«(Social policy – Equal treatment for men and women – Scheme of part-time work for older employees – Directive 76/207/EEC – Indirect discrimination – Objective justification)»

Social policy – Men and women – Access to employment and working conditions in the exercise of activities in a self-employed capacity – Equal treatment – Opportunity for public-sector employees who have reached a certain age to work part time – Exclusion from part-time work of employees who have not worked full time for at least three of the preceding five years – Exclusion almost exclusively affecting women – Indirect discrimination – Not permitted in the absence of objective justification (Council Directive 76/207, Arts 2(1) and 5(1)) Articles 2(1) and 5(1) of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions must be interpreted as precluding a provision of national law by virtue of which part-time work for older employees may be authorised for public servants only if they have worked full-time for a total of at least three of the five years preceding such part-time work, when significantly more women than men work part-time and are consequently excluded by that provision from the scheme of part-time work for older employees, unless such provision is justified by objective factors unrelated to any discrimination on grounds of sex.In this regard, it is for the national court to determine whether that is so, ascertaining in light of all the relevant factors and taking into account the possibility of achieving by other means the aims pursued by the provisions in question, whether such aims appear to be unrelated to any discrimination based on sex and whether that provision, as a means to the achievement of certain aims, is capable of advancing those aims. Mere generalisations concerning the capacity of a specific measure to encourage recruitment are not enough to show that the aim of the disputed provisions is unrelated to any discrimination on grounds of sex or to provide evidence on the basis of which it could reasonably be considered that the means chosen are or could be suitable for achieving that aim. Moreover, a provision of national law which poses the risk that workers may be discouraged from accepting part-time work for the reason that they will subsequently be unable to join the scheme of part-time work for older employees cannot a priori be considered to be an apt or suitable means of attaining the objective of unblocking the employment market. Lastly, although budgetary considerations may underlie a Member State's choice of social policy and influence the nature or scope of the social protection measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and cannot therefore justify discrimination against one of the sexes. see paras 58, 64-66, 74, operative part

JUDGMENT OF THE COURT (Sixth Chamber) 11 September 2003 (1)

((Social policy – Equal treatment for men and women – Scheme of part-time work for older employees – Directive 76/207/EEC – Indirect discrimination – Objective justification))

In Case C-77/02,

REFERENCE to the Court under Article 234 EC by the Verwaltungsgericht Sigmaringen (Germany) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Article 141 EC and of Council Directives 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principles of equal pay for men and women (OJ 1975 L 45, p. 19), 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions (OJ 1975 L 39, p. 40) and 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998 L 14, p. 9),

THE COURT (Sixth Chamber),,

composed of: J.-P. Puissochet, President of the Chamber, R. Schintgen, V. Skouris, F. Macken (Rapporteur) and J.N. Cunha Rodrigues, Judges,

Advocate General: A. Tizzano,

after considering the written observations submitted on behalf of:

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 3 April 2003,

gives the following

...

Directive 75/117

Directive 76/207

Directive 97/81

Provisions of national law in force until 30 June 2000

The provisions of national law in force since 1 July 2000

.

Observations submitted to the Court

The Court's answer

On those grounds,

THE COURT (Sixth Chamber),

in answer to the question referred to it by the Verwaltungsgericht Sigmaringen by order of 10 December 2001, hereby rules:

Puissochet

Schintgen

Skouris

Macken

Cunha Rodrigues

Delivered in open court in Luxembourg on 11 September 2003.

R. Grass

J.-P. Puissochet

Registrar

President of the Sixth Chamber