CELEX: 62002CJ0220
Principle of equal pay for men and women
Concept of pay
Taking into account, for calculation of termination payments, of periods of military service
Possibility of comparing workers performing military service with women workers who, after their maternity leave, take parental leave the duration of which is not taken into account for calculating a termination payment

By order of 22 May 2002, received at the Court on 14 June 2002, the Oberster Gerichtshof (Supreme Court) referred to the Court
for a preliminary ruling under Article 234 EC three questions on the interpretation of Article 141 EC and Article 1 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).
Those questions were raised in proceedings between Österreichischer Gewerkschaftsbund, Gewerkschaft der Privatangestellten
(‘the Gewerkschaftsbund’), a trade union representing employees in the private sector, and Wirtschaftskammer Österreich, an
Austrian economic chamber, concerning a claim for equal termination payments for men and women workers.
Legal background
Community legislation
Article 141(1) and (2) EC provides:
‘1.

Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal
value is applied.
2.

For the purpose of this article, “pay” means the ordinary basic or minimum wage or salary and any other consideration, whether
in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.’
Article 1 of Directive 75/117 provides:
‘The principle of equal pay for men and women outlined in Article 119 of the Treaty (now Article 141 EC), hereinafter called
“principle of equal pay”, means, for the same work or for work to which equal value is attributed, the elimination of all
discrimination on grounds of sex with regard to all aspects and conditions of remuneration.
In particular, where a job classification system is used for determining pay, it must be based on the same criteria for both
men and women and so drawn up as to exclude any discrimination on grounds of sex.’
National legislation
The relevant national legal context, as it appears from the order for reference, is as follows.
Taking into account, for calculation of a termination payment, of periods of leave during pregnancy and on giving birth
Under Paragraph 23 of the Angestelltengesetz (Law on employees, BGBl. 1921/292, amended by BGBl. I 2002/100, ‘the AngG’),
which, in accordance with Paragraph 2(1) of the Arbeiter-Abfertigungsgesetz (Law on termination payments for workers), applies
also to manual workers, workers are entitled to a termination payment under certain conditions. The amount of the payment
depends inter alia on the worker’s length of service in his employment.
Under Paragraph 3(1) of the Mutterschutzgesetz 1979 (Law on protection of mothers, BGBl. 1979/221, amended by BGBl. I 2002/100,
‘the MSchG’), pregnant women are not allowed to work during the last eight weeks before the expected date of giving birth.
According to Paragraph 3(3) of the MSchG, in addition to that eight-week period, the obligation not to work applies also to
pregnant women if continuing to work would endanger the life or health of the mother or the child.
Paragraph 5(1) of the MSchG provides that women must not work during the eight weeks after giving birth. In the case of a
premature birth, multiple birth or caesarean delivery, that period is a minimum of 12 weeks.
The Oberster Gerichtshof held in Case 9 ObA 199/00f that the periods corresponding to those prohibitions of working must be
taken into account for calculating length of service for the purpose of fixing the amount of a termination payment. The court
based its view in particular on the absence of a contrary provision in the legislation.
After those periods, the employee is entitled under Paragraph 15(1) of the MSchG, on request, to unpaid leave until her child
reaches the age of two years, provided that she lives in the same household as the child. Under Paragraph 15(2) of the MSchG,
this parental leave must last for at least three months. During the leave the employment contract may not be terminated and
the employee may not be dismissed. Under Paragraph 15(4), the employee enjoys the same protection for four weeks following
the end of the leave.
Under Paragraph 15f(1) of the MSchG, ‘[u]nless otherwise agreed, the period of [parental] leave shall not be taken into account
for the purposes of entitlements of a female employee based on length of service’.
Taking into account, for calculation of a termination payment, of the duration of military service
Under Paragraph 8 of the Arbeitsplatz-Sicherungsgesetz (Law on job security, BGBl. 1991/683, amended by BGBl. I 1998/30, ‘the
APSG’), ‘[w]here an employee’s entitlements are based on length of service, periods of
1.
military service within the meaning of Paragraph 27(1), points 1 to 4 and 6 to 8, of the Wehrgesetz (Law on defence) (now
Paragraph 19(1), points 1 to 4 and 6 to 8, of the Wehrgesetz 2001),
2.
service as a fixed-term soldier within the meaning of Paragraph 27(1), point 5, of the Wehrgesetz (now Paragraph 19(1), point
5, of the Wehrgesetz 2001) of up to 12 months,
3.
training service [for women] and
4.
civilian service,
during which the employment relationship was in existence, shall be counted towards length of service.’
Paragraph 12 of the APSG provides special protection during those periods for the workers concerned against termination of
their contract of employment or dismissal. That protection runs from the time when the worker is notified of being called
up for military service, military training service for women or civilian service until, in general, one month after the end
of service, under Paragraph 13(1), point 3, of the APSG.
Under Paragraph 20(1) of the Wehrgesetz, all persons called up are obliged to perform military service of six months. If required
on military grounds, they may be retained for an additional period corresponding to the military requirements concerned, but
the total length may not exceed eight months.
To the period of that service should be added the periods of field exercises which national servicemen must complete in order
to maintain their level of training and for instruction in active duties, in accordance with Paragraph 19(1), point 2, of
the Wehrgesetz 2001. The duration of that training depends on military requirements and may not, in general, exceed 15 days
a year.
Other periods may be taken into account on the same basis, such as periods of cadre training under Paragraph 19(1), point
3, of the Wehrgesetz 2001. Those periods are completed voluntarily or on call-up when required by military requirements. Cadre
training serves to train servicemen for cadre duties and to maintain and broaden the skills acquired. The compulsory duration
of that training, under point 1 of Paragraph 21(1), is 90 days for officer duties and, under ponit 2 of that provision, 60
days for other cadre duties. It is possible, however, to continue that training on a voluntary basis for up to twice the total
length.
In addition, under Paragraph 23(1) of the W ehrgesetz 2001, servicemen who have completed the whole of their military service of eight months may, if they volunteer and
it accords with military requirements, serve as ‘fixed-term soldiers’ for a maximum total duration of six months. An extension
for four months is possible under certain conditions.
Under Paragraph 37(1) of the Wehrgesetz 2001, women may also, on a voluntary basis and depending on military requirements,
perform military training service (‘Ausbildungsdienst’) within the meaning of Paragraph 8(3) of the APSG for a period of 12
months. If required by compelling military reasons, an extension for a maximum of six months is possible. Paragraph 37(4)
states that Paragraphs 3 to 9 of the MSchG on the protection of pregnant women and nursing mothers apply to women performing
military training service.
Under Paragraph 2(1) of the Zivildienstgesetz 1986 (Law on civilian service), a provision of constitutional status, civilian
service is performed by national servicemen who are found to be fit to serve but state that they are unable to perform their
military duties because, apart from cases of self-defence or emergency help for others, they refuse on grounds of conscience
to use armed force against human beings. The duration of that service is taken into account in calculating length of service
in a job, in the same way as military service.
It should also be noted that national legislation provides for other periods of leave whose duration is to be taken into account
in the calculation of termination payments. That is the case inter alia of training leave for employees’ representatives,
under Paragraph 119(1) of the Arbeitsverfassungsgesetz (Law on labour relations, ‘the ArbVG’), for members of the works council.
On the other hand, the duration of other kinds of leave is not taken into account. That is the case of training leave agreed
by the employer and the employee under Paragraph 11(1) of the Arbeitsvertragsrechts-Anpassungsgesetz (Law adjusting the law
on contracts of employment, ‘the AVRAG’) and of unpaid exemption from duties agreed by the employer and the employee during
which the latter receives funding from unemployment insurance or the labour market service pursuant to Paragraph 12 of the
AVRAG.
The main proceedings
The Gewerkschaftsbund, the claimant in the main proceedings, made an application to the Oberster Gerichtshof for a declaration
that the first parental leave of workers in an employment relationship must be taken into account in calculating the termination
payment, as length of service, for up to eight months in the same way as military or civilian service.
According to the Gewerkschaftsbund, the fact that under Paragraph 15f(1) of the MSchG periods of parental leave are not taken
into account in calculating the termination payment under Paragraph 23 of the AngG, in contrast to periods of military or
civilian service, constitutes indirect discrimination prohibited by Article 141 EC.
It submits that 98.253% of workers on parental leave are women, with men making up 1.747% of the total, yet only a minority
of collective agreements provide for those periods of parental leave to be taken into account as length of service.
On the other hand, the duration of military service, which is compulsory for men, or alternative civilian service is taken
into account in full for rights calculated inter alia on the basis of length of service. Those services concern exclusively
men. In 2000, for example, only about 100 women performed the military training service which is reserved for them.
The Gewerkschaftsbund concludes that that difference in treatment between workers, a majority of whom are women, who take
parental leave and workers, a majority of whom are men, who perform military or civilian service constitutes indirect discrimination.
The Oberster Gerichtshof states that, in general, the taking into account for calculation of a termination payment of periods
of unpaid leave is excluded by the legislation when that leave is taken at the worker’s initiative, unless the reasons for
which the worker takes the leave constitute an important reason entitling him to terminate the employment relationship while
retaining the termination payment, under the conditions laid down by national law.
It states that, as regards a worker’s decision to continue to take care of her child herself after the end of the 16th week
of maternity leave, the Court has already held in Case C-249/97
Gruber
[1999] ECR I-5295, paragraph 32 et seq., that the important reasons mentioned in Paragraph 26 of the AngG and Paragraph 82a
of the Gewerbeordnung 1859 (Trade and Industry Code, ‘the GewO 1859’) which lead to early termination by the worker are different
from the need to care for one’s child oneself. The Court said that that is a reason which is unrelated to the conditions of
work in the firm or the employer’s conduct and does not make it impossible to continue working.
The Oberster Gerichtshof concludes that the comparison should be between the group of parents who, in their interests and
entirely voluntarily, have taken additional leave to care for their children and the group of workers who, for other reasons
which are specific to them but do not prevent them from working, such as looking after a member of the family who is ill,
decide to cease working for a lengthy period.
It considers that the fact that the legislature gives favourable treatment to parents, in that it allows them the possibility
of unilaterally taking childcare leave instead of having to terminate the employment relationship and also affords them special
protection against dismissal, cannot be regarded as discrimination against women workers.
It notes, however, that the claimant in the main proceedings disagrees with that reasoning and analyses the discrimination
said to result from a comparison between the group of persons on parental leave for whom the period during which they do not
work is not taken into account in calculating the termination payment and the group of persons whose periods of military or
civilian service are taken into account for that calculation.
The questions referred for a preliminary ruling
Since it considered, in those circumstances, that the outcome to the dispute pending before it depended on the interpretation
of the relevant provisions of Community law, the Oberster Gerichtshof decided to stay the proceedings and refer the following
questions to the Court for a preliminary ruling:
‘1.
Is the term “pay” in Article 141 EC and in Article 1 of [Directive 75/117] to be interpreted as meaning that it also encompasses
statutory provisions of general application, such as Paragraph 8 of [the APSG], where, in the public interest, periods of
service in the performance of public duties as defined therein, during which it is generally not possible to perform services
of a private-employment nature, are to be taken into account for the purposes of claims under employment law calculated according
to length of service in a private-employment relationship?
2.
Are Article 141 EC and Article 1 of Directive 75/117 … to be interpreted as meaning that, from the equal pay point of view,
in the case of a system of pay that awards termination payments to workers essentially based on past loyalty to their employer
and graduated according to the length of their employment in order to tide them over the actual termination of that employment,
unless the employment is brought to an end by the worker without important reason or its termination is the result of fault
on his part, whereby individual periods of employment are categorised as independent and the exclusion of periods of unpaid
leave is permitted, if that unpaid leave is taken for reasons that are in the worker’s interests and at his initiative and
if those reasons do not constitute an important reason that would entitle the worker to terminate the employment and retain
the termination payment, the group of male and female workers covered by Paragraph 8 of the APSG (Group A) is comparable with
the group of female workers who decide, in accordance with Paragraph 15 of the Mutterschutzgesetz to take parental leave (“childcare
leave”) to care for their child without pay after their normal 16-week period of “maternity leave” has expired and until,
at the maximum, the child reaches its second birthday (Group B)?
3.
Are Article 141 EC and Article 1 of Directive 75/117 … to be interpreted as meaning that the differences between the groups
of male and female workers referred to in Question 2, which consist principally in the fact that, in the case of Group A,
“persons on military service”,
–
there is normally an obligation to “report for duty” or, in any event, if they should report voluntarily,
–
reporting for duty is only permissible in so far as it is in the public interest, and
–
it is normally not possible to perform services under an employment relationship governed by private law, even another employment
relationship,
whereas, in the case of Group B, male and female workers on “unpaid parental leave”,
–
it is left to the individual worker in a particular employment relationship alone to choose whether she wishes to take unpaid
parental leave to care for her child, and
–
during that unpaid leave and in the time available to her after caring for her children, she can also undertake work of a
limited nature in a private employment relationship,
constitute sufficient objective justification for the different treatment of those periods for the purposes of rights based
on length of service?’
Question 1
By its first question the national court essentially asks whether the benefit, for persons performing military service or,
as an alternative, compulsory civilian service which may be extended voluntarily, consisting in the taking into account, for
calculation of a termination payment they might subsequently be entitled to claim, of the duration of that service is to be
regarded as part of their pay within the meaning of Article 141 EC.
Observations submitted to the Court
The Gewerkschaftsbund, the Austrian Government and the Commission of the European Communities take the view that an increased
entitlement to a termination payment such as that which follows from Paragraph 8 of the APSG for persons performing military
service or the equivalent must, like the termination payment (see
Gruber
, paragraph 22, and Case C-190/98
Graf
[2000] ECR I-493, paragraph 14), be regarded as part of pay.
The Wirtschaftskammer Österreich contends, on the other hand, that a private sector employer’s obligation to take periods
in which the employment relationship is suspended into account for calculating the termination payment does not fall within
the concept of pay within the meaning of Article 141 EC or Directive 75/117.
Findings of the Court
It is not disputed by the parties to the main proceedings or by the Austrian Government or the Commission that the main proceedings
relate to the duration of employment relationships with an employer and that that duration must be taken into account to calculate
the amount of the termination payment, which falls within the concept of pay (see, to that effect,
Gruber
, paragraph 22).
The fact that that duration may be increased by virtue of a statutory provision, by taking into account the duration of military
or civilian service which is performed in the public interest and is not connected with the employment in respect of which
the payment is granted, has no effect on the character of that payment as ‘pay’.
So, since the system of termination payments falls within the scope of Article 141 EC, individual situations concerning different
workers with regard to that system may be analysed on the basis of the provisions of that article.
Consequently, the answer to Question 1 must be that the benefit, for persons performing military service or, as an alternative,
compulsory civilian service which may be extended voluntarily, consisting in the taking into account, for calculation of a
termination payment they might subsequently be entitled to claim, of the duration of that service is to be regarded as part
of their pay within the meaning of Article 141 EC.
Questions 2 and 3
By its second and third questions the national court essentially asks whether Article 141 EC and Directive 75/117 preclude
the calculation of the termination payment from taking into account as length of service the duration of military or equivalent
civilian service performed mostly by men but not that of parental leave taken most often by women.
Observations submitted to the Court
The Gewerkschaftsbund submits that, according to the settled case-law of the Oberster Gerichtshof, unpaid periods must as
a general rule be taken into account in calculating the amount of the termination payment, as long as the employment relationship
is maintained.
It considers that there are no real differences between Group A (workers performing military or civilian service) and Group
B (workers on parental leave) defined in the national court’s Questions 1 and 2.
Thus it is not correct to state that, unlike military service, performance of which is an obligation in the public interest,
parental leave, in that it expresses ‘the wish to continue caring for one’s child oneself’, rests on a voluntary basis and
is therefore exclusively within the private interest of the person concerned.
First, military service may be extended for voluntary periods. Second, taking parental leave is a necessity for women when
places in child-care centres are scarce, men are not attracted by such leave, and there are criminal penalties for failing
to comply with the obligation to look after and bring up children.
Moreover, according to the Gewerkschaftsbund, the two groups are in the same position as regards their possibility of working
during the period in question.
The Gewerkschaftsbund concludes that, from the point of view of equal pay within the meaning of Article 141 EC or Article
1 of Directive 75/117, the group of workers referred to in Paragraph 8 of the APSG is comparable with the group of women workers
subject to Paragraph 15 of the MSchG, and that it can only be concluded that the latter group suffers unjustified discrimination
in comparison with the former.
According to the Wirtschaftskammer Österreich, it is not possible to compare Group A, consisting of persons doing military
service, with Group B, consisting of persons on parental leave, in that the objectives pursued by the legislature are different
for the rules concerning each of those two groups, so that their situations cannot be regarded as comparable.
It submits that the Oberster Gerichtshof states in the order for reference that the Austrian system of entitlement to a termination
payment allows the duration of parental leave to be left out of account on the ground that that leave is taken for reasons
concerned with the worker’s interests and at the worker’s initiative.
By contrast, the worker’s interests have nothing to do with the compulsory service referred to in Paragraph 8 of the APSG.
As for service on a voluntary basis, which moreover includes the military training service open to women, the military requirements
of the State constitute the sole criterion of authorisation. In that case, the interruption of the contract of employment
serves general, in particular military, interests.
In those circumstances, the differential treatment of Groups A and B is consistent with Article 141 EC and Article 1 of Directive
75/117.
The Wirtschaftskammer Österreich adds that the main reason why Groups A and B cannot be compared is connected with the fact
that persons performing military service suffer unequal treatment based directly on their sex. That inequality consists in
the exclusion of those persons, for the duration of military or civilian service, not only from access to employment but also
from occupational training and promotion, which places them at a disadvantage compared with women. The compatibility with
Community law of advantages given to men to compensate for that unequal treatment was accepted in Case C-79/99
Schnorbus
[2000] ECR I-10997 and Case C-186/01
Dory
[2003] ECR I-2479.
The Austrian Government too considers that women workers who take parental leave in accordance with the MSchG and persons
performing military service are not in a comparable situation.
It considers that there are objective reasons which explain why those periods during which the obligations under the contract
of employment are suspended are not taken into account in the same way for calculation of the termination payment, and that
that difference is not connected with discrimination on grounds of sex prohibited by Article 141 EC.
The Commission submits that there is no need to do a comparison of the two systems of termination payments analysed above.
It submits that the Oberster Gerichtshof merely wishes to know whether Article 141 EC and Article 1 of Directive 75/117 are
to be interpreted as precluding, from the point of view of indirect discrimination, a national rule such as that in Paragraph
15f of the MSchG.
According to the Commission, there appears, moreover, to be direct discrimination on grounds of sex, in that the case in the
main proceedings relates to the failure to take account of leave which in fact concerns women employees only, since the exclusion
which follows from Paragraph 15f(1) of the MSchG applies only to women. The Commission adopts the ground chosen by the national
court, however, and examines whether there is indirect discrimination.
As regards the questions asked by the national court, the Commission submits that the question of indirect discrimination
arising from the different systems of parental leave and periods of military or civilian service, as regards the termination
payment, may be left open. A comparison of those two systems, first, adds nothing as regards a finding of discrimination,
which has already been established simply on the basis of the restriction in Paragraph 15f of the MSchG and, second, would
also be incapable of disclosing an objective reason not connected with any discrimination on grounds of sex capable of justifying
that discrimination.
In any event, the Commission considers that there is no objective reason not connected with any discrimination on grounds
of sex capable of justifying the unequal treatment of women produced by Paragraph 15f of the MSchG.
Findings of the Court
The direct discrimination alleged by the Commission would derive from the fact that, for male workers, there is no reference
to Paragraph 15f(1) of the MSchG which prescribes that periods of parental leave are not taken into account. However, it is
not disputed either by the parties to the main proceedings or by the Austrian Government or by the Commission that the legislation
in force suffices to ensure identical treatment for parental leave taken by men and women.
As regards the question put by the national court concerning the difference in treatment, from the point of view of termination
payments, between workers who take parental leave and those who perform military or civilian service, it must be recalled
that the principle of equal pay enshrined in Article 141 EC and Directive 75/117, like the principle of non-discrimination
of which it is a specific expression, assumes that the male and female workers whom it benefits are in comparable situations
(see Case C-218/98
Abdoulaye and Others
[1999] ECR I-5723, paragraph 16, and Case C-366/99
Griesmar
[2001] ECR I-9383, paragraph 39).
In the present case, parental leave is leave taken voluntarily by a worker in order to bring up a child. The voluntary nature
of such leave is not lost because of difficulties in finding appropriate structures for looking after a very young child,
however regrettable such a situation may be. Parental leave does not have the same purpose as maternity leave; it is regulated
by different legislation, and may moreover be taken at periods other than those following maternity leave.
The performance of national service, on the other hand, corresponds to a civic obligation laid down by law and is not governed
by the individual interests of the worker. The constraint imposed in the public interest on the contract of employment is
of a general nature, whatever the size of the undertaking and the employee’s length of service may be.
In the context of national service, the person called up is at the disposal of the armed forces, at a time which he does not
choose. The specific character of the obligation to do military service has, moreover, led the Court to rule that Community
law does not preclude that obligation being reserved, in a Member State, to men (the
Dory
judgment).
The circumstance that that service can be extended voluntarily does not deprive it of its character or change its purpose.
Even though the extension of military service rests on a voluntary basis, such an extension is still dictated by the satisfaction
of a requirement of a public nature by virtue of the APSG, which makes the possibility of extension subject to military requirements
(Paragraph 8 of the APSG and Paragraphs 19, 20, 23 and 37 of the Wehrgesetz).
In each case, the suspension of the contract of employment is thus based on particular reasons, more precisely the interests
of the worker and family in the case of parental leave and the collective interests of the nation in the case of national
service. As those reasons are of a different nature, the workers who benefit are not in comparable situations.
Accordingly, the answer to Questions 2 and 3 must be that Article 141 EC and Directive 75/117 do not preclude the calculation
of a termination payment from taking into account, as length of service, the duration of periods of military service or the
civilian equivalent performed mainly by men but not of parental leave taken most often by women.
Costs
The costs incurred by the Austrian 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 action pending before the
national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Grand Chamber),
in answer to the questions referred to it by the Oberster Gerichtshof by order of 22 May 2002, hereby rules:
1.
The benefit, for persons performing military service or, as an alternative, compulsory civilian service which may be extended
voluntarily, consisting in the taking into account, for calculation of a termination payment they might subsequently be entitled
to claim, of the duration of that service is to be regarded as part of their pay within the meaning of Article 141 EC.
2.
Article 141 EC and 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 do not preclude the calculation of a termination
payment from taking into account, as length of service, the duration of periods of military service or the civilian equivalent
performed mainly by men but not of parental leave taken most often by women.
Skouris
Jann
Timmermans
Rosas
Puissochet
Cunha Rodrigues
Schintgen
Macken
Colneric
von Bahr
Silva de Lapuerta
Delivered in open court in Luxembourg on 8 June 2004.
R. Grass
V. Skouris
Registrar
President
–
Language of the case: German.