Bundesrepublik Deutschland v Karen Dittrich and Robert Klinke and Jörg-Detlef Müller v Bundesrepublik Deutschland.
Date: 2012-12-06
31. As the Court has held, the scope of Directive 2000/78 must be understood, in the light of its Article 3(1)(c) and 3(3), read in conjunction with recital 13 in its preamble, as excluding social security or social protection schemes, the benefits of which are not equivalent to ‘pay’ within the meaning given to that term for the application of Article 157 TFEU ( Maruko , paragraph 41, and Case C-147/08 Römer  [2011] ECR I-3591, paragraph 32).
32. Accordingly, Article 3(3) of Directive 2000/78 cannot be interpreted as meaning that a financial benefit granted in the event of illness to a public servant, which constitutes ‘pay’ within the meaning of Article 157 TFEU, falls outside the scope of that directive (see, to that effect, Römer , paragraph 33).
35. As regards, firstly, the material element of pay, it is apparent from the case-law of the Court that the concept of ‘pay’, within the meaning of Article 157 TFEU, must be interpreted broadly. It covers, in particular, any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his or her employment from his or her employer, and irrespective of whether it is received under a contract of employment, by virtue of legislative provisions or on a voluntary basis (see Case C-360/90 Bötel  [1992] ECR I-3589, paragraph 12, and Case C-167/97 Seymour-Smith and Perez  [1999] ECR I-623, paragraph 29).
37. Secondly, it is necessary to examine whether the assistance at issue is granted to the public servant by reason of the latter’s employment. It follows from settled case-law that, in order to determine whether a benefit comes within the scope of Article 157 TFEU, the one criterion which may prove decisive is whether the benefit was granted to the worker by reason of his employment relationship, and all the more so because this is the only criterion which is based on the wording of that provision itself (see, with regard to retirement pensions, Maruko , paragraph 46 and the case-law cited).
38. The specific criteria identified by the Court to assess the classification of a retirement benefit as pay, within the meaning of Article 157 TFEU, in particular those according to which that benefit must depend directly on the period of service completed and its amount calculated by reference to the last salary (see Maruko , paragraph 48 and the case-law cited) are, for their part, irrelevant with regard to a benefit such as that at issue in the main proceedings, which seeks, not to provide the interested party with a deferred income after the cessation of the employment relationship, but to cover health expenses incurred during that relationship or after it.
39. As the Advocate General noted at point 45 of his Opinion, the causal link mentioned at paragraph 37 of the present judgment is present in these cases. The assistance at issue is granted solely to German federal public servants, or former German federal public servants, who constitute a specific category of workers (see, to that effect, judgment of 13 November 2008 in Case C-46/07 Commission  v Italy , paragraph 40 and the case-law cited) pursuant to their employment relationship with the State. That assistance accordingly appears indissociably linked to the status of German federal public servants, and, under Paragraph 2(2) of the BBhV, receipt of that assistance is subject to payment of remuneration or a benefit in lieu thereof to the person entitled. The link between the assistance at issue and the employment relationship is also apparent from the fact that, in accordance with that provision, a public servant who is on unpaid leave cannot benefit from that assistance if the duration of the leave exceeds one month.
41. As regards the cases in the main proceedings, the fact, underlined by the referring court, that the assistance at issue is governed by legislation and that it does not supplement a social benefit due under a regulation of general application is not of such a nature to call into question the classification as pay which attaches to a benefit granted by the State acting as an employer under an employment relationship (see, to that effect, Case C-7/93 Beune  [1994] ECR I-4471, paragraphs 26 to 29 and 37; Case C-366/99 Griesmar  [2001] ECR I-9383, paragraph 37; and Case C-351/00 Niemi [2002] ECR I-7007, paragraphs 41 and 42).