CELEX: C2000/020/09
Language: en
Date: 2000-01-22 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 21 October 1999 in Case C-333/97 (request for a preliminary ruling from the Arbeitsgericht Gelsenkirchen): Susanne Lewen v Lothar Denda (Equal pay for male and female workers — Entitlement to a Christmas bonus — Parental leave and maternity leave)

22.1.2000               EN                      Official Journal of the European Communities                                             C 20/5
Article 13 of the Protocol on the Privileges and Immunities of the                          JUDGMENT OF THE COURT
European Communities of 8 April 1965 does not preclude a Member
State, which grants tax relief to households with a single income and
to those with two incomes, the second of which is less than the                                     (Sixth Chamber)
index-linked sum of BEF 270 000, from refusing that benefit to
households in which one spouse is an official or other servant of the
European Communities where his salary exceeds that amount.                                        of 21 October 1999
(1) OJ C 258 of 15.8.1998.                                                 in Case C-333/97 (request for a preliminary ruling from
                                                                           the Arbeitsgericht Gelsenkirchen): Susanne Lewen v
                                                                                                    Lothar Denda (1)
                                                                           (Equal pay for male and female workers — Entitlement to a
                                                                             Christmas bonus — Parental leave and maternity leave)
                 JUDGMENT OF THE COURT
                                                                                                     (2000/C 20/09)
                         (Sixth Chamber)
                       of 21 October 1999                                                     (Language of the case: German)
in Case C-44/97: Federal Republic of Germany v Com-
          mission of the European Communities (1)
                                                                           (Provisional translation; the definitive translation will be published
(Clearance of accounts — EAGGF — Disallowance of                                              in the European Court Reports)
                expenditure — 1992 and 1993)
                                                                           In Case C-333/97: Reference to the Court under Article 177 of
                          (2000/C 20/08)                                   the EC Treaty (now Article 234 EC) by the Arbeitsgericht
                                                                           Gelsenkirchen (Germany) for a preliminary ruling in the
                                                                           proceedings pending before that court between Susanne Lewen
                   (Language of the case: German)                          and Lothar Denda — 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), of Article 11(2)(b) of
(Provisional translation; the definitive translation will be published     Council Directive 92/85/EEC of 19 October 1992 on the
                   in the European Court Reports)                          introduction of measures to encourage improvements in the
                                                                           safety and health at work of pregnant workers and workers
In Case C-44/97: Federal Republic of Germany (Agents:                      who have recently given birth or are breastfeeding (tenth
E. Röder and B. Kloke) v Commission of the European Com-                   individual Directive within the meaning of Article 16(1) of
munities (Agent: K.-D. Borchardt) — application for the partial            Directive 89/391/EEC) (OJ 1989 L 348, p. 1) and of Clause
annulment of Commission Decision 96/701/EC of 20 No-                       2(6) of the Annex to Council Directive 96/34/EC of 3 June
vember 1996, amending Decision 96/311/EC on the clearance                  1996 on the framework agreement on parental leave con-
of the accounts presented by the Member States in respect of               cluded by UNICE, CEEP and the ETUC (OJ 1996 L 145, p. 4)
the expenditure for 1992 of the Guarantee Section of the                   — the Court (Sixth Chamber), composed of: P.J.G. Kapteyn
European Agricultural Guidance and Guarantee Fund (EAGGF)                  (Rapporteur), President of the Chamber, G. Hirsch and
and in respect of certain expenditure for 1993 (OJ 1996                    R. Schintgen, Judges; D. Ruiz-Jarabo Colomer, Advocate Gen-
L 323, p. 26), inasmuch as it refused to charge to the EAGGF               eral; H.A. Rühl, Principal Administrator, for the Registrar, has
the sum of DEM 19 591 000 — the Court (Sixth Chamber),                     given a judgment on 21 October 1999, in which it held that:
composed of: P.J.G. Kapteyn (Rapporteur), acting as President
of the Sixth Chamber, G. Hirsch and H. Ragnemalm, Judges;                  1. A Christmas bonus of the kind at issue in the main proceedings
J. Mischo, Advocate General; D. Louterman, Principal Adminis-                  constitutes pay within the meaning of Article 119 of the EC
trator, for the Registrar, has given a judgment on 21 October                  Treaty (Articles 117 to 120 of the EC Treaty have been replaced
1999, in which it:                                                             by Articles 136 EC to 143 EC), even if it is paid voluntarily by
                                                                               the employer and even if it is paid mainly or exclusively as an
1. Dismisses the action.                                                       incentive for future work or loyalty to the undertaking or both.
                                                                               However, it does not fall within the concept of payment within
2. Orders the Federal Republic of Germany to pay the costs.                    the meaning of Article 11(2)(b) of Council Directive 92/85/EEC
                                                                               of 19 October 1992 on the introduction of measures to
(1) OJ C 108 of 5.4.1997.                                                      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).
 ---pagebreak--- C 20/6                 EN                      Official Journal of the European Communities                                          22.1.2000
2. Article 119 of the Treaty precludes an employer from excluding         ruling in the proceedings pending before that tribunal between
    female workers on parenting leave entirely from the benefit of a      Angela Maria Sirdar and The Army Board, Secretary of State
    bonus paid voluntarily as an exceptional allowance at Christmas       for Defence — on the interpretation of the EC Treaty, in
    without taking account of the work done in the year in which the      particular Article 224 thereof (now Article 297 EC), and of
    bonus is paid or of the periods for the protection of mothers (in     Council Directive 76/207/EEC of 9 February 1976 on the
    which they were prohibited from working) where that bonus is          implementation of the principle of equal treatment for men
    awarded retroactively as pay for work performed in the course of      and women as regards access to employment, vocational
    that year.                                                            training and promotion, and working conditions (OJ 1976 L
                                                                          39, p. 40), in particular Article 2 thereof — the Court,
    However, neither Article 119 of the Treaty nor Article 11(2) of       composed of: G.C. Rodrı́guez Iglesias, President, J.C. Moitinho
    Directive 92/85 nor Clause 2(6) of the Annex to Council               de Almeida, D.A.O. Edward and R. Schintgen (Presidents of
    Directive 96/34/EC of 3 June 1996 on the framework agree-             Chambers), P.J.G. Kapteyn, J.-P. Puissochet (Rapporteur),
    ment on parental leave concluded by UNICE, CEEP and the               G. Hirsch, P. Jann and H. Ragnemalm, Judges; A. La Pergola,
    ETUC precludes a refusal to pay such a bonus to a woman on            Advocate General; L. Hewlett, Administrator, for the Registrar,
    parenting leave where the award of that allowance is subject to       has given a judgment on 26 October 1999, in which it has
    the sole condition that the worker must be in active employment       ruled:
    when it is awarded.
                                                                          1. Decisions taken by Member States in regard to access to
                                                                              employment, vocational training and working conditions in the
3. Article 119 of the Treaty, Article 11(2)(b) of Directive 92/85             armed forces for the purpose of ensuring combat effectiveness do
    and Clause 2(6) of the Annex to Directive 96/34 do not preclude           not fall altogether outside the scope of Community law.
    an employer, when granting a Christmas bonus to a female
    worker who is on parenting leave, from taking periods of
    parenting leave into account, so as to reduce the benefit pro rata.   2. The exclusion of women from service in special combat units such
                                                                              as the Royal Marines may be justified under Article 2(2) of
                                                                              Council Directive 76/207/EEC of 9 February 1976 on the
    However, Article 119 of the Treaty precludes an employer, when            implementation of the principle of equal treatment for men and
    granting a Christmas bonus, from taking periods for the                   women as regards access to employment, vocational training and
    protection of mothers (in which they were prohibited from                 promotion, and working conditions, by reason of the nature of
    working) into account, so as to reduce the benefit pro rata.              the activities in question and the context in which they are carried
                                                                              out.
(1) OJ C 357 of 22.11.1997.
                                                                          (1) OJ C 295 of 27.9.1997.
                                                                                            JUDGMENT OF THE COURT
                                                                                                   of 26 October 1999
                 JUDGMENT OF THE COURT
                                                                          in Case C-294/97 (reference for a preliminary ruling from
                       of 26 October 1999                                 the Finanzgericht Münster): Eurowings Luftverkehrs AG
                                                                                           v Finanzamt Dortmund-Unna(1)
in Case C-273/97 (reference for a preliminary ruling from
the Industrial Tribunal, Bury St Edmunds): Angela Maria                   (Freedom to provide services — Trade tax — Add-back to
Sirdar v The Army Board, Secretary of State for                           the taxable amount — Exemption inapplicable to the lessee
                             Defence (1)                                  where the proprietor of the goods leased is established in
                                                                           another Member State and is therefore not liable to the tax)
(Equal treatment for men and women — Refusal to employ
           a woman as a chef in the Royal Marines)                                                    (2000/C 20/11)
                          (2000/C 20/10)                                                       (Language of the case: German)
                   (Language of the case: English)                        (Provisional translation; the definitive translation will be published
                                                                                               in the European Court Reports)
In Case C-273/97: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Industrial                    In Case C-294/97: reference to the Court under Article 177 of
Tribunal, Bury St Edmunds, United Kingdom, for a preliminary              the EC Treaty (now Article 234 EC) from the Finanzgericht