Case C-284/02

Land Brandenburg

v

Ursula Sass

(Reference for a preliminary ruling from the Bundesarbeitsgericht)

(Social policy – Men and women – Article 141 EC – Equal pay – Directive 76/207/EEC – Equal treatment – Maternity leave – Passage to a higher salary grade – Failure to take account of the whole of a period of maternity leave taken under the legislation of the former German Democratic Republic)

Summary of the Judgment

Social policy – Men and women – Access to employment and working conditions – Equal treatment – Collective agreement providing for classification in a higher salary grade on completion of a qualifying period – Account taken of periods of maternity leave – Refusal to take account, because of its duration, of the whole of a period of maternity leave taken under the legislation of the former German Democratic Republic – Not permissible

(Council Directive 76/207)

Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions precludes a collective agreement from excluding from a qualifying period for access to a higher salary grade the part of the period for which a female worker took maternity leave, under the legislation of the former German Democratic Republic, which exceeds the protected period provided for by the legislation of the Federal Republic of Germany to which that agreement refers, where the objectives and purpose of both periods of leave are the protection of women as regards pregnancy and maternity, as provided for by Article 2(3) of that directive.

(see para. 59, operative part)

JUDGMENT OF THE COURT (First Chamber) 18 November 2004 (1)

(Social policy – Men and women – Article 141 EC – Equal pay – Directive 76/207/EEC – Equal treatment – Maternity leave – Passage to a higher salary grade – Failure to take account of the whole of a period of maternity leave taken under the legislation of the former German Democratic Republic)

In Case C-284/02,REFERENCE for a preliminary ruling under Article 234 EC, from the Bundesarbeitsgericht (Germany), made by decision of 21 March 2002, received at the Court on 2 August 2002, in the proceedings:

v

THE COURT (First Chamber),,

composed of: P. Jann, President of the Chamber, A. Rosas, (Rapporteur), R. Silva de Lapuerta, K. Lenaerts and S. von Bahr, Judges,

Advocate General: L.A. Geelhoed,

having regard to the written procedure and further to the hearing on 11 March 2004,after considering the observations submitted on behalf of:

after hearing the Opinion of the Advocate General at the sitting on 27 April 2004,

gives the following

A –

B –

‘Employees … shall be classified in the next higher salary grade after completing the prescribed qualifying period.

The following shall apply to the completion of the qualifying period:

1.

4.…

(c)

…

However, the duration of interruptions, with the exception of

…

(e)

shall not count towards the qualifying period.’

‘1.

Where job descriptions permit account to be taken of periods completed outside the scope of the BAT-O, account shall be taken of such periods if they would have had to be taken into account pursuant to the first subparagraph had they been completed within the scope of the BAT-O.’

‘Do Article 119 of the EC Treaty (now Article 141 EC) and Directive 76/207/EEC prohibit, in a provision of a collective agreement under which periods during which an employment relationship is in abeyance do not count towards the qualifying period, the exclusion of the period during which the employment relationship was in abeyance because the employee concerned, on the expiry of the eligible eight-week period of protection pursuant to Paragraph 6 of the [MuSchG] …, claimed maternity leave pursuant to Paragraph 244(1) of the [AGB-DDR], until the end of the 20th week after confinement?’

On those grounds, the Court (First Chamber), rules as follows:

Signatures.