CELEX: 62003CC0356
Language: en
Date: 2004-09-09
Title: Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 9 September 2004. # Elisabeth Mayer v Versorgungsanstalt des Bundes und der Länder. # Reference for a preliminary ruling: Bundesgerichtshof - Germany. # Equal treatment for men and women - Maternity leave - Acquisition of pension rights. # Case C-356/03.

OPINION OF ADVOCATE GENERAL
      RUIZ-JARABO COLOMER
      delivered on 9 September 2004 (1)
      
      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 (2) and Article 6(1)(g) of Directive 86/378/EEC (3) 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 (4)
      
      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, (5) 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 (6) 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; (7)
      
      (b)      a supplementary maternity allowance, to be paid by the employer, which makes up difference between the maternity allowance
         and the last net pay. (8)
      
      This supplementary allowance is exempt from tax. (9)
      
      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. (10) 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’ (11) 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. (12) 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.’ (13)
      
      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 (14) 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. (15)
      
      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. (16) 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, (17) an economic and social objective in itself. Its wording is based on Article 2 of Convention 100-1951 of the International
         Labour Organisation. (18)
      
      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’, (19) 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?’ (20) The certainty of a salary gives the provision of services its specific objective, converting it into a contract. (21)
      
      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; (22) occupational pension plans based on an agreement between the employer and employee representatives financed, entirely or
         partly, by the employer; (23) continued payment of a salary during sick leave; (24) benefits paid in connection with redundancy and pension state under private occupational schemes; (25) 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; (26) or the right to join an occupational pension scheme. (27)
      
      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, (28) 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. (29) 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; (30) additional voluntary contributions paid by employees to secure additional benefits are not included. (31)
      
      37.   The insurance annuity with which we are concerned here is part of a supplementary occupational pension scheme (32) 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. (33) 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. (34) 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, (35) 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. (36) 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. (37)
      
      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. (38)
      
      42.   The insurance annuity at issue is designed to reimburse sums paid previously. (39) 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, (40) 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. (41)
      
      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 (42). Case-law has also held that the situation during that time cannot be compared to that of a man or woman on sick leave. (43) 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. (44)
      
      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. (45) 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. (46)
      
      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. (47)
      
      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. (48) 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. (49)
      
      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, (50) 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 (51) 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, (52) 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’
         
      
      1 –	Original language: Spanish.
      
      2 –	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 breast-feeding (tenth individual Directive
         within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1).
      
      3 –	Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women
         in occupational social security schemes (OJ 1986 L 225, p. 40), as amended by Council Directive 96/97/EEC of 20 December 1996
         (OJ 1997 L 46, p. 20).
      
      4 –	I refer to this article, not to the current one, because it is the one consistently used by the national court in the question
         referred for a preliminary ruling.
      
      5 –	With effect from 1 January 2001 new statutes were adopted, replacing the previous scheme with a company pension plan based
         on the so-called ‘pension points’ system.
      
      6 –	The Mutterschutzgesetz (German Law for the protection of mothers) provides for a period of protection of six weeks prior
         to and up to twelve weeks subsequent to confinement.
      
      7 –      Article 13(2) of the Mutterschutzgesetz.
      
      8 –      Article 14(1) of the Mutterschutzgesetz.
      
      9 –      Article 3(1)(d) of the Einkommensteuergesetz (German Law on income tax).
      
      10 –	What is more, in Article 5(2) of Directive 86/378 it is stated that ‘the principle of equal treatment shall not prejudice
         the provisions relating to the protection of women by reason of maternity’.
      
      11 –	The maintenance of rights linked to the employment contract, which is the subject of Article 11 of Directive 92/85 is explained,
         according to the penultimate recital, by the effectiveness of the provisions concerning maternity leave.
      
      12 –	It should be borne in mind that Directive 86/378, although it transcribed the content of Article 119 of the Treaty in its
         first recital, has as its legal basis Articles 100 and 235; Directive 92/85 is based on Article 118a of the Treaty.
      
      13 –	Judgements in Case 96/80 Jenkins [1981] ECR 911, Paragraph 17, and Case C‑262/88 Barber [1990] ECR I‑1889, Paragraph 37.
      
      14 –	Inter alia, as well as the judgment in Barber, those in Case C‑200/91 Coloroll Op Pension Trustees [1994] ECR I‑4389, and Case C‑379/99 Menauer [2001] ECR I‑7275; more recently, Joined Cases C‑4/02 and C‑5/02 Schönheit and Becker [2003] ECR I-12575; Case C‑147/02 Alabaster [2004] ECR I-3101, and Case C‑220/02 Österreichischer Gewerkschaftsbund [2004] ECR I-5907.
      
      15 –	By way of example, the following judgments may be cited: Case C‑177/88 Dekker [1990] ECR I‑3491; Case C‑179/88 Handels-og Kontorfunktionærernes Forbund, ‘Hertz’ [1990] ECR I‑3979; Case C‑421/92 Habermann-Beltermann [1994] ECR I‑1657; Case C‑32/93 Webb [1994] I‑3567; Case C‑342/93 Gillespie and Others [1996] ECR I‑475; Case C‑400/95 Larsson [1997] ECR I‑2757; Case C‑136/95 Thibault 1998] ECR I‑2011; Case C‑394/96 Brown [1998] ECR I‑4185; Case C‑411/96 Boyle and Others [1998] ECR I‑6401, and Case C‑66/96 Høj Pedersen and Others [1998] ECR I‑7327. I referred to most of them in point 26 of the Opinion in Boyle and Others.
      
      16 –	I would point out that the Treaty of Amsterdam has supported the principle of equality between men and women by stating
         it expressly as one of the objectives of the European Community, contained in Article 2 of the consolidated text of the Treaty
         establishing it, which provides: ‘The Community shall have as its task, by establishing a common market and an economic and
         monetary union and by implementing common policies or activities referred to in Articles 3 and 4, ... equality between men
         and women ...’. It reaffirms the principle by introducing a new paragraph in Article 3 in fine, which states that, in all the activities contemplated in that provision, the aim of the Community is to eliminate inequality
         and promote equality between men and women.  
      
      17 –	Judgment in Coloroll Pension Trustees, paragraph 38.
      
      18 –	Ellis, Evelyn, EC Sex Equality Law, 2ª edition, col. Oxford EC Law Library, Ed. Clarendon Press, Oxford, 1998, p. 62.
      
      19 –	M. de Cervantes, Don Quijote de la Mancha, edition of Martín Riquer, RBA editores, Barcelona, 1994, Part I, Chapter XX,
         p. 270. (‘that such squires were ever paid wages; they depended upon favour’. Translation by John Rutherford, Penguin Classics,
         2001, p. 165.)
      
      20 –	M. de Cervantes, op. cit. Part II, Chapter XXVIII, p. 840. (‘Where have you ever seen or read of any knight errant’s squire
         confronting his master with ‘you must give me so much a month if you want me to serve you’. Translation by John Rutherford,
         Penguin Classics 2001, p. 680).
      
      21 –	This was acknowledged by the fine Spanish lecturer Prof. M. Alonso Olea, recently deceased, in a memorable lecture delivered
         in the Law Faculty of the University of León on 23 January 1996 entitled ‘Entre Don Quijote y Sancho, relación laboral’ (‘Was
         there an employment relationship between Don Quixote and Sancho?’).
      
      22 –	Judgment in Case 12/81 Garland [1982]ECR 359.
      
      23 –	Judgment in Case 170/84 Bilka [1986] ECR 1607.
      
      24 –	Judgment in Case 171/88 Rinner-Kühn [1989] ECR 2743.
      
      25 –	Judgment in Barber.
      
      26 –	Judgment in Case C‑360/90 Bötel [1992] ECR I‑3589.
      
      27 –	Judgments in Case C‑57/93 Vroege [1994] ECR I-4541 and Case C-128/93 Fisscher [1994] ECR I-4583.
      
      28 –	Judgments in Gillespie and Others, paragraph 14; Boyle and Others, paragraph 38, and Alabaster, paragraph 44.
      
      29 –	Judgments in Case C-7/93 Beune [1994] ECR I-4471, paragraph 43; Case C-147/95 Evrenopoulos [1997] ECR I-2057, paragraph 19; Case C-366/99 Griesmar [2001] ECR I-9383, paragraph 28; Case C-351/00 Niemi [2002] ECR I-7007, paragraph 45; and also the judgment in Schönheit and Becker, paragraph 56.
      
      30 –	Judgments in Case C‑152/91 Neath [1993] ECR I‑6935, paragraph 28; Garland, paragraph 5; Barber, paragraph 12; and Coloroll Pension Trustees, paragraph 77.
      
      31 –	Judgment in Coloroll Pension Trustees, paragraph 90.
      
      32 –	This is stated by the Bundesgerichtshof itself in the order for reference (Paragraph II(2)(b)(bb) of the grounds).
      
      33 –	The judgment in Coloroll Pension Trustees, in paragraph 88 of which it is stated that, whether contributions are payable by the employer or the employees has no bearing
         on the concept of pay when applied to occupational pensions, which must conform to the principle of equal treatment in their
         entirety, whatever the source of their funding.
      
      34 –	Judgments in Case C‑279/93 Schumacker [1995] ECR I‑225, paragraph 30; and also in Gillespie and Others, paragraph 16, and Boyle and Others, paragraph 39.
      
      35 –	Judgments in Case C‑167/97 Seymour-Smith and Pérez [1999] ECR I‑623, paragraph 58; and Schönheit and Becker, paragraph 69.
      
      36 –	Judgments in Case C‑218/98 Abdoulaye and Others [1999] ECR I‑5723, paragraph 16, and Griesmar, paragraph 39.
      
      37 –	Judgments in Case C‑1/95 Gerster [1997] ECR I‑5253, paragraph 30; Case C‑100/95 Kording [1997] ECR I‑5289, paragraph 16; and Boyle and Others, paragraph 76.
      
      38 –	Judgments in Gillespie and Others, paragraphs 17 and 20, and Alabaster, paragraph 46.
      
      39 –	As the Bundesgerichtshof also states when raising the matter (Paragraph II(2)(b)(bb) and Paragraph II(3)(a)(aa) of the
         grounds).
      
      40 –	Or, if this is not the situation, to the sex of the person concerned.
      
      41 –	This is apparent from Article 44 et seq., in conjunction with Article 29(7) of the statutes of the VBL. See points 10 and
         11 of this Opinion.
      
      42 –	As the Bundesgerichtshof explains when referring the question (Paragraph II(2)(b) of the grounds), periods for the protection
         of mothers, unlike periods of child-rearing, can affect only female workers.
      
      43 –	Judgment in Boyle and Others, paragraph 40.
      
      44 –	Judgments in Case 184/83 Hofmann [1984] ECR 3047, paragraph 25; Thibault, paragraph 25; and Boyle and Others, paragraph 41.
      
      45 –	Judgments in Menauer, paragraphs 25 to 27, and Coloroll Pension Trustees, paragraphs 42 and 43.
      
      46 –	As I indicated in point 13, the periods were from 16 December 1992 to 5 April 1993 and from 17 January to 22 April 1994,
         and the time-limit for implementing the directive was 19 October 1994 – two years after its adoption – (Article 14(1)).
      
      47 –	do not examine the problem of what would happen if, when the transposition period elapses, a worker is enjoying a period
         of maternity leave shorter than that provided for in the directive.
      
      48 –	Judgement in Boyleand Others, paragraph 82. In paragraph 85 it is stated that ‘the accrual of pension rights under an occupational scheme during the period
         of maternity leave referred to by Article 8 of Directive 92/85 cannot therefore be made conditional upon the woman’s receiving
         the pay provided for by her employment contract or SMP during that period’.
      
      49 –	See point 38 of this Opinion.
      
      50 –	Article 2 of Council Directive 96/97/EC amending Directive 86/378 (OJ 1996 L 46, p. 20) provides that ‘any measure implementing
         this Directive, as regards paid workers, must cover all benefits derived from periods of employment subsequent to 17 May 1990
         and shall apply retroactively to that date, without prejudice to workers or those claiming under them who have, before that
         date, initiated legal proceedings or raised an equivalent claim under national law’.
      
      51 –	Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for
         men and women in matters of social security (OJ 1979 L 6, p. 24).
      
      52 –	See points 8 to 11 of this Opinion.