Opinion of the Advocate General — ECLI:EU:C:2009:508
Date: 2009-09-03
Language of the case: German
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. 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 to 8 and 11(1) to (3)) 2. 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(3), and 11(1)) 3. 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 8 and 11(2) and (3)) 1. Article 11(1) to (3) of Council 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) has direct effect and gives rise, for the benefit of individuals, to rights they can rely on against a Member State that has failed to implement that directive in national law or has implemented it incorrectly, rights that the national courts are required to protect. That provision imposes on Member States, in unequivocal terms, a precise obligation as to the result to be achieved which consists in ensuring, following the adjustment of the working conditions, a temporary transfer to another job and, during the periods of absence from work during pregnancy referred to in Articles 5 to 7 thereof and maternity leave referred to in Article 8, the employment rights of pregnant workers and workers who have recently given birth or are breastfeeding and the maintenance of payment and/or entitlement to an adequate allowance. (see paras 46, 53, operative part 1) 2. 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 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 before her pregnancy began with the exception of the on-call duty allowance. Although, that provision leaves the Member States a certain latitude when defining the conditions for the exercise and implementation of the entitlement to an income for the pregnant workers temporarily granted leave from work on account of their pregnancy, the exercise of that discretion cannot undermine the objective of protecting safety and health of pregnant workers pursued by Directive 92/85, nor can it disregard the fact that leave is a protective measure of last resort which is required only where a temporary transfer to another job is technically and/or objectively unfeasible or cannot reasonably be required on duly substantiated grounds. Where the Member States and, where appropriate, management and labour choose, in accordance with Article 11(1), to ensure that a pregnant worker who is granted leave or is prohibited from working in accordance with Article 5(3) of that directive receives an income in the form of a payment, an adequate allowance or a combination of the two, that income must in any event be made up of that worker’s basic monthly salary and the pay components or supplements relating to her occupational status – which is in not in any way affected by the leave granted – such as allowances relating to the seniority of the worker concerned, her length of service and her professional qualifications. (see paras 67-68, 72, 76, operative part 2) 3. Article 11(2) and (3) of Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant 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 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 before the beginning of her maternity leave, with the exception of the on-call duty allowance. In accordance with Article 11(2) and (3) of the directive, during maternity leave, the employer must ensure that workers continue to receive a payment and/or entitlement to an adequate allowance, and the income guaranteed to female workers during maternity leave must be adequate within the meaning of Article 11(3). 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 the person concerned to continue to receive full pay or the payment of the on-call duty allowance. However, Article 11(2) and (3) of Directive 92/85 provides only for minimum protection with respect to the entitlement to income of pregnant workers who have been granted leave from work during their maternity leave under Article 8 of that directive. No provision of the directive prevents the Member States or, where appropriate, management and labour from providing that a pregnant worker should continue to receive all the pay components and allowances, including the on-call duty allowance, to which she was entitled before her pregnancy and maternity leave. If the pay scheme provided for by national legislation constitutes a protective measure more favourable to workers on maternity leave than that required by Directive 92/85, the exclusion of certain pay components from the calculation of the income due during maternity leave cannot regarded as contrary to Article 11(2) and (3) of that directive. (see paras 85-86, 88, 90-91, operative part 3)