Sanna Maria Parviainen v Finnair Oyj.
Date: 2010-07-01
30. As a preliminary point, it should be recalled that because certain activities may present a specific risk of exposure to hazardous agents, processes or working conditions for a pregnant worker or for one who is breastfeeding or who has recently given birth, such as those listed in Annex I to Directive 92/85, endangering safety or health, the European Union legislature, by adopting Directive 92/85, introduced the requirement to evaluate and communicate risks and a prohibition on the exercise of certain activities (see, to that effect, Case C‑203/03 Commission  v Austria [2005] ECR I‑935, paragraph 44).
32. It is only when such a move is also not feasible that Article 5(3) of that directive provides that 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).
35. According to settled case-law of the Court, the concept of pay used in Article 11 of that directive, like the definition in the first subparagraph of Article 141(2) 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 allowance to which that provision 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 Case C‑411/96 Boyle and Others  [1998] ECR I‑6401, paragraph 31).
36. As regards the concept of the adequate allowance to which workers on maternity leave are entitled under Article 11(2)(b) of Directive 92/85, the Court has also held that the definition in Article 11(3) is intended 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).
37. According to that case-law, 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, pay or a combination of the two ( Boyle and Others , paragraph 33).
40. However, women taking maternity leave provided for by Article 8 of that directive 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 (see Case C‑342/93 Gillespie and Others  [1996] ECR I‑475, paragraph 17, and Case C‑147/02 Alabaster [2004] ECR I‑3101, paragraph 46).
41. In the second place, it is clear from Article 11(3) of Directive 92/85 that the definition of adequate allowance which is mentioned therein applies only to Article 11(2)(b), and thus only to workers on maternity leave (see, to that effect, Høj Pedersen and Others , paragraph 39).
49. That being the case, an examination of the wording of Article 11(1) of Directive 92/85 and of the objective of protecting pregnant workers and workers who have recently given birth or are breastfeeding pursued by that directive indicates that, contrary to the submissions of the Commission and the applicant in the main proceedings, a pregnant worker, such as the applicant, who is temporarily transferred to another job and whose pay before the transfer is made up of a basic salary and a series of supplementary allowances, the payment of which depends with respect to some of those allowances on the performance of specific functions, cannot, on the basis of that provision, claim that she should continue to receive all the remuneration she received before the temporary transfer.
52. Next, the Court has already observed that the facts relating to the nature of the work done and the conditions in which it is carried out may, if appropriate, 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).
55. Thus, that provision leaves to the Member States and, where appropriate, to management and labour a certain amount of discretion when they define the conditions for the exercise and implementation of the entitlement of the pregnant workers covered by Article 5(2) of Directive 92/85 to pay. It is therefore for the Member States to define the detailed rules for the application of that entitlement, although they are not able 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).
60. It follows that, in addition to the basic salary relating to her contract or her employment relationship, a pregnant worker temporarily transferred to another job, pursuant to Article 5(2) of Directive 92/85, remains, during that transfer, entitled to the pay components or supplementary allowances which relate to her professional status such as, in particular, her seniority, her length of service and her professional qualifications.
61. However, the Member States and, where appropriate, management and labour are not required pursuant to Article 11(1) of Directive 92/85 to maintain, during the temporary transfer, the pay components or supplementary allowances which, as is clear from paragraph 53 of this judgment, 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.
63. Nevertheless, it should be recalled that Article 11(1) of Directive 92/85 provides only for minimum protection with respect to the pay of pregnant workers covered by Article 5 thereof. None of the provisions of that directive prevents the Member States or, where appropriate, management and labour from providing for the maintenance of all the pay components and supplementary allowances to which the pregnant worker was entitled before her pregnancy and her temporary transfer to another job.
64. Directive 92/85, which was adopted in accordance with Article 118a of the EC Treaty (Articles 117 to 120 of the EC Treaty have been 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 laying down more stringent protective measures, provided that they are compatible with the provisions of the Treaty (see, to that effect, Case C‑438/99 Jiménez Melgar  [2001] ECR I‑6915, paragraph 37).
73. Having regard to all the foregoing, the answer to the question referred is that Article 11(1) of Directive 92/85 must be interpreted as meaning that a pregnant worker who, in accordance with Article 5(2) thereof, has been temporarily transferred on account of her pregnancy to a job in which she performs tasks other than those she performed prior to that transfer is not entitled to the pay she received on average prior to that transfer. In addition to the maintenance of her basic salary, such a worker is entitled, pursuant to Article 11(1), to pay components or supplementary allowances relating to her professional status, such as allowances relating to her seniority, her length of service and her professional qualifications. Although Article 11(1) of Directive 92/85 does not preclude the use of a method of calculating remuneration to be paid to such a worker based on the average amount of the allowances linked to working conditions of all the air crew in the same pay grade during a given reference period, the failure to take account of those pay components or supplementary allowances must be regarded as contrary to that provision.
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