Susanne Gassmayr v Bundesminister für Wissenschaft und Forschung

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Ó Caoimh
• ECLI: ECLI:EU:C:2010:386
• Docket Number: C-194/08
• Date: 01 July 2010
• Procedure Type: Reference for a preliminary ruling

Case C-194/08

Susanne Gassmayr

v

Bundesminister für Wissenschaft und Forschung

(Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria))

(Social policy − Directive 92/85/EEC − 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 – Articles 5(3) and 11(1) to (3) − Direct effect − Pregnant worker granted leave during her pregnancy − Worker on maternity leave − Right to payment of an on-call duty allowance)

Summary of the Judgment

1. Social policy – Protection of the safety and health of workers – Pregnant workers and workers who have recently given birth or are breastfeeding – Directive 92/85

(Council Directive 92/85, Arts 5 to 8 and 11(1) to (3))

2. Social policy – Protection of the safety and health of workers – Pregnant workers and workers who have recently given birth or are breastfeeding – Directive 92/85

(Council Directive 92/85, Arts 5(3), and 11(1))

3. Social policy – Protection of the safety and health of workers – Pregnant workers and workers who have recently given birth or are breastfeeding – Directive 92/85

(Council Directive 92/85, Arts 8 and 11(2) and (3))

1. Article 11(1) to (3) of Council Directive 92/85 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 (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391) has direct effect and gives rise, for the benefit of individuals, to rights they can rely on against a Member State that has failed to implement that directive in national law or has implemented it incorrectly, rights that the national courts are required to protect. That provision imposes on Member States, in unequivocal terms, a precise obligation as to the result to be achieved which consists in ensuring, following the adjustment of the working conditions, a temporary transfer to another job and, during the periods of absence from work during pregnancy referred to in Articles 5 to 7 thereof and maternity leave referred to in Article 8, the employment rights of pregnant workers and workers who have recently given birth or are breastfeeding and the maintenance of payment and/or entitlement to an adequate allowance.

(see paras 46, 53, operative part 1)

2. Article 11(1) of Directive 92/85 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 (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391) must be interpreted as not precluding national legislation which provides that a pregnant worker temporarily granted leave from work on account of her pregnancy is entitled to pay equivalent to the average earnings she received during a reference period before her pregnancy began with the exception of the on-call duty allowance.

Although, that provision leaves the Member States a certain latitude when defining the conditions for the exercise and implementation of the entitlement to an income for the pregnant workers temporarily granted leave from work on account of their pregnancy, the exercise of that discretion cannot undermine the objective of protecting safety and health of pregnant workers pursued by Directive 92/85, nor can it disregard the fact that leave is a protective measure of last resort which is required only where a temporary transfer to another job is technically and/or objectively unfeasible or cannot reasonably be required on duly substantiated grounds.

Where the Member States and, where appropriate, management and labour choose, in accordance with Article 11(1), to ensure that a pregnant worker who is granted leave or is prohibited from working in accordance with Article 5(3) of that directive 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 paras 67-68, 72, 76, operative part 2)

3. Article 11(2) and (3) of Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391) must be interpreted as not precluding national legislation which provides that a worker on maternity leave is entitled to pay equivalent to the average earnings she received during a reference period before the beginning of her maternity leave, with the exception of the on-call duty allowance.

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). 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 the person concerned to continue to receive full pay or the payment of the on-call duty allowance.

However, 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. If the pay scheme provided for by national legislation constitutes a protective measure more favourable to workers on maternity leave than that required by Directive 92/85, the exclusion of certain pay components from the calculation of the income due during maternity leave cannot regarded as contrary to Article 11(2) and (3) of that directive.

(see paras 85-86, 88, 90-91, operative part 3)

JUDGMENT OF THE COURT (Third Chamber)

1 July 2010 (*)

(Social policy − Directive 92/85/EEC − 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 – Articles 5(3) and 11(1) to (3) − Direct effect − Pregnant worker granted leave during her pregnancy − Worker on maternity leave − Right to payment of an on-call duty allowance)

In Case C‑194/08,

REFERENCE for a preliminary ruling under Article 234 EC from the Verwaltungsgerichtshof (Austria), made by decision of 28 March 2008, received at the Court on 9 May 2008, in the proceedings

Susanne Gassmayr

v

Bundesminister für Wissenschaft und Forschung,

THE COURT (Third Chamber),

composed of J.N. Cunha Rodrigues, President of the Second Chamber, acting as President of the Third Chamber, P. Lindh, A. Rosas, A. Ó Caoimh (Rapporteur) and A. Arabadjiev, Judges,

Advocate General: M. Poiares Maduro,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 20 May 2009,

after considering the observations submitted on behalf of:

– the Austrian Government, by M. Winkler, acting as Agent,

– the Commission of the European Communities, by V. Kreuschitz and M. van Beek, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 3 September 2009,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 11(1) to (3) 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 (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1).

2 The reference was made in the course of proceedings between Ms Gassmayr and the Bundesminister für Wissenschaft und Forschung (Federal Minister for Science and Research) (‘the Bundesminister’) concerning the minister’s refusal to continue to pay her an allowance for on-call duty at the work place during periods in which she was granted leave or was prohibited from working on account of her pregnancy and subsequently during maternity leave.

Legal context

European Union law

3 The 9th, 16th and 18th recitals in the preamble to Directive 92/85 are worded as follows:

‘Whereas the protection of the safety and health of pregnant workers, workers who have recently given birth or workers who are breastfeeding should not treat women on the labour market unfavourably nor work to the detriment of directives concerning equal treatment for men and women;

…

Whereas measures for the organisation of work concerning the protection of the health of pregnant workers, workers who have recently given birth or workers who are breastfeeding would serve no purpose unless accompanied by the maintenance of rights linked to the employment contract, including maintenance of payment and/or entitlement to an adequate allowance;

…

Whereas the concept of an adequate allowance in the case of maternity leave must be regarded as a technical point of reference with a view to fixing the minimum level of protection and should in no circumstances be interpreted as suggesting an analogy between pregnancy and illness’.

4 Article 2 of...