OPINION OF ADVOCATE GENERAL

RUIZ-JARABO COLOMER

delivered on 9 September 2004 ( )

Case C-356/03

Elisabeth Mayer

v

Versorgungsanstalt des Bundes und der Länder

(Reference for a preliminary ruling from the Fourth Civil Chamber of the Bundesgerichtshof)

(Equal pay for men and women – Maternity leave – Pension rights)

1. The Bundesgerichtshof (German Federal Court of Justice) has made a reference to the Court of Justice for a preliminary ruling on the interpretation of Article 119 of the EC Treaty (now, following amendment, Article 141 EC), Article 11(2)(a) of Directive 92/85/EEC ( ) and Article 6(1)(g) of Directive 86/378/EEC ( ) in connection with the calculation of periods of maternity leave for the purposes of quantifying pension rights.

Once again, the Court of Justice is asked to consider the effect thereof on the principle of equal pay for workers of both sexes.

I – Legal framework

A – Community law

1. Article 119 of the Treaty ( )

2. This provision states:

‘Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

For the purpose of this Article, “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.

Equal pay without discrimination based on sex means

(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;

(b) that pay for work at time rates shall be the same for the same job’.

2. Directive 92/85

3. Article 2 gives the definitions of the following terms for the purposes of the content of the directive:

‘(a) pregnant worker shall mean a pregnant worker who informs her employer of her condition, in accordance with national legislation and/or national practice;

(b) worker who has recently given birth shall mean a worker who has recently given birth within the meaning of national legislation and/or national practice and who informs her employer of her condition, in accordance with that legislation and/or practice

(c) worker who is breast-feeding shall mean a worker who is breast-feeding within the meaning of national legislation and/or national practice and who informs her employer of her condition, in accordance with that legislation and/or practice.’

4. Article 8 (1) requires the Member States to take ‘the necessary measures to ensure that workers 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’.

5. Article 11 provides in respect of employment rights:

‘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:

...

(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;

...’

6. Article 14 (1) provides that ‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than two years after the adoption thereof or ensure, at the latest two years after adoption of this Directive, that the two sides of industry introduce the requisite provisions by means of collective agreements ...’.

3. Directive 86/378

7. Article 1 specifies the scope of the Directive, stating that ‘its object is to implement, in occupational social security schemes, the principle of equal treatment for men and women ...’.

8. Article 6(1) provides:

‘Provisions contrary to the principle of equal treatment shall include those based on sex, either directly or indirectly, in particular by reference to marital or family status for:

...

(g) suspending the retention or acquisition of rights during periods of maternity leave or leave the family reasons which are granted by law or agreement and are paid by the employer;

...’.

B – National law

9. The Versorgungsanstalt des Bundes und der Länder (Pension Institution of the Federal Republic and the Länder, ‘the VBL’) is an independent public institution with legal personality under the supervision of the Bundesministerium der Finanzen (Federal Ministry of Finances).

10. Its statutes, in the version in force until the 31 December 2000, ( ) give to non‑civil service workers employed by affiliated public undertakings the right to an insurance annuity under the supplementary occupational pension scheme, from the moment the insured contingency materialises, that is to say, after normal retirement age is reached (Paragraph 37(1)(b)).

11. The amount is fixed in Paragraph 44(1)(1)(a), under which:

‘(...) 0.03125% of the amount of pay subject to the supplementary occupational pension scheme in respect of which contributions have been paid for the period between 31 December 1997 and the start of the insurance annuity (Paragraph 62) shall be paid as a monthly insurance annuity.’

12. As regards the contributions necessary to finance the scheme, Paragraph 29 provides:

‘(1) The employer shall regularly pay a monthly contribution of the amount equivalent to the percentage established in accordance with Article 76, of the insured person’s pay subject to the supplementary occupational pension scheme (subparagraph 7) paragraph 76, including a contribution from the person compulsorily insured in accordance with Paragraph 76(1) (a).

...

(7) Unless stipulated otherwise below, pay subject to the supplementary occupational pension scheme means the taxable pay received during a given period in accordance with the provisions on the payment of contributions to the statutory payment scheme.

...’.

II – Facts and the main proceedings

13. Ms Mayer, who now works as a self-employed lawyer, worked from 1 January 1990 to 30 September 1999 as an employee under contract in the public service of the Bundesland Rheinald-Pfalz (Federal Land of Rheinland-Pfalz) and was compulsorily insured with the VBL.

14. Owing to the birth of two children, she enjoyed statutory protection as a mother ( ) during the periods from 16 December 1992 to 5 April 1993 and from 17 January to 22 April 1994, during which she was entitled to receive:

(a) State maternity allowance; ( )

(b) a supplementary maternity allowance, to be paid by the employer, which makes up difference between the maternity allowance and the last net pay. ( )

This supplementary allowance is exempt from tax. ( )

15. During those periods, she received no pay in respect of which her employer had to pay monthly contributions pursuant to Paragraph 29(1) of the statutes of the VBL; consequently, those periods were not taken into account when assessing the entitlement to the insurance annuity.

16. Ms Mayer brought an action before the national courts for a declaration that those periods should be taken into account, a claim which was dismissed.

III – The questions referred for a preliminary ruling

17. Ms Mayer lodged an appeal on a point of law before the Bundesgerichtshof, which a considers that the right asserted by the appellant is not evident from the national provisions but instead depends on interpretation of several provisions of Community law; it has therefore stayed proceedings and referred the following questions to the Court of Justice:

‘1 Do Article 119 of the EC Treaty and/or Article 11(2)(a) of Directive 92/85/EC and Article 6(1)(g) of Directive 86/378/EEC, as amended by Directive 96/97/EC, preclude provisions of statutes governing a supplementary occupational pension scheme of the kind at issue in this case under which an employee, during statutory maternity leave (in this case from 16 December 1992 to 5 April 1993 and from 17 January to 22 April 1994), acquires no deferred rights to an insurance annuity, which, in the event of her early departure from the compulsory insurance scheme, may be claimed monthly from the time the insurance contingency (pensionable age, occupational disability or invalidity) materialises, because the accrual of such rights is conditional upon the employee’s receiving taxable pay during the relevant period, but the benefits paid to her during maternity leave do not constitute taxable pay under the provisions of national law?

2. Is this the case in particular if account is taken of the fact that the insurance annuity is not – like the occupational pension which would be paid if the insurance contingency materialised whilst she was still in the compulsory pension scheme – intended to cover the employee in old age or in the event of invalidity but to reimburse the contributions made in respect of her during the period of compulsory insurance?’

IV – Procedure before the Court of Justice

18. Written observations have been submitted by the VBL the Commission. Ms Mayer declined to submit any, since they would be the same, in essence, as the arguments set out in the order for reference.

19. The VBL maintains that the provisions governing the supplementary occupational pension scheme under which periods of protection as a mother are not taken into account are compatible with Community law. It highlights the aim of that benefit, distinguishing it from the benefit granted in cases of retirement or incapacity, since it seeks to return to the worker the actuarial equivalent of contributions paid during his working life.

Therefore, the annuity not being linked to an employment contract within the meaning of Directive 92/85, the rules governing it are unquestionably compatible. It also points out that at the material time the period granted to the Member States for transposing the provision had not expired.

In addition, in the opinion of the VBL, Directive 86/378 is inapplicable, its aim being to implement the principle of equality of treatment for men and women in occupational social security schemes, which do not include the one under consideration.

Finally, it claims that the allowance falls outside the scope of Article 119 of the Treaty.

20. The Commission considers that to make the annuity conditional on receipt, during periods of maternity leave, of payments subject to the supplementary occupational pension scheme is contrary to Community law.

In particular, it believes that the system is inconsistent with Article 11(2)(a), in conjunction with Article 8(1) of Directive 92/85, which also applies to periods of protection prior to the expiry of the transposition period

If that were held not to be so, then that condition would be contrary to Article 6(1)(g) of Directive 86/378.

The Commission therefore considers it unnecessary to examine Article 119 of the Treaty.

21. The written procedure having been closed, the Court decided at the general meeting held on 22 June 2004 not to hold a hearing, unless the parties to the main proceedings so requested within the period laid down for the purpose, which ended on 5 July 2004. As no interest has been shown in holding an oral hearing, the matter is ready for the presentation of this Opinion.

V – Delimitation of the applicable Community legislation

22. In my view, the questions referred for a preliminary ruling must be resolved in the light of Article 119 of the Treaty.

23. This case concerns two overlapping fields of application: that of pregnant workers and that of allowances connected with an employment relationship.

24. If the analysis rests on the fact that Ms Mayer’s request for the periods during which she enjoyed protection as a mother to be taken into account was denied, Article 11 (2) of Directive 92/85 would come into play.

25. On the other hand, if emphasis is laid on the fact that the effects were produced when an insurance annuity was fixed under a supplementary occupational pension scheme, the rules contained in Directive 86/378 seem more appropriate.

26. The two aspects are closely linked and seem difficult to separate, so that it is not appropriate to give priority to one over the other according to its special nature, as the Commission does with Directive 92/85. ( ) The provisions are not exclusive but complementary, even though they apply to the same sphere.

27. Why must priority be given to legislation 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’ ( ) and not to legislation ‘on the implementation of the principle of equal treatment for men and women in occupational social security schemes’? Or vice versa?

28. In my view, the connection is to be found in Article 119 of the Treaty, which lays down the principle of equal pay for male and female workers for equal work.

29. This primary legislative provision enables an overall examination of the questions referred for a preliminary ruling, going beyond the problems connected with a study which is inevitably limited in material scope, because priority has been given to one or other of the aforementioned Directives. ( ) Furthermore, the Court of Justice has itself acknowledged that this provision refers ‘to all forms of discrimination which may be identified solely with the aid of criteria of equal work and equal pay referred to by the article in question, without national or Community measures being required to define them with greater precision in order to permit their application.’ ( )

VI – Analysis of the questions referred for a preliminary ruling

30. Taking Article 119 of the Treaty as the Community legal framework, it is necessary to examine whether that provision cover the monthly insurance payment payable by the VBL and, if so, whether a prohibited discrimination may have occurred. Guidelines for this undertaking are provided by the pronouncements of the Court of Justice on this article ( ) and those relating to the equal treatment of men and women, both in pay and treatment, in cases concerning the employment rights of pregnant workers or workers who had recently given birth. ( )

31. Thus, a joint reply will be given to the questions referred for a preliminary ruling, since the second is a clarification of the first in that it concerns the purpose of the annuity.

A – Article 119 of the Treaty

32. The principle that men and women should receive equal pay for equal work has been established, since 1957, in Article 119 of the Treaty. ( ) This is an unusual provision to find in an international treaty. It represents a social ideal and a means – at least an indirect means – of harmonising employment policy in the European Community. It also establishes a legal obligation of result, ( ) an economic and social objective in itself. Its wording is based on Article 2 of Convention 100-1951 of the International Labour Organisation. ( )

33. The first point which needs to be clarified is whether the insurance annuity to which this case relates is included within the term ‘pay’ referred to in the article under consideration.

34. The concept of pay is fundamental to the formation of the employment relationship as it is understood in current law, although there was a time when its demarcation with gratuitous recompense, given in goodwill or gratitude, was not so clear. Thus, Don Quixote told Sancho that he did not believe ‘que jamás los tales escuderos estuvieron a salario, sino a merced’, ( ) and later asked him: ‘dónde has visto tú, o leído, que ningún escudero de caballero andante se haya puesto con su señor en cuanto más tan más tanto me habéis de dar cada mes porque os sirva?’ ( ) The certainty of a salary gives the provision of services its specific objective, converting it into a contract. ( )

35. The Court of Justice has included in that concept, by way of example, travel facilities provided by a railway company for male former employees after their retirement and which extended to members of their families, so that relatives of former female employees had also to enjoy those facilities on the same terms; ( ) occupational pension plans based on an agreement between the employer and employee representatives financed, entirely or partly, by the employer; ( ) continued payment of a salary during sick leave; ( ) benefits paid in connection with redundancy and pension state under private occupational schemes; ( ) compensation paid to staff council members, in the form of paid leave or overtime pay, for attendance of training courses which impart the knowledge necessary for working on staff councils, even though during the training courses they do not perform any of the work provided for in their contract of employment; ( ) or the right to join an occupational pension scheme. ( )

36. The Court has also held that the benefit paid by an employer under legislation or collective agreements to a woman on maternity leave constitutes pay within the meaning of that provision, ( ) since it is based on an employment relationship, and that it is the criterion of employment that must be used to determine whether a pension falls within its scope. ( ) To put it another way, the concept of pay comprises any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, from his employer in respect of his employment; ( ) additional voluntary contributions paid by employees to secure additional benefits are not included. ( )

37. The insurance annuity with which we are concerned here is part of a supplementary occupational pension scheme ( ) and derives from contributions made in respect of the employment relationship. These features enable it to be included within the scope of Article 119 of the Treaty, even though it is not intended to provide insurance cover for old age or invalidity for the insured person, but to grant an employee on the ending of the employment relationship, the actuarial equivalent of the contributions made during that relationship.

38. The above situation is not altered by the fact that since 1 January 1999 employees have contributed to the funding. The Court of Justice has stated that that fact does not prevent application of Article 119. ( ) Moreover, in the proceedings before the Bundesgerichtshof contributions paid before that date are not at issue.

B – The principle of equal pay

39. Since this is a payment which is subject to the principle of equal pay for men and women, it is necessary to establish whether that criterion has been satisfied, by examining the evidence of a possible infringement.

40. It is well settled case‑law that discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations. ( ) To establish whether there is indirect discrimination, it is necessary to ascertain whether the provisions at issue have a more unfavourable impact on workers of a particular sex, ( ) without forgetting that the principle of equal pay, like the general principle of non-discrimination of which it is a particular expression, always covers comparable situations. ( ) Nor is an indirect difference in treatment acceptable, for example by the adoption of a national measure which, although formulated in neutral terms, works to the disadvantage of far more women than men. ( )

41. The Court of Justice has also held that women taking maternity leave provided for by national legislation are in a special position which requires them to be afforded special protection, but which is not comparable with that of a man or woman actually at work; therefore they cannot argue that they should continue to receive the same pay during that period. ( )

42. The insurance annuity at issue is designed to reimburse sums paid previously. ( ) However, since no contributions have been paid to the supplementary occupational pension scheme during the periods of maternity leave, the reimbursement of amounts not paid in is refused.

43. However, it is irrelevant whether those periods of leave count towards the annuity; what matters is that pay should be received which prevents this from happening. That is to say, the difference does not lie in obtaining a higher or lower income, depending on when the contribution is made – which is the effect –, but in that the pay received does not generate the obligation to pay the contributions necessary for the benefit – the cause.

44. Does this latter circumstance constitute discrimination within the meaning of Article 119 of the Treaty?

45. It might be thought that the different treatment is not due to maternity, ( ) but to the fact that the pay received during the period of protection as a mother is not taxed and that, therefore, the corresponding contributions are not paid. The same happens when a worker is on sick leave because, from a given moment, the additional payments made by the employer do not constitute pay subject to the supplementary occupational pension scheme either. ( )

46. However, this latter point applies indiscriminately to male and female workers whereas the periods of protection as a mother may be used only by women ( ). Case-law has also held that the situation during that time cannot be compared to that of a man or woman on sick leave. ( ) Protection is now provided for a woman’s biological condition during and after pregnancy, and for the special relationship between a woman and her child over the subsequent period. ( )

47. Under the system contained in the statutes of the VBL, female workers who enjoy maternity leave receive a lower payment – the insurance annuity which they receive at the end of their working life –, because they are subject to rules equating them with other, different situations.

48. There is no justification for this different treatment in respect of pay. It has not even been established that they have had the opportunity to pay the corresponding contributions in order to avoid this adverse effect. It must therefore be concluded that Article 119 of the Treaty has been infringed.

49. Finally, in a prompt denial of claims regarding the consequences of this line of argument, the Court of Justice has decided that the circumstance that, as an insuring body, a German pension fund is subject to insurance law and therefore to the entirely separate principle of equal treatment applicable under that law and that the increase in the volume of its insurance obligations as a consequence of the application of Article 119 of the Treaty may give rise to measures designed to cover that increase, which might include an increase in contributions for all affiliated employees, is an issue which must be resolved by national law. ( ) It is also for domestic law to establish, if necessary, the means of preventing unjust enrichment.

C – Application of Directives 92/85 and 86/378

50. The national court has also referred to an interpretation of these Community provisions in order to decide the case before it.

1. Directive 92/85

51. There is doubt as to whether it is applicable to the present case ratione temporis, since the periods of protection as a mother elapsed when the time-limit for implementing the directive in national law had not yet expired. ( )

52. However, the doubt is dispelled by making a conceptual distinction between rights which could no longer be exercised after that moment and rights to which that did not apply. The first situation would include, for example, rights arising under Article 8, which requires the Member States to take the necessary measures to ensure that workers enjoy a continuous period of maternity leave of at least 14 continuous weeks; it would not apply if the event giving rise to the leave occurs before the period allowed for implementing the directive. ( )

53. If the question were raised of compliance with Article 11, which concerns the ‘rights connected with’ an employment contract, still in force on that date, in connection with an insurance annuity whose contingency had not yet materialised, the Directive would be applicable.

54. In spite of the opinion expressed by the national court, this solution respects the legitimate expectation of the VBL and the employers affiliated thereto not to have to provide additional benefits in respect of past qualifying periods, since from the moment the Directive was published they were in a position to know its content, and it has been established that it was published before Ms Mayer began her periods of maternity leave.

55. Article 11(2) guarantees workers taking maternity leave the rights connected with their contract – Article 11(2)(a) –, amongst them the right to receive an insurance annuity under a supplementary occupational pension scheme. Therefore, a system which prevents payment of the contributions necessary for the computation of the annuity infringes that provision.

56. This was held by the Court of Justice with respect to a pension scheme wholly financed by the employer. ( ) Furthermore, although workers have also been paying contributions since 1 January 1999, I agree with the Bundesgerichtshof that that fact does not preclude application of that provision, any more than it precludes Article 119 of the Treaty. ( )

57. The Directive also protects workers from the legal and economic disadvantages of taking maternity leave, and it is irrelevant that the insurance annuity seeks to reimburse contributions that have been paid. What is really important is to prevent them suffering disadvantage during those periods. It should be noted that the Community provision refers in general terms to the rights connected with the employment contract, without making distinctions according to the aim pursued.

2. Directive 86/378

58. This provision does not give rise to uncertainty as to the strict temporal rules, ( ) but does do so with regard to substantive scope.

59. The object of the Directive is to implement the principle of equal treatment for men and women ‘in occupational social security schemes’ (Article 1). ‘Occupational social security schemes’ means schemes ‘not governed by Directive 79/7/EEC ( ) whose purpose is to provide workers, whether employees or self-employed, in an undertaking or group of undertakings, area of economic activity or occupational sector or group of such sectors with benefits intended to supplement the benefits provided by statutory social security schemes or to replace them, whether membership of such schemes is compulsory or optional’ (Article 2(1)).

60. In the light of the features of the supplementary occupational pension scheme under examination, ( ) I consider that it falls within the material scope of the Community provision, and that none of the exclusions contained in Article 2(2) applies.

61. Equality of treatment precludes provisions such as those laid down in Article 6(1)(g) suspending the retention or acquisition of rights during periods of maternity leave or leave for family reasons which are granted by law or agreement and are paid by the employer.

62. Accordingly, a system which prevents those days from being taken into account for the purposes of receiving a future pension infringes that provision.

VII – Conclusion

63. In the light of the foregoing considerations, I propose that the Court of Justice give the following reply to the questions referred for a preliminary ruling by the Fourth Civil Chamber of the Bundesgerichtshof:

It is contrary to Community law, and specifically to Article 119 of the Treaty, for statutes governing a supplementary occupational pension scheme to provide that an employee, during periods of maternity leave, receives no taxable pay and, as a result pays no contributions which, at the end of the employment relationship, may be reimbursed by means of a monthly insurance benefit’