Court of Justice 03-06-1999 ECLI:EU:C:1999:281

The parties' submissions

11. The defendant wishes, first, to put the contested provision into its legislative context. Article 18 of the collective agreement contains a whole set of provisions in favour of pregnant women, such as:

• one hour of free time per day, which can either be taken at the beginning or end of each working day;

• an additional five minutes of free time, which may not be added to the above-mentioned one-hour period;

• the possibility of changing posts;

• the possibility of counting prenatal visits to the doctor as time spent at work.⁽⁵⁾

12. Finally, at the end of the provision, it is expressly provided that ‘[u]pon commencing maternity leave, a pregnant woman shall be allocated the sum of FRF 7 500’.

13. The defendant maintains that this formal inequality of treatment on grounds of sex was actually adopted in observance of the principle of equal treatment laid down in Article 119 of the EC Treaty and in the subsequent implementing directives.

14. The defendant recalls the Court's definition of the principle of equal treatment as developed in its case-law, whereby discrimination can arise only through the application of different rules to comparable situations or the application of the same rules to different situations.⁽⁶⁾. The defendant maintains that, on the basis of that definition alone, there is incontestably no discrimination in the present case. The applicable provisions differ as between men and women simply because only women may become pregnant. Their situations are not comparable. Only pregnant women receive the allowance when commencing maternity leave. According to the defendant, only pregnant women, and not women in general, are entitled to claim the allowance.

15. In order to examine more thoroughly whether unlawful discrimination exists, the defendant seeks to define the allowance in question. First, it must be determined whether the allowance is to be regarded as ‘pay’⁽⁷⁾ or ‘treatment’.⁽⁸⁾ The concept of pay within the meaning of Article 119 of the EC Treaty comprises the notion of salary or — at least — that of ‘the ordinary basic wage’⁽⁹⁾ as well as ‘any consideration, whether in cash or kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer, and irrespective of whether the worker receives it under a contract of employment, by virtue of legislative provisions or on a voluntary basis’.⁽¹⁰⁾ The defendant argues that the term ‘treatment’,⁽¹¹⁾ on the other hand, refers to terms of employment in the broad sense, including social security, comprising such things as access to employment and vocational training, chances for professional advancement as well as working conditions. Referring to Gillespie and Others,⁽¹²⁾ the defendant argues that a benefit accorded during maternity leave constitutes ‘pay’ within the meaning of Article 119 of the Treaty and Directive 75/117, but does not fall under Directive 76/207. A lump-sum, however, paid to pregnant women upon commencement of maternity leave, cannot be equated with pay, which implies payment over a period of several months. Furthermore, the allowance at issue is not indexed to the level of pay. It is much more a matter of ‘treatment’,⁽¹³⁾ since it forms part of the benefits accorded during maternity leave. Following Hofmann,⁽¹⁴⁾ the contested allowance should therefore be considered a measure related to working conditions, particularly as it is intended to offset any disadvantages suffered in regard to professional advancement as a result of interruption of work.

16. Although the parties all agreed before the national court that the allowance in question constitutes ‘pay’, it was not intended in the sense attributed to this term under Community law; rather it was because under national law the term ‘traitement’⁽¹⁵⁾ covers all remuneration of officials and employees in the public service.

17. Finally, the defendant states that it must be examined whether the allowance, defined as such, represents an exception to the principle of equal treatment as laid down in the Directives. After a thorough analysis of the applicable Community legislation⁽¹⁶⁾ and the case-law of the Court of Justice,⁽¹⁷⁾ the defendant argues that the allowance falls under Article 2(3) and (4) of Directive 76/207. She suggests that the question referred to the Court be answered as follows:

"The principle of equal pay for men and women laid down in Article 119 of the Treaty of Rome⁽¹⁸⁾ and in subsequent legislation must be interpreted as meaning that an allowance paid only in the case of a pregnant woman commencing maternity leave, but not in the case of the father of a child, must be regarded as “treatment”, and thus falls within the scope of Directive 76/207 and, in particular, of the exceptions to the principle of equal treatment provided for in Article 2(3) and (4) of that Directive.

18. The United Kingdom Government submits that the allowance paid to pregnant women going on maternity leave is compatible with Community law in so far as it forms part of a package of measures intended to protect women as regards pregnancy and maternity. In this regard, it is for the national court to determine whether or not the allowance actually forms part of such a package of measures.

19. The United Kingdom Government assumes that, in addition to Article 119 of the EC Treaty, Directives 75/117 and 76/207 should be examined, since they constitute ‘subsequent legislation’ within the meaning of the question referred for a preliminary ruling.

20. In common with the parties to the main proceedings, the United Kingdom Government accepts that the lump sum paid to pregnant employees upon commencement of maternity leave constitutes ‘pay’ within the meaning of Article 119 of the Treaty and falls to be appraised, therefore, upon the basis of the ‘Equal Pay Directive’,⁽¹⁹⁾ not the ‘Equal Treatment Directive’.⁽²⁰⁾ Admittedly, the Equal Pay Directive does not provide for exceptions in the case of ‘provisions concerning the protection of women, particularly as regards pregnancy and maternity’, as required by Article 2(3) of Directive 76/207. However, according to the United Kingdom Government, as a consequence of the Court's ruling in Gillespie and Others,⁽²¹⁾ those exceptions must also apply to Article 119 of the EC Treaty, and to the Equal Pay Directive. Otherwise, the lawfulness of maternity pay⁽²²⁾ as a whole would be open to question. To summarise the arguments of the United Kingdom Government, it is not open to men to contest the legality of payments made for the protection of women in relation to pregnancy and childbirth.

21. Referring to the case-law of the Court,⁽²³⁾ the United Kingdom Government maintains that Article 2(3) of the Equal Treatment Directive leaves the Member States substantial discretion in the choice of protective measures. Any such measure must form part of a ‘package’ of protective measures — which should be determined upon examination of the facts⁽²⁴⁾ — and may well be more generous than the general provisions for the protection of mothers. According to the United Kingdom Government, a measure of that kind is quite lawful. In the present context, it is wholly unnecessary to discuss the lawfulness of positive discrimination.

22. The United Kingdom Government proposes that the question referred to the Court be answered as follows:

‘The principle of equal pay between men and women — laid down by Article 119 of the Treaty of Rome⁽²⁵⁾ and Council Directive 75/117 — permits payment, as part of an agreement concerning social benefits for employees, of FRF 7 500 to a pregnant woman when she takes maternity leave, but not to a male employee with a child, if that payment can be characterised as part of the package of measures designed for the protection of women in relation to pregnancy and childbirth and intended to offset disadvantages suffered by them in relation to their employment by reason of their pregnancy (“the maternity package”). It is for the national court to determine whether the payment made by Renault to its pregnant workers upon commencement of their maternity leave forms part of the maternity package.’

23. The Commission recalls that the principle of equal treatment, as expressed in Article 119 of the Treaty, requires that the men and women for whose benefit the principle exists find themselves in identical situations.⁽²⁶⁾ In its ruling in Gillespie, the Court, according to the Commission, reaffirmed that women taking maternity leave provided for under national law find themselves in a special situation requiring special protection; that they thus find themselves in a situation which can not be equated with that of a man, nor with that of a woman actually at work. The contested payment does not, in the view of the Commission, violate the principle of equality because women commencing maternity leave are in a different situation from that of their working colleagues. The employer is applying different rules to different situations.

24. Because the right (or the obligation) to take maternity leave continues to hinder women in their professional careers — a proposition which is supported by a newspaper article⁽²⁷⁾ attached to the written submissions —, the company Renault, as employer, was in no way prevented from negotiating, with the union organisations, an allowance supplementing pay.

25. In the event that the Court should find the Commission's assessment incorrect, the latter advances an additional line of argument. In doing so, the Commission assumes that the allowance constitutes ‘pay’ within the meaning of Article 119 of the Treaty.⁽²⁸⁾ Should one be inclined to define the allowance as a payment for ‘a period of leave inherent in the biological condition of a woman’, then one could consider the allowance as a privilege, bestowed upon women, giving them a higher overall wage for the same work. Viewed in that way, the allowance would constitute direct discrimination not capable of having any justification⁽²⁹⁾. The Commission then examines whether the allowance may exceptionally be justified under the third paragraph of Article 119 of the Treaty, the wording of which was formulated in the third paragraph of Article 6 of the Agreement on Social Policy between the Member States of the European Communities excluding the United Kingdom of Great Britain and Northern Ireland, which was incorporated into Community law by Protocol No 14 on Social Policy to the Maastricht Treaty. This provision reads as follows:

‘This Article shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for women to pursue a vocational activity or to prevent or compensate for disadvantages in their professional careers.’

26. In its analysis the Commission comes to a negative conclusion. Only a Member State — and not the parties to a collective agreement — may adopt such a measure. Similar effects could, at most, be attributed to a collective agreement declared to be generally binding. Nor could the measure, by virtue of its nature, be justified under the third paragraph of Article 6 of the Agreement on Social Policy.

27. Finally, the Commission examines the legal consequences to ensue if the allowance were to be classified as a childbirth allowance. (The Commission does not however adopt this line of argumentation as its own, even though, at another place in its submissions,⁽³⁰⁾ it says that, in defining the birth of a child as a social event according them the right to obtain payment, the plaintiffs have misunderstood the nature of the allowance.) If, however, the allowance were to be considered a childbirth allowance, then it would have to be paid to parents, i.e. fathers and mothers.

28. The Commission concludes by suggesting that the preliminary question be answered as follows:

The principle of equal pay for men and women laid down in Article 119 of the Treaty⁽³¹⁾ does not prevent employers from according pregnant employees a lump-sum payment upon commencement of maternity leave, to the exclusion of the child's father, even where women receive full pay for the duration of that leave, if the allowance does not constitute a childbirth allowance, but rather a benefit granted to a woman in view of the professional disadvantages she suffers as a result of staying away from her place of work, inherent in maternity leave.

Analysis

29. It is worth noting that all participants, if not by the same means, come to the same conclusion, namely that the provision of the collective agreement which accords a benefit uniquely to a woman on commencement of maternity leave does not, per se, constitute unlawful sexual discrimination.

30. The preliminary question as to whether the one-off payment constitutes ‘pay’ within the meaning of Article 119 of the Treaty is important in determining the applicable provisions of Community law. Article 119 of the Treaty and Directive 75/117 codify the principle of equal pay for men and women, whereas Directive 76/207 is concerned with the principle of equal treatment of men and women in professional life.

31. Article 119 of the Treaty and Directive 75/117, on the one hand, and Directive 76/207 on the other, have in common that they forbid inequalities of treatment based upon sex. According to settled case-law, discrimination ‘involves the application of different rules to comparable situations or the application of the same rule to different situations’.⁽³²⁾ This definition of unlawful equal treatment applies both to the principle of equal pay and to that of equal treatment.⁽³³⁾ Thus, one may delay answering the question whether the allowance at issue falls under the scope of one provision or others for as long as it is not established that the allowance constitutes discrimination within the meaning of the definition.

32. It is characteristic of the allowance in question that only women have a right to claim it. At the risk of expressing a platitude, one may say that the fact that the allowance is not granted to women because they are women, but only to women going on maternity leave because they are pregnant and who thus, for a specific period of time, have a particular legal status under labour law, is of decisive importance. The Court has expressed this in the following terms:

‘The present case is concerned with women taking maternity leave provided for by national legislation. They are in a special position which requires them to be afforded special protection, but which is not comparable either with that of a man or with that of a woman actually at work.’⁽³⁴⁾

33. The position of pregnant employees under labour law is also the subject of Article 18 of the collective agreement of 5 July 1991, which provides a whole package of measures to protect pregnant employees and their unborn children, of which the allowance in question is but one element. That pregnancy and child birth are also considered exceptional situations under Community law is demonstrated not least in Article 2(3) and (4) of Directive 76/207 and Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC).⁽³⁵⁾

34. Therefore, it follows that a pregnant employee going on maternity leave finds herself, both in fact and in law, in a situation in which no man could possibly find himself. So, absences from work due to pregnancy cannot — as the Court has already ruled — be compared with a male employee's absences from work due to illness.⁽³⁶⁾

35. Since the principle of equal treatment is not applicable owing precisely to this disparity between situations, there is no prohibited discrimination on the grounds of sex. With this conclusion we may consider the question referred for a preliminary ruling to be answered, in accordance with the main submission of the Commission.

36. Nevertheless, we will continue with the analysis in order to buttress this conclusion and to support it with alternative reasoning.

A case of unequal treatment could be founded if it were based on the hypothesis — as in the Commission's alternative line of argument — that any special treatment linked to pregnancy and childbirth constitutes discrimination per se, in that it relies on criteria which are based on a woman's physiological situation and which are therefore objectively impossible for a man to fulfil.

In order for there to be prohibited discrimination, additional factors must also be present to make manifest the disadvantage suffered by the male sex. Under Article 119 of the Treaty, read together with Directive 75/117, the allowance must constitute ‘pay’, paid in return for the same work or work of equal value.⁽³⁷⁾

37. The second paragraph of Article 119 of the EC Treaty, which was reproduced verbatim in Article 141(2) EC,⁽³⁸⁾ defines the term ‘pay’ as follows:

‘For the purpose of this Article, “pay” means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or kind, which the worker receives, directly or indirectly, in respect of his employment from his employer.’⁽³⁹⁾

As regards the same work or work of equal value, the article goes on to state:

‘Equal pay without discrimination based on sex means:

1. that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;

2. that pay for work at time rates shall be the same for the same job.’

38. The Court, in describing what is to be considered ‘pay’ for the purpose of this provision, goes into even more detail:

‘The legal nature of such consideration is not important for the purposes of the application of Article 19 provided that it is granted in respect of employment...

Consideration classified as pay includes, inter alia, consideration paid by the employer by virtue of legislative provisions and under a contract of employment whose purpose is to ensure that workers receive income even where, in certain cases specified by the legislature, they are not performing any work provided for in their contracts of employment...****’⁽⁴⁰⁾

39. The consequence drawn from those legal passages in the Gillespie case could also be applied in the present case:

‘It follows that, since the benefit paid by an employer under legislation or collective agreements to a woman on maternity leave is based on the employment relationship, it constitutes pay within the meaning of Article 119 of the Treaty and Directive 75/117.’⁽⁴¹⁾

40. However, such pay would have to be paid for the same work or work of the same value.⁽⁴²⁾ The Commission fails to recognise this in its alternative line of argument, which it begins by determining that, if the allowance is treated as payment for a period of leave necessitated by a woman's biological condition, it could be viewed as an advantage which, overall, gives women, for the same work, pay higher than the gross wage.⁽⁴³⁾

41. If a pregnant employee receives a one-off payment upon commencement of maternity leave, that is to say, at the start of a statutorily-prescribed absence from work, then this represents a benefit granted in connection with her ‘special position’, which, ‘is not comparable either with that of a man or with that of a woman actually at work’.⁽⁴⁴⁾ In the legal systems of some Member States,⁽⁴⁵⁾ statutory maternity leave takes the form of a prohibition of work and thus constitutes, for the woman concerned, a status she cannot waive. Seen in those terms, the payment is not accorded for the same work or work of the same value, so that there is no context in which the principle of equal pay can apply. However, this does not prevent periods of absence taken in connection with maternity leave from being considered as periods of employment, for the purposes, at any rate, of social security. Were maternity leave to be considered as ‘work of the same value’ in the strict sense, then a female employee would always have to be accorded full pay during maternity leave, something which the Court has expressly rejected.⁽⁴⁶⁾

42. By founding their claim upon the social event of the birth of a child, the plaintiffs implicitly recognise that the situation of a child's mother at her place of work is not comparable to that of the father.

43. Moreover, the allowance in question is not to be regarded as a ‘childbirth allowance’ in relation to the social event of the birth of a child. Formal as well as substantive reasons militate against this. The provision concerning payment of the benefit forms part of a set of rules governing a package of measures intended to protect pregnant employees and their unborn children. The time at which the allowance is paid is at the commencement of maternity leave and not at the time of birth. Payment of the allowance is, lastly, not conditional upon the birth of a living child.

44. In the absence of a comparable situation, there is no set of facts on the basis of which the male plaintiffs, relying on the principle of equal pay, could claim equal treatment in regard to the ‘maternity allowance’. None the less, the referring court asks — at least implicitly — whether the allowance is lawful given the fact that female employees continue to be paid their wages for the duration of their maternity leave.⁽⁴⁷⁾

45. Article 19(2) of the collective agreement of 5 July 1991 provides that, for the duration of maternity leave, the employer is to pay the difference between social security payments and the employee's net wages.⁽⁴⁸⁾ A mother's income during her maternity leave thus corresponds to the wage she received whilst in active employment.

46. The pertinent question here is whether the one-off payment of FRF 7 500 represents an unjustified material advantage. This leads to the question of material equality,⁽⁴⁹⁾ which underlies the principle of equal treatment.

47. In this respect, much supports the argument of the defendant, which, in maintaining that the allowance does not constitute ‘pay’ within the meaning of Community law, is at pains to take any analysis of the allowance out of the ambit of the principle of equal pay and to place it in the context of equal treatment.

48. This can also be seen to be the approach of the United Kingdom Government, which takes material equality as the test in recognising that the allowance belongs to a package of measures favouring pregnant employees, on the one hand, and alleviating disadvantages, on the other.

49. Whereas the defendant expressly refers to Directive 76/207, the United Kingdom Government takes the view that, since Gillespie, the analysis to be carried out under Article 2(3) of Directive 76/207 also applies to the principle of equal pay laid down in Article 119 of the Treaty, read in conjunction with Directive 75/117.

50. Regardless of how one categorises in theory the analysis to be made in order to reconcile formal equality with the special situation of the protection of mothers, this is an inevitable step in the process of applying the principle of equality. An evaluation of different factual situations is not possible without comparing their substance.

51. Some guidance is provided in this regard in Article 2(3) and (4) of Directive 76/207, which read:

‘(3)

This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.

(4)

This Directive shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women's opportunities in the areas referred to in Article 1(1).’

52. The new Article 141(4) inserted into the Treaty of Amsterdam, which is largely similar to Article 6(3) of the Agreement on Social Policy, could also be taken into consideration. Article 141(4) reads:

‘With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.’

53. Finally, interpretative guidance is to be found in Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding⁽⁵⁰⁾ and the Council Recommendation of 13 December 1984 on the promotion of positive action for women.⁽⁵¹⁾

54. All these provisions have in common that they create the legal conditions needed in order to achieve actual equality. Should one, in the light of these provisions, consider it necessary that the allowance in question be intended and apt to compensate any disadvantage whatever, then it will also be necessary to identify any potential and actual disadvantages that a woman might suffer through pregnancy and childbirth.

55. In response to a request from the Court, the defendant has provided a whole list of disadvantages confronting a woman, who, because of maternity leave is kept away from work. Firstly, it is clear from the collective agreement that pregnant women who take maternity leave are physically absent from work for a period of 18 to 28 weeks. During this period the life of the company goes on, and male employees can be actively involved in it. A woman on maternity leave is unable, according to the defendant, for a period of almost six months, to take advantage of the same career chances and opportunities. The fact that her wages continue to be paid at the full rate does not prevent account from being taken of the disadvantages in being kept away from the workplace, the adverse consequences of which on her advancement prospects can be compensated by an extra allowance.

According to the defendant, the disadvantages suffered by pregnant women in the undertaking are numerous:

1. Whilst on maternity leave a woman can not be recommended for advancement. On her return to work, the length of professional experience she has accrued is reduced by the time she was absent.

2. A pregnant woman cannot claim any pay rises linked to personal performance.

3. A pregnant employee cannot participate in any training activities.

4. The constant technological changes which take place at work render it more difficult for a woman returning from maternity leave to compete with her colleagues.

5. For the duration of her maternity leave, a pregnant woman cannot request a transfer advancing her career.

56. So, the disadvantages are multifarious. Nor is this a phenomenon which occurs only within the scope of the collective agreement of 5 July 1991. The fact that pregnancy and motherhood entail disadvantages for the women concerned in regard to their professional career has been recognised — at any rate implicitly — in the Court's case-law.⁽⁵²⁾

57. It follows that there is no doubt that a pregnant employee going on maternity leave must expect to suffer disadvantages which are unrelated to any loss of pay during her absence from the place where she works. Seen in that light, the allowance in question represents lump-sum compensation for the disadvantages which the pregnant employee will suffer upon commencing maternity leave. It therefore does serve to guarantee full equality. Consequently, it cannot be regarded as unlawful discrimination if men are denied the ‘maternity allowance’.

58. The reasoning followed here to reach this result logically fits in with the cases covered by the principle of equal treatment. So, neither an exceptional situation⁽⁵³⁾ nor any justification⁽⁵⁴⁾ need be argued. Nor is the measure at issue to be classified as ‘positive discrimination’ designed to ‘eliminate existing inequalities affecting women in working life’.⁽⁵⁵⁾ Positive action for women⁽⁵⁶⁾ involves compensating any disadvantages suffered by women by reason of their belonging to the female sex, whereas the present case concerns the specific disadvantages personally suffered by individual pregnant female employees on account of the protection afforded to mothers.