Bilka-Kaufhaus v Webers Von Hartz: ECJ 13 May 1986

ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of the contract of employ- ment and has the effect of supplementing the social benefits paid under national legislation of general application with benefits financed entirely by the employer does not constitute a social security scheme governed directly by statute and thus outside the scope of article 119, but is subject to that provision. Article 119 of the treaty is infringed by an undertaking which excludes part-time employees from its occupational pension scheme, where that exclusion affects a far greater number of women than men, unless the undertaking shows that the exclusion is based on objectively justified factors unrelated to any discrimination on grounds of sex. Such factors may lie in the fact that the undertaking seeks to employ as few part-time workers as possible, where it is shown that that objective corresponds to a real need on the part of the undertaking and the means chosen for achieving it are appropriate and necessary. Article 119 does not have the effect of requiring an employer to organize its occupational pension scheme in such a manner as to take into account the particular difficulties faced by persons with family responsibilities in meeting the conditions for entitlement to such a pension.
‘It is for the national court, which has sole jurisdiction to make findings of fact, to determine whether and to what extent the grounds put forward by an employer to explain the adoption of a pay practice which applies independently of a worker’s sex but in fact affects more women than men may be regarded as objectively justified economic grounds. If the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of Article 119.’
[1986] ECR 1607, [1987] ICR 110, C-170/84, R-170/84, [1986] EUECJ R-170/84, [1984] IRLR 317
EC Treaty 119
See AlsoJ P Jenkins v Kingsgate (Clothing Productions) Ltd ECJ 31-Mar-1981
ECJ The fact that work paid at time rates is remunerated at an hourly rate which varies according to the number of hours worked per week does not offend against the principle of equal pay laid down in article 119 . .

Cited by:
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These lists may be incomplete.
Updated: 24 February 2021; Ref: scu.133926