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	Číslo (Kód CELEX): Number (CELEX Code):		61988J0109

	Název: Title:		JUDGMENT OF THE COURT OF 17 OCTOBER 1989. HANDELS- OG KONTORFUNKTIONAERERNES FORBUND I DANMARK V DANSK ARBEJDSGIVERFORENING FOR DANFOSS. REFERENCE FOR A PRELIMINARY RULING : FAGLIGE VOLDGIFTSRET - DENMARK. SOCIAL POLICY - EQUAL PAY FOR MEN AND WOMEN. CASE 109/88.

	Publikace: Publication:		REPORTS OF CASES 1989 PAGES 3199

	Předmět (klíčová slova): Keywords		SOCIAL PROVISIONS;

	Související předpisy: Corresponding acts:		375L0117

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Case 318/86 Commission v France [1988] ECR 3559 · Bilka Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607


	Plný text: Fulltext:		Ne

Fakta:
The Handels- og Kontorfunktionćrernes Forbund i Danmark (Union of Commercial and Clerical Employees, Denmark, hereinafter “the Union”), acting on behalf of two female employees, instituted proceedings against the Dansk Arbeijdsgiverforening (Danish Employers’ Association, “the Employers’ Association”), acting on behalf of Danfoss A/S (“Danfoss”), before the Faglige Voldgiftsret (a Danish industrial arbitration board, “the arbitration board”) claiming that Danfoss’ practice in the matter of wages and salaries involved sexual discrimination.
The arbitration board, under Danish law, is competent to hear disputes between the parties to collective agreements. The boards jurisdiction does not depend upon the parties’ agreement. The composition of the board is statutorily determined and not within the parties discretion.
In the present case, the Union challenged Danfoss’ system of individual pay supplements which are being calculated,
inter alia
, on the basis of mobility, training and seniority. In order to establish that this system involves discrimination on the basis of sex, the Union showed that in the wage groups of the two female employees, on whose behalf it brought the action, a man’s average wage was higher than that of a woman’s. It claimed that it could not be required to bring additional evidence because the system of individual supplements applied to basic pay was implemented in such a way that an individual woman was unable to identify the reasons for a difference between her pay and that of a man doing the same work.
The arbitration board stayed the proceedings and under Article 177 of the Treaty referred to the Court of Justice a number of questions, asking in particular (1) which party, under 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).
, is to bear the burden of proof in proceedings involving a claim of unlawful discrimination, (2) whether Directive 75/117 must be interpreted as meaning that where it appears that the application of the criteria relating to supplements, such as mobility, training or length of service, systematically works to the disadvantage of female employees, the employer may, none the less, and if so on what conditions, justify its use.

Názor soudu a komentář:
Before addressing the substance of the case, the Court examines whether it has jurisdiction under Article 177 of the Treaty, in particular whether the arbitration board making the reference was a “court or tribunal” within the meaning of that provision. The Court affirms this, stressing that the arbitration board’s jurisdiction as well as its composition was statutorily determined and did not depend on the parties’ agreement.
With regard to the burden of proof, the Court points out that the wage system here at issue is totally lacking transparency. Transparency is, however, required in order to determine whether a wage system works without any discrimination. Thus, the Court has “condemned a system of recruitment, characterized by a lack of transparency, as being contrary to the principle of equal access to employment on the ground that the lack of transparency prevented any form of supervision by the national court” ( Case 318/86). If a wage system, as in the present case the system of individual pay supplements, thus lacks transparency, the individual employee is unable to do more than establish that in the average a wage differential exists. To require the employee to do more than that in order to establish a case of unlawful discrimination on the basis of sex would therefore deprive her (him) of any effective legal protection and therefore be incompatible with the requirements of Article 6 of Directive 75/117. Therefore, “where an undertaking applies a system of pay which is totally lacking in transparency, it is for the employer to prove that his practice in the matter of wages is not discriminatory, if a female worker establishes, in relation to a relatively large number of employees, that the average pay for women is less than that for men”.
The Court then turns to the individual criteria employed in the wage system here at issue, mobility, training and length of service. It evaluates these criteria separately. As regards mobility, the Court finds that it is necessary to distinguish between two different interpretations of the criterion: If “mobility” is meant only to reward the quality of the work, then it is wholly neutral, “[i]t is inconceivable that the quality of work done by women should generally be less good”. The case is different when “mobility” is meant to reward the employee’s adaptability to variable hours and varying places of work. So interpreted, the criterion would “work to the disadvantage of female employers, who, because of household and family duties for which they are frequently responsible, are not as able as men to organize their work; it would thus be covertly (indirectly) discriminatory. In this latter case, the employer, in order to justify the application of the mobility-criterion, may show that such adaptability is of importance for the performance of specific tasks entrusted to the employee, that it is, in other words, “based on objectively justified factors unrelated to any discrimination on grounds of sex” (
Bilka
). Similar considerations apply in respect to the criteria of training and length of service which, as the Court finds, are also covertly discriminatory because they, while being facially neutral, work to the disadvantage of women who have less opportunity to engage in training and who, owing to family duties, enter the labour market later than men and frequently suffer an interruption of their career. If the employer wishes to employ these criteria, he therefore has to show that training or length of service is of importance for the performance of the specific task entrusted to the employee.

Shrnutí (Summary of the Judgment):
1.WHERE THE LAW PROVIDES THAT AN INDUSTRIAL ARBITRATION BOARD HAS JURISDICTION IN DISPUTES BETWEEN PARTIES TO COLLECTIVE AGREEMENTS MADE BETWEEN EMPLOYEES' AND EMPLOYERS' ORGANIZATIONS AND EITHER PARTY MAY BRING A CASE BEFORE IT, SO THAT THE JURISDICTION DOES NOT DEPEND ON THE AGREEMENT BETWEEN THEM, AND THE COMPOSITION OF THE BOARD IS NOT WITHIN THE PARTIES' DISCRETION BUT IS DETERMINED BY THE LAW, THE INDUSTRIAL ARBITRATION BOARD MUST BE REGARDED AS A COURT OR TRIBUNAL OF A MEMBER STATE WITHIN THE MEANING OF ARTICLE 177 OF THE TREATY.

2.DIRECTIVE 75/117 ON EQUAL PAY FOR MEN AND WOMEN MUST BE INTERPRETED AS MEANING THAT WHERE AN UNDERTAKING APPLIES A SYSTEM OF PAY WHICH IS TOTALLY LACKING IN TRANSPARENCY, IT IS FOR THE EMPLOYER TO PROVE THAT HIS PRACTICE IN THE MATTER OF WAGES IS NOT DISCRIMINATORY, IF A FEMALE WORKER ESTABLISHES, IN RELATION TO A RELATIVELY LARGE NUMBER OF EMPLOYEES, THAT THE AVERAGE PAY FOR WOMEN IS LESS THAN THAT FOR MEN. WHERE IT APPEARS THAT THE APPLICATION OF CRITERIA FOR PAY SUPPLEMENTS SUCH AS MOBILITY, TRAINING OR THE LENGTH OF SERVICE OF THE EMPLOYEE SYSTEMATICALLY WORKS TO THE DISADVANTAGE OF FEMALE EMPLOYEES, THE EMPLOYER MAY JUSTIFY RECOURSE TO THE CRITERION OF MOBILITY IF IT IS UNDERSTOOD AS REFERRING TO ADAPTABILITY TO VARIABLE HOURS AND VARYING PLACES OF WORK, BY SHOWING THAT SUCH ADAPTABILITY IS OF IMPORTANCE FOR THE PERFORMANCE OF THE SPECIFIC TASKS WHICH ARE ENTRUSTED TO THE EMPLOYEE, BUT NOT IF THAT CRITERION IS UNDERSTOOD AS COVERING THE QUALITY OF THE WORK DONE BY THE EMPLOYEE; HE MAY ALSO JUSTIFY RECO
URSE TO THE CRITERION OF TRAINING BY SHOWING THAT SUCH TRAINING IS OF IMPORTANCE FOR THE PERFORMANCE OF THE SPECIFIC TASKS WHICH ARE ENTRUSTED TO THE EMPLOYEE; HE DOES NOT HAVE TO PROVIDE SPECIAL JUSTIFICATION FOR RECOURSE TO THE CRITERION OF LENGTH OF SERVICE, FOR IT GOES HAND IN HAND WITH EXPERIENCE, WHICH GENERALLY ENABLES THE EMPLOYEE TO PERFORM HIS DUTIES BETTER.

Plný text judikátu (Entire text of the Judgment):