Article 157 TFEU and the scope of the principle of equal pay PDF

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This document provides: Article 157 TFEU and the scope of the principle of equal pay supported by Case 170/84 Bilka Kaufhaus v Karin Weber Van Hartz, The original Equal Pay Directive (Directive 75/117), and Part-time work and indirect discrimination.l...

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Article 157 TFEU and the scope of the principle of equal pay

Article 157 TFEU originally provided for equal pay for equal work only, but was amended by the Treaty of Amsterdam to refer to ‘equal pay for work of equal value’ by the Lisbon Treaty, a concept that was first introduced by Directive 75/117.

Case 170/84 Bilka Kaufhaus v Karin Weber Van Hartz

It was held that where supplements were made by the employer to the basic state pension under a contractual agreement and where the amount was linked to pay (that is, as a proportion or percentage), it was pay for the purposes of Article 119 EEC. Furthermore, if access to this scheme was discriminatory, as it was proved to be in the case, it also breached Article 119 EEC (now Article 157 TFEU).

Whilst benefits and lump sum payments must be regarded as pay, this is not the case for the contributions that determine the size of the fund, because factors other than a simple difference in sex are involved.

The funding system to provide the amount of pension to be available does not come under Article 157 TFEU (ex 141 EC). The amount needed for a pension is determined by actuaries.

The original Equal Pay Directive (Directive 75/117)

The Equal Pay Directive added little to that interpreted for old Article 119 EEC, but did extend the principle of equal pay to ‘work to which equal value is attributed’ and extended the equality requirement to ‘all aspects and conditions of remuneration’ (Article 1), which Article 119 EEC at the time did not. This is now contained in the new Article 157 TFEU.

By including equal value in the Treaty Article, it makes the situation much easier for claimants who work for a private employer—that is, the vast majority of workers. It was with these concerns in mind that many of the cases that were originally raised in respect of Directive 75/117 alone or in combination with the Treaty Article were decided upon by the CJEU with reference to the Treaty Article only.

The basis of comparison

In most situations in which there is direct discrimination, it is usually clear and obvious that there is discrimination; for example, it is easy to compare a man and woman who are doing the same job in the same workplace for the same employer, but are being paid differently.

There are, however, complications where the comparison is not so obvious, where the times of work differ or the job differs slightly, or the workplace differs.

In case C-220/02 Osterreichischer Gewerkschaftbund, men were permitted to take into account periods of military service when calculating termination payments but women were not permitted to take into account maternity leave time. When challenged and referred to the CJEU, it held that the situations were not comparable and thus outside EU law because ‘parental’ covered individual interests of worker and family, but ‘military service’ the interest of the state.

Part-time work and indirect discrimination

It is in the area of part-time work that the concept of indirect discrimination has been most thoroughly explored by the CJEU. Direct discrimination on the grounds of sex can arguably never be justified: either it is discriminatory and thus contrary to EU law, or it is not.

Indirect discrimination, however, can be justified, but is more difficult to determine. It covers cases in which a class of persons is mainly or entirely constituted of one sex (usually women), and a difference is drawn between that class and another class, which can consist of members of both sexes.

In either class, no direct discrimination takes place—that is, both genders are treated the same —but, in comparison with the other class, a rule or measure operates in a discriminatory manner against the predominant sex, which can be either women or men.

It is more likely that women will find it harder to work full time and may have to seek part-time work because of commitments to family and home, but this does not make it lawful to discriminate against them...