Opinion of the Advocate General — ECLI:EU:C:1999:83
Date: 1999-02-23
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
Social policy — Men and women — Equal pay — Termination payment for workers who 
resign after the birth of a child where there is a lack of child-care facilities — Payment 
reduced in relation to that received by workers resigning for an important reason related 
to working conditions or to the employer's conduct — Whether this constitutes indirect 
discrimination — No indirect discrimination — Whether child-care facilities are private 
or operated by the public services — Irrelevant 
(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 
EC to 143 EC)) 
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SUMMARY — CASE C-249/97 
Article 119 of the Treaty (Articles 117 to 
120 of the EC Treaty have been replaced by 
Articles 136 EC to 143 EC) does not 
preclude national legislation granting a 
termination payment to workers who end 
their employment relationship prematurely 
in order to take care of their children owing 
to a lack of child-care facilities for them, 
under which that payment is reduced in 
relation to that received, for the same 
actual period of employment, by workers 
who give notice of resignation for an 
important reason related to working con­
ditions in the undertaking or to the employ­
er's conduct. 
The exclusion from the full termination 
payment of workers who resign from 
employment for reasons of maternity does 
not constitute an indirectly discriminatory 
measure, if it does not put them at a 
disadvantage in relation to other workers 
who are in an identical or similar situation. 
In this case, the groups to be compared are 
workers who resign for reasons of mater­
nity, on the one hand, and those who resign 
without any important reason, on the other. 
Workers who resign for reasons of mater­
nity are not to be compared with those who 
resign for an important reason related to 
working conditions in the undertaking or 
to the employer's conduct, since the situa­
tion of such workers — in which continued 
work is impossible — is in substance and 
origin different from the situation of work­
ers who resign because of maternity. 
The fact that in the Member State in 
question nurseries are mostly run by the 
public services or with their financial 
support is irrelevant in this connection. 
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