1. The reference for a preliminary ruling relates to the interpretation of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty were replaced by Articles 136 EC to 143 EC) and of Article 6(1)(g) of Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes (OJ 1986 L 225, p. 40), as amended by Council Directive 96/97/EC of 20 December 1996 (OJ 1997 L 46, p. 20) and Article 11(2)(a) of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (10th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1).
2. That reference was made in proceedings between Mrs Elisabeth Mayer and the Versorgungsanstalt des Bundes und der Länder (Pension Institution of the Federal Republic and the Länder, ‘the VBL’) on the inclusion of periods of maternity leave for the purpose of quantifying her rights to an insurance annuity. Relevant provisions Community provisions
3. Article 2(1) and (2) of Directive 86/378, as amended by Directive 96/97, reads as follows: ‘1. “Occupational social security schemes” means schemes not governed by Directive 79/7/EEC whose purpose is to provide workers, whether employees or self-employed, in an undertaking or group of undertakings, area of economic activity, occupational sector or group of sectors with benefits intended to supplement the benefits provided by statutory social security schemes or to replace them, whether membership of such schemes is compulsory or optional. 2. This Directive does not apply to: (a) individual contracts for self-employed workers; (b) schemes for self-employed workers having only one member; (c) insurance contracts to which the employer is not a party, in the case of salaried workers; (d) optional provisions of occupational schemes offered to participants individually to guarantee them: - either additional benefits, or - a choice of date on which the normal benefits for self-employed workers will start, or a choice between several benefits; (e) occupational schemes in so far as benefits are financed by contributions paid by workers on a voluntary basis.’
4. Article 4 of that directive provides: ‘This Directive shall apply to: (a) occupational schemes which provide protection against the following risks: - sickness, - invalidity, - old age, including early retirement, - industrial accidents and occupational diseases, - unemployment; (b) occupational schemes which provide for other social benefits, in cash or in kind, and in particular survivors’ benefits and family allowances, if such benefits are accorded to employed persons and thus constitute a consideration paid by the employer to the worker by reason of the latter’s employment.’
5. Article 6 of Directive 86/378 provides: ‘1. Provisions contrary to the principle of equal treatment shall include those based on sex, either directly or indirectly, in particular by reference to marital or family status, for: … (g) suspending the retention or acquisition of rights during periods of maternity leave or leave for family reasons which are granted by law or agreement and are paid by the employer; …’
6. Article 2(1) of Directive 96/97 provides: ‘Any measure implementing this Directive, as regards paid workers, must cover all benefits derived from periods of employment subsequent to 17 May 1990 and shall apply retroactively to that date …’
7. Article 11 of Directive 92/85 states: ‘In order to guarantee workers within the meaning of Article 2 the exercise of their health and safety protection rights as recognised in this article, it shall be provided that: … (2) in the case referred to in Article 8, the following must be ensured: (a) the rights connected with the employment contract of workers within the meaning of Article 2, other than those referred to in point (b) below; (b) maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2; …’
8. Under Article 14(1) of Directive 92/85, that directive was to be implemented by the Member States not later than two years after its adoption, that is to say before 19 October 1994. National provisions
9. Paragraph 29(1) and (7) of the statutes of the VBL, in the version in force until 31 December 2000, provided: ‘1. The employer shall pay a monthly contribution calculated as the percentage, determined pursuant to Paragraph 76, of the insured person’s pay subject to the supplementary occupational pension scheme (subparagraph 7), including a contribution pursuant to Paragraph 76(1)(a) from the person compulsorily insured. … 7. Save as otherwise provided below, pay subject to the supplementary occupational pension scheme means the taxable pay allocated in respect of a particular period in accordance with the provisions on the levy of a contribution towards the statutory pension scheme. …’
10. Paragraph 44(1)(a) of those statutes was worded as follows: ‘... 0.03125% of the sum total of the pay subject to the supplementary occupational pension scheme, from which contributions have been paid for the period after 31 December 1977 until the commencement of the insurance annuity (Paragraph 62) shall be granted as a monthly insurance annuity.’
11. Paragraph 13(2) of the Gesetz zum Schutz der erwerbstätigen Mutter (Law on the protection of working mothers, ‘the Mutterschutzgesetz’) provides: ‘Article 13 - Maternity allowance … (2) Women who do not belong to a statutory sickness insurance scheme who are in an employment relationship or are working from home at the beginning of their maternity leave within the meaning of Paragraph 3(2) shall receive, for the period of maternity leave referred to in Paragraph 3(2) and Paragraph 6(1) and for the day of delivery, a maternity allowance from the State in application by analogy of the provisions on maternity allowances in the Reichsversicherungsordnung, up to a maximum of EUR 210. That allowance shall be paid to those women on application to the Bundesversicherungsamt [Federal Insurance Office]. …’
12. Paragraph 14 of the Mutterschutzgesetz states: ‘Paragraph 14 - Supplementary maternity allowance (1) Women who are entitled to the maternity allowance in accordance with … shall receive, during their employment relationship, for the period of maternity leave referred to in Paragraph 3(2) and Paragraph 6(1) and for the day of delivery, a supplement from their employer equal to the difference between EUR 13 and the average pay for a calendar day, minus statutory deductions. …’
13. Under Paragraph 3(1)(d) of the Einkommensteuergesetz (Law on income tax): ‘Paragraph 3. [The following] shall be exempt from income tax: 1. (d) maternity allowance paid under the Mutterschutzgesetz, …, the supplementary maternity allowance paid under the Mutterschutzgesetz, … .’ The main proceedings and the questions referred for a preliminary ruling
14. Mrs Mayer, who currently works as a self-employed lawyer, was employed from 1 January 1990 to 30 September 1999 in the public service of Rheinland-Pfalz (Germany) and was compulsorily insured with the VBL. From 16 December 1992 to 5 April 1993 and from 17 January to 22 April 1994 she was on statutory maternity leave.
15. The first sentence of Paragraph 44(1)(a) of the statutes of the VBL provides that the amount of the insurance annuity to which an employee in a position like Mrs Mayer’s is entitled is a percentage of the sum total of the pay subject to the supplementary occupational pension scheme from which contributions have been paid. Pursuant to Paragraph 29(1) of those statutes, the employer is to pay a monthly contribution calculated as the percentage of the insured person’s pay subject to the supplementary occupational pension scheme. That pay is defined in Paragraph 29(7) as the taxable pay.
16. During her maternity leave, Mrs Mayer, who was insured under a private sickness insurance scheme, received the maternity allowance paid by the State under Paragraph 13(2) of the Mutterschutzgesetz and the supplementary maternity allowance paid by the employer up to the difference between the allowance paid by the State and the last net pay received in accordance with Paragraph 14(1) of the same law. That benefit from the employer is exempt from tax, in accordance with Paragraph 3(1)(d) of the Einkommensteuergesetz. During her maternity leave, Mrs Mayer therefore received no pay subject to the supplementary occupational pension scheme within the meaning of Paragraph 29(7) of the statutes of the VBL, in respect of which her employer had to pay monthly contributions to the VBL pursuant to Paragraph 29(1) of those statutes. Consequently, the VBL did not take into account the contributions she received from her employer during her maternity leave when calculating the amount of the insurance annuity.
17. Mrs Mayer sought a declaration that her periods of maternity leave be taken into account in the calculation of her rights to an insurance annuity acquired under the supplementary occupational pension scheme administered by the VBL.
18. The courts seised of the dispute dismissed the action brought by Mrs Mayer against the VBL. Mrs Mayer then appealed on a point of law before the Bundesgerichtshof (Federal Court of Justice) and proposed that the case be referred to the Court of Justice for a preliminary ruling.
19. The Bundesgerichtshof took the view that Article 11(2)(a) of Directive 92/85 does not apply to the present case since Mrs Mayer’s last maternity leave came to an end before expiry of the period prescribed for the transposition of that directive by the Member States. However, that court tends to the view that it is contrary to the principle of equal treatment as defined in Directive 86/378, as amended by Directive 96/97, in particular Article 6(1)(g) thereof, not to take into account Mrs Mayer’s periods of maternity leave. Finally, the national court believes that it is possible that there is an infringement of Article 119 of the EC Treaty, which states the principle of equal pay for men and women for equal work.
20. Believing that the relevant national law might be incompatible with Community law, the Bundesgerichtshof decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘1. Do Article 119 of the EC Treaty (now, after amendment, Article 141 EC) and/or Article 11(2)(a) of Directive 92/85 and Article 6(1)(g) of Directive 86/378, as amended by Directive 96/97, preclude provisions of statutes governing a supplementary occupational pension scheme of the kind at issue in this case under which a worker, during statutory maternity leave (in this case from 16 December 1992 to 5 April 1993 and from 17 January to 22 April 1994), acquires no rights to an insurance annuity which, in the event of her early departure from the compulsory insurance scheme, may be claimed monthly from the time the insurance contingency (pensionable age, occupational disability or invalidity) materialises, because the acquisition of those rights is conditional upon the worker’s receiving taxable pay during the relevant period, and the benefits paid to her during maternity leave do not constitute taxable pay under the provisions of national law? 2. Is this the case in particular if account is taken of the fact that the insurance annuity is not - like the occupational pension which would be paid if the insurance contingency materialised whilst she was still in the compulsory pension scheme - intended to cover the employee in old age or in the event of invalidity, but to reimburse the contributions made in respect of her during the period of compulsory insurance?’ The questions referred Observations of the parties
21. Mrs Mayer merely refers to the decision of the national court, which is summarised in paragraph 19 of this judgment.
22. The VBL claims that the provisions governing the supplementary occupational pension scheme under which a worker, during statutory maternity leave, acquires no rights to an insurance annuity are compatible with Community law. That annuity is not intended to cover the employee in old age or in the event of invalidity, but to provide the worker whose employment relationship has come to an end with the actuarial equivalent of the contributions paid. The right to an insurance annuity does not fall within the scope of Directive 86/378, as amended by Directive 96/97, which is aimed at applying the principle of equality of treatment to occupational social security schemes. Directive 92/85 is also not applicable, because the period prescribed for its implementation by the Member States had not expired at the time of the facts which gave rise to the main proceedings. It follows that it had to be reasonable for the VBL to take the view that it did not have to provide supplementary benefits for the periods of statutory maternity leave of paid employees. Finally, the scheme established is also compatible with Article 119 of the EC Treaty, in respect of the financial arrangements of an occupational pension scheme with fixed benefits which remain outside the scope of that article.
23. The Commission of the European Communities maintains, unlike the VBL, that the supplementary occupational pension scheme in question in the main proceedings is not compatible with Community law. Article 11(2)(a) of Directive 92/85 precludes a national rule such as that in Paragraph 29(7) of the statutes of the VBL, which makes the acquisition, during statutory maternity leave, of rights to an occupational pension such as the insurance annuity referred to in the main proceedings conditional upon the receipt of pay subject to the supplementary occupational pension scheme during that period and the amount of that pay. The Commission contends that the fact that the period for transposition of that directive had not expired at the time of the maternity leave in question in the main proceedings is irrelevant, because the maternity leave taken before the expiry of that period must also be taken into account as such, regardless of the period in which it occurred. If the Court does not accept that interpretation of Article 11(2)(a) of Directive 92/85, the Commission believes that it is Article 6(1)(g) of Directive 86/378, as amended by Directive 96/97, which precludes the national rule in question in so far as the maternity leave taken before the expiry of the period for implementation of Directive 92/85 is concerned. The Commission does not think it useful to examine the problem in the light of Article 119 of the EC Treaty. Findings of the Court
24. The two questions referred for a preliminary ruling should be considered together.
25. Article 2(1) of Directive 96/97 provides that all measures implementing that directive, as regards paid workers, are to cover all benefits derived from periods of employment subsequent to 17 May 1990.
26. The maternity leave in question in the main proceedings took place after that date, in 1992, 1993 and 1994. It follows that Directive 86/378, as amended by Directive 96/97, applies to such maternity leave, as regards its being taken into account for the purposes of calculating the contributions relating thereto.
27. Under Article 6(1)(g) of Directive 86/378, as amended by Directive 96/97, provisions contrary to the principle of equal treatment are to include those based on sex, either directly or indirectly, for suspending the retention or acquisition of rights during periods of maternity leave or leave for family reasons which are granted by law or agreement and are paid by the employer.
28. The rights referred to in Article 6(1)(g) of that directive include the rights to future pensions the acquisition of which may be suspended by the application of national provisions on maternity leave.
29. The VBL’s argument that the insurance annuity in question in the main proceedings does not fall within Directive 86/378, as amended by Directive 96/97, because it is intended to provide the actuarial equivalent of contributions paid, and not to cover the employee in old age or in the event of invalidity, cannot be accepted. It appears from all the information set out in the order for reference concerning that insurance indemnity that it is part of a supplementary pension scheme which aims to ensure a payment to the workers concerned in the event of old age or disability. Such an insurance annuity therefore constitutes a supplementary benefit falling within the scope of that directive as defined in Articles 2 and 4 thereof, and is not referred to in any of the derogations provided for by that directive.
30. The maternity leave referred to in Article 6(1)(g) of Directive 86/378, as amended by Directive 96/97, is that laid down by statute or agreement and which is paid by the employer.
31. According to the order for reference, during her maternity leave and in addition to the maternity allowance paid by the State pursuant to Paragraph 13(2) of the Mutterschutzgesetz, Mrs Mayer received from her employer the supplement provided for in Paragraph 14(1) of the same law up to the difference between that allowance and her last net pay. Mrs Mayer’s maternity leave was therefore paid in part by her employer. Such a circumstance suffices to prove that the leave was paid by the employer in accordance with Article 6(1)(g) of that directive.
32. It follows that Article 6(1)(g) of Directive 86/378, as amended by Directive 96/97, precludes a national provision such as Paragraph 29(7) of the statutes of the VBL which has the effect of suspending the acquisition of rights to an insurance annuity during statutory maternity leave by requiring that the worker receive taxable pay during that leave.
33. It is unnecessary to examine Directive 92/85, since the maternity leave in question in the main proceedings was taken before the expiry of the period prescribed for its transposition, that is, 19 October 1994.
34. Since the reply given to the questions referred for a preliminary ruling is based on Directive 86/378, as amended by Directive 96/97, there is no need to interpret Article 119 of the EC Treaty.
35. The answer to the questions raised must therefore be that Article 6(1)(g) of Directive 86/378, as amended by Directive 96/97, must be interpreted as meaning that it precludes national rules under which a worker acquires no rights to an insurance annuity which is part of a supplementary occupational pension scheme during statutory maternity leave paid in part by her employer because the acquisition of those rights is conditional upon the worker’s receiving taxable pay during the maternity leave.