Land Brandenburg v Ursula Sass.
Date: 2004-11-18
25. Second, it must be borne in mind that the Court has already ruled, in connection with Article 141 EC, that since it is mandatory in nature, the prohibition on discrimination between men and women applies not only to the action of public authorities but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals (see, in particular, Case 43/75 Defrenne  v Sabena  [1976] ECR 455, paragraph 39; Case C-184/89 Nimz  [1991] ECR I-297, paragraph 11; and Case C-333/97 Lewen  [1999] ECR I-7243, paragraph 26).  As the BAT-O is intended to govern the relations of contract staff with public authorities, the same must apply in the context of Directive 76/207 (see, to that effect, Case C-1/95 Gerster  [1997] ECR I-5253, paragraph 18).
30. The outcome desired by Mrs Sass is an early promotion to the higher salary grade. The key question, for the purposes of achieving that outcome, is whether the whole of her maternity leave can be included in the qualifying period for classification in a higher grade, in this case a higher salary grade. Thus, it must be held that, in the present case, the higher salary is simply a consequence of the inclusion of that maternity leave in the qualifying period.
31. Accordingly, the provisions at issue in the dispute in the main proceedings lay down the rules concerning a worker’s passage to a higher grade following a qualifying period. It follows that the question referred in the case seeks to clarify the conditions of access to a higher level of the professional hierarchy and, therefore, falls within the scope of Directive 76/207.
32. It must be observed that, having regard to the principle of equal treatment, that directive recognises the legitimacy of both the protection of a woman’s biological condition during and after pregnancy and the protection of the special relationship between a woman and her child over the period which follows pregnancy and childbirth (see Case 184/83 Hofmann  [1984] ECR 3047, paragraph 25, and Case C-342/01 Merino Gómez  [2004] ECR I-0000, paragraph 32).
33. To that end, Article 2(3) of the directive allows national provisions which guarantee women specific rights on account of pregnancy and maternity. Maternity leave is covered by that article (see Case C-136/95 Thibault  [1998] ECR I-2011, paragraph 24).
34. Moreover, the exercise of rights granted to a woman under that Article cannot be made subject to unfavourable treatment regarding conditions to be fulfilled in order for her to attain a higher grade in the professional hierarchy. From that point of view, Directive 76/207 is intended to bring about equality in substance rather than in form (see, to that effect, Merino Gómez , paragraph 37, and Thibault , paragraph 26).
35. It follows from the foregoing that a female worker is protected in her employment relationship against any unfavourable treatment on the ground that she is or has been on maternity leave.
36. A woman who is treated unfavourably because of absence on maternity leave suffers discrimination on the ground of her pregnancy and of that leave. Such conduct constitutes discrimination on the grounds of sex within the meaning of Directive 76/207 (Case C-342/93 Gillespie and Others  [1996] ECR I‑475, paragraph 22; Thibault , paragraphs 29 and 32; and Case C-147/02 Alabaster , [2004] ECR I-0000, paragraph 47).
39. In that regard, it must be pointed out that a woman is still linked to her employer by a contract of employment during maternity leave (see Gillespie and Others , paragraph 22; Thibault , paragraph 29, and Alabaster , paragraph 47). The way in which a female worker is paid during such leave does not affect that conclusion.
44. Therefore, the fact that a piece of legislation grants women maternity leave of more than 14 weeks does not preclude that leave from being considered to be maternity leave as referred to in Article 8 of Directive 92/85 and, therefore, a period during which the rights connected with the employment contract must, under Article 11, be ensured.
55. However, it must be borne in mind that it is not for the Court of Justice to interpret national legislation, as only the national court has jurisdiction to do so. In the case of a breach of Directive 76/207 by legislative provisions introducing discrimination contrary to that directive, the national courts are required to set aside that discrimination, using all the means at their disposal, and in particular by applying those provisions for the benefit of the class placed at a disadvantage (Case C-187/00 Kutz-Bauer [2003] ECR I-2741, paragraph 75, and Case C-77/02 Steinicke  [2003] ECR I-9027, paragraph 72).