# C_2010234EN.01000402.xml

| 28.8.2010 | EN | Official Journal of the European Union | C 234/4 |
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28.8.2010

EN

Official Journal of the European Union

C 234/4

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Judgment of the Court (Third Chamber) of 1 July 2010 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Susanne Gassmayr v Bundesminister für Wissenschaft und Forschung

(Case C-194/08) (1)

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(Social policy - Directive 92/85/EEC - 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 - Articles 5(3) and 11(1) to (3) - Direct effect - Pregnant worker granted leave during her pregnancy - Worker on maternity leave - Right to payment of an on-call duty allowance)

2010/C 234/06

Language of the case: German

Referring court

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Parties to the main proceedings

Applicant: Susanne Gassmayr

Applicant:

Defendant: Bundesminister für Wissenschaft und Forschung

Defendant:

Re:

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof — Interpretation of Article 11(1), (2) and (3) of 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 (OJ 1992 L 348, p. 1) — Direct effect — Right of a female worker, during periods when pregnant workers are prohibited from working and/or during maternity leave, to a non-flat-rate allowance for on-call duty outside normal working hours (‘Journaldienstzulage’).

Operative part of the judgment

Operative part of the judgment

| 1. | Article 11(1) of 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) has direct effect and gives rise, for the benefit of individuals, to rights which they can rely on against a Member State which has failed to implement that directive in national law or has implemented it incorrectly, and which the national courts are required to protect; |
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1.

Article 11(1) of 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) has direct effect and gives rise, for the benefit of individuals, to rights which they can rely on against a Member State which has failed to implement that directive in national law or has implemented it incorrectly, and which the national courts are required to protect;

| 2. | Article 11(1) of Directive 92/85 must be interpreted as not precluding national legislation which provides that a pregnant worker temporarily granted leave from work on account of her pregnancy is entitled to pay equivalent to the average earnings she received during a reference period prior to the beginning of her pregnancy with the exception of the on-call duty allowance; |
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2.

Article 11(1) of Directive 92/85 must be interpreted as not precluding national legislation which provides that a pregnant worker temporarily granted leave from work on account of her pregnancy is entitled to pay equivalent to the average earnings she received during a reference period prior to the beginning of her pregnancy with the exception of the on-call duty allowance;

| 3. | Article 11(2) and (3) of Directive 92/85 must be interpreted as not precluding national legislation which provides that a worker on maternity leave is entitled to pay equivalent to the average earnings she received during a reference period prior to the beginning of her maternity leave with the exception of the on-call duty allowance. |
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3.

Article 11(2) and (3) of Directive 92/85 must be interpreted as not precluding national legislation which provides that a worker on maternity leave is entitled to pay equivalent to the average earnings she received during a reference period prior to the beginning of her maternity leave with the exception of the on-call duty allowance.

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(1)  OJ C 197, 2.8.2008.

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