt of a retirement pension, even if it has been reduced by loss of earnings as a result of bringing up children, to the pursuit of a main occupation enables part-time work to be paid at a lower rate than usual.

24 Mrs Grau-Hupka' s pension has been reduced inasmuch as it was calculated without taking into account the whole of the five years she spent bringing up her child. The German court explains that although in German law time spent bringing up children is taken into account in calculating retirement pensions (Paragraph 56 of the Sozialgesetzbuch ° the German social security code ° vol. VI, "the SGB"), it was not the rule set out in Paragraph 56 which was applied in Mrs Grau-Hupka' s case when her retirement pension was calculated in connection with her full-time employment: her position was governed by the transitional rules contained in Paragraph 249 of the SGB, according to which she could only claim one year spent bringing up her child.

25 It is argued by the court that the failure to take into account all the years spent on a child' s upbringing affects proportionately more women than men because, as regards the generation now in retirement, children' s education was almost entirely the responsibility of women. It is therefore for the most part women who draw a reduced pension. The court concluded that there was indirect discrimination against women, which is prohibited by Article 119 of the Treaty and by the equal pay directive.

26 The court did not explain whether the reduced retirement pension referred to in the second question was the statutory pension or the supplementary pension to which Mrs Grau-Hupka was entitled. The national legislation relied on by her concerns the statutory scheme, so that it may be assumed that the second question refers to the statutory pension.

27 In that case it must be pointed out, as the Advocate General has done, that 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 (OJ 1979 L 6, p. 24) in no way obliges the Member States to grant advantages in respect of old-age pension schemes to persons who have brought up children or to provide benefit entitlements where employment has been interrupted in order to bring up children.

28 Since Community law on equal treatment in matters of social security does not oblige Member States to take into account in calculating the statutory pension years spent bringing up children, it is not possible to regard as incompatible with the principle of equal pay for men and women, which is laid down in Article 119 of the Treaty and in the equal pay directive, the possibility of giving pay lower than the normal rate to a person who is in receipt of a pension and who thus enjoys social security, but whose pension has been reduced by loss of earnings as a result of time spent bringing up a child.

29 Accordingly, the reply to the second question must be that it is not incompatible with the principle of equal pay for men and women laid down in Article 119 of the EEC Treaty and in Council Directive 75/117/EEC of 10 February 1975 to assimilate receipt of retirement pension to pursuit of a main occupation affording social security, when that pension has been reduced by loss of earnings as a result of time spent bringing up a child.

Costs

30 The costs incurred by the German Government and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber),

in answer to the questions referred to it by the Arbeitsgericht Bremen by order of 12 May 1993, hereby rules:

1. It is not necessary to rule on the first question.

2. It is not incompatible with the principle of equal pay for men and women laid down in Article 119 of the EEC Treaty and in 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 to assimilate receipt of a retirement pension to pursuit of a main occupation affording social security when that pension is reduced by loss of earnings as a result of time spent bringing up a child.