Opinion of the Advocate General — ECLI:EU:C:2004:767
Date: 2004-12-02
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Ireland

Summary of the Judgment 1. Social policy — Male and female workers — Equal pay — Article 141 EC and Directive 75/117 — Scope — Sick-leave scheme treating identically women suffering from a pregnancy-related illness and other workers suffering from an illness unrelated to pregnancy — Included (Art. 141 EC; Council Directive 75/117) 2. Social policy — Male and female workers — Equal pay — Illness arising prior to maternity leave — Pregnancy-related illness — Absence exceeding a certain period — Reduction in pay — Absences offset against the maximum total number of days of paid sick leave over a specified period — Discrimination on grounds of sex — None (Art. 141 EC; Council Directive 75/117) 1. A sick-leave scheme which treats identically female workers suffering from a pregnancy-related illness and other workers suffering from an illness that is unrelated to pregnancy comes within the scope of Article 141 EC and Directive 75/117 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women. Such a scheme defines the conditions governing maintenance of the worker’s pay in the event of absence on grounds of illness. It makes the maintenance of full pay subject to the condition that a maximum annual period of sick leave is not exceeded and, if that period is exceeded, it provides for the maintenance of pay at 50% of its level for a maximum total period determined over the course of four years. Such a scheme, which results in a reduction in pay and subsequently in an exhaustion of entitlement to pay, operates automatically on the basis of an arithmetical calculation of the days of absence on grounds of illness. (see paras 31-32, 35, operative part 1) 2. Article 141 EC and Directive 75/117 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women must be construed as meaning that the following do not constitute discrimination on grounds of sex: – a rule of a sick-leave scheme which provides, in regard to female workers absent prior to maternity leave by reason of an illness related to their pregnancy, as also in regard to male workers absent by reason of any other illness, for a reduction in pay in the case where the absence exceeds a certain duration, provided that the female worker is treated in the same way as a male worker who is absent on grounds of illness and provided that the amount of payment made is not so low as to undermine the objective of protecting pregnant workers; – a rule of a sick-leave scheme which provides for absences on grounds of illness to be offset against a maximum total number of days of paid sick-leave to which a worker is entitled over a specified period, whether or not the illness is pregnancy-related, provided that the offsetting of the absences on grounds of pregnancy-related illness does not have the effect that, during the absence affected by that offsetting after the maternity leave, the female worker receives pay that is lower than the minimum amount to which she was entitled during the illness which arose while she was pregnant. (see paras 59-62, 65, 67, 69, operative part 2)