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	Číslo (Kód CELEX): Number (CELEX Code):		61993J0457

	Název: Title:		Judgment of the Court of 6 February 1996. Kuratorium für Dialyse und Nierentransplantation e.V. v Johanna Lewark. Reference for a preliminary ruling: Bundesarbeitsgericht - Germany. Indirect discrimination against women workers - Compensation for attendance at training courses providing staff council members with the necessary knowledge for performing their functions. Case C-457/93.

	Publikace: Publication:		European Court Reports 1996 page I-0243

	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 · Hoekstra Case 75/63 Hoekstra v Bedrijfsvereniging Detailhandel [1964] ECR 177 · Barber Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889 · Helmig 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 · Bilka Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607 · 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 Lewark was employed by the Kuratorium für Dialyse und Nierentransplantation e.V. (“the employer”) on a part-time basis working 30.8 hours. She was also on the local staff council, which consists of three members. In 1990, on the basis of a decision of the staff council and with the employer’s consent, Mrs Lewark attended a full-time training course in order to obtain knowledge that was necessary for performing her staff council functions. Under the Industrial Relations Law, staff council members attending such courses are to be releases by their employer from the obligations arising from their employment, without loss of pay. The employer paid Mrs Lewark the contractual pay also for the time when she had attended said training course. Mrs Lewark claimed additional pay, arguing that the contractual pay took account only of her regular working time - i.e. 30.8 hours - which had been exceeded during the training course by 7.5 hours.
Mrs Lewark therefore brought an action against her employer demanding remuneration for the additional 7.5 hours, claiming that the employer’s refusal was incompatible with Article 119 of the Treaty 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 (OJ 1975 L 45, p. 19).
because it constituted indirect discrimination on the basis of sex. This claim was based on the contention that according to official statistics 93.4 % of all part-time workers are women and only 6.6 % are men. Her claim was upheld in the first two instances, which based their judgements in particular on Court’s prior ruling on the same issue in
Bötel
(). The Bundesarbeitsgericht (Federal Labour Court) hearing the case on appeal, considered that the
Bötel
judgement might be based on a misunderstanding of the legal position of staff council members under German legislation. It stayed the proceedings and under Article 177 of the Treaty referred to the Court of Justice the question whether the prohibition of discrimination contained in Article 119 of the Treaty and Council Directive 75/117 precludes a national legislature from making membership of a staff council an honorary office to be performed without payment and protecting staff council members only against loss of income which they would otherwise suffer as a result of missing working hours because of staff council duties.

Názor soudu a komentář:
At the outset, the Court observes that, as a general matter, “legal concepts and definitions established or laid down by national law cannot affect the interpretation or binding force of Community law” (
Bötel; Hoekstra
) and therefore reaffirms its opinion, set out in
Bötel
, that the compensation received for losses of earnings due to attendance at training courses necessary for performing staff council functions constitutes pay in the meaning of Article 119 of the Treaty as interpreted in the Court’s case law (see in particular
Barber
). This is so irrespective of the fact that the time spent on such training courses is not a direct consequence of the existence of an employment contract “since it is sufficient for that time to be spent by reason of the existence of an employment relationship”
Although, the German Government had pointed out, the protection against loss of pay is the same for both part-time and full-time workers, the Court finds that these groups are being treated differently by the German Industrial Relations Law, taking the view that “there is unequal treatment whenever 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” (
Helmig
). Such different treatment constitutes an unlawful discrimination on the basis of sex since a much lower proportion of women than men work full-time (
Bilka
).
The Court thus in principle confirms its
Bötel
judgement. It is remarkable, however, for the guidelines which the Court - in order to “provide the national court with helpful answers” - gives with respect to the question whether such discrimination can be justified. According to the Court’s established case-law, a difference in treatment can be “justified only by objective factors unrelated to any discrimination” (see e.g.
Bötel
). In the present case, the German Government had suggested that the regulation in question was justified by the principle that staff council members are not paid, which is intended to ensure their independence. As the Court notes, such a social policy aim is indeed unrelated to grounds of sex. “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 thus indicates that it would, in principle, accept such justification as forwarded by the German Government. However, the Court also emphasizes that the suitability and necessity of a measure, the operation of which as discriminatory effects and may even deter women from performing staff council duties, has to be closely examined.

Shrnutí (Summary of the Judgment):

Plný text judikátu (Entire text of the Judgment):