CYIL Vol. 4, 2013

HARALD CHRISTIAN SCHEU CYIL 4 ȍ2013Ȏ completely lacking in transparency and, due to the practice of individual bonuses and supplements to pay, an employee was unable to identify the concrete reasons behind the different levels of remuneration. Employees could only determine the absolute amount of wages; the precise criteria for the payment of bonuses remained unknown to them. Under such circumstances, the employee was, in practice, deprived of any effective means of enforcing the principle of equal pay. Therefore, the ECJ focused on the interpretation of Article 6 of Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women. According to that provision, Member States shall, in accordance with their national circumstances and legal systems, take the measures necessary to ensure the application of the equal pay principle. The ECJ found that “in special cases” the rules of evidence shall be read in line with the principle of effective implementation. 7 Such shifting of the burden of proof had to be applied with a view to the specific case, and it did not mean an automatic reversal of evidence in favour of the employee. The next case involving the reversal of the burden of proof was the Enderby case, 8 in which the employee of a public health institution sued her employer for alleged discrimination. The applicant argued that she was placed into a category which was statistically dominated by women and in which significantly lower wages were paid than in another category comprising mainly men with equivalent qualifications. The British Court of Appeal, which decided to submit the question to the ECJ, first held that the work carried out by the applicant, who was a lead speech therapist, was equivalent to the activity of a male colleague who worked as a chief pharmacist. Then the court asked the ECJ whether, in a situation where equivalent activities are rewarded in different ways, the employer must justify the difference and thus prove that he did not discriminate among male and female employees. In its judgment of 1993 the ECJ followed the line from its previous judgment and explained that the burden of proof must necessarily shift to the employer if the employee has been prima facie discriminated against and has no effective means to enforce equality. It is upon the employer to show that a measure which in practice has an adverse impact on substantially more members of one or the other sex is based on objectively justified factors unrelated to any discrimination on grounds of sex. 9 At first glance it seems that there is continuity in the Danfoss and Enderby cases, but we can also notice a significant shift. Whereas in the first case, the ECJ admitted the reversal of the burden of proof only for special situations, where the employer had created a completely non-transparent remuneration system, in the second case, the 7 See paragraph 14 of the Judgment: “The concern for effectiveness which thus underlies the directive means that it must be interpreted as implying adjustments to national rules on the burden of proof in special cases where such adjustments are necessary for the effective implementation of the principle of equality”. 8 Case C-127/92, Judgment of 27 October 1993. 9 Case C-127/92, para. 13-14.