Maria Kowalska v Freie und Hansestadt Hamburg.

• Jurisdiction: European Union
• Celex Number: 61989CJ0033
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:1990:265
• Date: 27 June 1990
• Docket Number: C-33/89
• Writing for the Court: O'Higgins
• Procedure Type: Reference for a preliminary ruling

Judgment of the Court (Sixth Chamber) of 27 June 1990. - Maria Kowalska v Freie und Hansestadt Hamburg. - Reference for a preliminary ruling: Arbeitsgericht Hamburg - Germany. - Severance grant following termination of employment - Exclusion of part-time workers - Article 119 of the EEC Treaty. - Case C-33/89.

European Court reports 1990 Page I-02591

Summary Parties Grounds Decision on costs Operative part

Keywords

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1 . Social policy - Male and female workers - Equal pay - Pay - Concept -Compensation granted to a worker on termination of the employment relationship - Included

( EEC Treaty, Art . 119 )

2 . Social policy - Male and female workers - Equal pay - Severance grant not paid to part-time workers on termination of the employment relationship - Part-time work-force composed mainly of women - Not permissible unless based on objectively justified factors

( EEC Treaty, Art . 119 )

3 . Social policy - Male and female workers - Equal pay - Article 119 of the Treaty - Direct effect - Scope

( EEC Treaty, Art . 119 )

Summary

1 . Compensation paid to a worker on termination of the employment relationship is a form of deferred pay to which the worker is entitled by reason of his employment but which is paid to him on termination of the employment relationship with a view to enabling him to adjust to the new circumstances arising from such termination . It follows that such compensation falls within the definition of pay for the purposes of Article 119 of the Treaty .

2 . Article 119 of the EEC Treaty precludes the application of a clause in a collective wage agreement applying to the national public service under which the employers may exclude part-time employees from the payment of a severance grant when in fact a considerably lower percentage of men than of women work part-time, unless the employer shows that the exclusion is based on objectively justified factors unrelated to any discrimination on grounds of sex .

3 . Where there is indirect discrimination in a clause in a collective wage agreement, the class of persons placed at a disadvantage, whether men or women, must be treated in the same way and made subject to the same scheme, proportionately to the number of hours worked, as other workers, such scheme remaining, for want of correct transposition of Article 119 of the EEC Treaty into national law, the only valid point of reference .

Parties

In Case C-33/89

REFERENCE to the Court under Article 177 of the EEC Treaty by the Arbeitsgericht ( Labour Court ) Hamburg ( Federal Republic of Germany ) for a preliminary ruling in the proceedings pending before that court between

Maria Kowalska

and

Freie und Hansestadt Hamburg

on the interpretation of Article 119 of the EEC 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 ( Official Journal 1975, L 45, p . 19 ),

THE COURT ( Sixth Chamber )

composed of : C . N . Kakouris, President of Chamber, F . A . Schockweiler, G . F . Mancini, T . F . O' Higgins and M . Diez de Velasco, Judges,

Advocate General : M . Darmon

Registrar : D . Louterman, Principal Administrator

after considering the written observations submitted on behalf of

Mrs Kowalska, the plaintiff in the main proceedings, by Klaus Bertelsmann, Rechtanswalt, Hamburg, and by Professor Heide Pfarr,

the Freie und Hansestadt Hamburg, the defendant in the main proceedings, by Wolfgang W . Scheer and Rolf Stahmer, Rechtsanwaelte, Hamburg,

the Commission of the...