Avis juridique important

Judgment of the Court (Fifth Chamber) of 16 September 1999. - Oumar Dabo Abdoulaye and Others v Régie nationale des usines Renault SA. - Reference for a preliminary ruling: Conseil de Prud'hommes, Le Havre - France. - Interpretation of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) and of Directives 75/117/EEC and 76/207/EEC - Collective agreement providing for an allowance for pregnant women going on maternity leave. - Case C-218/98. European Court reports 1999 Page I-05723

Summary Parties Grounds Decision on costs Operative part

Social policy - Men and women - Equal pay - Lump-sum payment made exclusively to women taking maternity leave - Whether permissible - Conditions

(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 EC to 143 EC))

$$The principle of equal pay laid down in Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) does not preclude the making of a lump-sum payment exclusively to female workers who take maternity leave, where that payment is designed to offset the occupational disadvantages which arise for those workers as a result of being away from work. In such cases, male and female workers are in different situations, which excludes any breach of the principle of equal pay.

Such disadvantages may consist in the fact that a woman on maternity leave may not be proposed for promotion; that, on her return, her period of service will be reduced by the length of her absence; that a woman on maternity leave may not claim performance-related salary increases; that she may not be able to take part in certain training; lastly, that, since new technology is constantly changing the nature of jobs, her adaptation on returning from maternity leave becomes complicated.

In Case C-218/98,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Conseil de Prud'hommes du Havre, France, for a preliminary ruling in the proceedings pending before that court between

Oumar Dabo Abdoulaye and Others

and

Régie Nationale des Usines Renault SA,

on the interpretation of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC), of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19) and of Council Directive 76/207/EEC of 9 February 1976 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 (OJ 1976 L 39, p. 40),

THE COURT

(Fifth Chamber),

composed of: J.-P. Puissochet, President of the Chamber, P. Jann, J.C. Moitinho de Almeida (Rapporteur), C. Gulmann and D.A.O. Edward, Judges,

Advocate General: S. Alber,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

- the Régie Nationale des Usines Renault SA, by Catherine Guillotin-Le Jouan and Jean-Pierre Spitzer, of the Paris Bar,

- the United Kingdom Government, by Stephanie Ridley, of the Treasury Solicitor's Department, acting as Agent, and Sara Masters, Barrister,

- the Commission of the European Communities, by Marie Wolfcarius, of its Legal Service, acting as Agent,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 3 June 1999,

gives the following

Judgment

1 By judgment of 24 April 1998, received at the Court on 15 June 1998, the Conseil de Prud'hommes (Industrial Tribunal), Le Havre, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) a question on the interpretation of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC and 143 EC), of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19) and of Council Directive 76/207/EEC of 9 February 1976 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 (OJ 1976 L 39, p. 40).

2 The question has been raised in proceedings between Oumar Dabo Abdoulaye and other plaintiffs and the Régie Nationale des Usines Renault SA (hereinafter `Renault').

3 The plaintiffs in the main proceedings are male workers at Renault. They claim that Article 18 of the agreement on social benefits for Renault employees (hereinafter `the Agreement') is incompatible with the prohibition of discrimination laid down in Article 119 of the Treaty, which was implemented by Article L. 140-2 of the French Code du Travail (Employment Code).

4 Article 18 of the Agreement provides that `when taking maternity leave, a female employee shall be granted a sum of FRF 7 500'.

5 Article 19 of the Agreement provides that `during the duration of maternity leave paid as such by social security, a female employee shall receive 100% of her net salary, less the daily allowances paid by social security'.

6 Finally, Article 20 of the Agreement provides that `on the adoption of a child, the father or the mother employed by the undertaking shall receive a sum of FRF 2 000. If both spouses work in the undertaking, that right may be exercised by only one of the spouses'.

7 According to the plaintiffs in the main proceedings, whereas certain instances of discrimination, such as maternity leave granted exclusively to women, are justified because they are related to the physiological characteristics of one sex, this is not the case with regard to the payment in question, since, although the birth of a child concerns women alone from a strictly physiological point of view, it is, in at least equal measure, a social event which concerns the whole family, including the father, and to deny him the same allowance amounts to unlawful discrimination.

8 The national court found that the Court of Justice has never ruled on the question of the compatibility with Article 119 of the Treaty of an allowance of the kind in question in the main proceedings although in its judgment in Case C-342/93 Gillespie and Others [1996] ECR I-475 it did consider a relatively similar case.

9 In those circumstances, it decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

`Does the principle of equal pay for men and women laid down by Article 119 of the Treaty of Rome and by subsequent legislation authorise payment to a pregnant woman only, and not to the father of the child, of the sum of FRF 7 500 when she takes maternity leave, given that:

- such payment is provided for by the last part of Article 18 of the collective agreement of 5 July 1991 on social benefits for Renault employees;

- Article 19(2) of the agreement provides that employees' salaries are to continue to be paid during maternity leave?'

10 By its question the national court is asking essentially whether the principle of equal pay laid down in Article 119 of the Treaty precludes the making of a lump-sum payment exclusively to female employees who take maternity leave.

11 Article 119 of the Treaty lays down the principle of equal pay for men and women for the same work. That provision is clarified by Article 1 of Directive 75/117.

12 According to the case-law of the Court, the definition contained in the second paragraph of Article 119 of the Treaty makes clear that the term `pay' used in the abovementioned provisions includes all consideration which workers receive directly or indirectly from their employers in respect of their employment. The legal nature of such consideration is not important for the purposes of the application of Article 119 of the Treaty provided that it is granted in respect of employment (see, in particular, Gillespie and Others, cited above, paragraph 12).

13 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 (Case C-360/90 Bötel [1992] ECR I-3589, paragraphs 14 and 15; see also Case C-33/89 Kowalska [1990] ECR I-2591, paragraph 11, and Case C-262/88 Barber [1990] ECR I-1889, paragraph 12, and Gillespie, cited above, paragraph 13).

14 Since the benefit paid by an employer to a female employee when she goes on maternity leave, such as the payment in question in the main proceedings, is based on the employment relationship, it constitutes pay within the meaning of Article 119 of the Treaty and Directive 75/117.

15 While such a payment is not made periodically and is not indexed on salary, its characteristics do not, contrary to what Renault contends, alter its nature of pay within the meaning of Article 119 of the Treaty (see Case 12/81 Garland [1982] ECR 359, paragraph 9).

17 The compatibility with Article 119 of the Treaty of a payment such as that in question in the main proceedings thus depends on the question whether, with regard to that payment, female workers are in a situation comparable to that of male workers.

19 First of all, a woman on maternity leave may not be proposed for promotion. On her return, her period of service will be reduced by the length of her absence; second, a pregnant woman may not claim performance-related salary increases; third, a female worker may not take part in training; lastly, since new technology is constantly changing the nature of jobs, the adaptation of a female worker returning from maternity leave becomes complicated.

21 It is for the national court to determine whether this is the case.

Costs

23 The costs incurred by the United Kingdom Government and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

(Fifth Chamber),

in answer to the question referred to it by the Conseil de Prud'hommes, Le Havre, by judgment of 24 April 1998, hereby rules:

The principle of equal pay laid down in Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) does not preclude the making of a lump-sum payment exclusively to female workers who take maternity leave where that payment is designed to offset the occupational disadvantages which arise for those workers as a result of their being away from work.