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	Číslo (Kód CELEX): Number (CELEX Code):		61993J0278

	Název: Title:		ECJ Judgement of 7 March 1996 Case C-278/93 Edith Freers and Hannelore Speckmann v Deutsche Bundespost [1996] ECR I-1165 “Freers”

	Publikace: Publication:		European Court Reports 1996 page I-1165

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		· Bötel Case C-360/90 Arbeiterwohlfahrt der Stadt Berlin v Bötel [1992] ECR I-3589 · Lewark Case C-457/93 Kuratorium für Dialyse und Nierentransplantation v Lewark [1996] ECR I-243 · Barber Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889 · De Weerd Case C-343/92 De Weerd and Others [1994] ECR I-571 · Megner and Scheffel Case C-444/93 Megner and Scheffel [1995] ECR I-4741


	Plný text: Fulltext:		Ne

Fakta:
Mrs Freers and Mrs Speckmann were both employed part-time with the Deutsche Bundespost (“the employer”) working 18 hours a week. As members of the staff committee (Personalrat), they attended a training course which lasted for approximately 38.5 hours, which are the weekly working hours laid down for full-time employee in the collective agreement. During that training course, the employer continued to pay the normal wages calculated on the basis of their part-time work. Relying on the German legislation, it did not, however, give Mrs Freers and Mrs Speckmann any additional pay, nor did it offer them paid leave in respect of the time spent on the course outside their normal working hours. Since substantially more women then men work on a part-time basis, Mrs Freers and Mrs Speckmann contended that the refusal of any additional compensation constituted discrimination on the basis of sex.
Upon their action for additional pay, brought before the Arbeitsgericht (Labour Court) Bremen, the court stayed the proceedings and referred to the Court of Justice the questions (1) whether the compensation accorded in respect of work on a statutorily established employee representation body constitutes pay within the meaning of Article 119 and of 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 for women (OJ 1975 L 45, p. 19).
, (2) (in the Court’s summary:) whether Articles 119 and Directive 75/117 preclude national legislation which limits to their individual working hours the compensation which staff committee members employed on a part-time basis are to receive from their employer for attending training courses which impart the knowledge necessary for serving on staff committees and are held during the full-time working hours applicable in the undertaking but which exceed their individual part-time working hours, when staff committee members employed on a full-time basis receive compensation for attendance at the same courses on the basis of their full-time working hours.

Názor soudu a komentář:
The Court had to rule on similar questions as those in issue here on two prior occasions (
Bötel
and
Lewark
). While
Bötel
and
Lewark
concerned cases of private employment, the present case concerned public employment. The rules regarding protection against loss of pay for staff committee work, however, are substantially the same for the public employment sector and the private employment sector.
The Court reaffirms its prior judgements in
Bötel
and
Lewark
. Relying on its definition as developed, in particular, in
Barber
(), it finds that the compensation paid for attendance of training courses constitutes pay within the meaning of Article 119 of the Treaty: “[T]he concept of ‘pay’ within the meaning of Article 119 of the Treaty comprises any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives is, albeit indirectly, in respect of his employment, and irrespective of whether the worker receives it under a contract of employment, by virtue of legislative provisions or on a voluntary basis.” (see also
Bötel, Lewark
).
The exclusion of part-time workers from certain benefits is contrary to Article 119 if it is established that a much higher proportion of women than men work part-time. Such discrimination can only be justified on objective grounds unrelated to any discrimination based on sex. The regulation at issue therefore amounts to discrimination on the basis of sex since (i) the overall pay of full-time employees is higher than that of part-time employees of for the same number of hours worked on the basis of an employment contract and (ii) a much higher percentage of women than men work part-time.
Whether an objective justification for such discrimination exists is a matter for the national courts to establish. The Court, however, reiterates its guidelines already put forward in
Lewark
as to the requirements for such justification. “If a Member State is able to show that a measure chosen reflect a legitimate aim of its social policy, are appropriate to achieve that aim and are necessary in order to do so, the mere fact that the legislative provision affects far more women workers than men cannot be regarded as a breach of Article 119” (
De Weerd;

Megner and Scheffel
). The Court is satisfied that the rules here at issue pursue an interest of social policy: The staff committees are intended to promote harmonious labour relations; the rules here at issue seek to ensure the independence of the staff council members by providing that they enjoy a protection against loss of pay rather than granting them a compensation the staff council work. “It is for the national court to ascertain, in the light of all the relevant factors and taking into account the possibility of achieving the social policy aim in question by other means, whether the difference of treatment in question is suitable and necessary for achieving that aim. In so doing the national court must bear in mind that, as the Court held in
Bötel
(…), legislation such as that at issue is likely to deter workers in the part-time category, in which the proportion of women is undeniably preponderant, from performing staff committee functions or from acquiring the knowledge necessary for performing them, thus making it more difficult for that category of worker to be represented by qualified staff committee members.”

Shrnutí (Summary of the Judgment):

Plný text judikátu (Entire text of the Judgment):