CJEU rejects gender discrimination claim regarding higher cost allowance for (male) pilots than for (female) cabin crew

In the Air Nostrum case C-314/23 of 4 October 2024, a trade union of cabin crew workers and the Spanish public prosecutor claimed that the collective bargaining agreements that Spanish airline company Air Nostrum had concluded with several trade unions regarding the cost allowance for pilots and cabin crew constitute an indirect discrimination based on gender. The collective bargaining agreement for pilots provided a significantly higher daily subsistence allowance than the collective bargaining agreement for cabin crew. Studies show that 94% of cabin crew members are female whereas 93.71% of pilots are male. Therefore, this difference in compensation could constitute an indirect discrimination in working conditions based on article 14(1)(c) of Directive 2006/54. The Spanish Audiencia Nacional has posed a preliminary question to the Court of Justice on whether this is the case.

First, the CJEU points out that the claim is based on the wrong legal provision. “although it is true that daily subsistence allowances, such as those at issue in the main proceedings, are not paid in return for work done, the fact remains that they constitute consideration granted by the employer to the workers concerned in respect of their employment and fall within the scope of the concept of ‘pay’, as defined in Article 2(1)(e) of Directive 2006/54, and not that of working conditions, within the meaning of Article 14(1)(c) of that directive.”

Next, the Court states a difference in pay, can constitute indirect discrimination on grounds of sex only if that pay were paid for the same work or for work to which equal value is attributed. However: “Cabin crew members and pilots clearly do not perform the same work. Furthermore, in view of the training required to perform the work of a pilot and the responsibilities associated with it, the work of pilots cannot be considered to be of equal value to the work of cabin crew members.”

Therefore, there cannot be any indirect discrimination at hand and employers can provide different remuneration or cost compensations for different work, even if employees performing one job are usually male and the others are usually female.

Source: CJEU 4 October 2024, C-314/23, Air Nostrum, ECLI:EU:C:2024:842