Opinion of the Advocate General — ECLI:EU:C:2014:2473
Date: 2014-12-18
Language of the case: French
Subject matter: Approximation of laws;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Fourth Chamber), 21 May 2015 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 — Rights connected with the employment contract — Maintenance of a payment or entitlement to an adequate allowance — Condition — National legislation requiring, in the context of employment, the completion of a minimum contribution period in order to be eligible to receive a maternity allowance — Refusal to grant that allowance to an established public servant assigned non-active status for personal reasons in order to work as a salaried employee, who had not completed, in the context of that employment, the minimum contribution period required in order to be eligible to receive certain social benefits, despite the fact that she had worked for over 12 months immediately prior to the presumed date of confinement — Unlawful (Art. 118A EEC; Art. 153 TFEU; Council Directive 92/85, Recital 17 and Arts 8 and 11(2)(b) and 4, para. 2) 2. EU law — Interpretation — Methods — Literal, systematic and teleological interpretation 1. The second subparagraph of Article 11(4) 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 precluding a Member State from granting a worker a maternity allowance on the ground that, as an established public servant having obtained non-active status for personal reasons in order to work as a salaried employee, she has not completed, in the context of her work as a salaried employee, the minimum contribution period required under national law in order to be eligible to receive that maternity allowance, even if she has worked for over 12 months immediately prior to the presumed date of confinement. The objective of Directive 92/85, which was adopted on the basis of Article 118A of the EEC Treaty, to which Article 153 TFEU corresponds, is to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding. In that context, and as can be seen from the 17th recital in the preamble to Directive 92/85, in view of the risk that the provisions relating to maternity leave would be ineffective if rights connected with the employment contract were not maintained, the EU legislature provided, in Article 11(2)(b) of Directive 92/85, that maintenance of a payment to, and/or entitlement to an adequate allowance for workers to whom the directive applies must be ensured in the case of the maternity leave referred to in Article 8 of that directive. To require a new minimum contribution period upon each change of employment status or post would amount to undermining the minimum level of protection laid down in Article 11(2) of Directive 92/85 where the worker concerned has not completed the six-month minimum contribution period in her new post, even though she has completed periods of employment in excess of 12 months immediately prior to the presumed date of confinement. In that respect, neither the second subparagraph of Article 11(4) of Directive 92/85 nor any other provision of that directive lays down any condition as to the nature of those periods of employment. In those circumstances, the ‘periods of previous employment’ referred to in that provision cannot be limited solely to the employment ongoing prior to the presumed date of confinement. Those periods of employment must be understood as comprising the various successive posts occupied by the worker concerned prior to that date, including for different employers and under various employment statuses. (see paras 40, 41, 44-46, 49, 51, operative part) 2. See the text of the decision. (see para. 43)