Susanne Gassmayr v Bundesminister für Wissenschaft und Forschung.
Date: 2010-07-01
29. According to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, in particular, Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 59, and Case C‑305/05 Ordres des barreaux francophones et germanophone and Others [2007] ECR I‑5305, paragraph 18).
30. Nevertheless, the Court has held that it cannot give a preliminary ruling on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation or validity of European Union law bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see Bosman , paragraph 61, and Case C‑36/99 Idéal tourisme  [2000] ECR I‑6049, paragraph 20).
31. Furthermore, it is essential that the referring court provide at the very least some explanation of the reasons for the choice of the provisions of European Union law which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute in the main proceedings (see, in particular, Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others  [2007] ECR I‑1891, paragraph 34).
34. It should be recalled that Articles 4(1) and 5 of Directive 92/85 guarantee special protection for pregnant women and women who have recently given birth or are breastfeeding in respect of any activity liable to involve a specific risk to their safety or health or negative effects on the pregnancy or breastfeeding (Case C‑320/01 Busch  [2003] ECR I‑2041, paragraph 42). The legislature of the European Union, by adopting that directive, introduced the requirement to evaluate and communicate risks, and a prohibition of the exercise of certain activities (see, to that effect, Case C‑203/03 Commission  v Austria  [2005] ECR I‑935, paragraph 44).
36. It is only when such a move is also not feasible that Article 5(3) of that directive provides the worker is to be granted leave, in accordance with national legislation and/or national practice, for the whole of the period necessary to protect her safety or health (Case C‑66/96 Høj Pedersen and Others  [1998] ECR I‑7327, paragraph 57, and Case C‑471/08 Parviainen  [2010] ECR I‑0000, paragraph 32).
44. According to settled case-law, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied on before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly (see, in particular, Case 8/81 Becker  [1982] ECR 53, paragraph 25; Joined Cases C‑246/94 to C‑249/94 Cooperativa Agricola Zootecnica S. Antonio and Others  [1996] ECR I‑4373, paragraph 17; and Case C‑226/07 Flughafen Köln/Bonn  [2008] ECR I‑5999, paragraph 23 and the case-law cited).
45. A provision of European Union law is unconditional where it sets forth an obligation which is not qualified by any condition, or subject, in its implementation or effects, to the taking of any measure either by the institutions of the European Union or by the Member States. It is sufficiently precise to be relied on by an individual and applied by a court where it sets out an obligation in unequivocal terms (see, in particular, Cooperativa Agricola Zootecnica S. Antonio and Others , paragraph 19, and Case C‑317/05 Pohl-Boskamp  [2006] ECR I‑10611, paragraph 41).
48. However, the precision and unconditional nature of Article 11(1) of Directive 92/85 is not affected by the reference to national legislation and national practice. Although that provision leaves to the Member States a certain degree of latitude when they adopt rules in order to implement it, that fact does not affect the precise and unconditional nature of that provision. The implementing rules cannot, by any means, apply to the content of the right enshrined by Article 11(1) and cannot thereby limit the existence or restrict the scope of that right (see, Parviainen , paragraph 55, and, as regards Article 10 of Directive 92/85, Case C‑438/99 Jiménez Melgar  [2001] ECR I‑6915, paragraphs 33 and 34; see also, by analogy, Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I‑8835, paragraph 105, and Case C‑268/06 Impact  [2008] ECR I‑2483, paragraph 63).
50. However, the fact that, under Article 11(3) of Directive 92/85, that income may be subject to a ceiling determined by national legislation, so that the amount of such an allowance may vary from one Member State to another, likewise does not affect the precise and unconditional nature of that provision, nor that of Article 11(2). Since the income which must be guaranteed to a worker on maternity leave is established by law, the application of the ceiling provided for in Article 11(3) does not render Article 11(2) and (3) incapable of being applied by a court to the facts of the dispute which it is to hear and determine and, consequently, cannot render the subject-matter of that provision insufficiently precise (see, by analogy, Impact , paragraph 61).
63. Next, the Court has already held that facts relating to the nature of the work done and the conditions in which it is carried out may in some circumstances be considered to be objective factors unrelated to any discrimination on grounds of sex such as to justify any differences in pay between different groups of workers (see, to that effect, in the context of Article 141 EC, Case C‑236/98 JämO  [2000] ECR I‑2189, paragraph 52).
65. As the Court held in paragraphs 49 and 61 of Parviainen , concerning a pregnant worker temporarily transferred to another job during and because of her pregnancy under Article 5(2) of Directive 92/85, the Member States and, where appropriate, management and labour are not required under Article 11(1) of that directive to maintain, during the temporary transfer, the pay components or supplements which are dependent on the performance by the worker concerned of specific functions in particular circumstances and which are intended essentially to compensate for the disadvantages related to that performance. The same applies to a pregnant worker granted leave from work under Article 5(3) of that directive and the relevant provisions of national law.
67. As is clear from paragraph 48 of this judgment, that provision leaves the Member States a certain degree of latitude when defining the conditions for the exercise and implementation of the entitlement to an income for the pregnant workers referred to in Article 5(3) of Directive 92/85. It is therefore for the Member States to define the arrangements for that entitlement, although they are not authorised to make the existence of that entitlement, which derives directly from that directive and the employment relationship between the pregnant worker and her employer, subject to any preconditions whatsoever (see, by analogy, Case C‑173/99 BECTU  [2001] ECR I‑4881, paragraph 53, and also Parviainen , paragraph 55).
72. Where the Member States and, where appropriate, management and labour choose, in accordance with Article 11(1) of Directive 92/85, to ensure that a pregnant worker who is granted leave or is prohibited from working in accordance with Article 5(3) receives an income in the form of a payment, an adequate allowance or a combination of the two, that income must in any event be made up of that worker’s basic monthly salary and the pay components or supplements relating to her occupational status – which is in not in any way affected by the leave granted – such as allowances relating to the seniority of the worker concerned, her length of service and her professional qualifications (see, to that effect, Parviainen , paragraph 60).
80. According to settled case-law, workers 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 with that of a man or with that of a woman actually at work, or on sick leave (see, to that effect, Case C‑342/93 Gillespie and Others  [1996] ECR I‑475, paragraph 17; Case C‑411/96 Boyle and Others  [1998] ECR I‑6401, paragraph 40; and Alabaster , paragraph 46).
81. The maternity leave granted to a worker is intended, first, to protect a woman’s biological condition during and after pregnancy and, second, to protect 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; Case C‑136/95 Thibault [1998] ECR I‑2011, paragraph 25; and Boyle and Others , paragraph 41).
82. In those circumstances, pregnant workers cannot usefully rely on the provisions of Article 141 EC or 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, Gillespie and Others , paragraph 20, and Alabaster , paragraph 46).
83. As is clear from Directive 92/95 and the relevant case-law of the Court, the legislature of the European Union wished to ensure that, during her maternity leave, the worker receives an income at least equivalent to the sickness allowance provided for by national social security legislation in the event of a break in her activities on health grounds ( Boyle and Others , paragraph 32).
84. Female workers must be guaranteed an income of that level during their maternity leave, irrespective of whether, in accordance with Article 11(2)(b) of Directive 92/85, it is paid in the form of an allowance, a payment, or a combination of the two ( Boyle and Others , paragraph 33, and Lewen , paragraph 22).
85. In accordance with Article 11(2) and (3) of the directive, during maternity leave, the employer must ensure that workers continue to receive a payment and/or entitlement to an adequate allowance, and the income guaranteed to female workers during maternity leave must be adequate within the meaning of Article 11(3) whether it is paid in the form of a payment, an allowance, or a combination of the two ( Boyle and Others , paragraph 34).
86. Where 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 or the payment of the on-call duty allowance.
88. In that connection, it should be recalled that Article 11(2) and (3) of Directive 92/85 provides only for minimum protection with respect to the entitlement to income of pregnant workers who have been granted leave from work during their maternity leave under Article 8 of that directive. No provision of the directive 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, including the on-call duty allowance, to which she was entitled before her pregnancy and maternity leave.
89. Directive 92/85, which was adopted in accordance with Article 118A of the EC Treaty (Articles 117 to 120 of the EC Treaty were replaced by Articles 136 EC to 143 EC), does not prevent a Member State, as is clear from Article 137(4) EC, from maintaining or introducing more stringent protective measures provided that they are compatible with the provisions of the Treaty (see, to that effect, Jiménez Melgar , paragraph 37).