Case C-19/02

Viktor Hlozek

v

Roche Austria Gesellschaft mbH

(Reference for a preliminary ruling from the Oberster Gerichtshof (Austria))

(Social policy – Men and women – Equal pay – Pay – Concept – Bridging allowance (‘Überbrückungsgeld’) provided for by a works agreement – Social plan drawn up as part of an operation to restructure an undertaking – Benefit granted to workers having reached a certain age at the time of their dismissal – Benefit granted from a different age according to the sex of the dismissed workers – Account taken of national statutory retirement age, different according to sex)

Summary of the Judgment

Social policy – Men and women – Equal pay – Pay – Concept – Bridging allowance provided for by a social plan and paid to dismissed workers – Included – Age at which entitlement to the allowance arises – Age different according to sex – Permitted

(Art. 141 EC; Council Directive 75/117, Art. 1)

A bridging allowance originating from a social plan which was the result of an agreement between management and labour as part of an operation to restructure an undertaking, owed by that undertaking to workers who have reached a certain age at the time of their dismissal, constitutes a benefit granted in connection with the employment relationship and therefore falls under the concept of ‘pay’ within the meaning of Article 141 EC and Article 1 of Directive 75/117 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women.

Those provisions do not preclude the application of a social plan providing for a difference in the treatment of male and female workers in terms of the age at which they are entitled to a bridging allowance, since, under the national statutory scheme governing early retirement pensions, they are in different situations with regard to the factors relevant to the grant of that allowance.

(see paras 38-39, 48, 51, operative part)

JUDGMENT OF THE COURT (First Chamber) 9 December 2004 (1)

(Social policy – Male and female workers – Equal pay – Pay – Concept – Bridging allowance (‘Überbrückungsgeld’) provided for by a works agreement – Social plan drawn up as part of an operation to restructure an undertaking – Benefit granted to workers having reached a certain age at the time of their dismissal – Benefit granted from a different age according to the sex of the dismissed workers – Account taken of national statutory retirement age, different according to sex)

In Case C-19/02,REFERENCE for a preliminary ruling under Article 234 EC, from the Oberster Gerichtshof (Austria), made by decision of 20 December 2001, received at the Court on 29 January 2002, in the proceedings

v

THE COURT (First Chamber),,

composed of P. Jann, President of the Chamber, A. Rosas (Rapporteur), R. Silva de Lapuerta, K. Lenaerts and S. von Bahr, Judges,

Advocate General: J. Kokott,

having regard to the written procedure and further to the hearing on 12 February 2004,after considering the observations submitted on behalf of:

after hearing the Opinion of the Advocate General at the sitting on 1 April 2004,

gives the following

‘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.

…’

‘8.

8.1.

Employees shall be entitled to the payment of a bridging allowance if, upon termination of the employment relationship, they have reached the age of 55 (men) or 50 (women) and are not yet entitled to a pension under the ASVG.

8.2

8.3

The voluntary settlement shall be paid at the same time as the statutory settlement.’

First part: classification of the benefit

Second and third parts: existence of discrimination based on sex

On those grounds, the Court (First Chamber) rules as follows:

Signatures.