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Published online by Cambridge University Press: 27 February 2017
Maria Kowalska, a former administrative officer of the City of Hamburg, requested payment of an extra allowance on the occasion of her retirement. The Collective Agreement for Federal Employees (Agreement) prescribed such allowanees for full-time employees only. Ms. Kowalska was a part-time employee and was therefore not entitled to the extra allowance according to the Agreement. The questions the Labor Court Hamburg referred to the Court of Justice of the European Communities were: (1) whether a collective bargaining agreement provision excluding part-time employees from certain allowances violates Article 119 of the Treaty Establishing the European Communities (equal pay for men and women), part-time employees being mostly female; and (2) if there is discrimination incompatible with EEC law, do part-time employees have a right to extra allowances proportionate to their working hours on the basis of Articles 119 and 117 (improvement and harmonization of workers’ conditions) and Council Directive 75/117 on equal pay for men and women, notwithstanding the provision to the contrary in the Agreement, or do freedom and autonomy in collective bargaining preclude such a right?
The original language of this decision is German. At the time this summary was prepared, the slip opinion was available in French, and it is on the French translation that the summary is based.
1 Section 62 of the Collective Agreement (BAT) reads in part: “(1) An employee with whom regular working hours are agreed (§15 and special arrangements thereto) … receives a special allowance when he leaves.” BAT §15 defines the “regular working hours” as follows: “(1) Regular working hours means 38 1/2 hours on an average weekly, breaks excluded.”
2 Directive on Approximation of the Laws of Member States relating to the application of the principle of equal pay for men and women, 18 O.J. Eur. Comm. (No. L 45) 19 (1975).
3 See Barber v. Guardian Royal Exchange Assurance Group, Case 262/88, Judgment of May 17, 1990 (not yet published).
4 Defrenne v. Société anonyme beige de navigation aérienne Sabena, Case 43/75, 1976 ECR 455, 476, para. 39.
5 Art. 119 of the Treaty Establishing the European Communities, Mar. 25, 1957, 1973 Gr. Brit. TS No. 1, pt. II (Cmd. 5179 II), 298 UNTS 11, which is relevant, reads as follows:
Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work.
For the purpose of this Article “pay” means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer.
Equal pay without discrimination based on sex means:
(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the same job.
6 See also Bilka-Kaufhaus GmbH v. Karin Weber von Hartz, Case 170/84, 1986 ECR 1607.
7 Citing Defrenne, supra note 4. For Art. 119, see supra note 5.
8 Case C-102/88, Judgment of Dec. 13, 1989 (not yet published).
9 For a recent case of discrimination against male workers, see Barber, supra note 3, where the discrimination at issue had to do with the fact that women generally retire at a younger age than men in EEC countries. Under EEC law, private insurance groups are not allowed to establish different retirement ages for men and women, whereas the different age limits for men and women generally contained in the national social security pension insurance of the EEC member states do not violate Article 119, as that article refers only to equality as to “pay.”
For an interesting explanation of the younger retirement age for women provided for in the German social security pension insurance (gesetzliche Rentenversicherung), see 1987 BVerfGE 74, 163, text at note 11 infra.
10 See Gerichtshof der Europäischen Gemeinschaften, Nachschlagewerk der Rechtsprechung zum Gemeinschaftsrecht, ser. A, at B-15, para. 10 (loose-leafed. 1985); Groeben, Boeckh, Thiesing & Ehlermann, Article 119, in Kommentar zum EWG-Vertrag, para. 28 (3d ed. 1983).
11 See, e.g., 1987 BVerfGE 74, 163. However, the Federal Constitutional Court has considered de facto discrimination, for instance, with regard to the equality of political parties.
12 426 U.S. 229(1976). For a critical assessment, see B. Miller, Proof of Racially Discriminatory Purpose Under the Equal Protection Clause: Washington v. Davis, Arlington Heights, Mt. Healthy, and Williamsburgh, 12 Harv. C.R.-C.L. L. Rev. 725 (1977). See also Geduldig v. Aiello, 417 U.S. 484 (1974), an equal protection challenge, where the Supreme Court upheld a California public employees’ insurance scheme that excluded coverage of pregnancy while providing benefits for male-only procedures such as circumcision and prostatectomy and voluntary operations such as cosmetic surgery and sterilization. The Court found the scheme rational, demanding no further justification, as the plan did not discrimi nate on the basis of sex; rather, it discriminated between persons who were and were not pregnant, a group that included both males and females. L. Tribe, Reorienting the Mirror of Justice: Gender, Economics, and the Illusion of the “Natural,” in Constitutional Choices 238, 239 (1985).
13 See also Bronzino v. Kindergeldkasse and Gatto v. Bundesanstalt för Arbeit, Cases 228/88 and 12/89, summarized in 84 AJIL 926 (1990).
14 See 1958 BVerfGE 8, 28, headnotes 2 and 3:
2. If a law on compensation which is unequivocal as to content and purpose violates Article 3, paragraph 1 of the Basic Law (equal protection), because it excludes certain groups of civil servants, courts must not award pay to this group by means of an interpretation based on that law …
3. If the legislature favors certain groups contrary to Article 3 of the Basic Law, the Federal Constitutional Court may either declare the respective provision void or find that the exclusion of discrete groups is unconstitutional. However, the Court must not extend the advantage to the excluded group, unless it has to be assumed with certainty that the legislature would have done so considering Article 3 of the Basic Law.