Judgment of the Court (Full Court) of 30 March 2004 inCase C-147/02 (reference for a preliminary ruling from the Court of Appeal(England and Wales) (Civil Division)): Michelle K. Alabaster v Woolwich plc, Secretary of State for Social Security  (‘Social policy — Men and women— Equal pay — Pay during maternity leave — Calculation of amount — Whetherto include a pay rise’)
Date: 2004-04-30
Institutions: Court of Justice
Subjects: maternity benefit, motherhood, preliminary issue

C 106/10

EN

Official Journal of the European Union

30.4.2004

State for Social Security – on the interpretation of Article 119 of
the EC Treaty (Articles 117 to 120 of the EC Treaty have been
replaced by Articles 136 EC to 143 EC) and the judgment in
Case C-342/93 Gillespie and Others [1996] ECR I-475 – the
Court (Full Court), composed of: V. Skouris, President, P. Jann,
C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues and
A. Rosas, Presidents of Chambers, A. La Pergola, J.-P. Puisso-
chet, R. Schintgen (Rapporteur), F. Macken and N. Colneric,
Judges; P. Léger, Advocate General; L. Hewlett, Principal
Administrator, for the Registrar, has given a judgment on 30
March 2004, in which it has ruled:

the appellant

2. A person in the circumstances of

in the main
proceedings does not have a right to reside in the United Kingdom
solely on the basis of Council Directive 68/360/EEC of 15
October 1968 on the abolition of restrictions on movement and
residence within the Community for workers of Member States and
their families.

3. The right to equal treatment laid down in Article 48(2) of the EC
Treaty (now, after amendment, Article 39(2) EC), read in conjunc-
tion with Articles 6 and 8 of the EC Treaty (now, after amend-
ment, Articles 12 EC and 17 EC), does not preclude national
legislation which makes entitlement
to a jobseeker's allowance
conditional on a residence requirement, in so far as that require-
ment may be justified on the basis of objective considerations that
are independent of the nationality of the persons concerned and
proportionate to the legitimate aim of the national provisions.

(1) OJ C 169 of 13.07.2002.

JUDGMENT OF THE COURT

(Full Court)

of 30 March 2004

1. Article 119 of the EC Treaty (Articles 117 to 120 of the Treaty
have been replaced by Articles 136 EC to 143 EC) must be inter-
preted as requiring that, in so far as the pay received by the worker
during her maternity leave is determined at least in part on the
basis of the pay she earned before her maternity leave began, any
pay rise awarded between the beginning of the period covered by
the reference pay and the end of the maternity leave must be
included in the elements of pay taken into account in calculating
the amount of such pay. This requirement is not limited to cases
where the pay rise is back-dated to the period covered by the refer-
ence pay.

in Case C-147/02 (reference for a preliminary ruling from
the Court of Appeal (England and Wales) (Civil Division)):
Michelle K. Alabaster v Woolwich plc, Secretary of State
for Social Security (1)

(‘Social policy — Men and women — Equal pay — Pay
during maternity leave — Calculation of amount — Whether
to include a pay rise’)

(2004/C 106/15)

(Language of the case: English)

2. Absent any Community legislation in this sphere,
it is for the
in compliance
competent national authorities to determine how,
with all
the provisions of Community law, and in particular
Council Directive 92/85/EEC of 19 October 1992 on the intro-
duction 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), any pay
rise awarded before or during maternity leave must be included in
the elements of pay used to calculate the pay due to a worker
during maternity leave.

In Case C-147/02: reference to the Court under Article 234 EC
from the Court of Appeal (England and Wales) (Civil Division)
for a preliminary ruling in the proceedings pending before that
court between Michelle K. Alabaster and Woolwich plc, Secretary of

(1) OJ C 144 of 15.6.2002.