Maria Cristina Elisabetta Ornano v Ministero della Giustizia, Direzione Generale dei Magistrati del Ministero.
Date: 2016-07-14
30


The concept of ‘pay’ used in Article 11 of Directive 92/85, like the definition in Article 119 of the EC Treaty (subsequently Article 141 EC), encompasses the consideration paid directly or indirectly by the employer during the worker’s maternity leave in respect of her employment. By contrast, the concept of an ‘allowance’ to which Article 11 also refers includes all income received by the worker during her maternity leave which is not paid to her by her employer pursuant to the employment relationship (see, to that effect, judgments of 27 October 1998 in Boyle and Others, C‑411/96, EU:C:1998:506, paragraph 31, and 1 July 2010 in Parviainen, C‑471/08, EU:C:2010:391, paragraph 35).
31


According to the Court’s settled case-law, workers cannot, however, usefully rely on Article 11(2) and (3) of Directive 92/85 to claim that they should continue to receive full pay while on maternity leave as though they were actually working, like other workers (see, to that effect, judgments of 13 February 1996 in Gillespie and Others, C‑342/93, EU:C:1996:46, paragraph 20; 30 March 2004 in Alabaster, C‑147/02, EU:C:2004:192, paragraph 46; and 1 July 2010 in Gassmayr, C‑194/08, EU:C:2010:386, paragraph 82).
33


In that regard, as is clear from Directive 92/85 and the case-law of the Court, the legislature of the European Union wished to ensure that, during her maternity leave, the worker should receive an income of an amount at least equivalent to that of the allowance provided for by national social security legislation in the event of a break in her activities on health grounds (see, to that effect, judgments of 27 October 1998 in Boyle and Others, C‑411/96, EU:C:1998:506, paragraph 32; 1 July 2010 in Gassmayr, C‑194/08, EU:C:2010:386, paragraph 83; and 13 February 2014 in TSN and YTN, C‑512/11 and C‑513/11, EU:C:2014:73, paragraph 36).
34


When a worker is absent from work because she is on maternity leave, the minimum protection required by Article 11(2) and (3) of Directive 92/85 does not therefore require that the person concerned should continue to receive full pay (judgment of 1 July 2010 in Gassmayr, C‑194/08, EU:C:2010:386, paragraph 86).
35


Furthermore, Directive 92/85, which contains only minimum requirements, does not in any way prevent Member States from providing for a higher level of protection for those workers by maintaining or laying down more favourable measures for the protection of workers provided that they are compatible with the provisions of EU law. No provision of that directive therefore prevents the Member States or, where appropriate, management and labour from providing that a pregnant worker should continue to receive all the pay components and allowances to which she was entitled before her pregnancy and maternity leave (judgments of 1 July 2010 in Gassmayr, C‑194/08, EU:C:2010:386, paragraph 88, and 13 February 2014 in TSN and YTN, C‑512/11 and C‑513/11, EU:C:2014:73, paragraph 37).
38


As stated in paragraph 30 above, since they are based on the employment relationship, the benefits which the employer pays, whether under legislative provisions or an employment contract, to a worker on maternity leave constitute pay within the meaning of Article 119 of the EC Treaty (subsequently Article 141 EC) and Article 1 of Directive 75/117 (judgments of 13 February 1996 in Gillespie and Others, C‑342/93, EU:C:1996:46, paragraph 14, and 27 October 1998 in Boyle and Others, C‑411/96, EU:C:1998:506, paragraph 38).
39


According to the Court’s settled case-law, however, discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations (judgment of 13 February 1996 in Gillespie and Others, C‑342/93, EU:C:1996:46, paragraph 16 and the case-law cited). However, 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 either to that of a man or to that of a woman actually at work (judgment of 13 February 1996 in Gillespie and Others, C‑342/93, EU:C:1996:46, paragraph 17).
40


Therefore, the principle of equal pay between men and women laid down in Article 119 of the EC Treaty (subsequently Article 141 EC) and set out in detail in Directive 75/117 neither requires that women should continue to receive full pay during their maternity leave nor lays down specific criteria for determining the amount of benefit payable to them during that period, provided that the amount is not set so low as to jeopardise the purpose of maternity leave. However, to the extent that it is calculated on the basis of pay received by a woman before the commencement of maternity leave, the amount of benefit must include pay rises awarded between the beginning of the period covered by the reference pay and the end of maternity leave, as from the date on which they take effect (judgment of 13 February 1996 in Gillespie and Others, C‑342/93, EU:C:1996:46, paragraph 25).
43


Furthermore, since, as recalled in paragraph 38 above, the benefits that the employer pays during maternity constitute pay within the meaning of Article 119 of the EC Treaty (subsequently Article 141 EC) and Article 1 of Directive 75/117, that pay cannot be covered by Directive 76/207. It is clear in particular from the second recital of Directive 76/207 that the latter does not cover pay (see, to that effect, judgments of 13 February 1996 in Gillespie and Others, C‑342/93, EU:C:1996:46, paragraph 24, and 27 October 1998 in Boyle and Others, C‑411/96, EU:C:1998:506, paragraph 38). That being so, it is unnecessary to examine this case in the light of Directive 76/207.