OPINION OF ADVOCATE GENERAL

POIARES MADURO

delivered on 3 September 2009 ( )

Case C‑194/08

Susanne Gassmayr

v

Bundesministerin für Wissenschaft und Forschung

(Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria))





1. This reference for a preliminary ruling concerns 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. ( ) The referring court wishes to know whether (i) Article 11(1), (2) and (3) of the Directive has direct effect and whether (ii) it creates a right for a female employee to continue receiving an allowance for on-call duty while being away from work while pregnant and/or during maternity leave.

I – Facts, national proceedings and questions referred to the Court of Justice

2. The claimant in the main proceedings, Dr Susanne Gassmayr, is a junior hospital doctor who has been working at the anaesthesia clinic of the University of Graz since 1 January 1995. The Law on Salaries (Gehaltsgesetz) provides that an employee who is required to be on duty at his or her place of work outside normal working hours is entitled to an allowance (Paragraph 17a(1)); thus, she received, in addition to her other remuneration, an allowance which was individually assessed on the basis of the on-call services she was rendering at the hospital.

3. The claimant, while pregnant, stopped working on 4 December 2002 for reasons related to her pregnancy. The Law on Maternity Protection (Mutterschutzgesetz) provides, in Paragraph 3(3), that a pregnant employee is not allowed to work if, according to a certificate produced by her from a doctor attached to the employment inspectorate or other public medical officer, continuing to work would endanger the life or health of the mother or the child. The same law provides that pregnant employees are not allowed to work during the last eight weeks before the expected date of giving birth (Paragraph 3(1)) and the eight weeks after giving birth (Paragraph 5(1)). Counsel for the Austrian Government explained at the hearing before the Court that the aim of the Austrian legislature in enacting Paragraph 3(3) was to offer additional protection to pregnant women by providing for a form of extended leave. This provision does not apply to all pregnant employees but only to those who face health problems endangering their life or the life of the child. Therefore, each case is individually assessed and a pregnant employee can avail herself of the extended leave if she can produce the relevant medical certificate. At first, Dr Gassmayr stopped working at the hospital by virtue of a medical certificate under Paragraph 3(3). Subsequently, she remained away from work because of the eight-week periods preceding and following the date of giving birth. She did not render any on-call services until 7 October 2003.

4. On 9 February 2004, Dr Gassmayr requested her employer, the University of Graz, to pay her the allowances for average on-call duties for the period during which she did not work. When her request was rejected by the University she lodged an objection, which was also rejected by the Bundesministerin für Bildung, Wissenschaft und Kultur (Federal Minister for Education, Science and Culture). The Minister took the view that while Paragraph 3(2) of the Law on Salaries provided that pregnant employees should receive, during the time they are not allowed to work, their usual remuneration ‘without any restriction’, allowances for on-call duty fell outside the scope of the provision. Paragraph 15(5) of the Law on Salaries classifies on-call duty allowances as ‘extra emoluments’ and not as regular allowances, and the Verwaltungsgerichtshof (Administrative Court) has held that extra emoluments are payable only for tasks actually performed. Thus, allowances for on-call duty are not paid at a flat rate but are individually calculated by reference to the general hourly rates of pay provided for in the relevant administrative regulations and the time each employee has actually performed on-call duties. Since Dr Gassmayr had performed no such duties, she was not entitled to the allowance.

5. The claimant, relying on Directive 92/85, challenged the Minister’s decision before the Verwaltungsgerichtshof, which has referred the following questions to the Court of Justice:

‘(1.1) Does Article 11(1), (2) and (3) of [Directive 92/85] have direct effect?

(1.2) If those provisions do have direct effect are they to be construed as meaning that there is a continued entitlement to payment of an allowance for on-call duty during periods in which expectant mothers are prohibited from working and/or during maternity leave?

(1.3) Does this apply, in any event, where a Member State decides on a system of continuation of “pay” which in principle encompasses total income, with the exception, however, of so‑called “extra emoluments” based on tasks performed (contingent on performance of those tasks) (as listed in Paragraph 15 of the [Austrian] Law on salaries (Gehaltsgesetz) 1956), such as the allowance for on-call duty at issue here?

(2) If the aforementioned provisions do not have direct effect, are they to be transposed by the Member States in such a way that a female worker who is not permitted to render on-call duties during periods in which expectant mothers are prohibited from working and/or during maternity leave is entitled to continue to be paid an allowance for such services?’

II – Direct effect

6. Article 11(1), (2) and (3) of Directive 92/85 reads 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.’

7. A provision of a directive which has direct effect may be relied upon by an individual against the State even if the State has failed to transpose the directive into the national legal system by the end of the prescribed period or if the transposition is incomplete or incorrect. It is well-established case-law that a provision of a directive will have direct effect where it appears, as far as its subject-matter is concerned, that it is unconditional and sufficently precise. ( ) The Court has defined the term ‘unconditional’ as meaning that the provision ‘lays down an obligation which is not qualified by any condition and is not made subject, in its implementation or effects, to the adoption of any measure either by the Community institutions or by the Member States’. ( ) A provision will be sufficiently precise if ‘it lays down an obligation in unequivocal terms’. ( )

8. In Jiménez Melgar, ( ) the Court had the opportunity to examine the possible direct effect of another provision of Directive 92/85, namely Article 10, which reads:

‘Prohibition of dismissal

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

1. Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8(1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;

2. if a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing;

3. Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.’

9. The Court held that ‘the provisions of Article 10 of Directive 92/85 impose on Member States, in particular in their capacity of employer, precise obligations which afford them no margin of discretion in their performance’. ( )

10. I agree with the Commission that the same approach should be adopted in relation to Article 11 of the Directive. Article 11(1) provides that the rights relating to a person’s employment contract must be ensured in accordance with national legislation and practice in cases falling within the ambit of Articles 5, 6 and 7 of the Directive. ( ) Next, paragraph 2 sets out the rights that must be ensured for cases falling within Article 8. ( ) Finally, paragraph 3 explains when an allowance paid to an employee under paragraph 2 will be considered adequate. These provisions lay down in unequivocal terms an unqualified obligation to ensure a person’s employment rights in the same way that Article 10 lays down an obligation to protect employees from dismissal. The text of Article 11 is no more vague or opaque than that of Article 10, which the Court has found to be directly effective.

11. Accordingly, I suggest that the Court answer the first question referred by the Verwaltungsgerichtshof as follows:

‘Article 11(1), (2) and (3) of Directive 92/85 has direct effect and can be relied upon by individuals in domestic proceedings.’

III – The obligation to pay on-call duty allowances

12. In its second and third questions the national court is asking, in essence, whether Article 11 of the Directive prevents a Member State from establishing a system for the protection of pregnant employees under which the latter have a right to continue receiving their total income while they are away from work for reasons relating to their pregnancy with the exception of specific allowances which are paid only if the employee has actually performed the relevant work. An answer in the affirmative will mean that, in principle, no part of an employee’s remuneration will fall outside the employer’s obligation to continue payments. By contrast, if the national system in question is compatible with the Directive, Member States will retain the power to make certain allowances payable on the condition that the employee has actually rendered the relevant service to the employer, in which case it would be lawful to withhold those allowances from the remuneration of pregnant employees during their absence from work.

Maternity leave and sick leave

13. As the order for reference makes clear, the claimant was away from work for two distinct periods: first, two blocks of eight weeks each, before and after the date of giving birth (maternity leave); second, a period of time starting on 4 December 2002 and lasting until the beginning of her maternity leave when she was away by virtue of Paragraph 3(3) of the Law on Maternity Protection, which prevents an employee from working if she produces a medical certificate stating that continuing to work would endanger the life or health of the mother or the child. The latter could be conveniently described as a form of sick leave. The first issue which needs to be clarified is whether maternity leave and sick leave should be treated in the same way for the purposes of the remuneration which is due to the claimant.

14. The Court has held that pregnancy does not constitute an illness and, accordingly, that there should be no comparison as such between a pregnant woman and a sick person. ( ) However, this does not mean that the way in which a sick person is treated will always be irrelevant for the assessment of the treatment of a woman suffering from an illness related to pregnancy. This is evidenced by the fact that the Court itself has frequently drawn parallels between pregnancy-related medical conditions and other (that is to say, non pregnancy-related) medical conditions.

15. Hertz ( ) involved a female employee who had been dismissed because of continued absences from work resulting from an illness which was connected with her pregnancy but which had manifested itself after the end of her maternity leave. The Court held that in that case there should be no distinction between an illness attributable to pregnancy and other illnesses. It stated: ‘male and female workers are equally exposed to illness. Although certain disorders are, it is true, specific to one or other sex, the only question is whether a woman is dismissed on account of absence due to illness in the same circumstances as a man; if that is the case, then there is no direct discrimination on grounds of sex’. ( ) Here, a woman suffering from a pregnancy-related medical condition was compared to a sick man and the Court concluded that, all other things being equal, the fact that a disorder is specific to one of the sexes does not mean that the employee has suffered sex discrimination.

16. Hertz concerned a pregnacy-related illness which had manifested itself only after the end of maternity leave. By contrast, Larsson ( ) involved a female employee who had been dismissed because of long absences resulting from a pregnancy-related illness which had manifested itself both during pregnancy and after the end of maternity leave. The Court ruled that it was lawful for an employer to dismiss a female employee for absences caused by a pregnancy-related illness which had started during the pregnancy and that absences during the period extending from the start of the pregnancy to the start of maternity leave could be taken into account in computing the period justifying her dismissal under national law. Subsequently, in Brown v Rentokil, ( ) the Court modified the latter part of its conclusions in Larsson, but expressly affirmed the ruling in Hertz that absences due to a pregnancy-related illness after maternity leave will be treated in the same way as a man’s absences due to illness, thus comparing once again a pregnancy-related to a non-pregnacy related illness. ( )

17. More recently, the same approach was adopted by the Court in McKenna. ( ) The case concerned a female employee who, for almost the entire duration of her pregnancy, was on sick leave pursuant to medical advice by reason of a pathological condition linked to her pregnancy. After her maternity leave had ended, she was still unable to work on medical grounds and took further sick leave. She received full pay during her maternity leave but half pay for part of her sick leave. The sick-leave scheme of her employer did not distinguish between pregnancy-related illnesses and other forms of illness; thus, for remuneration purposes, she was treated in the same way as a sick man who was absent from work for the same number of days would have been treated. Ms McKenna claimed that she had suffered sex discrimination inasmuch as her pregnancy-related illness had been treated in the same way as a non pregnancy-related illness. The Court disagreed. It held that the fact that pregnancy-related illnesses are sui generis (that is to say, they affect only female employees) does not mean that ‘a female worker who is absent by reason of a pregnancy-related illness is entitled to the maintenance of full pay, whereas a worker absent by reason of an illness unrelated to pregnancy does not have such a right’. ( ) The Court then compared a female employee who cannot work on medical grounds related to pregnancy to a male employee who cannot work on other medical grounds and concluded: ‘… Community law does not require the maintenance of full pay for a female worker who is absent during her pregnancy by reason of an illness related to that pregnancy. During an absence resulting from such an illness, a female worker may thus suffer a reduction in her pay, provided that she is treated in the same way as a male worker who is absent on the grounds of illness, and provided that the amount of payment made is not so low as to undermine the objective of protecting pregnant workers’. ( ) Once again, the Court is comparing pregnancy‑related illnesses to other medical conditons, holding that they may be treated in the same manner subject to the condition that this is not to put into question the objective of protecting pregnancy. The issue is not one of discrimination on the basis of sex (although pregnancy‑related illnesses will affect only women, there are illnesses exclusive to men) but of the principal objective of protecting pregnant women.

18. I think that two rules are established in this case‑law: first, pregnancy is not an illness and should not be equated to one; secondly, all other things being equal, it is appropriate to compare the treatment of a woman suffering from a pregnancy‑related medical condition to that of a sick man. The operation of those rules is evident in the reasoning of the Court in the above cases, where, while not equating pregnancy to illness, it compares in very clear terms illnesses related to pregnancy to other illnesses.

19. Furthermore, I think it is very important to note that Directive 92/85 itself compares, in Article 11(3), maternity leave to sick leave. It provides that during maternity leave the employee should be guaranteed income at least equivalent to that which she would have received if she were absent from work due to illness. The aim of the Directive is to offer a minimum standard of protection to female employees and it does so, in relation to remuneration during maternity leave, by using sick pay as the threshold below which maternity pay is not to fall. Thus, it is the Community legislature which draws a parallel between pregnancy and sickness in the very legislative instrument which was enacted in order to protect pregnant women. I think that a possible explanation is that since every employee, regardless of gender or specific occupation, can potentially be sick, it can be reasonably expected that national governments, when setting the level of sick pay, will take into account the interests of all parties involved and reach a decision which guarantees that employees who are prevented from working due to illness will receive adequate income to support themselves during their illness. Extending that minimum guarantee to women away from work on maternity leave means that they also have a right to a level of remuneration that will allow them to provide for themselves during their leave. This also explains the formulation of the final recital in the preamble to the Directive which states that pregnancy is not analogous to illness. Here, the authors of the Directive make it clear that while they have compared sick pay to maternity pay in Article 11(3) this does not mean that pregnancy itself should be equated to an illness.

20. To conclude, the Community legislature has drawn parallels between pregnancy and illness in the Directive and the Court has explicitly compared absences from work because of pregnancy-related illnesses to absences because of other illnesses. Since it is possible to make this limited comparison between maternity leave and sick leave, at least in respect of remuneration, it is irrelevant, for the purpose of assessing whether Dr Gassmayr is entited to the allowance, whether she is covered by the provisions of the Austrian law on maternity protection, Articles 5 and 6 of the Directive on working conditions and protection from activities where an employee is exposed to risk or Article 141 EC on equal pay. All those provisions require the same kind of protection, namely an income at least equivalent to sick pay. ( ) For ease of reference, I will hereafter refer to both periods during which Dr Gassmayr was away from work as ‘maternity leave’ and to the relevant pay as ‘maternity pay’.

Payment of the on‑call duty allowance

21. The next issue is whether Dr Gassmayr is entitled to the on‑call duty allowance for the period during which she did not perform any duties of that kind. She argues that the Directive prohibits any reduction whatsoever in the income she would have earned if she had been able to work. The Austrian Government submits that the income guaranteed to pregnant women by the Directive does not cover all the amounts that would have been paid to them in normal circumstances, and that Member States may legitimately make the payment of certain benefits conditional upon the actual performance of work.

22. The answer to that question depends on the interpretation of the term ‘adequate allowance’ in Article 11(2)(b) of the Directive. The Directive imposes on Member States the obligation to provide in their national laws that pregnant employees will receive an adequate allowance during their maternity leave. Does the fact that Dr Gassmayr did not receive the on‑call duty allowance make her earnings inadequate for the purposes of the Directive?

23. In Gillespie and Others, the Court held that ‘neither Article 119 of the EEC Treaty nor Article 1 of Directive 75/117 required that women should continue to receive full pay during maternity leave … The amount payable could not, however, be so low as to undermine the purpose of maternity leave, namely the protection of women before and after giving birth. In order to assess the adequacy of the amount payable from that point of view, the national court must take account, not only of the length of maternity leave, but also of the other forms of social protection afforded by national law in the case of justified absence from work’. ( ) This rule was recently affirmed in Alabaster where the Court, citing Gillespie and Others, ruled that pregnant women ‘cannot usefully rely on the provisions of Article 119 of the Treaty to argue that they should continue to receive full pay while on maternity leave as though they were actually working, like other workers’. ( )

24. Therefore, a provision of national law which stipulates that the pay pregnant employees are to receive during their maternity leave is to be less than the regular pay they receive when actually working is not in principle precluded by Community law. However, the decrease in income cannot be such as to undermine the protection that the Community legislature wished to guarantee for pregnant women. Thus, the Court has held that a woman on maternity leave is entitled to a pay rise awarded during that period or during the period by reference to which her maternity pay was assessed. ( ) Similarly, it would be unlawful to deprive a female employee of the right to have her performance assessed in order to qualify for a promotion and a pay rise on the ground that, because of the maternity leave she had had, she did not satisfy the prerequisite of six month’s work within the previous year. ( )

25. I think that the underlying rationale of the Court’s case‑law is that women employees should not be discouraged from having children out of fear that they will not have adequate income to support themselves during maternity leave or that they will be negatively affected in their progression in their professional careers. Community law leaves some discretion to national authorities to take into account the social and economic conditions in their country and to decide what income can be considered adequate for a woman on maternity leave and which conditions are necessary to ensure that she will not be prejudiced in her future professional life. The limit of this discretion is the rule that maternity pay cannot fall below the level of sick pay. ( ) As I explained earlier, the rationale of this provision is that since sickness is a condition which can affect everyone, regardless of gender or occupation, the national legislatures are likely to take into account all the interests involved and reach a fair decision in setting the level of sick pay.

26. It is against this background that the question concerning on‑call duty allowances should be answered. In principle, Community law does not prevent employers from paying additional benefits or allowances to their employees for the performance of specific tasks and making such payment conditional upon the actual performance of those tasks. In the order for reference, it is stated that under the relevant Austrian legislation an on‑call duty allowance is not a flat-rate emolument paid to all doctors; it is individually calculated for each doctor who has performed on‑call duty by reference to general hourly rates laid down by law. Apparently, then, any doctor who, for whatever reason, has not performed on‑call duties will not receive this additional benefit. This probably includes people on sick leave. The Commission, however, appears to be adopting a different interpretation. It submitted that Austrian law actually grants to employees on sick leave the right to claim such additional on‑call duty allowances. If so, such right must be extended to women on maternity leave. It is, however, for the national court to determine what is the correct interpretation of Austrian law.

27. I think that it is within the discretion that Community law leaves for a Member State to lay down a rule providing that, similarly to someone on sick leave, a pregnant employee away from work will continue to receive her salary and regular allowances but will not receive additional allowances directly linked to the performance of a specific task if she did not actually perform it. ( ) By contrast, an employer cannot refuse to pay an allowance which constitutes a regular part of an employee’s remuneration and does not relate to the performance of specific tasks. ( ) For instance, some employers grant an additional benefit to all employees who have high academic qualifications or special expertise in a particular field or occupy a senior post. These are typical cases of benefits granted as recognition of the employees’ status, qualifications and overall contribution to the company; their payment is not usually conditional upon the performance of specific tasks; and the amounts paid are usually flat‑rate allowances unrelated to the number of hours actually worked. Barring exceptional circumstances, it would be incompatible with Community law to deduct those allowances from maternity pay. It is for the national court to assess the nature of the various allowances.

28. Of course, as I have already mentioned, the ultimate test is the level of sick pay provided for by national law. Deductions of benefits from maternity pay will be compatible with Community law in so far as the remaining income of the pregnant employee is at least equivalent to the income she would receive if she were absent from work for reasons connected with her state of health. Again, it is for the national court to determine the sick pay the employee would have received under national law and ascertain that maternity pay does not fall below it.

29. I suggest that the Court answer the second question as follows:

Article 11(1), (2) and (3) of Council Directive 92/85/EEC does not preclude a provision of national law according to which an employer may refuse to pay to a pregnant employee a special allowance, such as the on‑call duty allowance at issue in the main proceedings, which is directly linked to the performance of specific duties if the employee concerned has performed no such duties because she was on maternity leave or was prevented from working due to reasons connected to her health or the health of the child. It is for the national court to assess the nature of particular allowances and ascertain that the income of the pregnant employee is at least equivalent to the income that national law guarantees to employees who are away from their work for reasons connected with their state of health.

IV – Conclusion

30. Therefore, I propose that the Court answer the questions referred by the Verwaltungsgerichtshof as follows:

(1) Article 11(1), (2) and (3) 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, has direct effect and can be relied upon by individuals in domestic proceedings.

(2) Article 11(1), (2) and (3) of Directive 92/85 does not preclude a provision of national law according to which an employer may refuse to pay to a pregnant employee a special allowance, such as the on‑call duty allowance at issue in the main proceedings, which is directly linked to the performance of specific duties if the employee concerned has performed no such duties because she was on maternity leave or was prevented from working due to reasons connected to her health or the health of the child. It is for the national court to assess the nature of particular allowances and ascertain that the income of the pregnant employee is at least equivalent to the income that national law guarantees to employees who are away from their work for reasons connected with their state of health.