Michelle K. Alabaster v Woolwich plc and Secretary of State for Social Security.
Date: 2004-03-30
35. The Court may of its own motion, or on a proposal from the Advocate General, or at the request of the parties reopen the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see the order in Case C-17/98 Emesa Sugar  [2000] ECR I-665, paragraph 18, the judgment in Case C‑309/99 Wouters and Others [2002] ECR I-1577, paragraph 42, and the judgment of 13 November 2003 in Case C-209/01 Schilling and Fleck-Schilling [2003] ECR I-0000, paragraph 19).
42. Regarding first the concept of pay in the aforementioned provisions, according to the definition in the second paragraph of Article 119 of the Treaty it includes all consideration which workers receive directly or indirectly from their employers in respect of their employment. The legal nature of such consideration is not important for the purposes of the application of that article, provided that it is granted in respect of employment (see Case 12/81 Garland [1982] ECR 359, paragraph 10, and Gillespie , paragraph 12).
43. Consideration classified as pay includes, inter alia, consideration paid by the employer by virtue of legislative provisions and under a contract of employment whose purpose is to ensure that workers receive income even where, in certain cases specified by the legislature, they are not performing any work provided for in their contracts of employment (see Case C-360/90 Bötel [1992] ECR I-3589, paragraphs 14 and 15, and Gillespie , paragraph 13 and the cases cited therein).
44. It follows that, since the benefit paid by an employer under legislation or collective agreements to a woman on maternity leave is based on the employment relationship, it constitutes pay within the meaning of Article 119 of the Treaty and Directive 75/117 ( Gillespie , paragraph 14, and Case C‑411/96 Boyle and Others  [1998] ECR I-6401, paragraph 38).
45. Secondly, the Court has consistently held that discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations (see, in particular, Case C-279/93 Schumacker  [1995] ECR I-225, paragraph 30, and Gillespie,  paragraph 16).
46. In that connection 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, in particular, either with that of a man or with that of a woman actually at work ( Gillespie,  paragraph 17). Therefore they cannot usefully rely on the provisions of Article 119 of the Treaty to argue that they should continue to receive full pay while on maternity leave as though they were actually working, like other workers ( Gillespie , paragraph 20).
47. However the Court found, thirdly, at paragraph 22 of Gillespie , that benefit paid during maternity leave is equivalent to a weekly payment calculated on the basis of the average pay received by the worker at the time when she was actually working and which was paid to her week by week, just like any other worker. The principle of non-discrimination therefore requires that a woman who is still linked to her employer by a contract of employment or by an employment relationship during maternity leave must, like any other worker, benefit from any pay rise, even if back-dated, which is awarded between the beginning of the period covered by reference pay and the end of maternity leave. To deny such an increase to a woman on maternity leave would discriminate against her since, had she not been pregnant, she would have received the pay rise.
52. As regards the first point it should be borne in mind that Article 234 EC is based on a clear division of functions between the national courts and the Court of Justice, so that the Court may rule on the interpretation or validity of Community provisions only on the basis of the facts which the national court puts before it (Case C-30/93 AC-ATEL Electronics Vertriebs  [1994] ECR I-2305, paragraph 16). It follows that, within the framework of the procedure under Article 234 EC, it is not for the Court of Justice but for the national court to apply the Community rules which it has interpreted to national measures or situations (Case 222/78 ICAP  [1979] ECR 1163, paragraph 10, and C‑342/97 Lloyd Schuhfabrik Meyer  [1999] ECR I-3819, paragraph 11).
54. As to the question of whether decreases in pay ought to be taken into account, the Court has held that in the context of Article 234 EC proceedings it must, in order to determine whether it has jurisdiction, examine the conditions in which the case has been referred to it by the national court. The spirit of cooperation which must prevail in the preliminary ruling procedure requires the national court to have regard to the function entrusted to the Court of Justice, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions (Case C-415/93 Bosman  [1995] ECR I-4921, paragraph 59; Case C-379/98 PreussenElektra  [2001] ECR I-2099, paragraph 38; Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 18; and Case C‑451/99 Cura Anlagen  [2002] ECR I-3193, paragraph 16).