Opinion of the Advocate General — ECLI:EU:C:2009:796
Date: 2009-12-17
Language of the case: Finnish
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Finland

Summary of the Judgment Social policy – Protection of the safety and health of workers – Pregnant workers and workers who have recently given birth or are breastfeeding – Directive 92/85 (Council Directive 92/85, Arts. 5(2), and 11(1)) Article 11(1) 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 (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391) must be interpreted as meaning that a pregnant worker who, in accordance with Article 5(2) thereof, has been temporarily transferred on account of her pregnancy to a job in which she performs tasks other than those she performed before that transfer, is not entitled to the pay she received on average before that transfer. In addition to the maintenance of her basic salary, such a worker is entitled, pursuant to Article 11(1), to pay components or supplementary allowances relating to her professional status, such as allowances relating to her seniority, her length of service and her professional qualifications. Although Article 11(1) of Directive 92/85 does not preclude the use of a method of calculating remuneration to be paid to such a worker based on the average amount of the allowances linked to working conditions of all the air crew in the same pay grade during a given reference period, the failure to take account of those pay components or supplementary allowances must be regarded as contrary to the latter provision. However, the Member States and, where appropriate, management and labour, are not required pursuant to Article 11(1) of Directive 92/85, to maintain, during the temporary transfer, the pay components or supplementary allowances which, as is clear from paragraph 53 of this judgment, are dependent on the performance by the worker concerned of specific functions in particular circumstances and which are intended essentially to compensate for the disadvantages related to that performance. Article 11(1) 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 (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391) must be interpreted as meaning that a pregnant worker who, in accordance with Article 5(2) thereof, has been temporarily transferred on account of her pregnancy to a job in which she performs tasks other than those she performed prior to that transfer, is not entitled to the pay she received on average prior to that transfer. In addition to the maintenance of her basic salary, such a worker is entitled, pursuant to Article 11(1), to pay components or supplementary allowances relating to her professional status, such as allowances relating to her seniority, her length of service and her professional qualifications. Although Article 11(1) of Directive 92/85 does not preclude the use of a method of calculating remuneration to be paid to such a worker based on the average amount of the allowances linked to working conditions of all the air crew in the same pay grade during a given reference period, the failure to take account of those pay components or supplementary allowances must be regarded as contrary to the latter provision. Article 11(1) of Directive 92/85/EEC 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) must be interpreted as meaning that a pregnant worker who, in accordance with Article 5(2) thereof, has been temporarily transferred on account of her pregnancy to a job in which she performs tasks other than those she performed prior to that transfer, is not entitled to the pay she received on average prior to that transfer. In addition to the maintenance of her basic salary, such a worker is entitled, pursuant to Article 11(1), to pay components or supplementary allowances relating to her professional status, such as allowances relating to her seniority, her length of service and her professional qualifications. Although Article 11(1) of Directive 92/85 does not preclude the use of a method of calculating remuneration to be paid to such a worker based on the average amount of the allowances linked to working conditions of all the air crew in the same pay grade during a given reference period, the failure to take account of those pay components or supplementary allowances must be regarded as contrary to the latter provision. (see paras 61, 73, operative part)