OPINION OF ADVOCATE GENERAL
SHARPSTON
delivered on 16 March 2017 (1)
Case C‑98/15
María Begoña Espadas Recio
v
Servicio Público de Empleo Estatal (SPEE)
(Request for a preliminary ruling from the Juzgado de lo Social No 33 de Barcelona (Social Court No 33 of Barcelona, Spain))
(Directive 79/7/EEC — Article 4(1) — Equal treatment of male and female workers — Directive 97/81/EC — Framework Agreement on part-time work — National legislation providing for calculation of the duration of unemployment benefit — Days not worked disregarded — Discrimination)
1. By this request for a preliminary ruling the Juzgado de lo Social No 33 de Barcelona (Social Court No 33 of Barcelona, Spain) seeks guidance on the interpretation of Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security (2) and Directive 97/81/EC concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC. (3) In essence, the referring court first asks whether unemployment benefit funded by contributions from a worker and her employer falls within the scope of the Framework Agreement. It also seeks to ascertain whether, where a part-time worker has a ‘vertical’ working arrangement with her employers (for example, working 50% of the hours of her full-time counterpart spread over Monday, Tuesday and Wednesday — Thursday and Friday being non-working days), national rules which exclude days not worked from the determination of the total period for which unemployment benefit should be paid are compatible with the Framework Agreement and/or Directive 79/7.
EU law
Directive 79/7
2. The second recital of Directive 79/7 states that the principle of equal treatment in matters of social security should be implemented in the first place in the statutory schemes which protect against the risks of, inter alia, unemployment.
3. In accordance with Article 2, Directive 79/7 applies, inter alia, to workers whose activity is interrupted by involuntary unemployment. The directive covers, for example, statutory schemes which provide protection against unemployment as set out in Article 3.
4. The principle of equal treatment is defined in Article 4(1) as meaning that:
‘there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:
– the scope of the schemes and the conditions of access thereto,
– the obligation to contribute and the calculation of contributions,
– the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits.’
Directive 97/81
5. On 6 June 1997 the general cross-industry organisations, the Union of Industrial and Employers’ Confederations of Europe (UNICE), the European Centre of Enterprises with Public Participation (CEEP) and the European Trade Union Confederation (ETUC) concluded a Framework Agreement on part-time work (‘the Framework Agreement’) which aims, inter alia, to eliminate discrimination against part-time workers. (4)
6. The Framework Agreement was duly incorporated into (EU) law by Directive 97/81. Article 1 of that directive explains that its purpose is to implement the Framework Agreement. Article 2(1) required Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the directive by 20 January 2000 or to ensure that the social partners had taken the necessary measures by agreement to do so. The text of the Framework Agreement is annexed to the directive. (5)
7. The third paragraph in the preamble to the Framework Agreement states:
‘This Agreement relates to employment conditions of part-time workers recognising that matters concerning statutory social security are for decision by the Member States. …’
8. The purpose of the Framework Agreement, as set out in Clause 1(a) thereof is to ‘to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work’.
9. Pursuant to Clause 2(1), the Framework Agreement applies to ‘part-time workers who have an employment contract or employment relationship as defined by the law in each Member State’.
10. A part-time worker is defined in Clause 3(1) as meaning ‘an employee whose normal hours of work, calculated on a weekly basis or on average over a period of employment of up to one year, are less than the normal hours of work of a comparable full-time worker’.
11. Clause 4 is entitled ‘Principle of non-discrimination’. Clause 4(1) states: ‘in respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part-time unless different treatment is justified on objective grounds.’
Spanish law
12. The referring court states that Article 41 of the Spanish Constitution provides the basis for the national social security system, which is governed primarily by the Ley General de la Seguridad Social (General Law on Social Security) (‘the LGSS’), as approved by Real Decreto Legislativo (Royal Legislative Decree) No 1/94 of 20 June 1994. Provision is made for two types of unemployment protection under Article 204 of the LGSS — a contributory level and a social assistance level. The system is administered by the State and it is compulsory to have protection against unemployment.
13. Article 210 of the LGSS is entitled ‘Duration of unemployment benefit’. The length of time for which benefit is paid to the unemployed worker (‘the benefit period’) is determined by reference to: (i) the period of employment in respect of which he has paid contributions in the six years preceding the change in his legal status from being employed to being unemployed, or (ii) the time when the obligation to pay contributions ceased. A scale is laid down which sets out the contribution period in days and the corresponding period during which benefits are paid, also expressed in days. Thus, for example, for a contribution period of 360 to 539 days, benefits are paid for 120 days, a contribution period of 1 260 to 1 439 days generates 420 days of benefits and a contribution period in excess of 2 160 days gives rise to payment of benefits for 720 days (the maximum period for which benefits can be paid).
14. Pursuant to rule 4 of paragraph 1 of the seventh additional provision of the LGSS, which establishes rules for part-time workers, ‘in order to determine the contribution periods and the periods for calculation of the basis of assessment for unemployment benefits, regard must be had to the rules laid down in the relevant specific legislation’. Those rules are contained in Real Decreto 625/1985 de protección por desempleo (Royal Decree 625/1985 on unemployment protection) (‘RD 625/1985’). Article 3 of that measure sets out how the period for which benefit is to be paid is calculated. Article 3(1) concerns full-time workers. It states: ‘The duration of unemployment benefit shall be based on the periods of employment in respect of which contributions have been paid in the four years preceding the legal situation of unemployment or the time when the obligation to pay contributions ceased.’ In relation to part-time workers, Article 3(4) provides that: ‘where established contributions relate to part-time work or actual work in cases of a reduction in working hours, every day worked shall be calculated as a day in respect of which contributions have been paid, whatever the length of the working day’.
15. The referring court states that according to national case-law, loss of employment triggers entitlement to unemployment benefit. In order to establish the period during which benefits are paid, account must be taken only of the days when the employee actually worked, even if the corresponding social security contributions in respect of the risk of unemployment were paid for every day in each month throughout the year.
Facts, procedure and the questions referred
16. Ms María Begoña Espadas Recio (‘Ms Espadas Recio’) worked as a cleaner. From 23 December 1999 onwards, she was in continuous employment with successive employers. Her pattern of work was as follows: she worked two and a half hours on Mondays, Wednesdays and Thursdays each week and four hours on the first Friday of every month. Her working pattern was thus structured ‘vertically’ — the part-time work was performed only on certain days of the week rather than being spread throughout the five days of a working week (a ‘horizontal’ arrangement). On 29 July 2013 Ms Espadas Recio’s employment ceased.
17. On 30 September 2013 the Servicio Público de Empleo Estatal (‘the SPEE’) granted her request for payment of unemployment benefit. The SPEE decided to grant benefit initially for 120 days, from 10 September 2013 to 9 January 2014 inclusive, assessed at EUR 6.10 per day. Ms Espadas Recio was treated as having paid contributions for 452 days. Ms Espadas Recio challenged that decision, claiming that she was entitled to 720 days’ benefit (she did not dispute the basis of assessment as to the amount of benefit per day that she received). (6) By a decision of 9 December 2013 the SPEE partly upheld her challenge. It granted unemployment benefit for 420 days on the basis of her working hours which it calculated as amounting to 8.5 hours per week.
18. Reading Article 210 of the LGSS together with Article 3(4) of RD 625/1985, the SPEE considered that the duration of the period for which unemployment benefit should be paid fell to be calculated on the basis of the number of days in respect of which contributions were paid in the six years preceding Ms Espadas Recio’s change in status from employed to unemployed. In the case of part-time work, every day actually worked was to be treated as a day in respect of which contributions had been paid. From that it followed that, in the six years before she became unemployed, Ms Espadas Recio had shown that she had paid contributions for 1 387 days. The benefit period was therefore assessed at 420 days. The SPEE did not take into account the remainder of the six-year period in respect of which Ms Espadas Recio and her former employers had paid contributions.
19. It is common ground that if Ms Espadas Recio had worked according to a ‘horizontal’ arrangement — 1.75 hours over a five day working week totalling 8.5 hours — she would have been entitled to payment of unemployment benefit for the maximum period of 720 days.
20. Ms Espadas Recio has instituted proceedings before the referring court contesting the SPEE’s decision in relation to the duration of the period for which she was granted unemployment benefit. She takes the view that, having worked for six consecutive years, contributing in respect of 30 or 31 days a month (for a total of 2 160 days), she is entitled to benefit for a period of 720 days rather than the 420 days’ benefit granted. She argues that every day in respect of which contributions were paid — and not merely the days actually worked — ought to be taken into account for the purposes of establishing the benefit period. Failure to do so would entail not only an illogical double penalty applied to her as a part-time worker, contrary to the principle of proportionality, (7) but also direct or indirect discrimination on grounds of sex.
21. The referring court considers that this Court examined a similar issue in Bruno and Pettini. (8) The Court held there in relation to retirement pensions for cabin crew of Alitalia, which were governed by the Italian social security system, that Clause 4 of the Framework Agreement precluded national legislation that disregarded periods not worked in calculating the period of service required to qualify for such a pension as such legislation discriminated against part-time workers, unless the difference in treatment was justified on objective grounds.
22. If the Framework Agreement does not apply, the referring court considers that there may be sex discrimination contrary to Directive 79/7. The shorter benefit period afforded by the national provision at issue to ‘vertical’ part-time workers as compared with ‘horizontal’ part-time workers entails indirect discrimination on grounds of sex, since the rules applied adversely affect working women as a whole. According to annual statistics, the great majority of part-time workers in Spain (some 70 to 80%) are women.
23. The referring court therefore seeks a preliminary ruling on the following questions:
‘(1) In accordance with the case-law laid down in [Bruno and Pettini,], must Clause 4 of the [Framework Agreement] be interpreted as applying to a contributory unemployment benefit like that provided for in Article 210 of the [LGSS], funded exclusively by the contributions paid by the worker and the undertakings having employed her, and based on the periods of employment in respect of which contributions were paid in the six years preceding the legal situation of unemployment?
(2) If the previous question is answered in the affirmative, in accordance with the case-law laid down in [Bruno and Pettini], must Clause 4 of the [Framework Agreement] be interpreted as precluding a national provision which, as is the case of Article 3(4) of [RD 625/1985], to which rule 4 of paragraph 1 of the seventh additional provision of the [LGSS] refers — in the case of “vertical” part-time work (work carried out only three days a week) — disregards, for the purposes of calculation of the duration of unemployment benefit, days not worked even though contributions were paid in respect of those days, with the resulting reduction in the duration of the benefit granted?
(3) Must the prohibition of direct and indirect discrimination on grounds of sex laid down in Article 4 of Directive 79/7 be interpreted as prohibiting or precluding a national provision which, as is the case of Article 3(4) of [RD 625/1985], in the case of “vertical” part-time work (work carried out only three days a week), excludes days not worked from the calculation of days in respect of which contributions have been paid, with the resulting reduction in the duration of unemployment benefit?’
24. Written observations were submitted by the Spanish Government and by the European Commission and both parties made oral submissions at the hearing on 15 June 2016.
Assessment
Preliminary remarks
25. It is settled case-law that EU law respects the power of the Member States to organise their social security systems and that, in the absence of harmonisation at EU level, it is for the legislation of each Member State to determine the conditions for the grant of social security benefits. When exercising that power, Member States must nevertheless comply with EU law. (9)
26. Thus, Spain is in principle entitled to provide that access to, and the extent of contributory benefits (funded jointly by the worker and the employer) in respect of unemployment under, its social security system depend on the contribution period that applies to the unemployed worker concerned, specified by Article 210 of the LGSS and Article 3 of RD 625/1985. However, those national rules must operate in a way that complies with applicable EU law.
27. The referring court states that Ms Espadas Recio worked 8.5 hours per week. She completed her hours over the course of three days and her working pattern is described as being ‘vertical’. If she had worked the same total number of hours, but structured ‘horizontally’ she would have worked 1.75 hours per day five days per week. Does the prohibition against discrimination in Clause 4 of the Framework Agreement apply to Ms Espadas Recio’s circumstances?
Questions 1 and 2
28. By Question 1 the referring court asks whether Clause 4 of the Framework Agreement applies to a contributory unemployment benefit such as that at issue in the main proceedings. If the answer to that question is ‘yes’, it is necessary to ascertain whether the Framework Agreement precludes the national rules at issue. Under those rules the calculation of the period for which unemployment benefit is paid takes account only of the days that the unemployed worker actually worked, even though contributions are paid for each day of every month. That rule results in a reduction in the period for which unemployment benefit is paid as compared either to ‘horizontal’ part-time workers or full-time workers.
29. The two questions are closely linked and I shall therefore consider them together.
30. The referring court states that Ms Espadas Recio’s status as a ‘vertical’ part-time worker leads to two consequences. First, she is paid a lower level of benefit than her full-time counterparts, because as a part-time worker she worked fewer hours per week. Second, not all the days for which she and her former employers have in fact paid contributions are taken into account in establishing the benefit period. Eligibility for the benefit at issue in the main proceedings depends on the existence of Ms Espadas Recio’s employment relationship with her former employers; and the system for unemployment benefit is funded by their respective contributions. Within that system, considerations of social policy are dealt with through the social assistance level (‘non-contributory’) benefit which is financed exclusively by the State. The referring court therefore takes the view that contributory unemployment benefit is essentially determined by an employment relationship and only to a lesser extent by considerations of social policy. Accordingly, it considers that this Court’s judgment in Bruno and Pettini (10) applies by analogy to the Spanish contributory unemployment benefit.
31. The Commission and Spain consider, on the contrary, that the contributory unemployment benefit in the Spanish system does not fall within the concept of ‘employment conditions’ for the purposes of Clause 4(1) of the Framework Agreement.
32. I share that view.
33. The Framework Agreement relates exclusively to the ‘employment conditions of part-time workers’. (11) The Court has indicated that that term covers pensions which depend on an employment relationship between the worker and the employer, excluding statutory social security pensions which are determined less by that relationship than by considerations of social policy. (12) Matters concerning social security benefits which do not constitute ‘pay’ within the meaning of Article 157(2) TFEU are for the Member States. They are therefore excluded from the scope of the principle of non-discrimination laid down in Clause 4(1) of the Framework Agreement (although they may, of course, be caught by other provisions of EU law). Thus, the classification of the contributory unemployment benefit at issue depends on the meaning of ‘pay’ in EU law.
34. Under Article 157(2) TFEU ‘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’. According to long-standing case-law, the concept of ‘pay’ covers ‘any consideration, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment, from his employer’. (13) In that context, the Court has ruled that the legal nature of that consideration is not important for the purposes of the application of Article 157 TFEU provided that it is granted in respect of the employment. (14) The Court has also held that, ‘although it is true that many advantages granted by an employer also reflect considerations of social policy, the fact that a benefit is in the nature of pay cannot be called in question where the worker is entitled to receive the benefit in question from his employer by reason of the existence of the employment relationship’. (15) However, although advantages in the nature of social security schemes or benefits are not in principle alien to the concept of pay, that concept cannot be extended to encompass social security schemes or benefits directly governed by statute to the exclusion of any element of negotiation within the undertaking or occupational sector concerned and which are mandatory for general categories of workers. (16)
35. It seems to me that it does not necessarily follow from the fact that an employer makes contributions to a scheme which funds unemployment benefit that the concept of pay covers the resulting benefit. Nor where the State pays a benefit to unemployed workers does that mean that such payments are to be automatically classified as social security payments. Any assessment must necessarily be nuanced. In that context the employment criterion cannot be exclusive. (17) Thus, the Court indicated in relation to the pension scheme at issue in Bruno and Pettini that: ‘… considerations of social policy, of State organisation, of ethics, or even the budgetary concerns which influenced or may have influenced the establishment by the national legislature of a scheme cannot prevail if the pension concerns only a particular category of workers, if it is directly related to the period of service completed or if its amount is calculated by reference to the last salary …’ (18)
36. Those three criteria are to be applied cumulatively and are relevant here. Whilst the interpretation of national law and the assessment of the facts are ultimately matters for the referring court, this Court may nonetheless provide clarification and guidance.
37. The referring court states that the unemployment benefit is paid to a particular category of workers — ‘those who are in a legal situation of unemployment’. However, elsewhere in the order for reference it states that the constitutional basis for the Spanish social security system provides for all citizens, by guaranteeing adequate social assistance and benefits in situations of hardship, especially unemployment. (19) It is difficult to see how ‘all citizens’ can constitute a particular category of workers. Rather, those who receive the benefit are the members of a group which demonstrates the general characteristic necessary for eligibility for the benefit at issue — that they possess the legal status of being unemployed. That is very different from the examples of particular categories of worker that have been identified in the Court’s case-law, such as national civil servants and theatrical professionals. (20)
38. The referring court states that the sole source of finance for the unemployment benefit at issue is the contributions paid by the worker and the employer. However, those contributions are made pursuant to national legislation. They are not governed by an agreement between the employer and the worker. That suggests that the arrangement is closer to a State-administered social security scheme than to a benefit which forms part of a worker’s remuneration paid pursuant to an agreement with his employer or that is negotiated collectively on his behalf. And the concept of ‘employment conditions’ ‘cannot be extended to encompass social security schemes or benefits … which are directly governed by statute to the exclusion of any element of negotiation within the undertaking or occupational sector concerned and which are obligatorily applicable to general categories of employee’. (21) I add that RD 625/1985 (which governs the benefit period) is a measure which has been notified to the Commission by the Spanish authorities under Article 9(1) of Regulation (EC) No 883/2004 on the coordination of social security systems. (22) That notification implies that the Spanish Government expressly accepts that the benefit constitutes unemployment benefit for the purposes of that regulation. (23)
39. It follows in my view that Clause 4 of the Framework Agreement does not apply to an unemployment benefit such as that at issue in the main proceedings.
40. In view of my answer to Question 1 there is no need to consider Question 2 (whose substance overlaps in any event with Question 3, which I consider below).
41. I therefore conclude that the Framework Agreement must be interpreted as not applying to a contributory unemployment benefit, such as that provided for in Article 210 of the LGSS, funded exclusively by the contributions paid by a worker and her previous employers.
Question 3
42. By Question 3 the referring court asks whether the national rules which govern the determination of the period for which benefits are paid (in particular Article 3 of RD 625/1985) are prohibited by Article 4(1) of Directive 79/7, as they discriminate on grounds of sex.
43. Unemployment benefits such as those at issue in the main proceedings fall within the scope of Directive 79/7, since such benefits form part of a statutory scheme providing protection against, inter alia, unemployment — one of the risks listed in Article 3(1)(a). Article 4(1) prohibits discrimination on grounds of sex, in particular as concerns the conditions governing the duration and retention of entitlement to benefits.
44. The rule of national law at issue is not directly discriminatory in so far as it applies without distinction to both male and female workers. However, it is settled case-law that indirect discrimination for the purposes of Article 4 of Directive 79/7 arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men. (24)
45. The referring court states in its order for reference that the national rule at issue — a shorter benefit period for ‘vertical’ part-time workers as compared to full-time workers — adversely affects more women than men as approximately 70 to 80% of the part-time workforce is made up of female workers.
46. Whilst the national rules at issue do not distinguish between men and women, the statistics provided by the referring court indicate that a significantly greater proportion of female workers are placed at a disadvantage as compared to male workers. Thus, those rules are indirectly discriminatory within the meaning of Article 4(1) of Directive 79/7.
47. Such rules clearly operate to the disadvantage of part-time workers such as Ms Espadas Recio. The referring court points out that if she had worked full-time, she would have been entitled to the maximum benefit period of 720 days. That calculation would have taken account of the fact that contributions were paid for each working day of the month in the six years before she was unemployed. (25) If Ms Espadas Recio’s work pattern had been structured ‘horizontally’ (1.75 hours per day five days per week) she would also have been entitled to payment of benefit over that same maximum period. Does the fact that the national rules at issue affect adversely only a particular group of part-time workers — those with a ‘vertical’ work pattern — change my view that the national rules at issue give rise to indirect discrimination?
48. It does not.
49. It is true that this Court has disagreed with the assessment of national courts in certain cases where the domestic measures at issue concerned only a particular group of part-time workers. The Court has ruled that such measures do not lead to indirect discrimination, because statistical data relating to part-time workers in general could not demonstrate (in the absence of specific information) that women comprised the great majority of workers in the group of part-time workers identified by the national courts in those cases. (26)
50. Thus, Cachaldora Fernández (27) concerned the determination of the basis for the calculation of an invalidity pension. The national court’s assessment was based on the premiss that the domestic provision there at issue concerned a group of part-time workers, of whom the great majority were female, but did not apply to all part-time workers. Only those workers who had had a gap in their contributions during the reference period of eight years preceding the date of the event giving rise to the invalidity, when that gap followed a period of part-time work, were concerned by the national rule. The precise group of part-time workers affected could not, however, be clearly identified. There was no statistical information before the Court indicating how many part-time workers had a gap in their contributions or whether that group comprised mainly women. It was also established that some part-time workers could actually benefit from the rule of national law at issue in that case. (28) The Court therefore took the view that the general statistics that informed the national court’s premiss could not lead to the conclusion that the group of workers disadvantaged by the rule of national law at issue in the main proceedings in that case was mainly composed of part-time workers and, in particular, female workers.
51. The position in Ms Espadas Recio’s case is different. All ‘vertical’ part-time workers are adversely affected by the national measure at issue and there is nothing to suggest that certain workers within that group may be at an advantage as compared to full-time workers.
52. Similarly, in Plaza Bravo (29) the national measure at issue did not apply to all part-time workers. It was unclear from the file whether the statistical data on a specific group of workers affected by the national provision there at issue established that a much higher number of women than men were so affected. Furthermore, it was considered that those rules could equally place full-time workers at a disadvantage. The Court concluded that the general statistical data concerning part-time workers as a whole did not establish that a much higher number of women than men were affected by the national provision at issue. Thus, that measure was not held to give rise to indirect discrimination. (30)
53. In Ms Espadas Recio’s case, the referring court explains that the statistical data relating to part-time work apply equally to ‘horizontal’ and ‘vertical’ part-time workers. The information cited by the referring court relating to part-time workers indicates that 70 to 80% of those whose work is structured ‘vertically’ are women. The same male to female ratio holds good for workers who have a ‘horizontal’ part-time pattern. It is legitimate to conclude from that information that a greater proportion of women than men are adversely affected by the national measure at issue. Furthermore, the referring court has not suggested that the national rules at issue may sometimes result in the same disadvantages for full-time workers as they do for part-time workers.
54. It follows that Article 4(1) of Directive 79/7 precludes national measures such as those at issue unless they are justified by objective factors unrelated to any discrimination on grounds of sex. That will be the case where those measures reflect a legitimate social-policy objective, and if they are appropriate to achieve that aim and are necessary in order to do so. (31)
55. Spain has made no written submissions as to whether any discrimination on grounds of sex might be justified. However, at the hearing on 15 June 2016 the Spanish Government confirmed that its observations regarding justification of discrimination under the Framework Agreement were to be read as also applying in relation to sex discrimination. In its view, the principle of ‘contribution to the social security system’ provides an objective justification for any discrimination. Since the right to unemployment benefits and the duration of that benefit are based solely on the period during which an employee has worked or was registered in the social security system, it would be incompatible with the principle of proportionality to fail to take account of the days actually worked.
56. I do not accept that submission.
57. The referring court states that the aim of contributory unemployment benefit is to provide the worker with funds which compensate for the salary that he no longer receives (Article 204 of the LGSS).
58. In my view, it is possible to achieve that objective by taking account of the following: (i) the period during which contributions are made by the worker and his employer; (ii) the amount of those contributions; and (iii) the working hours of the worker concerned (whether the worker is part-time or full-time). From the referring court’s explanation, the Spanish system appears indeed to take precisely those factors into account for full-time workers and ‘horizontal’ part-time workers. Each worker (paying contributions for the same length of time) would receive unemployment benefits for the same period. However, a person who works 50% of the full-time hours would receive a correspondingly reduced level of benefit, reflecting the lower contributions made based on the lower part-time salary. That is fully consistent with the principle of pro rata temporis. (32)
59. However, a ‘vertical’ part-time worker would receive benefit for a shorter period than her full-time counterpart, even though she alsomakes contributions for each day of every month of the year. The system treats the two groups of workers differently. In the case of ‘vertical’ part-time workers, it emphasises the actual days worked rather than the period of time that the employee spends doing her job over the course of a working week.
60. That creates an illogical and punitive anomaly which places ‘vertical’ part-time workers at a disadvantage. Part-time workers who do relatively low paid jobs such as cleaning work may have little choice as regards their working arrangements. They may well be obliged to enter into ‘vertical’ arrangements that suit their employer simply to secure employment.
61. I therefore conclude that Article 4 of Directive 79/7 must be interpreted as precluding legislation of a Member State which in the case of ‘vertical’ part-time work (work carried out only on certain days of the week), excludes days not worked from the calculation of days in respect of which contributions have been paid, in a resulting reduction in the period for which unemployment benefit is paid, where the majority of ‘vertical’ part-time workers are women who are adversely affected by such national measures.
Conclusion
62. I am therefore of the opinion that the Court should answer the questions raised by the Juzgado de lo Social No 33 de Barcelona (Social Court No 33 of Barcelona, Spain) as follows:
(1) The Framework Agreement on part-time work, concluded on 6 June 1997, set out in the Annex to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, as amended by Council Directive 98/23/EC of 7 April 1998, is to be interpreted as not applying to a contributory unemployment benefit, such as that provided for in Article 210 of the Spanish Ley General de la Seguridad Social (General Law on Social Security), funded exclusively by the contributions paid by a worker and her previous employers.
(2) Article 4 of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as precluding legislation of a Member State which, in the case of ‘vertical’ part-time work (work carried out only on certain days of the week), excludes days not worked from the calculation of days in respect of which contributions have been paid, in a resulting reduction in the duration of unemployment benefit, where the majority of ‘vertical’ part-time workers are women who are adversely affected by such national measures.