OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 17 December 2009 1( )

Case C‑471/08

Sanna Maria Parviainen

v

Finnair Oyj

(Reference for a preliminary ruling from the Helsingin käräjäoikeus (Finland))

(Social policy – Protection of the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding − Directive 92/85/EEC − Articles 5 and 11(1) − Continuation of adequate pay and/or allowance − Worker transferred to another job during her pregnancy − Transfer on account of risk to her health and that of her child − Pay less than that received before temporary transfer to another job − Previous pay consisting of monthly salary and allowances)

I – Introduction

1. This reference for a preliminary ruling, submitted by the Helsingin käräjäoikeus (Helsinki District Court) (Finland), by a decision of 30 October 2008, seeks interpretation of Article 11(1) of Council Directive 92/85/EEC of 19 October 1992 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/EEC). ( ) The reference arises from a dispute between Ms Parviainen, an air hostess and purser who, on account of pregnancy, was transferred to a less well-paid ground job with Finnair Oyj. She seeks pay which is at least equivalent to that which she received when she worked as a purser before she was assigned to ground work.

2. The present proceedings have given the Court an opportunity for the first time to interpret the provisions of Article 11(1) of Directive 92/85 in a situation where a pregnant worker continues to work after temporary assignment to a new job.

II – Legal context

A – Community law

3. The ninth recital in the preamble to Directive 92/85 states that the protection of the safety and health of pregnant workers, workers who have recently given birth or workers who are breastfeeding should not treat women on the labour market unfavourably nor work to the detriment of directives concerning equal treatment for men and women.

4. The eighth recital in the preamble to Directive 92/85 states that pregnant workers, workers who have recently given birth or who are breastfeeding must be considered a specific risk group in many respects, and measures must be taken with regard to their safety and health.

5. Article 4(1) of the same directive, entitled ‘Assessment and information’, provides as follows:

‘For all activities liable to involve a specific risk of exposure to the agents, processes or working conditions of which a non-exhaustive list is given in Annex I, the employer shall assess the nature, degree and duration of exposure, in the undertaking and/or establishment concerned, of workers within the meaning of Article 2, either directly or by way of the protective and preventive services referred to in Article 7 of [Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1)] in order to:

– assess any risks to the safety or health and any possible effect on the pregnancies or breastfeeding of workers within the meaning of Article 2,

– decide what measures should be taken.’

6. Article 5 of the same directive, entitled ‘Action further to the results of the assessment’, is worded as follows:

‘1. Without prejudice to Article 6 of Directive 89/391/EEC, if the results of the assessment referred to in Article 4(1) reveal a risk to the safety or health or an effect on the pregnancy or breastfeeding of a worker within the meaning of Article 2, the employer shall take the necessary measures to ensure that, by temporarily adjusting the working conditions and/or the working hours of the worker concerned, the exposure of that worker to such risks is avoided.

2. If the adjustment of her working conditions and/or working hours is not technically and/or objectively feasible, or cannot reasonably be required on duly substantiated grounds, the employer shall take the necessary measures to move the worker concerned to another job.

3. If moving her to another job is not technically and/or objectively feasible or cannot reasonably be required on duly substantiated grounds, the worker concerned shall be granted leave in accordance with national legislation and/or national practice for the whole of the period necessary to protect her safety or health.

…’

7. Under Article 8(1) of Directive 92/85, the Member States must take the necessary measures to ensure that workers who are pregnant, who have recently given birth or are breastfeeding within the meaning of Article 2 are entitled to a continuous period of maternity leave of at least 14 weeks allocated before and/or after confinement in accordance with national legislation and/or practice.

8. Article 11 of the same directive, entitled ‘Employment rights’, is worded as follows:

‘In order to guarantee workers within the meaning of Article 2 the exercise of their health and safety protection rights as recognised in this Article, it shall be provided that:

1. in the cases referred to in Articles 5, 6 and 7, the employment rights relating to the employment contract, including the maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2, must be ensured in accordance with national legislation and/or national practice;

2. in the case referred to in Article 8, the following must be ensured:

(a) the rights connected with the employment contract of workers within the meaning of Article 2, other than those referred to in point (b) below;

(b) maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2;

3. the allowance referred to in point 2(b) shall be deemed adequate if it guarantees income at least equivalent to that which the worker concerned would receive in the event of a break in her activities on grounds connected with her state of health, subject to any ceiling laid down under national legislation;

…’

9. Annex I to Directive 92/85, to which Article 4 of the directive refers, mentions ionising radiation and non-ionising radiation, in particular, as physical agents causing foetal lesions and/or likely to disrupt placental attachment.

B – National legislation

10. The Law on equality between men and women (naisten ja miesten välisestä tasa-arvosta annettu laki (609/1986)) governs the prohibition of discrimination based on sex.

11. Under Paragraph 7(1) of the abovementioned Law, as amended by Law 232/2005, direct and indirect discrimination based on sex is prohibited. According to Paragraph 7(2), direct discrimination is also to be understood as meaning treating a person differently for reasons of pregnancy or childbirth.

12. Under the second subparagraph of Paragraph 8(1) of the Law on equality between men and women, as amended by Law 232/2005, the action of an employer is to be deemed to constitute discrimination prohibited by law if the employer, when deciding on the terms of employment, acts in such a way that the person concerned is placed in a less favourable position for a reason relating to pregnancy, childbirth or for some other gender-related reason.

13. Under Paragraph 2 of Chapter 2 of the Law on employment contracts (työsopimuslaki (55/2001)), an employer may not, without a valid reason, treat workers differently by reason of their age, state of health, disability, national or ethnic origin, nationality, sexual orientation, language, religion, opinion, conviction, family relations, trade union activities, political activities or other comparable grounds.

14. Under Paragraph 3 of Chapter 2 of the Law on employment contracts, if the working duties or working conditions of a pregnant worker endanger the health of the worker or that of the foetus, and if the risk factor arising from the work or conditions of employment cannot be eliminated, every effort must be made to transfer the worker concerned to other duties suitable in terms of her working capacity and skills for the period of pregnancy.

15. There is a similar provision in Paragraph 11(2) of Chapter 2 of the Law on safety at work (työturvallisuuslaki (738/2002)).

16. Under Paragraph 4(3) of the Law on collective agreements (työehtosopimuslaki (436/1946)), such an agreement binds employers and workers who are or were members of an association bound by a collective agreement when it was in force. Such employers and workers must abide by the provision of the collective agreement concerned in the contracts of employment which they conclude between themselves.

17. Paragraph 4 of Chapter 9 of the Law on sickness insurance (sairausvakuutuslaki (1224/2004)) provides that a pregnant worker who is paid for her work is entitled to receive special maternity benefits (‘erityisäitiysraha’) if a chemical substance, radiation, a transmissible illness associated with her occupational tasks or conditions of work or any other comparable factor endangers her health or that of the foetus. The payment of such benefits is subject to the condition that the insured person is capable of working and the condition that it is impossible to organise other work for her within the meaning of Paragraph 3(2) of Chapter 2 of the Law on employment contracts, and that the insured person is required for that reason not to work.

18. Pay for maternity leave and special maternity leave is governed by Paragraph 16(B) of the collective agreement for air crew (matkustamohenkilökunnan työehtosopimus), concluded by the trade union of air hostess and stewards of Finland and the employers’ union for service sectors, which was in force between 1 April 2005 and 30 September 2007.

19. According to Paragraph 16(B)(2) of the abovementioned agreement, an air hostess may stop in-flight work immediately after she is found to be pregnant. Without prejudice to grounds of health, in-flight work is allowed until the 18th week of pregnancy at the latest.

20. Under Paragraph 16(B)(3), an air hostess may, on request, be transferred to other work provided by the employer during pregnancy. On request, the employer is to provide other work until the date of commencement of maternity benefits (‘äitiyspäiväraha’) referred to by the Law on sickness insurance.

21. The Finnish legislation contains no express provision for determining pay where a pregnant worker is transferred to different tasks.

22. According to Paragraph 16(B)(4) of the collective agreement for air crew, the pay referred to in Paragraph 16(B)(1) and (3) is paid up to the amount for annual holidays. If an air hostess refuses the work assigned to her, she loses the right to the abovementioned pay.

III – The main proceedings, the question referred and the procedure before the Court

23. Ms Parviainen has been employed by Finnair Oyj as an air hostess since 8 April 1998. She was promoted to the post of purser in October 2005.

24. She became pregnant at the beginning of 2007. The date of confinement was 16 October 2007.

25. On account of her pregnancy, the applicant in the main proceedings was transferred to ground duties, namely office work, on 30 April 2007. She remained in that post until 15 September 2007, when her maternity leave began. The transfer took place in accordance with the provisions of Article 5(1) and (2) of Directive 92/85, the relevant provisions of the Finnish Law on employment contracts and the Law on safety at work, and also the collective agreement for air crew. It is clear from the file that the transfer was due to the fact that the work of the applicant in the main proceedings exposed her to physical agents, such as ionising and non-ionising radiation, which could cause foetal lesions.

26. It appears from the order for reference that a substantial part of the overall pay of the applicant in the main proceedings, as a purser, is made up of supplementary allowances, that is to say, supervisor’s allowances and other allowances. According to the statements made at the hearing before the Court by the defendant in the main proceedings, the applicant in the main proceedings could therefore receive, amongst others, an allowance for overtime when she worked more than 95 hours per month, allowances for night work, work on Sundays and on holidays, an overtime allowance if the working day exceeded eight hours, and allowances for long-haul flights and flights entailing a time difference. According to the referring court, these allowances represented approximately 40% of her total pay before she was transferred. Her basic monthly salary is EUR 1 821.76 and her average monthly salary is EUR 3 383.04. According to the information provided by the referring court, the allowances paid to workers may vary considerably, depending on whether an individual has a supervisory role such as a purser or is an air hostess or steward. In addition, the number of hours worked by persons with the same pay grade may vary considerably, which affects the amount of allowances.

27. It is also clear from the file that on 20 June 1989 the defendant in the main proceedings adopted a decision concerning the determination of the amount of pay for ground work to be paid to air hostesses during pregnancy, in accordance with the local agreement between management and labour, tied to the collective agreement for air crew. Pursuant to that decision, the defendant in the main proceedings pays air hostesses who are assigned to ground work on account of pregnancy an amount equal to the pay for annual paid holidays for the period in question. That amount consists of the basic monthly pay and the allowance for annual holidays, the ‘lisäpäiväpalkka’. The latter allowance is calculated from the average daily ‘lisäpäiväpalkka’ allowances for all the air hostesses and stewards in the same pay grade. According to the figures provided by the defendant in the main proceedings, all allowances are taken into account when calculating the ‘lisäpäiväpalkka’ allowance for annual holidays, which is an allowance paid to ground personnel in order to reduce the difference between their allowances and those of air crew.

28. After she was given temporary ground work, the total monthly pay of the applicant in the main proceedings, including her allowance as purser and the allowance for the disadvantages and working conditions of air crew, was reduced by EUR 834.56, that is to say, approximately 33% by comparison with her monthly pay in 2006.

29. According to the applicant in the main proceedings, the defendant in the main proceedings was not entitled to reduce her pay as a result of her assignment to ground work. The defendant’s action was discriminatory and contrary to Directive 92/85 and to the Finnish Law on equality between men and women. In the action before the referring court, the applicant claimed that her pay for the period in question should be at least equal to that which she received before the temporary change in her job.

30. The defendant in the main proceedings contended that the claim should be dismissed. The applicant’s pay during her pregnancy was more than that of a person who was regularly engaged on equivalent ground work.

31. Finding that the Court has not hitherto given a ruling on the proper interpretation of Article 11(1) of Directive 92/85, the Helsingin käräjäoikeus decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is Article 11(1) of Directive [92/85] to be interpreted as meaning that a worker who is transferred to other lower-paid work because of her pregnancy must, on the basis of that provision, be paid as much as she received on average before the transfer, and is it relevant in that respect what kind of allowances and on what basis the worker was paid in addition to her basic monthly pay?’

32. In accordance with Article 23 of the Statute of the Court of Justice, the applicant in the main proceedings, the Finnish and Italian Governments and the Commission of the European Communities submitted written observations to the Court. Those parties also presented oral argument at the hearing held on 17 September 2009, with the exception of the Italian Government, which was not represented at the hearing.

IV – Assessment

33. The first part of the question from the referring court is whether Article 11(1) of Directive 92/85 is to be interpreted as meaning that a worker who is transferred to other lower-paid work because of her pregnancy must be paid as much as she received on average before the transfer. In the second part of the question, the referring court, following up the argument of the defendant in the main proceedings that the particular working conditions of air crew should be taken into account, asks essentially whether, for the purpose of interpreting Article 11(1) of Directive 92/85, it is relevant that the pregnant worker’s previous pay consisted partly of a number of allowances which depended on carrying out specific functions, which is not required in the post to which the pregnant worker was temporarily assigned.

A – The first part of the question referred: interpretation of Article 11(1) of Directive 92/85

34. First of all, it must be observed that the referring court has not considered the direct horizontal effect, if any, of Article 11(1) of Directive 92/85 which it has asked the Court to interpret, even though the dispute before it is between private parties.

35. On that point, it must be borne in mind that, according to settled case-law, a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual, so that even a clear, precise and unconditional provision of a directive seeking to confer rights or impose obligations on individuals cannot of itself apply in proceedings exclusively between private parties. ( )

36. However, when it applies domestic law, a national court is bound to interpret that law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 249 EC. ( )

37. I observe that the referring court has not stated which particular provision of domestic law gave effect to Article 11(1) of Directive 92/85. As the latter provision can be validly implemented, at least in part, by means of national practices, ( ) that is to say, collective agreements between management and labour, which are known to have a traditional role in determining pay in the Nordic countries, ( ) it will also be for the referring court, which is trying an action against the decision on pay by the defendant in the main proceedings, which was adopted on the basis of the collective agreement for air crew, to apply that agreement, so far as possible, in the light of the wording and the purpose of Directive 92/85.

38. That being so, the central issue arising from the first part of the question referred is whether, by virtue of Article 11(1) of Directive 92/85, a pregnant worker, an air hostess, who has been transferred to ground work on account of pregnancy, is entitled to the full amount of pay received before she was temporarily transferred or whether, on the other hand, her employer may, during the period of ground work, pay her less, but at least an amount which is equal to that paid to ground workers, on the basis of the collective agreement for air crew.

39. Under Article 11(1) of Directive 92/85, where a pregnant worker is moved to another job (Article 5(2) of the directive) in order to avoid the risk of exposure to agents or conditions which jeopardise her safety or health (Article 6 of the directive), such as night work (Article 7), she must be guaranteed ‘the employment rights relating to the employment contract, including the maintenance of a payment to, and/or entitlement to an adequate allowance … in accordance with national legislation and/or national practice’.

40. The parties who submitted observations to the Court disagree on the interpretation of the part of Article 11(1) of Directive 92/85 reproduced in the preceding point.

41. According to the applicant in the main proceedings and the Commission, it means that a pregnant worker who continues to work during pregnancy but is moved temporarily to another job is entitled to continue to receive the whole of the pay which she was receiving before pregnancy.

42. On the other hand, while the defendant in the main proceedings and the Finnish Government take the view that Article 11(1) of Directive 92/85 requires the Member States to determine the level of pay to be paid to a pregnant worker in a situation such as that which has arisen in the main proceedings, the Italian Government appears to argue that the provision in question must be interpreted in such a way as to ensure that a pregnant worker receives adequate pay, in accordance with national legislation and/or national practice.

43. In my view, the reply to be given to the first part of the question referred depends on examination of the wording and the purpose of Directive 92/85.

44. Although the wording of Article 11(1) of Directive 92/85 is not the best, the use of the indefinite article ‘a’ in ‘a payment’ appears in principle to mean that the directive does not require the Member States to ensure that the pay received by a pregnant worker before she is moved temporarily to a new job is unalterable. ( ) That assessment appears to be supported by the reference in Article 11(1) to ‘national legislation and/or national practice’, that is to say, in particular, collective agreements. It would then be for the Member States to clarify the exact pay guaranteed to a pregnant worker covered by Article 5, in particular paragraph 2, of Directive 92/85.

45. In that connection, I note that, in Boyle and Others, ( ) the Court had to interpret a similar phrase to that in Article 11(1) of Directive 92/85, namely that in paragraph 2(b) of the same article, in the context of a pregnant woman who takes maternity leave (the situation referred to in Article 8 of the directive).

46. In that judgment, the Court found, in relation to the pay and the adequate allowance for a pregnant woman during maternity leave, that ‘although the wording of Article 11 refers only to the adequate nature of the allowance, the income guaranteed to female workers during maternity leave must none the less also be adequate within the meaning of Article 11(3) of Directive 92/85 if it is paid in the form of pay or in conjunction with an allowance, as the case may be’. ( ) It follows that, as the Court made clear in Gillespie and Others ( ) in relation to the interpretation of Article 141 EC, those provisions do not require that female workers should continue to receive full pay during maternity leave, provided that the amount is not set so low as to undermine the purpose of maternity leave.

47. However, that clarification does not mean that, by contrary inference, where a pregnant worker is moved to another job, she is necessarily entitled, in view of the wording of Article 11(1) of Directive 92/85, to continue to receive the full amount of the pay she was receiving before being temporarily transferred to that other job.

48. On that point, I observe that, in Boyle and Others, the Court stated that the adjective ‘adequate’ related not only to ‘an allowance’ referred to in Article 11(2)(b) of Directive 92/85, but to the ‘wording of Article 11’ as a whole, including, therefore, Article 11(1). Furthermore, according to that judgment, ‘adequate’ relates also to the income paid in the form of pay. The contrary interpretation, which would lead to guaranteeing pregnant workers the mere continuance of ‘a payment’, without specifying what payment, would be meaningless.

49. Therefore it may be inferred that Article 11(1) of Directive 92/85 aims, not to ensure that a pregnant worker continues to receive the pay she received before pregnancy, but to ensure that she continues to receive adequate pay.

50. However, while Article 11(3) of Directive 92/85 gives a specific criterion for determining whether the payment and/or allowance for maternity leave is adequate, when Article 11(3) states that the allowance must guarantee ‘income at least equivalent to that which the worker concerned would receive in the event of a break in her activities on grounds connected with her state of health’, thus treating maternity leave in the same way as sick leave, Article 11(3) gives no guidance for determining the adequacy of the payment and/or allowance where the pregnant worker is transferred to a job different from that which she had before pregnancy.

51. As the Community legislature is not specific, and in view of the reference in Article 11(1) of Directive 92/85 to national law and/or practice, that provision cannot be interpreted as requiring the Member States, in all the cases which it covers, to ensure that the pay received by a pregnant worker before pregnancy remains unchanged.

52. This conclusion seems to me to be confirmed by the fact that Article 11(1) of Directive 92/85 covers not only the situation of a pregnant worker who is moved temporarily to another job, provided for in Article 5(2) of the same directive, but also the situation, provided for by Article 5(3), of a pregnant worker who is granted leave for the whole of the period necessary to protect her safety or health.

53. However, if Article 11(1) of Directive 92/85 were to be interpreted as aiming at maintaining full pay, that interpretation would be tantamount to requiring the Member States to accord, on the basis of the directive itself, the same treatment to a pregnant worker who is granted leave as to a pregnant worker who continues to work. I doubt whether that was the intention of those who drafted Directive 92/85.

54. Accepting the interpretation proposed by the applicant in the main proceedings and the Commission, to the effect that Article 11(1) of Directive 92/85 compels the Member States to pay the amount paid before the change in the pregnant worker’s job, would, in my view, remove the discretion available to the Member States and embodied in the present case by the reference in the abovementioned provision to national legislation and/or national practice.

55. In addition, if the Community legislature had intended to require the Member States to ensure the maintenance of the pay received before pregnancy in the situations covered by Article 11(1) of Directive 92/85, that could have been stated clearly in the actual wording of Article 11 simply by using the definite article ‘the’ instead of the indefinite article ‘a’. ( )

56. The fact that those who drafted Directive 92/85 did not intend to word Article 11(1) in that way is explained by the purpose of the directive.

57. So far as that point is concerned, in accordance with the legal basis on which Directive 92/85 was adopted, ( ) it aims to lay down the minimum requirements for encouraging improvements in the safety and health of pregnant workers and workers who have recently given birth or who are breastfeeding by reason of the specific risks to those workers in general at the place of work. ( )

58. In relation to Article 11(1) of Directive 92/85, that purpose means that the Member States are perfectly free to take the view that adequate pay for a pregnant worker temporarily moved to a job other than the job she had before pregnancy means the full pay she was receiving for her original job.

59. However, that purpose also means that Article 11(1) in no way compels the Member States to ensure that a pregnant worker’s pay remains unchanged.

60. Nevertheless, in the second situation, it seems to me that the Member States’ discretion must be limited by the need, already mentioned, to ensure that a pregnant worker’s pay is adequate, which, in the event of a dispute, entails a factual assessment by the national court, subject to review by the Court of Justice.

61. The adequacy of the pay in question, which is a matter for assessment by the national court in the first instance, must however, in my view, be subject generally to the principle of equal pay for male and female workers for equal work or work of equal value, within the meaning of Article 141(1) EC.

62. Therefore, in a situation where a pregnant worker has to be moved temporarily to a job other than that which she had before pregnancy, in accordance with Article 5(2) of Directive 92/85, a national court must be able to satisfy itself: (a) that her pay is the same as or equivalent to that which would be given to a male or female worker who, for health reasons, has to be transferred to another job which is the same as or equivalent to that to which the pregnant worker is temporarily assigned, and (b) that a pregnant worker who is moved temporarily to a job other than that which she had before pregnancy receives at least pay which is the same as or equivalent to that of male or female workers with the same or an equivalent job.

63. With regard to (a) in the preceding point, I think it is appropriate to point out, following the same line of reasoning as that of Advocate General Poiares Maduro in his Opinion in Gassmayr, ( ) that, for the purpose of determining whether the level of protection, including the level of pay of pregnant workers, is adequate, and while pregnancy should not be equated to an illness, ( ) the Court’s case-law permits the treatment of pregnant workers to be compared to that of a male (or female) worker whose state of health necessitates the worker’s transfer to a different job. Of course, in making that comparison, it must be borne in mind that a pregnant worker’s transfer is by nature temporary, which would not necessarily be the case for male or female workers who have to be transferred to a different job for medical reasons.

64. In the main proceedings, the referring court has given no information to the Court on that point. On the other hand, with regard to (b) in point 62 above, the observations submitted by the defendant in the main proceedings and by the Finnish Government show that, in accordance with Paragraph 16(B)(4) of the collective agreement for air crew, a pregnant air hostess who is transferred to ground duties to avoid exposure to health risks receives her basic salary plus allowances for annual holidays (‘lisäpäiväpalkka’), which are calculated by reference to the average value of the allowances granted to all stewards and air hostesses in the same pay grade. It must also be observed that, as the Finnish Government stated at the hearing, when it confirmed what the defendant in the main proceedings said in its written observations, the pay of the applicant in the main proceedings was higher than that of a person working regularly on the ground. Although the referring court must verify that evidence, it seems to me that that method of determining the applicant’s pay on temporary transfer to ground work should fulfil the requirement which I have set out in (b) of point 62 above.

65. For the reasons that have just been given, I suggest that the Court’s reply to the first part of the question referred by the national court should be that Article 11(1) of Directive 92/85 must be interpreted as meaning that it does not require the Member States to ensure that a pregnant worker who is temporarily transferred to other work must be paid as much as she received on average before the transfer in question. However, the national court must ascertain whether the pregnant worker concerned is guaranteed adequate payment within the meaning of Article 11(1) of Directive 92/85 so that the principle of equal pay for male and female workers for equal work or work of equal value within the meaning of Article 141(1) EC is upheld.

B – The second part of the question referred: relevance of the rules for calculating the pay of a pregnant worker transferred to a different job

66. The second part of the question from the national court entails, in substance, determining whether, for the purpose of interpreting Article 11(1) of Directive 92/85, the rules for calculating the pay of a pregnant worker who is temporarily transferred to a job other than that which she had before pregnancy are relevant.

67. In the main proceedings, I would recall, the question before the referring court is whether, in addition to the basic monthly salary of the applicant in those proceedings, she is entitled to continue to receive various allowances, some of which are in respect, it seems, of her status as purser and others are on account of the drawbacks and working conditions of air crew.

68. I think that there is no doubt that the allowances received by the applicant in the main proceedings constitute ‘pay’ within the meaning of Article 141(2) EC, which states that ‘“pay” means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer’.

69. However, the question is whether the Member States, when deciding on the maintenance of adequate pay within the meaning of Article 11(1) of Directive 92/85, are completely free to choose the components of the pay of a pregnant worker which will be continued when she is temporarily transferred to another job.

70. On that point, I consider that their margin of discretion should be limited, not only because of the conditions I have set out in point 62 above, but also, more specifically, by the nature of the benefits constituting the pay of the worker in question.

71. It seems to me that, apart from the basic salary, the pay components which are specific to or inherent in the professional status of the worker, in particular his or her seniority and/or professional qualifications, which may include, in the main proceedings, the allowances on account of the applicant’s status of purser, should be continued irrespective of the job to which the pregnant worker is temporarily transferred.

72. On the other hand, the pay components which aim primarily to make up for the particular conditions and disadvantages of the pregnant worker’s job before she was temporarily transferred to a new job and which are precisely the reason for that transfer should not, in principle, be taken into account to determine whether the pay of a pregnant worker who is transferred to a temporary job is adequate within the meaning of Article 11(1) of Directive 92/85. ( ) Those pay components are by nature specific to the intermittent disadvantages encountered by the worker in her previous job, which she has left temporarily. Furthermore, as those benefits may vary according to many different circumstances, a court may find it difficult to decide whether the pay is adequate within the meaning of Article 11(1) of Directive 92/85.

73. The distinction which it seems to me appropriate to make between the different components of pay according to whether they are paid on account of the worker’s professional qualifications or on account of the disadvantages associated with the job she held before pregnancy also involves the principle of equal treatment of male and female workers. In my view, that distinction precludes practices which aim systematically to reduce the pay of pregnant workers who are temporarily transferred to a job other than that which they held prior to pregnancy, leaving aside the objective grounds connected with the constraints of their previous job, which are removed in order to avoid harm to their pregnancy by transferring them temporarily to a different job.

74. In my opinion, therefore, it is for the referring court to ascertain whether the pay of the applicant in the main proceedings in the job to which she has been temporarily transferred by reason of her pregnancy takes into account the pay components specific to or inherent in the status or the qualifications of the pregnant worker concerned.

75. Consequently I propose that the Court’s reply to the second part of the question referred should be that, for the purpose of determining whether the payment referred to in Article 11(1) of Directive 92/85 is adequate, it is for the national court to ascertain whether the pay of the pregnant worker in the job to which she has been temporarily transferred by reason of her pregnancy takes into account the components specific to or inherent in the status or the professional qualifications of the pregnant worker concerned.

V – Conclusion

76. In the light of the foregoing considerations, I propose that the Court give the following reply to the question referred by the Helsingin käräjäoikeus:

Article 11(1) of Council Directive 92/85/EEC of 19 October 1992 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/EEC) must be interpreted as meaning that it does not require the Member States to ensure that a pregnant worker who is temporarily transferred to other work must be paid as much as she received on average before the transfer in question. However, the national court must ascertain whether the pregnant worker concerned is guaranteed adequate payment within the meaning of Article 11(1) of Directive 92/85 so that the principle of equal pay for male and female workers for equal work or work of equal value within the meaning of Article 141(1) EC is upheld.

For the purpose of determining whether the payment referred to in Article 11(1) of Directive 92/85 is adequate, it is also for the national court to ascertain whether the pay of the pregnant worker in the job to which she has been temporarily transferred by reason of her pregnancy takes into account the components specific to or inherent in the status or the professional qualifications of the pregnant worker concerned.