ECJ on Pilot Pay: Equal Treatment = Unequal Treatment?

Dec 8, 2023 Benn-Ibler Rechtsanwälte

According to the European Court of Justice (ECJ), part-time employees are unfairly disadvantaged if they have to work the same number of hours as their full-time co-workers for additional pay. This constitutes unlawful discrimination.

A German pilot is employed by an airline on a part-time basis. His contract stipulates that if he flies a certain number of hours per month and exceeds a certain threshold, he will receive additional pay on top of his basic salary. Flying more means earning more. However, the threshold that is set is the same for both part-time and full-time employees.

This raises the following question: Can equal treatment be unequal treatment? The clear answer from the European Court of Justice is: Yes, it can.

In response to a request for a preliminary ruling from the German Federal Labour Court (Bundesarbeitsgericht, BAG), the ECJ has now stated that a German ruling under which a part-time employee must work the same number of hours as a full-time employee in order to receive additional remuneration is discriminatory and therefore incompatible with EU law. Formal equal treatment would unduly penalise part-time pilots.

The court agreed with the pilot who argued that the number of flight hours required for part-time employees should be set at a lower level in relation to their working hours.

First, the court found that the situation of the two categories of workers was generally comparable. This is because, for the duration of their employment, part-time workers perform the Equal thresholds mean that part-time pilots fly more hours relative to their total working time than full-time pilots.

As a result, part-time pilots are much less likely to meet the requirements for additional remuneration. This difference in treatment can only be justified on the basis of an objective reason. The ECJ has now asked the national court for an assessment of whether such an objective reason is present.

ECJ C-660/20 (19 October 2023)