OPINION OF ADVOCATE GENERAL

delivered on 16 October 2003 (1)

1.In this reference from the Verwaltungsgericht (Administrative Court) Minden (Germany) the Court is asked essentially whether the principle of equal pay for men and women is infringed by German legislation which provides that full-time and part-time teachers may be obliged to work for the same number of additional hours before becoming entitled to supplementary pay.

The relevant national legislation

2.Paragraph 78a(1) of the Civil Service Code for North Rhine-Westphalia (2) provides that civil servants are obliged to work additional hours where the job requires it; where such additional work exceeds five hours per calendar month, extra leave corresponding to all additional hours worked must be granted. Paragraph 78a(2) provides that, where it is incompatible with the job for leave to be granted, certain civil servants are entitled instead to supplementary pay for such additional work.

3.Paragraph 5(2)(1) of the Regulation on the granting of remuneration for excess hours for civil servants (3) provides that in the case of additional work in the teaching sector, three teaching hours is equivalent to five hours.

The facts, the main proceedings and the question referred

4.The applicant, who has the status of a civil servant, works part-time as a secondary school teacher for the defendant Land. Full-time teachers at the applicant’s school work for 24.5 hours per week, whereas she works for 15 hours per week.

5.In December 1999 the applicant was required to work 2.5 additional hours in that month. Her request for remuneration of those hours was refused on the basis that the relevant legislation provided that excess hours worked by a teacher who is a civil servant would be remunerated only when the additional work exceeded three hours in a month. She therefore received no pay at all for the additional 2.5 hours worked. Having unsuccessfully pursued the administrative appeal procedure, the applicant brought proceedings before the Verwaltungsgericht.

6.That court considers that in accordance with the relevant national legislation the applicant is not entitled to remuneration for the additional hours worked. It questions however whether that legislation is compatible with Article 141 EC in conjunction with the Equal Pay Directive (4) since the effect is that part-time teachers who are civil servants and work no more than three additional teaching hours per month receive less total remuneration than that granted for the same number of hours worked to full-time teachers who are civil servants.

‘Is it compatible with Article 141 EC in conjunction with 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 that men and women teachers, part-time as well as full-time, who are officials in the Land North-Rhine Westphalia are not granted remuneration for excess hours worked if that additional work does not exceed three teaching [hours] in the calendar month?’

8.Written observations have been lodged by the applicant and the defendant, the German Government and the Commission. No hearing was held, none having been requested. The applicant and the Commission submit that the question referred should be answered in the negative; the defendant and the German Government take the contrary view.

Assessment

9.Article 141 EC lays down the principle of equal pay for men and women for equal work. Article 1 of the Equal Pay Directive states that that principle 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.

10.It is settled case-law that the principle of equal pay extends not only to direct sex discrimination but also to different treatment of men and women at work resulting from the application of criteria not based on sex, unless that different treatment is justified by objective factors unrelated to sex. (5)

11.In the present case it is clear that the legislation at issue does not entail direct sex discrimination. If however it establishes different treatment for full-time and part-time employees and that difference affects considerably more women than men, application of the legislation may constitute indirect discrimination incompatible with Article 141 EC and the Equal Pay Directive unless the different treatment is justified by factors unrelated to sex.

12.The applicant submits that there is different treatment of full-time and part-time teachers by virtue of the fact that three additional hours per month may amount to a significantly greater burden for part-time teachers than for full-time teachers.

13.The Commission also considers that there is different treatment. It argues that, while full-time teachers need to work for more than 12.24% of their normal working hours in order to receive supplementary pay for additional work, part-time teachers such as the applicant must work for more than 20% of their normal working hours. The Commission also calculates that the overall hourly wage of a part-time teacher working additional hours is inferior to that of a full-time teacher in the same position. The Commission concludes that there is therefore significant inequality in the treatment of full-time and part-time teachers.

14.The defendant on the other hand submits that part-time teachers are treated in exactly the same manner as full-time teachers: for both groups, additional work is remunerated only if more than three additional hours are worked, in which case the additional hours are remunerated in exactly the same way.

15.The German Government agrees that there is no difference in the treatment of full-time and part-time teachers: the applicant receives the same remuneration for her hours worked, including additional hours, as a full-time teacher receives for the same number of hours worked. The German Government reaches that conclusion on the basis of a separate examination of equality of pay for normal hours worked and for overtime. In its view, the equal pay principle is satisfied where full-time and part-time workers receive the same hourly wage for normal hours worked and where supplementary pay commences for both kinds of worker after more than three hours of teaching is carried out.

16.The methods of assessment employed by the Commission and Germany appear to me to be incorrect. It is clear from the case-law of the Court that different treatment in the remuneration of full-time and part-time employees is not to be determined by the proportionate impact of unpaid additional hours, by the difference in overall hourly wage once additional hours are worked or by examining the level of pay for additional hours in isolation from normal hours worked.

17.In Helmig (6) the Court stated that 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.

18.In that case, overtime supplements were paid to employees working hours in excess of normal full-time working hours. Part-time employees working hours in excess of their normal part-time working hours, but not exceeding full-time working hours, were however remunerated at the normal rate and did not receive overtime supplements. The Court was asked essentially whether such arrangements were contrary to the principle of equal pay.

19.The Court noted that in those circumstances part-time employees did receive the same overall pay as full-time employees for the same number of hours worked. It gave the example of a part-time employee contracted to work for 18 hours: if such an employee worked 19 hours he or she would receive the same overall pay as a full-time employee receives for 19 hours worked. The Court accordingly concluded that the principle of equal pay was not infringed. (7)

20.In the present case by contrast the effect of the national legislation is that a part-time employee who is contracted to work for 15 hours, who works an additional 2.5 hours and who thus works 17.5 hours in total would be paid for only 15 hours work and would therefore not receive the same overall pay as a full-time employee receives for 17.5 hours worked. On the basis of the Court’s case-law, therefore, there is different treatment of part-time and full-time workers.

21.Finally, it is for the national court to determine, first, whether the different treatment established by the legislation affects considerably more women than men and, second, whether there exist objective factors unrelated to sex which may justify such a difference in treatment. I would add that it appears from the observations that it is common ground that the legislation does affect considerably more women than men whereas there is no suggestion of any justification for the difference in treatment.

Conclusion

22.I accordingly conclude that the question referred by the Verwaltungsgericht Minden should be answered as follows:

National legislation providing that both full-time and part-time employees are not remunerated for additional hours worked where the result is that the overall pay of full-time employees is higher than that of part-time employees for the same number of hours worked establishes different treatment for full-time and part-time employees. If that different treatment affects considerably more women than men the legislation infringes Article 141 EC and 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 unless there are objective factors unrelated to sex which justify such a difference in treatment.

– Original language: English.

– Nordrhein-Westfälisches Beamtengesetz, version published on 1 May 1981.

– Verordnung über die Gewährung von Mehrarbeitsvergütung für Beamte of 13 March 1992, BGBl. I, p. 528, in the version of 3 December 1998, BGBl. I, p. 3494.

– 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.

– Joined Cases C-399/92, C-409/92, C-425/92, C-34/93, C-50/93 and C-78/93 Helmig [1994] ECR I-5727, paragraph 20 of the judgment.

– Cited in note 5, paragraph 26 of the judgment. See also Case C-457/93 Lewark [1996] ECR I-243, paragraphs 25 and 26.

– Paragraphs 27, 28 and 31 of the judgment.