Opinion of the Advocate General — ECLI:EU:C:1999:120
Date: 1999-03-04
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. Social policy— Men and women— Equal pay— Pay— Meaning— Christmas 
bonus paid as an incentive or as a reward for loyalty to the undertaking — Covered — 
Article 11 (2) of Directive 92/85 — Not applicable 
(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 
EC to 143 EC); Council Directive 92/85, Art. 11(2)(b)) 
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SUMMARY — CASE C-333/97 
2. Social policy — Men and women — Equal pay — Whether women on parenting leave 
may be excluded from a Christmas bonus, classed as retroactive pay — Not 
permissible — Whether the bonus may be reduced because of absences on motherhood 
protection leave — Not permissible — Article 11 (2) of Directive 92/85 and Clause 2(6) 
of the Annex to Directive 96/34 — Not applicable 
(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 
EC to 143 EC); Council Directives 92/85, Art. 11(2), and 96/34, Annex, Clause 2(6)) 
1. A Christmas bonus paid by way of a 
special benefit at Christmas constitutes 
pay within the meaning of Article 119 
of the Treaty (Articles 117 to 120 of 
the Treaty have been replaced by 
Articles 136 EC to 143 EC), even if it 
is paid voluntarily and even if it is paid 
mainly or exclusively as an incentive 
for future work or loyalty to the 
undertaking or both. For the purposes 
of Article 119, the reason for which an 
employer pays a benefit is of little 
importance provided that the benefit is 
granted in connection with employ­
ment. 
However, such a bonus does not fall 
within the concept of payment within 
the meaning of Article ll(2)(b) 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 breast­
feeding. 
2. Article 119 of the Treaty (Articles 117 
to 120 of the Treaty have been replaced 
by Articles 136 EC to 143 EC) pre­
cludes an employer from excluding 
female workers on parenting leave 
entirely from the benefit of a bonus 
paid voluntarily as an exceptional 
allowance at Christmas without taking 
account of the work done in the year in 
which the bonus is paid or of the 
periods for the protection of mothers 
(in which they were prohibited from 
working) where that bonus is awarded 
retroactively as pay for work per­
formed in the course of that year. 
However, Article 119 does not pre­
clude a refusal to pay such a bonus to 
a woman on parenting leave where the 
award of that allowance is subject to 
the sole condition that the worker be in 
active employment when it is awarded. 
Moreover, although Article 119 does 
not preclude an employer, when grant­
ing that bonus, from taking periods of 
parenting leave into account, so as to 
reduce the benefit pro rata, it does 
preclude the employer from taking 
periods for the protection of mothers 
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LEWEN V DENDA 
(in which they were prohibited from 
working) into account for the same 
purpose. 
Neither Article 11(2) 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 breastfeed­
ing nor Clause 2(6) of the Annex to 
Directive 96/34 on the framework 
agreement on parental leave concluded 
by UNICE, CEEP and the ETUC covers 
the payment of the above bonus; 
consequently, neither provision pre­
cludes a refusal to pay the bonus or 
the taking into account of the afore­
mentioned periods. 
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