Opinion of the Advocate General — ECLI:EU:C:2003:521
Date: 2003-09-30
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: United Kingdom

Summary of the Judgment 1. Social policy – Men and women – Equal pay – Maternity leave – Determining the pay received during maternity leave – Criteria – Obligation to include a pay rise awarded between the beginning of the period covered by the reference pay and the end of the maternity leave – Conditions (EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 EC to 143 EC)) 2. Social policy – Approximation of laws – Protection of the safety and health of workers – Pregnant workers and workers who have recently given birth or are breastfeeding – Directive 92/85 – Pay received during maternity leave – Obligation on the Member States to determine how any pay rise is to be included (Council Directive 92/85) 1. Article 119 of the Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 to 143 EC) must be interpreted as requiring that, in so far as the pay received by the worker during her maternity leave is determined at least in part on the basis of the pay she earned before her maternity leave began, any pay rise awarded between the beginning of the period covered by the reference pay and the end of the maternity leave must be included in the elements of pay taken into account in calculating the amount of such pay. This requirement is not limited to cases where the pay rise is back-dated to the period covered by the reference pay. (see para. 50, operative part 1) 2. Absent any Community legislation in this sphere, it is for the competent national authorities to determine how, in compliance with all the provisions of Community law, and in particular 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, any pay rise awarded before or during maternity leave must be included in the elements of pay used to calculate the pay due to a worker during maternity leave. (see para. 56, operative part 2)