Súdny dvor Európskej únie·3.6.1999

C-218/98

ECLI:EU:C:1999:281

Súd: Súdny dvor Európskej únie
IČS: 61998CC0218
Zdroj: eur-lex.europa.eu ↗

ABDOULAYE AND OTHERS V RÉGIE NATIONALE DES USINES RENAULT

OPINION OF ADVOCATE GENERAL ALBER delivered on 3 June 1999 *

A — Introduction provides for a lump-sum payment of FRF 7 500 to pregnant women when they commence maternity leave. In the main proceedings a number of male employees are each claiming payment of FRF 7 500 for each of their children. 1. These preliminary ruling proceedings concern the question whether male employ- ees (as fathers) should also be entitled to the one-off payment of an allowance which female employees receive under a collective agreement when going on maternity leave. 3. The dispute forming the basis for the request for a preliminary ruling arose as follows.

2. The request for a preliminary ruling has The referring court is required to rule upon been submitted to the Court by the Conseil the applications of 244 male employees de Prud'hommes du Havre. In issue is the (hereinafter 'the plaintiffs') for an order interpretation of Article 119 of the EC requiring their employer, the company Treaty (now, after amendment, Article 141 Renault (hereinafter 'the defendant'), to EC) and Council Directive 75/117/EEC1 pay FRF 7 500, FRF 15 000, FRF 22 500 (hereinafter 'the Equal Pay Directive'), as and FRF 30 000, or FRF 37 500, depend- well as Council Directive 76/207/EEC 2 ing upon the number of children they have, (hereinafter 'the Equal Treatment Direc- plus FRF 500 for non-refundable expenses. tive'), in connection with a provision of a collective agreement pursuant to French national law. The collective agreement

* Original language: German. 1 — Council Directive 75/117/EEC of 10 February 1975 on the 4. The plaintiffs believe that Article 18 of approximation of the laws of the Member States relating to the application of the principle of equal pay for men and the collective agreement dated 5 July 1991 women (OJ 1975 L 45, p. 19). on social benefits for the employees of the 2 — Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men Renault company, in so far as it provides and women as regards access to employment, vocational that a pregnant woman commencing mater- training and promotion, and working conditions (OJ 1976 L 39, p. 40). nity leave may receive FRF 7 500, is

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contrary to Article 119 of the EC Treaty, 7. The referring court refers to the principle which prohibits discrimination between of non-discrimination enshrined in Arti- men and women in the matter of pay, and cle 119 of the EC Treaty, and Directives to the corresponding provision under 75/117 and 76/207. The national court national law, namely Article L. 140-2 of maintains that the decisive question has the Code du Travail (Employment Code). not, as yet, been addressed by the Court of Justice. Even the judgment of the Court of Justice in Gillespie and Others, 3 according to the national court, does not answer the question whether the allowance at issue constitutes unlawful discrimination under 5. The plaintiffs argued before the referring Community law, particularly in the light of court that, whereas certain instances of Article 19 of the collective wage agree- discrimination — such as maternity leave, ment, pursuant to which employees' sal- which is exclusively granted to women — aries continue to be paid during maternity are justified because they are related to the leave. The referring court states that the physiological characteristics of one sex Court of Justice's answer will also be which the other does not posses, this is authoritative in interpreting national law, not the case with the allowance in question. namely Article L. 140-2 of the Code du Although the birth of a child concerns Travail. women alone from a strictly physiological point of view, it is also a social event which concerns the whole family, hence also the father, who should not therefore be exclu- ded from receiving the allowance, as this 8. The following question has been referred would constitute unlawful discrimination. to the Court of Justice:

6. In response, the defendant maintains 'Does the principle of equal pay for men that Article 18 of the collective agreement and woman laid down by Article 119 of counts as 'legitimate' discrimination the Treaty of Rome 4 and by subsequent because the inequality which it produces legislation authorise payment to a pregnant is merely apparent and 'formal' and is woman only, and not to the father of the intended to restore equality in practice child, of the sum of FRF 7 500 when she where there was previously 'real' inequal- takes maternity leave, given that: ity. The defendant further argues that the allowance should not be confused with the grant paid upon the birth of a child. It is intended to offset the disadvantage suffered exclusively by women in that, when a — such payment is provided for by the woman takes maternity leave, she is last part of Article 18 of the collective obliged to leave work temporarily and suffer the adverse consequences, notably in terms of career advancement, of her 3 — Case C-342/93 [1996] ECR I-475. enforced absence. 4 — Now, after amendment, Article 141 EC.

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agreement of 5 July 1991 on social B — Appraisal benefits for Renault employees;

The parties' submissions — Article 19(2) of the agreement provides that employees' salaries continue to be paid during maternity leave?' 11. The defendant wishes, first, to put the contested provision into its legislative con- text. Article 18 of the collective agreement contains a whole set of provisions in favour of pregnant women, such as: 9. The defendant in the initial proceedings, the United Kingdom Government and the Commission all took part in the written proceedings before the Court. The points raised will be discussed below. — one hour of free time per day, which can either be taken at the beginning or end of each working day;

10. The Court decided to rule without oral proceedings. At the same time, it decided to address the following question to the defendant: — an additional five minutes of free time, which may not be added to the above- mentioned one-hour period;

'Renault is requested to indicate which adverse consequences a pregnant women suffers in regard to career advancement — the possibility of changing posts; where she is forced, as a result of maternity leave, to stay away from work.'

— the possibility of counting prenatal visits to the doctor as time spent at work. 5 The defendant submitted a written response to this question. The answer was communicated to the other parties with a 5 — Article 18 of the collective agreement of 5 July 1991 deadline for stating their position. contains nine paragraphs.

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12. Finally, at the end of the provision, it is tions are not comparable. Only pregnant expressly provided that '[u]pon commen- women receive the allowance when com- cing maternity leave, a pregnant woman mencing maternity leave. According to the shall be allocated the sum of FRF 7 500'. 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 13. The defendant maintains that this for- defendant seeks to define the allowance in mal inequality of treatment on grounds of question. First, it must be determined sex was actually adopted in observance of whether the allowance is to be regarded the principle of equal treatment laid down as 'pay' 7 or 'treatment'. 8 The concept of in Article 119 of the EC Treaty and in the pay within the meaning of Article 119 of subsequent implementing directives. 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 immedi- ate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer, and irre- spective 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', 1 1 on the other hand, 14. The defendant recalls the Court's defi- refers to terms of employment in the broad nition of the principle of equal treatment as sense, including social security, comprising developed in its case-law, whereby discri- such things as access to employment and mination can arise only through the appli- vocational training, chances for profes- cation of different rules to comparable sional advancement as well as working situations or the application of the same conditions. Referring to Gillespie and rules to different situations. 6 . The defen- Others, 12 the defendant argues that a dant maintains that, on the basis of that benefit accorded during maternity leave definition alone, there is incontestably no constitutes 'pay' within the meaning of discrimination in the present case. The applicable provisions differ as between men and women simply because only 7 — 'Rémunération'. women may become pregnant. Their situa- 8 — 'Traitement'. 9 — 'Traitement ordinaire de base'. 10 — See C-360/90 Arbeiterwohlfahrt der Stadt Berlin ν Botel [1992] ECR I-3589, paragraph 12. 6 — See Case C-279/93 Finanzamt Köln-Altstadt ν Schumacher 11 — 'Traitement'. [1995] ECR 1-225, paragraph 30). 12 — Cited in footnote 3, paragraph 14.

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Article 119 of the Treaty and Directive defined as such, represents an exception to 75/117, but does not fall under Directive the principle of equal treatment as laid 76/207. A lump-sum, however, paid to down in the Directives. After a thorough pregnant women upon commencement of analysis of the applicable Community leg- maternity leave, cannot be equated with islation 16 and the case-law of the Court of pay, which implies payment over a period Justice, 17 the defendant argues that the of several months. Furthermore, the allow- allowance falls under Article 2(3) and (4) ance at issue is not indexed to the level of of Directive 76/207. She suggests that the pay. It is much more a matter of 'treat- question referred to the Court be answered ment', 13 since it forms part of the benefits as follows: 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 advance- ment as a result of interruption of work. 'The principle of equal pay for men and women laid down in Article 119 of the Treaty of Rome 18 and in subsequent legis- lation 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", 16. Although the parties all agreed before and thus falls within the scope of Directive the national court that the allowance in 76/207 and, in particular, of the exceptions question constitutes 'pay', it was not inten- to the principle of equal treatment provided ded in the sense attributed to this term for in Article 2(3) and (4) of that Directive. under Community law; rather it was because under national law the term 'trai- tement' 15 covers all remuneration of offi- cials and employees in the public service.

18. The United Kingdom Government sub- mits that the allowance paid to pregnant women going on maternity leave is compa- tible with Community law in so far as it forms part of a package of measures 17. Finally, the defendant states that it must be examined whether the allowance, 16 — See Article 119 of the EC Treaty as well as the amended version in the form of Article 141 EC, Directive 76/207 and Council Recommendation 84/635/EEC of 13 Decem- ber 1984 on the promotion of positive action for women 13 — 'Traitement' (OJ L 331, p. 34). 14 — Case 184/83 Hofmann v Barmer Ersatzkasse [1984] 17 — See Gillespie, cited in footnote 3; Hofmann, cited in ECR 3047, paragraph 27. footnote 14; Case 222/84 Johnston [1986] ECR 1651; 15 — Here the term refers more to 'remuneration', whereas in Case 421/92 Habermann-Beltermann [1994] ECR I-1657 the context of Directive 76/207 it is to be correctly and Case C-450/93 Kalanke [1995] ECR I-3051. understood as 'treatment'. 18 — Following amendment Article 141 EC.

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intended to protect women as regards and to the Equal Pay Directive. Otherwise, pregnancy and maternity. In this regard, it the lawfulness of maternity p a y 2 2 as a is for the national court to determine whole would be open to question. To whether or not the allowance actually summarise the arguments of the United forms part of such a package of measures. 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.

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.

21. Referring to the case-law of the Court, 2 3 the United Kingdom Government maintains that Article 2(3) of the Equal Treatment Directive leaves the Member 20. In common with the parties to the main States substantial discretion in the choice proceedings, the United Kingdom Govern of protective measures. Any such measure ment accepts that the lump sum paid to must form part of a 'package' of protective pregnant employees upon commencement measures — which should be determined of maternity leave constitutes 'pay' within upon examination of the facts 2 4 — and the meaning of Article 119 of the Treaty may well be more generous than the and falls to be appraised, therefore, upon general provisions for the protection of the basis of the 'Equal Pay Directive', 19 not mothers. According to the United Kingdom 20 the 'Equal Treatment Directive'. Admit Government, a measure of that kind is tedly, the Equal Pay Directive does not quite lawful. In the present context, it is provide for exceptions in the case of wholly unnecessary to discuss the lawful 'provisions concerning the protection of ness of positive discrimination. women, particularly as regards pregnancy and maternity', as required by Article 2(3) of Directive 76/207. However, according to 22 — 'Maternity pay' to be understood here as the payment of the United Kingdom Government, as a remuneration during maternity leave. consequence of the Court's ruling in Gille 23 — See Hofmann, cited in footnote 14; Gillespie, cited in footnote 3; and the Opinion of Advocate General Ruiz- spie and Others,21 those exceptions must Jarabo Colomer in Case C-411/96 Boyle and Others ν Equal Opportunities Commission [1998] ECR I-6401. also apply to Article 119 of the EC Treaty, 24 — In a footnote the United Kingdom admits, for its part, that the order for reference does not set out all the facts. Thus, it is not clear whether pregnant employees continue to receive their full salary, in addition to the one-off payment, 19 — Directive 75/117 is referred to here. during maternity leave. If so, the 'disadvantage' which is suffered by pregnant women and which the payment is 20 — Directive 76/207 is referred to here. intended to offset is not apparent from the order for 21 — Cited in footnote 3. reference.

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22. The United Kingdom Government pro- selves in a situation which can not be poses that the question referred to the equated with that of a man, nor with that Court be answered as follows: of a woman actually at work. The con- tested payment does not, in the view of the Commission, violate the principle of equal- ity because women commencing maternity leave are in a different situation from that of their working colleagues. The employer 'The principle of equal pay between men is applying different rules to different and women — laid down by Article 119 of situations. the Treaty of Rome 25 and Council Direc- tive 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 24. Because the right (or the obligation) to package of measures designed for the take maternity leave continues to hinder protection of women in relation to preg- women in their professional careers — a nancy and childbirth and intended to offset proposition which is supported by a news- disadvantages suffered by them in relation paper article 27 attached to the written to their employment by reason of their submissions —, the company Renault, as pregnancy ("the maternity package"). It is employer, was in no way prevented from for the national court to determine whether negotiating, with the union organisations, the payment made by Renault to its preg- an allowance supplementing pay. nant workers upon commencement of their maternity leave forms part of the maternity package.'

25. In the event that the Court should find the Commission's assessment incorrect, the 23. The Commission recalls that the prin- latter advances an additional line of argu- ciple of equal treatment, as expressed in ment. In doing so, the Commission assumes Article 119 of the Treaty, requires that the that the allowance constitutes 'pay' within men and women for whose benefit the the meaning of Article 119 of the Treaty. 28 principle exists find themselves in identical Should one be inclined to define the situations. 26 In its ruling in Gillespie, the allowance as a payment for 'a period of Court, according to the Commission, reaf- leave inherent in the biological condition of firmed that women taking maternity leave a woman', then one could consider the provided for under national law find them- allowance as a privilege, bestowed upon selves in a special situation requiring spe- women, giving them a higher overall wage cial protection; that they thus find them- 27 — 'Motherhood still clashes with macho in business culture' by Alison Maitland, Financial Times of 22 June 1998. 25 — Now, after amendment, Article 141 EC. 28 — In regard to the term 'pay', the Commission refers to Case 26 — See Case C-132/92 Birds Eye Walls v Roberts [1993] ECR C-262/88 Barber v Guardian Royal Exchange [1990] ECR I-5579, paragraph 17. I-1889, paragraph 32.

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for the same work. Viewed in that way, the third paragraph of Article 6 of the Agree allowance would constitute direct discrimi ment on Social Policy. nation not capable of having any justifica tion 2 9 . 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 para graph of Article 6 of the Agreement on 27. Finally, the Commission examines the Social Policy between the Member States of legal consequences to ensue if the allow the European Communities excluding the ance were to be classified as a childbirth United Kingdom of Great Britain and allowance. (The Commission does not Northern Ireland, which was incorporated however adopt this line of argumentation into Community law by Protocol No 14 on as its own, even though, at another place in Social Policy to the Maastricht Treaty. This its submissions, 30 it says that, in defining provision reads as follows: the birth of a child as a social event according them the right to obtain pay ment, the plaintiffs have misunderstood the nature of the allowance.) If, however, the allowance were to be considered a child birth allowance, then it would have to be paid to parents, i.e. fathers and mothers.

'This Article shall not prevent any Member State from maintaining or adopting mea sures 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 28. The Commission concludes by suggest professional careers.' ing that the preliminary question be answered as follows:

26. In its analysis the Commission comes to The principle of equal pay for men and a negative conclusion. Only a Member women laid down in Article 119 of the 31 State — and not the parties to a collective Treaty does not prevent employers from agreement — may adopt such a measure. according pregnant employees a lump-sum Similar effects could, at most, be attributed payment upon commencement of maternity to a collective agreement declared to be leave, to the exclusion of the child's father, generally binding. Nor could the measure, even where women receive full pay for the by virtue of its nature, be justified under the duration of that leave, if the allowance does

29 —See Case C-147/95 DEI ν Evrenopoulos [1997] ECR 30 — See page 7 of the Commission's written submission. I-2057, paragraph 28. 31 — Now, after amendment, Article 141 EC.

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not constitute a childbirth allowance, but they forbid inequalities of treatment based rather a benefit granted to a woman in view upon sex. According to settled case-law, of the professional disadvantages she suf- discrimination 'involves the application of fers as a result of staying away from her different rules to comparable situations or place of work, inherent in maternity leave. the application of the same rule to different situations'. 32 This definition of unlawful equal treatment applies both to the princi- ple of equal pay and to that of equal treatment. 33 Thus, one may delay answer- ing the question whether the allowance at issue falls under the scope of one provision or others for as long as it is not established Analysis that the allowance constitutes discrimina- tion within the meaning of the definition.

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 com- 32. It is characteristic of the allowance in mencement of maternity leave does not, question that only women have a right to per se, constitute unlawful sexual discrimi- claim it. At the risk of expressing a nation. 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 30. The preliminary question as to whether legal status under labour law, is of decisive the one-off payment constitutes 'pay' importance. The Court has expressed this within the meaning of Article 119 of the in the following terms: 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 profes- sional life. 'The present case is concerned with women taking maternity leave provided for by national legislation. They are in a special

32 — Gillespie, cited above in footnote 3, paragraph 16; Boyle 31. Article 119 of the Treaty and Directive and Others, cited above in footnote 23, paragraph 39. 75/117, on the one hand, and Directive 33 — The definition is universally applicable. Thus it has also been applied in the area of tax law. Schumacker case, cited 76/207 on the other, have in common that above in footnote 6, paragraph 30.

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position which requires them to be afforded 35. Since the principle of equal treatment is special protection, but which is not com- not applicable owing precisely to this parable either with that of a man or with disparity between situations, there is no that of a woman actually at work.' 34 prohibited discrimination on the grounds of sex. With this conclusion we may consider the question referred for a pre- liminary ruling to be answered, in accor- dance with the main submission of the Commission. 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 pack- age of measures to protect pregnant 36. Nevertheless, we will continue with the employees and their unborn children, of analysis in order to buttress this conclusion which the allowance in question is but one and to support it with alternative reason- element. That pregnancy and child birth ing. 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 A case of unequal treatment could be measures to encourage improvements in the founded if it were based on the hypoth- safety and health at work of pregnant esis — as in the Commission's alternative workers and workers who have recently line of argument — that any special treat- given birth or are breastfeeding (tenth ment linked to pregnancy and childbirth individual Directive within the meaning of constitutes discrimination per se, in that it Article 16(1) of Directive 89/391/EEC). 35 relies on criteria which are based on a woman's physiological situation and which are therefore objectively impossible for a man to fulfil.

34. Therefore, it follows that a pregnant employee going on maternity leave finds herself, both in fact and in law, in a In order for there to be prohibited discri- situation in which no man could possibly mination, additional factors must also be find himself. So, absences from work due to present to make manifest the disadvantage pregnancy cannot — as the Court has suffered by the male sex. Under Article 119 already ruled — be compared with a male of the Treaty, read together with Directive employee's absences from work due to 75/117, the allowance must constitute illness. 36 'pay', paid in return for the same work or work of equal value. 37

34 — Gillespie, cited above in footnote 3, paragraph 17. 35 — OJ 1992 L 348, p. 1. 37 — See the case-law of the Court in Gillespie, cited in 36 —Case C-394/96 Brown v Rentokil [1998] ECR I-4185, footnote 3, paragraph 19; see also Article 141(1) EC as paragraph 31. it now is.

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37. The second paragraph of Article 119 of 38. The Court, in describing what is to be the EC Treaty, which was reproduced considered 'pay' for the purpose of this verbatim in Article 141(2) EC, 38 defines provision, goes into even more detail: the term 'pay' as follows:

'The legal nature of such consideration is 'For the purpose of this Article, "pay" not important for the purposes of the means the ordinary basic or minimum wage application of Article 19 provided that it or salary and any other consideration, is granted in respect of employment... whether in cash or kind, which the worker receives, directly or indirectly, in respect of his employment from his employer.' 39

Consideration classified as pay includes, inter alia, consideration paid by the employer by virtue of legislative provisions As regards the same work or work of equal and under a contract of employment whose value, the article goes on to state: purpose is to ensure that workers receive income even where, in certain cases speci- fied by the legislature, they are not per- forming any work provided for in their contracts of employment... .' 40 'Equal pay without discrimination based on sex means:

39. The consequence drawn from those legal passages in the Gillespie case could (a) that pay for the same work at piece also be applied in the present case: rates shall be calculated on the basis of the same unit of measurement;

'It follows that, since the benefit paid by an employer under legislation or collective (b) that pay for work at time rates shall be agreements to a woman on maternity leave the same for the same job.' is based on the employment relationship, it constitutes pay within the meaning of

38 — As worded in the Treaty of Amsterdam. 39 — Footnote relevant only to the German text of the Opinion. 40 — See Gillespie, cited in footnote 3, paragraphs 12 and 13.

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Article 119 of the Treaty and Directive thus constitutes, for the woman concerned, 75/117.' 4 1 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, 40. However, such pay would have to be this does not prevent periods of absence paid for the same work or work of the same taken in connection with maternity leave value. 42The Commission fails to recognise from being considered as periods of this in its alternative line of argument, employment, for the purposes, at any rate, which it begins by determining that, if the of social security. Were maternity leave to allowance is treated as payment for a be considered as 'work of the same value' period of leave necessitated by a woman's in the strict sense, then a female employee biological condition, it could be viewed as would always have to be accorded full pay an advantage which, overall, gives women, during maternity leave, something which for the same work, pay higher than the the Court has expressly rejected. 46 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 42. By founding their claim upon the social work, then this represents a benefit granted event of the birth of a child, the plaintiffs in connection with her 'special position', implicitly recognise that the situation of a which, 'is not comparable either with that child's mother at her place of work is not of a man or with that of a woman actually comparable to that of the father. at work'. 44 In the legal systems of some Member States, 45 statutory maternity leave takes the form of a prohibition of work and

41 — Gillespie, cited in footnote 3, paragraph 14. 42 — See, most recently, Case C-309/97 Angestelltenbetriebsrat der Wiener Gebietskrankenkasse ν Wiener Gebietskran kenkasse [1999] ECR I-2865, paragraph 17 et seq., in which the Court stated: 'In order to determine whether the 43. Moreover, the allowance in question is work being done by different persons is the same... it is necessary to ascertain whether those persons can be not to be regarded as a 'childbirth allow considered to be in a comparable situation...' ance' in relation to the social event of the 43 — The Commission's written observations state: 'Si la prime est analysée comme un versement fait en considération birth of a child. Formal as well as substan d'une période de congé inhérente à la condition biologique tive reasons militate against this. The de la femme, pour un même travail, une rémunération supérieure au salaire intégral.' Italics added by the author. provision concerning payment of the ben 44 — Gillespie, cited in footnote 3, paragraph 17. efit forms part of a set of rules governing a 45 — See, for example, the German scheme, which was in issue in Hofmann, cited in footnote 14, paragraph 9; or the package of measures intended to protect statutory scheme in the United Kingdom, which was at pregnant employees and their unborn chil- issue in Boyle, cited in footnote 2 3 , paragraphs 3 and 4 ; see also Article 8 of 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 are breastfeeding, cited in foot- 46 — See Gillespie, cited in footnote 3 ; see also Boyle, cited in note 35. footnote 2 3 , paragraph 1 of the judgment.

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dren. The time at which the allowance is 46. The pertinent question here is whether paid is at the commencement of maternity the one-off payment of FRF 7 500 repre- leave and not at the time of birth. Payment sents an unjustified material advantage. of the allowance is, lastly, not conditional This leads to the question of material upon the birth of a living child. equality, 49 which underlies the principle of equal treatment.

47. In this respect, much supports the 44. In the absence of a comparable situa- argument of the defendant, which, in tion, there is no set of facts on the basis of maintaining that the allowance does not which the male plaintiffs, relying on the constitute 'pay' within the meaning of principle of equal pay, could claim equal Community law, is at pains to take any treatment in regard to the 'maternity analysis of the allowance out of the ambit allowance'. None the less, the referring of the principle of equal pay and to place it court asks — at least implicitly — whether in the context of equal treatment. the allowance is lawful given the fact that female employees continue to be paid their wages for the duration of their maternity leave. 47

48. This can also be seen to be the approach of the United Kingdom Govern- ment, 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. 45. Article 19(2) of the collective agree- ment of 5 July 1991 provides that, for the duration of maternity leave, the employer is to pay the difference between social secur- ity payments and the employee's net wages. 48 A mother's income during her maternity leave thus corresponds to the 49. Whereas the defendant expressly refers wage she received whilst in active employ- to Directive 76/207, the United Kingdom ment. Government takes the view that, since Gillespie, the analysis to be carried out under Article 2(3) of Directive 76/207 also 47 — The referring court expressly refers to Article 19(2) of the collective agreement in the second indent of its preliminary question. 48 — The provision reads: 'Pendant la durée du congé de 49 — Case C-136/95 CNAVTS v Thibault [1998] ECR I-2011, maternité indemnisé en tant que tel par la Sécurité Sociale, paragraph 26. In regard to the legislative aim of eliminat- le personnel féminin perçoit 100% de ses appointements ing factual inequalities see 312/86 Commission v France nets, déduction faites des indemnités journalières versées [1988] ECR 6315, paragraph 15, and Kalanke, cited in par la Sécurité Sociale.' footnote 17, paragraph 18.

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applies to the principle of equal pay laid Social Policy, could also be taken into down in Article 119 of the Treaty, read in consideration. Article 141(4) reads: conjunction with Directive 75/117.

'With a view to ensuring full equality in 50. Regardless of how one categorises in practice between men and women in work- theory the analysis to be made in order to ing life, the principle of equal treatment reconcile formal equality with the special shall not prevent any Member State from situation of the protection of mothers, this maintaining or adopting measures provid- is an inevitable step in the process of ing for specific advantages in order to make applying the principle of equality. An it easier for the under-represented sex to evaluation of different factual situations is pursue a vocational activity or to prevent not possible without comparing their sub- or compensate for disadvantages in profes- stance. sional careers.'

51. Some guidance is provided in this 53. Finally, interpretative guidance is to be regard in Article 2(3) and (4) of Directive found in Directive 92/85 on the introduc- 76/207, which read: tion of measures to encourage improve- ments in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeed- ing 50 and the Council Recommendation of '(3) This Directive shall be without preju- 13 December 1984 on the promotion of dice to provisions concerning the protec- positive action for women. 51 tion of women, particularly as regards pregnancy and maternity.

54. All these provisions have in common that they create the legal conditions needed (4) This Directive shall be without preju- in order to achieve actual equality. Should dice to measures to promote equal oppor- one, in the light of these provisions, con- tunity for men and women, in particular by sider it necessary that the allowance in removing existing inequalities which affect question be intended and apt to compen- women's opportunities in the areas referred sate any disadvantage whatever, then it will to in Article 1(1).' also be necessary to identify any potential and actual disadvantages that a woman might suffer through pregnancy and child- birth. 52. The new Article 141(4) inserted into the Treaty of Amsterdam, which is largely 50 — Cited in footnote 35. similar to Article 6(3) of the Agreement on 51 — Cited in footnote 16.

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55. In response to a request from the 3. A pregnant employee cannot partici- Court, the defendant has provided a whole pate in any training activities. 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 4. The constant technological changes absent from work for a period of 18 to 28 which take place at work render it weeks. During this period the life of the more difficult for a woman returning company goes on, and male employees can from maternity leave to compete with be actively involved in it. A woman on her colleagues. 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 5. For the duration of her maternity leave, being taken of the disadvantages in being a pregnant woman cannot request a kept away from the workplace, the adverse transfer advancing her career. consequences of which on her advancement prospects can be compensated by an extra allowance. 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 According to the defendant, the disadvan- pregnancy and motherhood entail disad- tages suffered by pregnant women in the vantages for the women concerned in undertaking are numerous: regard to their professional career has been recognised — at any rate implicitly — in the Court's case-law. 52

1. Whilst on maternity leave a woman can not be recommended for advance- 57. It follows that there is no doubt that a ment. On her return to work, the pregnant employee going on maternity length of professional experience she leave must expect to suffer disadvantages has accrued is reduced by the time she which are unrelated to any loss of pay was absent. during her absence from the place where she works. Seen in that light, the allowance

52 — Hofmann, cited in footnote 14, paragraph 27; Kalanke, cited in footnote 17, paragraphs 18 and 19; see also Thibault, cited in footnote 49, which concerned a refusal 2. A pregnant woman cannot claim any to give an evaluation on which supplementary payments pay rises linked to personal perfor- depended; see also the Opinion of Advocate General Ruiz- Jarabo Colomer in C-333/97 Lewen v Denda, judgment is mance. pending, paragraph 42 et seq.

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in question represents lump-sum compen- covered by the principle of equal treatment. sation for the disadvantages which the So, neither an exceptional situation 53 nor pregnant employee will suffer upon com- any justification 54need be argued. Nor is mencing maternity leave. It therefore does the measure at issue to be classified as serve to guarantee full equality. Conse- 'positive discrimination' designed to 'elim- quently, it cannot be regarded as unlawful inate existing inequalities affecting women discrimination if men are denied the 'mater- in working life'. 55 Positive action for nity allowance'. women 56 involves compensating any dis- advantages suffered by women by reason of their belonging to the female sex, whereas the present case concerns the specific disadvantages personally suffered by indi- vidual pregnant female employees on 58. The reasoning followed here to reach account of the protection afforded to this result logically fits in with the cases mothers.

53 — See Article 2(3) and (4) of Directive 76/207. 54 — To justify unequal treatment (indirect discrimination) on objective grounds, which have nothing to do with dis- crimination on the grounds of sex. See Case C-167/97 Seymour-Smith and Perez [1999] ECR 1-623, para- graph 51 et seq. 55 — See the Council Recommendation on the promotion of positive action for women, cited in footnote 16, paragraph 1. 56 — Council Recommendation 84/635, cited in footnote 16, and Article 141(4) EC.

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C — Conclusion

59. On those grounds, I propose that the question referred for a preliminary ruling be answered as follows:

Both the principle of equal pay for men and women and the principle of equal treatment allow an allowance of FRF 7 500, provided for in a collective agreement, to be paid to pregnant women when they go on maternity leave and not to fathers, even if the pregnant employee continues to receive her full net salary during her maternity leave.

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