Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Sixth Chamber)

30 March 2000 (1)

(Social policy - Male and female workers - Equal pay for work of equal value -Article 119 of the EC Treaty Articles 117 to 120 of the EC Treaty have beenreplaced by Articles 136 EC to 143 EC) - Directive 75/117/EEC - Comparisonof a midwife's pay with that of a clinical technician - Taking into account asupplement and a reduction in working time for inconvenient working hours)

In Case C-236/98,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234EC) by the Arbetsdomstolen, Sweden, for a preliminary ruling in the proceedingspending before that court between

Jämställdhetsombudsmannen

and

Örebro läns landsting,

on the interpretation of Article 119 of the EC Treaty (Articles 117 to 120 of theEC Treaty have been replaced by Articles 136 EC to 143 EC) and of CouncilDirective 75/117/EEC of 10 February 1975 on the approximation of the laws of theMember States relating to the application of the principle of equal pay for men andwomen (OJ 175 L 45, p. 19)

THE COURT (Sixth Chamber),

composed of: J.C. Moitinho de Almeida, President of the Chamber, R. Schintgen(Rapporteur), C. Gulmann, J.-P. Puissochet and F. Macken, Judges,

Advocate General: F.G. Jacobs,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- the Jämställdhetsombudsmannen, by L. Svenaeus, assisted by Lord Lesterof Herne Hill, QC, and L. Bergh, ställföreträdandejämställdhetsombudsman,

- the Örebro läns landsting, by G. Bergström, arbetsrättchef, and A. Barav,Barrister,

- the Finnish Government, by H. Rotkirch, Ambassador, Head of the LegalService in the Ministry of Foreign Affairs, and T. Pynnä, Legal Adviser inthat Ministry, acting as Agents,

- the Commission of the European Communities, by K. Oldfelt, PrincipalLegal Adviser, and M. Wolfcarius, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the Jämställdhetsombudsmannen, representedby L. Svenaeus, assisted by Lord Lester of Herne Hill, of the Örebro läns landsting,represented by G. Bergström and A. Barav, of the Finnish Government,represented by E. Bygglin, Legal Adviser at the Ministry of Foreign Affairs, actingas Agent, and the Commission, represented by K. Oldfelt at the hearing on 21October 1999,

after hearing the Opinion of the Advocate General at the sitting on 16 December1999,

gives the following

Judgment

1. By decision of 2 July 1998, received at the Court on 6 July 1998, theArbetsdomstolen (Labour Court) referred five questions for a preliminary rulingunder Article 177 of the EC Treaty (now Article 234 EC) on the interpretation ofArticle 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have beenreplaced by Articles 136 EC to 143 EC) and of Council Directive 75/117/EEC of10 February 1975 on the approximation of the laws of the Member States relatingto the application of the principle of equal pay for men and women (OJ 1975 L 45,p. 19).

2. Those questions were referred in proceedings between theJämställdhetsombudsmannen (Equal Opportunity Ombudsman, hereinafter 'theJämO) and the Örebro Läns Landsting (Örebro County Council, hereinafter 'theLandsting) concerning the pay of two midwives, which is lower than that receivedby a clinical technician even though, according to the JämO, those midwivesperform work of equal value.

   Legal background

   Community law

3. The first paragraph of Article 1 of Directive 75/117 provides that the principle ofequal pay for men and women outlined in Article 119 of the Treaty means, for thesame 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.

4. Article 3 of the directive provides that Member States are to abolish alldiscrimination between men and women arising from laws, regulations oradministrative provisions which is contrary to the principle of equal pay.

5. Under Article 4, Member States are to take the necessary measures to ensure thatprovisions appearing in collective agreements, wage scales, wage agreements orindividual contracts of employment which are contrary to the principle of equal payshall be, or may be declared, null and void or may be amended.

6. Article 1 of Council Directive 76/207/EEC of 9 February 1976 on theimplementation of the principle of equal treatment for men and women as regardsaccess to employment, vocational training and promotion, and working conditions(OJ 1976 L 39, p. 40) concerns the implementation in the Member States of theprinciple of equal treatment for men and women in the matter of, inter alia, accessto employment and working conditions.

   National law

7. The objective of the Jämställdhetslagen (Law on equal opportunity, SFS 1991 no433) in Sweden is to promote equal rights between men and women with respectto work, recruitment and other working conditions, and to opportunities forprofessional development.

8. Article 2 of the Jämställdhetslagen, provides that the employer and the worker areto cooperate in order for equality to be attained in working life. In particular, theyare to aim to reduce and eliminate differences in salary and other workingconditions between men and women who perform work which is to be regarded asidentical or of equal value.

9. Article 19 of the Jämställdhetslagen provides:

   'Unlawful discrimination on grounds of sex is to be regarded as existing where anemployer accords lower pay or otherwise applies less favourable conditions ofemployment to an employee than those which he accords to an employee of theopposite sex where such employees perform work which is to be regarded asidentical or of equal value.

   However, there is no discrimination if the employer can show that the differentconditions of employment are based on differences in the employees' actualqualifications for the work or that in any event they have no direct or indirectconnection with the sex of the employees.

10. Article 46 of the Jämställdhetslagen provides that, in proceedings relating to theapplication of Article 18, the JämO may bring an action on behalf of a worker ora job applicant if the latter consents and the JämO considers that it is in theinterests of the application of the law for the matter to be the subject of a judicialdecision or that such an action is justified on other grounds.

11. The main proceedings are governed by collective agreement AllmännaBestämmelser 95.

12. Article 8 of that agreement provides as follows:

    'The standard working week for full-time staff shall, unless this agreement providesotherwise, comprise an average of 40 hours where there are no bank holidays ...The standard working week incorporating days of the week such as Sundays andbank holidays or week-days and bank holidays shall, for full-time staff, comprise anaverage of 38 hours and 15 minutes ... However, where arrangements such as shift-work pertain, the average working week shall comprise 34 hours and 20 minutes.

13. Article 13 of the agreement provides:

    'The worker shall be remunerated in accordance with this agreement. Hisremuneration shall comprise his salary within the meaning of Articles 14 to 18,paid-holiday benefits, paid-holiday allowance and holiday pay, plus the followingspecific sums: over-time pay, travel expenses, the inconvenient-hours supplement,on-call and availability pay and the postponement supplement.

14. Article 14 of the agreement provides that all workers are to receive onecontractually determined salary payment per calendar month.

15. Under Article 32, workers whose duties are determined by a roster or similardocument and who have worked inconvenient hours - albeit not over-time - are,by virtue of that fact, entitled to a supplement.

    The main proceedings

16. The JämO brought an action before the national court on behalf of two midwivesfor an order against the Landsting for the payment to them of damages in respectof pay discrimination for the period 1 January 1994 to 30 June 1996 and in respectof the differential between their pay and the higher amount received by a clinicaltechnician, on the ground that their work was of equal value.

17. The midwives in the main proceedings, Ms Ellmén and Ms Wetterberg, and theclinical technician, Mr Persson, are all employed by the Landsting at the regionalhospital of Örebro. Their pay and working conditions are governed by collectivebargaining agreements, in particular the Allmänna Bestämmelser 95 collectiveagreement.

18. The basic monthly salaries received by Ms Ellmén and Ms Wetterberg areSEK 17 400 and SEK 16 600 respectively, while Mr Perssons' basic monthly salaryis SEK 19 650.

19. The inconvenient-hours supplement is governed by a collective agreement and iscalculated in the same way for all the workers concerned. The supplement variesaccording to the time of day and according to whether the hours are worked on aSaturday or a bank holiday. Inconvenient-hours remuneration is generally onlyaccorded for work between the hours of 7 p.m. and 6 a.m. in the week. Themidwives received the supplement on a regular basis, unlike the clinical technician,who did not work hours entitling him to it.

20. The midwives work under a three-shift system from 7 a.m. to 3.30 p.m., from 2 p.m.to 10 p.m., and from 9.30 p.m. to 7.30 a.m. The roster is drawn up for periods of15 weeks. The JämO argues that midwives on the labour ward are the only groupof workers who work on a shift basis in the Swedish health care sector.

21. Pursuant to the Allmänna Bestämmelser 95 collective agreement, the average full-time working week comprises 40 hours, except where Sundays or bank holidays orboth are worked, in which case the average week comprises 38 hours and 15minutes, or where agreements have been reached, as for shift work, where theweek comprises 34 hours and 20 minutes.

22. Before the Arbetsdomstolen, the JämO argued that the work performed by MsEllmén and Ms Wetterberg was to be regarded as of equal value to that performedby the clinical technician, and that therefore their pay should be the same as his. As regards the pay comparison in respect of the workers concerned, it submittedthat no account should be taken either of the inconvenient-hours supplement or ofthe value of the reduced working time. The JämO made the point that, during therelevant period, the clinical technician worked day-time hours and did not workshifts. The midwives had mostly worked under a three-shift system, although onoccasion the roster had been limited to two shifts (day and evening) or the workhad been performed at night. Their fixed monthly pay remained the sameregardless of the roster, whereas the inconvenient-hours supplement variedaccording to the roster.

23. The Landsting, on the other hand, argued that a midwife's work was not of equalvalue to that of a clinical technician. Even if the two types of work were deemedto be of equal value, there was on any view no discrimination since the terms ofemployment applicable to midwives and those applicable to clinical technicianswere not related, direct or indirectly, to the sex of the worker concerned. In anyevent, the Landsting argued, the inconvenient-hours supplement and the value ofthe reduced working time must be incorporated in the basis for a pay comparisonand that, if they are, there is no pay differential to the detriment of midwives.

24. In those circumstances, the JämO applied to the Arbetsdomstolen for an interimorder declaring that the Landsting had fixed the midwives' pay at a lower level thanthat of the clinical technician.

25. The Landsting challenged the JämO's arguments, relying in particular on Article119 of the Treaty and Directive 75/117.

    The questions referred

26. Leaving open the question whether a midwife's work is of equal value to that of aclinical technician, the Arbetsdomstolen considered it necessary, in order to be ableto determine whether the midwives were paid less by the Landsting than the clinicaltechnician in this case, to refer to the Court the question whether theinconvenient-hours supplement and the value of the reduced working time enjoyedby the midwives form part of the pay to be compared. According to theArbetsdomstolen, neither Article 119 of the Treaty nor Directive 75/117 providesa precise answer to that question, nor, for that matter, does the case-law of theCourt, in particular its judgment in Case C-262/88 Barber 1990 [ECR] I-1889.

27. In the light of those considerations, the Arbetsdomstolen decided to stayproceedings and to refer the following questions to the Court for a preliminaryruling:

    '1. Under Article 119 of the Treaty of Rome and Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to theapplication of the principle of equal pay for men and women, must asupplement for inconvenient working hours be included in the basis for apay comparison in relation to a pay discrimination claim? What differencedoes it make that the supplement for inconvenient working hours variesfrom month to month depending on the working schedule?

    2. In answering Question 1 should significance be attached to the fact that as part of their tasks the midwives must regularly work hours which entitlethem to the supplement for inconvenient working hours, whereas the clinicaltechnician does not regularly perform work during times which affordentitlement to such a supplement?

    3. In determining the question whether the supplement for inconvenientworking hours is to be included in the basis for a pay comparison in relationto a pay discrimination claim, must significance be attached to the fact that,under national law, that supplement is included in basic pay for the purposeof determining pensions, sick pay, damages and other earnings-relatedpayments?

    4. Must a reduction in working time, representing the difference in standard working time for daytime work and work under a continuousthree-shift regime, be taken into account when a pay comparison is madein relation to a pay discrimination claim, in accordance with Article 119 ofthe Treaty of Rome and Council Directive 75/117/EEC on theapproximation of the laws of the Member States relating to the applicationof the principle of equal pay for men and women? If the answer is in theaffirmative: what significance does it have that under the collectiveagreement the lower standard working time applying under a continuousthree-shift regime constitutes full-time working? If reduced working hoursare to be given a particular value, is that value to be regarded as beingcomprised in the fixed monthly pay or as constituting special compensationwhich is to be included in the pay comparison?

    5. In answering Question 4, is significance to be attached to the fact that the midwives, but not the clinical technician, perform shift work which,under the terms of the collective agreement, affords entitlement to reducedworking hours?

    Relevance of the questions referred

28. The Landsting contends that the Court cannot answer the questions referredwithout first determining whether the duties in point in the main proceedings areof equal value. Since, in its submission, a midwife's duties are not comparable tothose of a clinical technician, there can be no infringement of Article 119 of theTreaty.

29. At the hearing, the JämO maintained that the Arbetsdomstolen had decided torefer the matter to the Court without deciding the issue of equal value of the workon the ground that this would require complex and costly investigations.

30. In that respect, it should be borne in mind that Article 177 of the Treaty lays downthe framework for close cooperation between the national courts and the Court ofJustice based on the assignment to each of different functions. It is clear from thesecond paragraph of Article 177 that it is for the national court to decide at whatstage in the proceedings it is appropriate for that court to refer a question to theCourt of Justice for a preliminary ruling (see Joined Cases 36/80 and 71/80 IrishCreamery Milk Suppliers Associations and Others [1981] ECR 735, paragraph 5).

31. It is true that the need to provide an interpretation of Community law which willbe of use to the national court makes it essential to define the legal context inwhich the interpretation requested should be placed and that, in that respect, itmay be convenient, in certain circumstances, for the facts of the case to beestablished and for questions of purely national law to be settled at the time thereference is made to the Court, so as to enable the latter to take cognisance of allthe features of fact and of law which may be relevant to the interpretation ofCommunity law which it is called upon to give (Irish Creamery Milk SuppliersAssociation, paragraph 6).

32. However, those considerations do not in any way restrict the discretion of thenational court, which alone has a direct knowledge of the facts of the case and ofthe arguments of the parties, which will have to take responsibility for givingjudgment in the case, and which is therefore in the best position to appreciate atwhat stage in the proceedings it requires a preliminary ruling from the Court ofJustice (Case C-127/92 Enderby [1993] ECR I-5535 paragraph 10).

33. In this case, taken as a whole, the request for an interpretation of Community lawmade by the national court has arisen in the context of a genuine dispute and theCourt of Justice has the information it needs in order to give a useful reply to thequestions referred.

34. Whilst the description in this case of the factual and legal context does appearincomplete in some respects, thus preventing the Court from replying in variousrespects with the precision it would wish to the questions raised, the Court cannone the less give a helpful ruling on the basis of the information before it. TheCourt may, however, depending on the circumstances, have occasion to leave opencertain aspects of the questions raised (see Case C-266/96 Corsica Ferries France[1998] ECR I-3949, paragraph 25).

    The first three questions

35. By its first three questions, which it is appropriate to consider together, the nationalcourt is essentially asking whether the inconvenient-hours supplement must betaken into consideration in calculating the salary used as the basis for a paycomparison for the purposes of Article 119 of the Treaty and Directive 75/117.

36. It should be recalled at the outset that Article 119 of the Treaty lays down theprinciple that men and women should receive equal pay for the same work or forwork deemed to be of equal value. Thus, the same work or work deemed to beof equal value must be remunerated in the same way whether it is performed bya man or a woman. As the Court has already held in Case 43/75 Defrenne vSabena (Defrenne II) [1976] ECR 455, paragraph 12, that principle is one of thefoundations of the Community.

37. Furthermore, the Court has also held that Article 1 of Directive 75/117, which isessentially designed to facilitate the practical application of the principle of equalpay outlined in Article 119 of the Treaty, in no way alters the scope or content ofthat principle as defined in Article 119 (Case 96/80 Jenkins v Kingsgate [1981]ECR 911).

38. In order to give a helpful reply to the national court, it must first of all beestablished whether the inconvenient-hours supplements awarded to workers underthe Allmänna Bestämmelser 95 collective agreement fall under Article 119 of theTreaty and therefore under Directive 75/117.

39. In that connection, the concept of pay, within the meaning of the second paragraphof Article 119 of the Treaty, covers any other consideration, in cash or in kind,present or future, provided that the worker receives it, even indirectly, in respectof his employment from his employer (see Barber, paragraph 12).

40. The supplement at issue in the main proceedings constitutes a form of pay to whichthe worker is entitled in respect of his employment. The supplement is paid to theworker for performing duties at inconvenient hours and to compensate him for theresultant disruption and inconvenience.

41. As to the manner in which salaries are negotiated at the level of the Landsting, itis common ground that, by reason of its mandatory character, Article 119 of theTreaty falls to be applied not only to provisions of law and regulations but also tocollective agreements and individual contracts of employment (Joined Cases C-399/92, C-409/92, C-425/92, C-34/93, C-50/93, and C-78/93 Helmig [1994] ECR I-5727, paragraph 18).

42. Accordingly, since the inconvenient-hours supplement falls within the concept ofpay for the purposes of Article 119 of the Treaty, it must be ascertained whetherit has to be taken into account in comparing midwives' pay with that of clinicaltechnicians.

43. With regard to the method to be adopted, in making such a comparison, forverifying compliance with the principle of equal pay, the Court has already heldthat if the national courts were under an obligation to make an assessment and acomparison of all the various types of consideration granted, according to thecircumstances, to men and women, judicial review would be difficult and theeffectiveness of Article 119 would be diminished as a result. It follows that genuinetransparency, permitting effective review, is assured only if the principle of equalpay applies to each of the elements of remuneration granted to men or women(Barber, paragraph 34).

44. In this case, therefore, in order to ensure greater transparency and guaranteecompliance with the requirement of effectiveness underlying Directive 75/117, themidwives' monthly basic salary should be compared with the like salary of clinicaltechnicians.

45. The fact that the inconvenient-hours supplement varies from month to monthaccording to the part of the day during which the hours in question were workedmakes it difficult to make a meaningful comparison between, on the one hand, amidwife's salary and supplementary allowance, taken together, and, on the otherhand, the basic salary of the comparator group.

46. The Finnish Government observed that it is easy to compare salaries where personsof the opposite sex do the same or very similar work under the same conditionsand for similar hours. However, it maintains, the more different the duties are, themore difficult it is not only to compare the various elements of pay but also toassess the equivalence of the work. In such a case, it might be possible to evaluatethe demands imposed by the duties concerned, in particular by employing anon-discriminatory method for that purpose.

47. In that connection, it must be pointed out that the Court is not called upon in theseproceedings to rule on questions relating to the concept of work of equal value.

48. It is for the national court, which alone has jurisdiction to assess the facts, todetermine whether, in the light of facts relating to the nature of the work done andthe conditions in which it is carried out, the work can be deemed to be of equalvalue (Case C-400/93 Royal Copenhagen [1995] ECR I-1275 paragraph 42).

49. Should that be the case, the Court finds that a comparison of the midwives' basicmonthly salary with that of the clinical technicians shows that the midwives are paidless.

50. It follows that, in order to establish whether it is contrary to Article 119 of theTreaty and to Directive 75/117 for the midwives to be paid less, the national courtmust verify whether the statistics available indicate that a considerably higherpercentage of women than men work as midwives. If so, there is indirect sexdiscrimination, unless the measure in point is justified by objective factors unrelatedto any discrimination based on sex (C-167/97 Seymour-Smith and Perez [1999] ECRI-623, paragraph 65).

51. It is for the national court to determine whether a provision of national law, anagreement whose purpose is to regulate employment collectively or even unilateralaction by an employer with respect to his staff, which, though applyingindependently of the sex of the worker, actually affects a considerably higherpercentage of women than men, is justified by objective reasons unrelated to anydiscrimination on grounds of sex (Seymour-Smith and Perez, paragraph 67, andCase C-333/97 Lewen [1999] ECR I-0000, paragraph 26).

52. The national court must also ascertain, in the light of facts relating to the natureof the work done and the conditions in which it is carried out, whether those factsmay be considered to be objective factors unrelated to any discrimination ongrounds of sex such as to justify any differences in pay.

53. Finally, as the Advocate General pointed out at paragraph 36 of his Opinion,where there is a prima facie case of discrimination, it is for the employer to showthat there are objective reasons for the difference in pay. Workers would bedeprived of the means of securing compliance with the principle of equal paybefore national courts if evidence establishing a prima facie case of discriminationdid not have the effect of imposing on the employer the onus of proving that thedifference in pay is not in fact discriminatory (see Enderby, paragraph 18).

54. Therefore, the answer to the first three questions must be that theinconvenient-hours supplement is not to be taken into account in calculating thesalary which serves as the basis for a pay comparison for the purposes of Article119 of the Treaty and Directive 75/117. If a difference in pay between the twogroups compared is found to exist, and if the available statistical data indicate thatthere is a substantially higher proportion of women than men in the disadvantagedgroup, Article 119 of the Treaty requires the employer to justify the difference byobjective factors unrelated to any discrimination on grounds of sex.

    The fourth and fifth questions

55. By its fourth and fifth questions, which it is appropriate to consider together, thenational court is essentially asking whether the reduction in working time awardedin respect of work performed according to a three-shift roster as compared tonormal working time for day-work, or the value of that reduction, are to be takeninto consideration in calculating the salary which serves as the basis for a paycomparison for the purpose of Article 119 of the Treaty and Directive 75/117.

56. In that respect, the Landsting maintains that the pay comparison must be made onthe basis of the salary paid in respect of each hour actually worked. The value ofthe reduction in working time, which the Landsting assesses at 11.4% of the basicsalary, should therefore be included in the overall amount of monthly pay for thepurposes of the comparison.

57. The JämO states that, in order to receive the basic full-time salary under theAllmänna Bestämmelser 95 collective agreement, both a midwife and a clinicaltechnician must perform a week's full-time work as defined in the agreement. Itpoints out that, under that agreement, a full-time working week for a midwifecomprises 34 hours 20 minutes under a three-shift roster system, whereas a clinicaltechnician has to work 40 hours from Monday to Friday during normal workinghours. According to the JämO, workers who carry out their duties according to athree-shift roster system are subject to significantly greater pressures and also sufferfrom fatigue as a result of the irregular working hours that shift work entails. Thatis why the Allmänna Bestämmelser 95 collective agreement attributes a highervalue to one hour worked under the roster system than to one hour worked duringnormal working hours from Monday to Friday.

58. As is clear from paragraph 38 of this judgment, in order to give a helpful reply tothe national court, it must be ascertained whether the reduction in working timeprovided for under the Allmänna Bestämmelser 95 collective agreement falls underArticle 119 of the Treaty and, consequently, under Directive 75/117.

59. In that regard, the Court has already held that the fact that the fixing of certainworking conditions may have pecuniary consequences is not sufficient to bring suchconditions within the scope of Article 119, which is based on the close connectionwhich exists between the nature of the services provided and the amount ofremuneration. (Case 149/77 Defrenne III [1978] ECR 1365, paragraph 21).

60. Consequently, the reduction in working time relates to working conditions andtherefore falls under Directive 76/207 (Seymour-Smith and Perez, paragraph 37).

61. However, any differences that might exist in the hours worked by the two groupswhose pay is being compared may constitute objective reasons unrelated to anydiscrimination on grounds of sex such as to justify a difference in pay.

62. As is clear from paragraph 53 of this judgment, it is for the employer to show thatsuch objective reasons do in fact exist.

63. Therefore, the answer to the fourth and fifth questions must be that neither thereduction in working time, by reference to the standard working time for day-work,awarded in respect of work performed according to a three-shift roster, nor thevalue of such a reduction, are to be taken into consideration for the purpose ofcalculating the salary used as the basis for a pay comparison for the purposes ofArticle 119 of the Treaty and Directive 75/117. However, such a reduction mayconstitute an objective reason unrelated to any discrimination on grounds of sexsuch as to justify a difference in pay. It is for the employer to show that such is infact the case.

    Costs

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

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Arbetsdomstolen by of 2 July 1998,hereby rules:

1. The inconvenient-hours supplement is not to be taken into account incalculating the salary used as the basis for a pay comparison for thepurposes of Article 119 of the Treaty (Articles 117 to 120 of the EC Treatywere replaced by Articles 136 EC to 143 EC) and Council Directive75/117/EEC of 10 February 1975 on the approximation of the laws of theMember States relating to the application of the principle of equal pay formen and women. If a difference in pay between the two groups comparedis found to exist, and if the available statistical data indicate that there isa substantially higher proportion of women than men in the disadvantagedgroup, Article 119 of the Treaty requires the employer to justify thedifference by objective factors which are unrelated to any discrimination ongrounds of sex.

2. Neither the reduction in working time, by reference to the standard normalworking time for day-work, awarded in respect of work performed accordingto a three-shift roster, nor the value of such a reduction, are to be takeninto consideration for the purpose of calculating the salary used as thebasis for a pay comparison for the purposes of Article 119 of the Treatyand Directive 75/117. However, such a reduction may constitute anobjective reason unrelated to any discrimination on grounds of sex such asto justify a difference in pay. It is for the employer to show such is in factthe case.

Moitinho de AlmeidaSchintgen Gulmann PuissochetMacken

Delivered in open court in Luxembourg on 30 March 2000.

R. Grass J.C. Moitinho de Almeida

Registrar President of the Sixth Chamber

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1: Language of the case: Swedish