JUDGMENT OF THE COURT

11 May 1999 (1)

(Equal pay for men and women)

In Case C-309/97,

REFERENCE to the Court under Article 234 EC (ex Article 177) by theOberlandesgericht Wien, Austria, for a preliminary ruling in the proceedingspending before that court between

Angestelltenbetriebsrat der Wiener Gebietskrankenkasse

and

Wiener Gebietskrankenkasse

on the interpretation of Article 119 of the EC Treaty (now, after amendment,Article 141 EC) and Council Directive 75/117/EEC of 10 February 1975 on theapproximation of the laws of the Member States relating to the application of theprinciple of equal pay for men and women (OJ 1975 L 45, p. 19),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet (Rapporteur),G. Hirsch and P. Jann (Presidents of Chambers), J.C. Moitinho de Almeida,C. Gulmann, D.A.O. Edward, H. Ragnemalm and M. Wathelet, Judges,

Advocate General: G. Cosmas,

Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

—    the Angestelltenbetriebsrat der Wiener Gebietskrankenkasse, by StefanProchaska, of the Vienna Bar,

—    the Wiener Gebietskrankenkasse, by Josef Milchram, of the Vienna Bar,

—    the German Government, by Ernst Röder, Ministerialrat at the FederalMinistry of Economic Affairs, acting as Agent,

—    the Commission of the European Communities, by Viktor Kreuschitz, LegalAdviser, and Marie Wolfcarius, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the Angestelltenbetriebsrat der WienerGebietskrankenkasse, represented by Stefan Prochaska and Gabriel Lansky, of theVienna Bar, the Wiener Gebietskrankenkasse, represented by Josef Milchram, andthe Commission, represented by Viktor Kreuschitz and Marie Wolfcarius, at thehearing on 10 November 1998,

after hearing the Opinion of the Advocate General at the sitting on 19 January1999,

gives the following

Judgment

1.

    By order of 5 May 1997, received at the Court on 4 September 1997, theOberlandesgericht (Higher Regional Court), Vienna, referred to the Court for apreliminary ruling under Article 234 EC (ex Article 177) seven questions on theinterpretation of Article 119 of the EC Treaty (now, after amendment, Article 141EC) and Council Directive 75/117/EEC of 10 February 1975 on the approximationof the laws of the Member States relating to the application of the principle ofequal pay for men and women (OJ 1975 L 45, p. 19; hereinafter 'the Directive‘).

2.

    Those questions were raised in proceedings between the Angestelltenbetriebsratder Wiener Gebietskrankenkasse (Staff Committee, Vienna Area Health Fund,hereinafter 'the Staff Committee‘) and the Wiener Gebietskrankenkasse (ViennaArea Health Fund, hereinafter 'the Health Fund‘) concerning the salaries ofgraduate psychologists employed as psychotherapists.

3.

    It appears from the order for reference that the salaries of employees of theAustrian social insurance institutions are fixed in accordance with various sets ofstaff regulations (Dienstordnungen), which are in the form of collective agreements,each applying to a specific category of personnel. Psychologists qualified to practicetheir profession on a self-employed basis are classified in salary group F, grade Iof Dienstordnung A or 'Staff Regulation A‘, which applies to administrative staff,health staff and dental technicians. Doctors qualified to practice as specialists ona self-employed basis are classified in salary group B, grade III of DienstordnungB or 'Staff Regulation B‘, which applies to doctors and dentists. By way ofcomparison, in 1995 the basic net remuneration of an employee in salary group F,grade I of Staff Regulation A was between ATS 24 796 and ATS 51 996, whereasthat of a doctor in salary group B, grade III of Staff Regulation B was betweenATS 42 197 and ATS 73 457.

4.

    It also appears from the order for reference that the institutions concerned mayemploy three different classes of psychotherapists: doctors who have completedtheir general practitioners' or specialists' training, graduate psychologists qualifiedto practice in the health sector on a self-employed basis and, lastly, those who areneither doctors nor psychologists but who have a general education and haveundergone specialised training in psychotherapy.

5.

    The Staff Committee applied to the Arbeits- und Sozialgericht (Labour and SocialSecurity Court) for a declaration that the employment relationship between theHealth Fund and psychotherapists with a degree (Doktorat) in psychology isgoverned by Staff Regulation B and that the psychotherapists concerned should beclassified in the same category as doctors employed as psychotherapists (that is tosay in salary group B, grade III). In support of this application, the Staff Committeeargued in particular, first, that such a classification by analogy was justified by thetraining and duties of psychologists engaged in psychotherapy, who do, after all,work in the therapy sector covered by Staff Regulation B. Secondly, most of suchpractitioners receiving lower salaries were women.

6.

    The Health Fund contested the merits of the application which, it argued, failed totake into account the differences in the training and qualifications of graduatepsychologists and specialist doctors and which would amount to treating graduatepsychologists as if they were specialist doctors. The fact that there was a majorityof women amongst the psychologists employed in psychotherapy was a purecoincidence. More women than men were also employed as doctors in the HealthFund's outpatient clinics.

7.

    The Arbeits- und Sozialgericht dismissed the Staff Committee's claim on the groundthat the Gleichbehandlungsgesetz 1979 (Law on Equal Treatment) did not applyto all forms of differential treatment within professional groups, but simplyprovided for the equal treatment of men and women at work. In particular, thecourt observed that the differential rates of pay for doctors and psychologistsworking as psychotherapists had been agreed upon by the parties to the collectiveagreements and are justified by the fact that the obligations incumbent on the twogroups of professionals are not the same: only doctors employed as specialists arerequired also to perform other medical tasks in an emergency.

8.

    The Staff Committee appealed to the Oberlandesgericht, Vienna, which recordedthe agreement of the parties on the following facts. The Health Fund employs 248doctors in all, 135 of whom are women. In the clinic referred to by the StaffCommittee, six psychologists, five of whom are women, are employed aspsychotherapists, together with six doctors, one of whom is a woman. Out of a totalof 34 psychotherapists employed by social insurance institutions, 24 are graduatepsychologists and 10 are doctors. Eighteen of the psychology graduates and two ofthe doctors are women. It was also noted that in Austria 1 125 men and 2 338women were formally registered as psychologists trained in psychotherapy.

9.

    In the light of this information, the Oberlandesgericht took the view that aninterpretation of certain provisions of Community law was necessary to enable itto give judgment, and accordingly stayed proceedings and referred the followingquestions to the Court of Justice for a preliminary ruling:

'(1)    Do the terms ”the same work” and ”the same job” apply, for the purposesof Article 119 of the EC Treaty or Directive 75/117/EEC, where the sametasks are performed over a considerable length of time (several salaryperiods) by persons the basis of whose qualification to exercise theirprofession is different?

(2)    Is it material, in deciding whether there is discrimination for the purposesof Article 119 of the EC Treaty or Directive 75/117/EEC, that:

    (a)    pay is fixed solely by the parties to an employment contract who areat liberty to incorporate therein the terms of collective agreements, orthat

    (b)    minimum rates of pay are fixed for all employees in a given sector bygeneral rules (collective agreements), or that

    (c)    pay is governed definitively by mandatory collective agreements?

(3)    Where a collective agreement specifies, in definitive rules relating toremuneration, different levels of pay for the same work or work of equalvalue depending on professional qualifications, must reference be made,

when selecting groups for comparison in determining whether a measuregives rise to discrimination, to

    (a)    the persons actually employed in the undertaking, or

    (b)    the employees working in the field covered by the collectiveagreement, or

    (c)    all those who are qualified to pursue the occupation in question?

(4)    In such a case (Questions 2 and 3), must account be taken of the proportionof men to women in the disadvantaged group only, or in both groups?

(5)    Where the tasks under consideration which are the same in both groups areonly some of the tasks covered by the professional qualifications in question,must account be taken of

    (a)    all persons employed in the relevant context (undertakings, collectiveagreements — see Question 3) who have the professional qualificationsin question (all specialist doctors and all psychologists), or

    (b)    all persons actually entitled to perform the duties in question (e.g.doctors with a specialist qualification in psychiatry), or

    (c)    only those who actually perform such duties?

(6)    Where staff perform the same duties in an undertaking, may differenttraining be regarded as a factor justifying lower pay? Is a broaderprofessional qualification to be regarded as an objective factor justifyingdifferent pay, regardless of the duties actually performed in theundertaking?

    Is the decisive factor therefore

    (a)    whether the better paid group of employees may also be called uponto perform other tasks within the undertaking, or

    (b)    must it be shown that they were in fact called upon to perform othertasks?

    In this connection, must account be taken of the fact that the applicablerules of the collective agreements include protection against unfairdismissal?

(7)    Does it follow from Article 222 of the EC Treaty, or the application byanalogy of Article 174 thereof, that any right to pay under another collectiveagreement (between the same parties) which may be inferred from Article119 of the EC Treaty or Directive 75/117/EEC only arises when the Courtof Justice rules that such a right exists?‘

First question

10.

    The first paragraph of Article 119 of the Treaty provides that 'each Member Stateshall during the first stage ensure and subsequently maintain the application of theprinciple that men and women should receive equal pay for equal work.‘ Pursuantto the third paragraph of Article 119, 'equal pay without discrimination based onsex means: (a) that pay for the same work at piece rates shall be calculated on thebasis of the same unit of measurement, (b) that pay for work at time rates shall bethe same for the same job.‘

11.

    The first paragraph of Article 1 of the Directive provides that 'the principle ofequal pay for men and women outlined in Article 119 of the Treaty ... means, forthe same work or for work to which equal value is attributed, the elimination of alldiscrimination on grounds of sex with regard to all aspects and conditions ofremuneration‘. The second paragraph of Article 1 states that 'in particular, wherea job classification system is used for determining pay, it must be based on thesame criteria for both men and women and so drawn up as to exclude anydiscrimination on grounds of sex‘.

12.

    The Staff Committee suggests that the first question should be answered in theaffirmative. It argues that the principle laid down by the Court in Case C-127/92Enderby [1993] ECR I-5535, according to which categories of employees withdifferent professions and qualifications may perform work of equal value, mustapply a fortiori where identical functions are performed by people with differentprofessional qualifications.

13.

    The Health Fund and the Commission contend that, where the same activity isperformed by persons with different professional qualifications, involving differentskills and obligations, that does not constitute the same work for the purposes ofthe foregoing provisions. They attach particular importance to professional trainingand the qualifications obtained. The Commission also observes that the Court didnot rule in Enderby that the professional duties in question should be regarded asconstituting the same work.

14.

    The German Government points out that, according to the case-law of the Court,different pay for the same work may be justified by different professional trainingor qualifications. However, it submits that it is for the national court to evaluate thefacts of the case before it.

15.

    It should be noted at the outset that the Court has consistently held thatdiscrimination involves the application of different rules to comparable situationsor the application of the same rule to different situations (see, in particular, CaseC-342/93 Gillespie and Others v Northern Health and Social Services Board andOthers [1996] ECR I-475, paragraph 16).

16.

    As for the argument relied on by the Staff Committee, suffice it to note that inEnderby the Court did not rule on whether the functions performed by membersof the different professions in question were of equal value. It merely answered thequestions referred to it on the basis of the assumption that those functions were ofequal value, without concerning itself with the validity of that assumption (Enderby,paragraphs 11 and 12).

17.

    In order to determine whether the work being done by different persons is thesame, it is necessary to ascertain whether, taking account of a number of factorssuch as the nature of the work, the training requirements and the workingconditions, those persons can be considered to be in a comparable situation (see,to that effect, Case C-400/93 Royal Copenhagen [1995] ECR I-1275, paragraphs 32and 33).

18.

    Thus, where seemingly identical tasks are performed by different groups of personswho do not have the same training or professional qualifications for the practiceof their profession, it is necessary to ascertain whether, taking into account thenature of the tasks that may be assigned to each group respectively, the trainingrequirements for performance of those tasks and the working conditions underwhich they are performed, the different groups in fact do the same work within themeaning of Article 119 of the Treaty.

19.

    As Advocate General Cosmas stated at point 32(c) of his Opinion, professionaltraining is not merely one of the factors that may be an objective justification forgiving different pay for doing the same work (see, to that effect, Case 109/88Handels- og Kontorfunktionærernes Forbund i Danmark v Dansk Arbejdsgiverforening,'Danfoss‘ [1989] ECR 3199, paragraph 23); it is also one of the possible criteriafor determining whether or not the same work is being performed.

20.

    It appears from the information contained in the order for reference that, althoughpsychologists and doctors employed as psychotherapists by the Health Fundperform seemingly identical activities, in treating their patients they draw uponknowledge and skills acquired in very different disciplines, the expertise ofpsychologists being grounded in the study of psychology, that of doctors in the studyof medicine. Furthermore, the national court emphasises that, even though doctorsand psychologists both in fact perform work of psychotherapy, the former arequalified also to perform other tasks in a field which is not open to the latter, whomay only perform psychotherapy.

21.

    In those circumstances, two groups of persons who have received differentprofessional training and who, because of the different scope of the qualificationsresulting from that training, on the basis of which they were recruited, are calledon to perform different tasks or duties, cannot be regarded as being in acomparable situation.

22.

    That finding is not contradicted by the fact that a single tariff is charged forpsychotherapeutic treatment, an arrangement which may be the result of socialpolicy.

23.

    The answer to the first question must therefore be that the term 'the same work‘does not apply, for the purposes of Article 119 of the EC Treaty or the Directive,where the same activities are performed over a considerable length of time bypersons the basis of whose qualification to exercise their profession is different.

The remaining questions

24.

    Given the answer to the first question, there is no need to answer the otherquestions referred by the national court.

Costs

25.

    The costs incurred by the German Government and by the Commission, which havesubmitted observations to the Court, are not recoverable. Since these proceedingsare, for the parties to the main action, a step in the proceedings pending before thenational court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Oberlandesgericht Wien by orderof 5 May 1997, hereby rules:

The term 'the same work‘ does not apply, for the purposes of Article 119 of theEC Treaty (now, after amendment, Article 141 EC) or Council Directive75/117/EEC of 10 February 1975 on the approximation of the laws of the MemberStates relating to the application of the principle of equal pay for men and women,where the same activities are performed over a considerable length of time bypersons the basis of whose qualification to exercise their profession is different.

Rodríguez Iglesias            Puissochet Hirsch Jann Moitinho de Almeida Gulmann Edward Ragnemalm Wathelet

Delivered in open court in Luxembourg on 11 May 1999.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

1: Language of the case: German.