Judgment — ECLI:EU:C:2016:564
Date: 2016-07-14
Language of the case: Italian
Court formation: Eighth Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary — Judgment of the Court (Eighth Chamber), 14 July 2016 1. Social policy — Male and female workers — Equal pay — Article 119 of the Treaty and Directive 75/117 — Protection of the safety and health of workers — Pregnant workers and workers who have recently given birth or are breastfeeding — Directive 92/85 — Maternity leave — Maintenance of pay or an adequate allowance —Definition — Member State not providing for the maintenance of all the elements of a magistrate’s pay during her maternity leave — That magistrate was not entitled to receive an allowance in respect of the costs incurred in the performance of professional functions — Lawfulness — Condition — Receipt during that period of an income in an amount at least equivalent to that of the benefit provided for under national social security legislation that she would have received in the event of a break in her activities on health grounds — Verification by the national court (Art. 141 EC; Council Directives 75/117, Arts 1 and 92/85, Art. 11) 2. Social policy — Male and female workers — Equal pay — Maternity leave — No obligation to maintain full pay — Criteria for the determination of the level of benefit paid — None, subject to respecting the purpose of maternity leave — Requirement, where there is a correlation between the previous salary and the benefit, to take account of pay rises awarded subsequently (Art. 141 EC; Council Directive 75/117) 1. Article 119 of the EC Treaty (subsequently Article 141 EC), Article 1 of 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, and Articles 11(2)(b) and 11(3) of Directive 92/85 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, must be interpreted, in a situation where the Member State concerned did not provide for the maintenance of all the elements of pay to which an ordinary magistrate was entitled before her maternity leave, as not precluding a national law under which, in the case of a period of compulsory maternity leave taken prior to 1 January 2005, an ordinary magistrate is not entitled to receive an allowance in respect of costs that ordinary magistrates incur in the performance of their professional functions, provided that that worker received, during that period, an income in an amount at least equivalent to that of the benefit provided for under national social security legislation which she would have received in the event of a break in her activities on grounds connected with her state of health, which is a matter for the national court to determine. The concept of pay used in Article 11 of Directive 92/85, like the definition in Article 119 of the EC Treaty (subsequently Article 141 EC), encompasses the consideration paid directly or indirectly by the employer during the worker’s maternity leave in respect of her employment. By contrast, the concept of allowance to which that provision also refers includes all income received by the worker during her maternity leave which is not paid to her by her employer pursuant to the employment relationship. It is thus necessary to distinguish the concepts of ‘payment’ referred to in Article 11(2) and (3) of Directive 92/85 from the concept of ‘full pay’ received when the person is actually working and which, in the present case, includes the special judicial allowance related to expenses that ordinary magistrates incur in the performance of their professional functions. In that regard, the legislature of the European Union wished to ensure that, during her maternity leave, the worker should receive an income of an amount at least equivalent to that of the allowance provided for by national social security legislation in the event of a break in her activities on health grounds. When a worker is absent from work because she is on maternity leave, the minimum protection required by Article 11(2) and (3) of Directive 92/85 does not therefore require that the person concerned should continue to receive full pay. Furthermore, the mere fact that an ordinary magistrate was not entitled to the special judicial allowance during a period of compulsory maternity leave, unlike her male colleagues who were working, does not constitute discrimination on the grounds of sex within the meaning of Article 119 of the EC Treaty (subsequently Article 141 EC) and Article 1 of Directive 75/117. (see paras 30, 32-34, 41, 44, operative part) 2. See the text of the decision. (see para. 40)