Angestelltenbetriebsrat der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Puissochet
• ECLI: ECLI:EU:C:1999:8
• Date: 19 January 1999
• Docket Number: C-309/97
• Procedure Type: Reference for a preliminary ruling

61997C0309

Opinion of Mr Advocate General Cosmas delivered on 19 January 1999. - Angestelltenbetriebsrat der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse. - Reference for a preliminary ruling: Oberlandesgericht Wien - Austria. - Equal pay for men and women. - Case C-309/97.

European Court reports 1999 Page I-02865

Opinion of the Advocate-General

I - Introduction

1 In this reference for a preliminary ruling under Article 177 of the EC Treaty, the Oberlandesgericht Wien (Austria) seeks replies to seven questions concerning the interpretation of Article 119 of the EC 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. (1) The questions referred to the Court mainly concern the interpretation of the concepts of `equal work' and `same job', and the identification of the groups to be compared in order to ascertain whether there is indirect discrimination between men and women with regard to pay.

II - Legal context

A - Community provisions

2 The first paragraph of Article 119 of the Treaty provides:

`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.'

3 The third paragraph of Article 119 of the Treaty specifies that:

`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.'

4 Article 1 of Directive 75/117 reads as follows:

`The principle of equal pay for men and women outlined in Article 119 of the Treaty, hereinafter called "principle of equal pay", means, for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration.

In particular, where a job classification system is used for determining pay, it must be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex.'

5 Article 4 of the Directive provides:

`Member States shall take the necessary measures to ensure that provisions appearing in collective agreements, wage scales, wage agreements or individual contracts of employment which are contrary to the principle of equal pay shall be, or may be, declared null and void or may be amended.'

B - National provisions

6 It appears from the order for reference and from the observations submitted to the Court that in Austria, under the Allgemeines Sozialversicherungsgesetz (General Law on Social Security, `the ASVG'), the provisions concerning the conditions of employment and the pension rights of the staff of social insurance institutions are set out in staff regulations embodied in collective agreements drawn up by the National Association of Austrian Social Insurance Institutions. Under Paragraph 460 of the ASVG, any derogation from those provisions requires the written consent of the National Association.

Dienstordnung A (Staff Regulation A) applies to employees of social insurance institutions who are engaged in administration, patient care or dental technicians' duties.

Paragraph 37 of Staff Regulation A, which provides for the classification of administrative employees according to the salary bracket to which they belong, includes in `senior personnel', Salary Bracket F, Staff Category I, `psychologists authorised to practise psychology on a self-employed basis (general psychologists and clinical psychologists)'. Other psychologists are classified as `middle-ranking personnel', Salary Bracket E, Staff Category III. Paragraph 38 of Staff Regulation A, which relates to patient care staff, classifies psychotherapists in Salary Bracket C, Staff Category II.

Dienstordnung B (Staff Regulation B) applies to all doctors and dentists employed by the social insurance institutions (Paragraph 1(1)). Doctors who work in hospital establishments and are authorised to practise as specialists on a self-employed basis are classified in Salary Bracket B III.

For comparison, in 1995 the basic pay of doctors in Salary Bracket B III was between ATS 42 194 and ATS 73 457, depending on their length of service, whereas during the same period that of administrative employees in Salary Bracket F I was between ATS 24 796 and ATS 51 996, also depending on length of service.

Moreover, the working week of doctors employed by the social insurance institution which is the defendant in the main proceedings is 36 hours, whereas that of other employees is 40 hours.

The abovementioned collective agreements include detailed conditions of service and provide inter alia that subject to certain conditions, in particular completion of 10 years' service, employees are protected against arbitrary dismissal.

7 The Psychotherapiegesetz (Law on Psychotherapy) (2) defines psychotherapy (3) and lays down the conditions for practising as a psychotherapist. (4)

The Ärztegesetz (Law on Medical Practice) (5) defines the activities of the medical profession (6) and lays down the requirements for practising as a doctor. (7)

Finally, the Psychologengesetz (Law on Psychologists) (8) defines the work of psychologists (9) and lays down the requirements for practising as a psychologist. (10)

III - Facts

8 The dispute between the parties to the main proceedings, the Angestelltenbetriebsrat der Wiener Gebietskrankenkasse (Staff Committee, Vienna Area Health Fund, `the Staff Committee') and the Wiener Gebietskrankenkasse (Vienna Area Health Fund, `the Health Fund'), concerns the pay of psychologists qualified as doctors who work for the Health Fund as psychotherapists.

9 It appears from the observations (not disputed) of the Health Fund, the respondent in the main proceedings, that the said Fund is one of 28 Austrian social insurance institutions. To carry out its task, which is to implement the statutory sickness insurance scheme for employees under private-law employment contracts in the Bundesland Wien, the Health Fund uses, inter alia, numerous out-patient clinics. Many of these offer insured persons the direct psychotherapy services of employees of the insurance funds. The out-patient clinics are also used by other social insurance organisations.

10 The Health Fund employs three categories of psychotherapists: (a) qualified doctors who have completed their general or specialist training, which is obviously of a wider scope than training in psychotherapy, (b) graduate psychologists who are qualified to practise on a self-employed basis (general psychologists and clinical psychologists) and who obviously also meet the requirements laid down by the Law on Psychotherapy for practising as psychotherapists, and (c) psychotherapists who are neither doctors nor psychologists, but have completed the training laid down by the Law on Psychotherapy. It appears that in practice, the Health Fund concludes different collective employment agreements with the members of each of the above-mentioned categories, depending on their `more thorough training', whereas the order for reference indicates that all the employees concerned perform the same work of psychotherapy.

11 The Staff Committee which is the appellant in the main proceedings applied to the Arbeits- und Sozialgericht Wien (Labour and Social Security Court, Vienna) for a ruling that Staff Regulation B applies to the employment relationship between the Insurance Fund and the psychotherapists employed by it on 1 December 1994 who have a degree in psychology and that such psychotherapists should be assigned to Category B III of Staff Regulation B and be paid accordingly because, firstly, the psychotherapists in question carry out essentially the same duties as doctors who are psychotherapists, those duties being invoiced by the Health Fund at the same rate, and, secondly, it is mainly women who are affected by the fact, for which there is no objective justification, that the pay for psychotherapists who have degrees in psychology is lower.

12 The Health Fund claimed that the application should be dismissed, primarily on the ground that the different classification of these two categories is due to the fact that their training and qualifications are different and that graduate psychologists practising psychotherapy - and who are not doctors - receive in any case a higher salary than that of any graduates who do not perform executive functions, and their classification in the category sought by the Staff Committee would ultimately be equivalent to treating them as specialist doctors. The Health Fund added that the psychologists in question are not a minority in relation to doctors practising psychotherapy and that they are not engaged in what is typically a women's profession. The fact that in the Health Fund there are more women than men among psychologists working as psychotherapists is mere chance, and generally there are more women than men working as doctors in the out-patient clinics of the Health Fund.

13 The action was dismissed at first instance on the ground that the 1979 Gleichbehandlungsgesetz (Law on Equal Treatment) does not apply to all forms of differential treatment within occupational groups, but only provides for the equal treatment of men and women at work. The court also found that the Health Fund made no distinction on the basis of sex when recruiting doctors and psychologists, the disproportion between men and women being purely a matter of chance, and therefore there was no breach of the principle of equal treatment or of Article 119 of the Treaty and the Community directives based on that article. Finally, the court took the view that the different treatment of doctors in relation to graduate psychologists was...