Helga Nimz contra Freie und Hansestadt Hamburg.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: O'Higgins
• ECLI: ECLI:EU:C:1991:50
• Date: 07 February 1991
• Docket Number: C-184/89
• Procedure Type: Reference for a preliminary ruling

Judgment of the Court (Sixth Chamber) of 7 February 1991. - Helga Nimz v Freie und Hansestadt Hamburg. - Reference for a preliminary ruling: Arbeitsgericht Hamburg - Germany. - Classification in a higher salary grade - Doubling of the qualifying period for part-time employees - Indirect discrimination. - Case C-184/89.

European Court reports 1991 Page I-00297

Summary Parties Grounds Decision on costs Operative part

Keywords

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1. Social policy - Men and women - Equal pay - Concept - System providing for practically automatic classification in a higher salary grade - Included

(EEC Treaty, Art. 119)

2. Social policy - Men and women - Equal pay - Classification of part-time workers in a higher salary grade contingent on double the period of service required of full-time workers - Part-time workers consisting principally of women - Not permissible unless objectively justified

(EEC Treaty, Art. 119)

3. Social policy - Men and women - Equal pay - Article 119 of the Treaty - Direct effect - Scope

(EEC Treaty, Art. 119)

Summary

1. The prohibition of all discrimination between men and women in respect of pay, as laid down in Article 119 of the Treaty, also applies to a system under which a collective agreement provides for practically automatic promotion from one salary grade to another on the basis of length of service.

2. Article 119 of the Treaty precludes a collective agreement, entered into within the national public service, from providing for the period of service of employees working at least three-quarters of normal working time to be fully taken into account for reclassification in a higher salary grade, where only one-half of such period of service is taken into account in the case of employees whose working hours are between one-half and three-quarters of those normal working hours and the latter group of employees comprises a considerably smaller percentage of men than women, unless the employer can prove that such a provision is justified by factors whose objectivity depends in particular on the relationship between the nature of the duties performed and the experience afforded by the performance of those duties after a certain number of working hours have been completed.

3. Where there is indirect discrimination in a provision of a collective agreement, the national court is required to set aside that provision, without requesting or awaiting its prior removal by collective bargaining or any other procedure, and to apply to members of the group disadvantaged by that discrimination the same arrangements as are applied to other employees, arrangements which, failing the correct application of Article 119 of the EEC Treaty in national law, remain the only valid system of reference.

Parties

In Case C-184/89

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

Helga Nimz

and

Freie und Hansestadt Hamburg,

on the interpretation of Article 119 of the EEC Treaty and of 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: G. F. Mancini, President of Chamber, T. F. O' Higgins, M. Díez de Velasco, C. N. Kakouris and P. J. G. Kapteyn, Judges,

Advocate General: M. Darmon

Registrar: H. A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

Mrs Helga Nimz, the plaintiff in the main proceedings, by Klaus Bertelsmann, Rechtsanwalt, Hamburg, and by Professor Heide Pfarr;

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

the German Government, by Ernst Roeder, Regierungsdirektor in the Federal Ministry of Economic Affairs, acting as Agent;

the United Kingdom, initially by Susan J. Hay, and subsequently by Hussein A. Kaya, of the Treasury Solicitor' s Department, acting as Agents;

the Commission of the European Communities, by Karen Banks, a member of its Legal Department, acting as Agent, assisted by Elisabeth Hoffmann, of the Brussels Bar,

having regard to the Report for the Hearing,

after hearing the oral observations of Mrs Helga Nimz, of the Freie und Hansestadt Hamburg, represented by Mr...