Opinion of the Advocate-General
1 The Arbeitsgericht (Labour Court), Gelsenkirchen (Germany), has referred to the Court under Article 177 of the EC Treaty three questions on the interpretation of Article 119 of the Treaty, Article 11(2) of Directive 92/85/EEC (1) (hereinafter `Directive 92/85') and Clause 2(6) of the framework agreement on parental leave, as implemented by Directive 96/34/EC (2) (hereinafter `Directive 96/34'), the latter not yet having been transposed into national law at the time when the order for reference was made.
I - The facts in the main proceedings
2 Those questions on the interpretation of Community law have arisen in the course of proceedings pending before the national court between Susanne Lewen, as plaintiff, and her employer, Lothar Denda, the owner of the undertaking Denda Zahntechnik in Gelsenkirchen, as defendant. Mrs Lewen seeks payment of a Christmas bonus for 1996 in the amount of DM 5 500, which the defendant refuses to pay her apparently on the grounds that she took maternity leave during that year and, at the time when the bonus was paid, she was on parenting leave in order to take care of her daughter.
3 From 1 October 1990 to 6 September 1996, Mrs Lewen worked as a dental technician for the defendant, who also employs men, at a monthly salary of DM 5 500 before tax for a 39 1/4 hours.
In 1995, the plaintiff became pregnant. In 1996, she worked from 1 January to approximately mid-April. She then took a month's leave. Her maternity leave began on 16 May and ended on 6 September. On the following day, she started a period of parenting leave which will continue until her daughter, who was born on 12 July 1996, reaches the age of three. During that period, she receives a `parenting allowance' paid by the State, the amount of which varies according to the beneficiary's income. (3)
4 The national court states in its order for reference that, on 1 December in preceding years, the defendant had awarded all his employees a Christmas bonus amounting to one month's salary. To be eligible for the bonus, employees were required to sign a declaration indicating their consent to the terms on which the bonus would be paid to them. That declaration stated that the bonus was a single, voluntary, social payment, revocable at any time and restricted to Christmas each year, the payment of which did not create any future right as regards the reason for, or the amount, method of payment or composition of, the bonus. The bonus was awarded each year on the express condition that the worker did not, before 1 July of the following year, terminate his employment relationship with the undertaking or give the undertaking any grounds to terminate the employment relationship without notice. In either of those cases, in the same way as if there had been a breach of the contract of employment, the worker would be required to repay the bonus in full on leaving the firm. It does not seem that the declaration made it clear that the bonus would also have to be repaid if the worker's contract of employment were suspended prior to that date because, for example, he was about to start military service or had requested parenting leave.
5 On the basis of that declaration, the plaintiff's employer, without having given prior notice in 1995, refused to pay the full bonus for 1996 both to her and to two other female employees who were on parenting leave in 1996 (their details are not given in the order for reference and they are not parties to the main proceedings).
II - The questions referred
6 With a view to resolving this dispute, the Arbeitsgericht, Gelsenkirchen, has referred the following questions to the Court for a preliminary ruling:
`(1) Is a Christmas bonus "pay" within the meaning of Article 119 of the EC Treaty or "payment" within the meaning of Article 11(2)(b) of Directive 92/85/EEC for work performed in the year in which the bonus is awarded even where it is given by the employer mainly or exclusively as an incentive for future work and/or loyalty to the firm. Is it to be regarded as in the nature of pay or payment at least where the employer has not announced prior to the beginning of the year of the award that at Christmas in the following year he intends to relate it exclusively to the performance of future work and so to exclude from the payment employees whose relationships at the time of payment and thereafter are in abeyance?
(2) Is there a breach of Article 119 of the EC Treaty, Article 11(2) of Directive 92/85/EEC and Clause 2(6) of [the Annex to] Directive 96/34/EC (which is yet to be transposed) if an employer wholly excludes women who are on parenting leave (Erziehungslaub) at the time of payment of the Christmas bonus from receipt of the bonus and does not take into account work performed and periods completed for the protection of mothers (in which they were prohibited from working)?
(3) If Question 2 is to be answered in the affirmative:
Is there a breach of Article 119 of the EC Treaty, Article 11(2)(b) of Directive 92/85/EEC and Clause 2(6) of the [Annex to] Directive 96/34/EC if, when awarding a Christmas bonus to a women who is on parenting leave, an employer takes into account the following periods by way of pro rata reduction:
- periods of parenting leave;
- periods for the protection of mothers (in which she was prohibited from working)?'
III - The Community legislation
7 Article 119 of the Treaty establishes the principle that men and women should receive equal pay for equal work. The second and third paragraphs thereof read as follows:
`For the purposes of this Article, "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer.
Equal pay without discrimination based on sex means:
(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the same job.'
8 Article 11 of Directive 92/85, in order to guarantee workers who have recently given birth or who are breastfeeding the exercise of their health and safety protection rights, provides:
`...
(2) In the case referred to in Article 8 [which entitles workers to maternity leave of at least fourteen weeks, two of which must be compulsory], the following must be ensured:
(a) the rights connected with the employment contract of workers other than those referred to in point (b) below;
(b) maintenance of a payment ... and/or entitlement to an adequate allowance ... .'
9 The framework agreement on parental leave was declared applicable to Member States, with the exception of the United Kingdom, by Directive 96/34, adopted on 3 June 1996 on the basis of Article 4(2) of the agreement on social policy, (4) which allows management and labour jointly to request the implementation of agreements concluded at Community level by a Council decision or on a proposal from the Commission. The period prescribed for transposing the content of the framework agreement on parental leave into national law expired on 3 June 1998. Clause 2(6) of the framework agreement, which the national court seeks to have interpreted, provides as follows:
`Rights acquired or in the process of being acquired by the worker on the date on which parental leave starts shall be maintained as they stand until the end of parental leave. At the end of parental leave, these rights, including any changes arising from national law, collective agreements or practice, shall apply.'
Directive 96/34 was amended and extended to the United Kingdom by Directive 97/75/EC, (5) which gives the United Kingdom until 15 December 1999 to adapt its domestic law accordingly.
IV - Observations submitted to the Court of Justice
10 Written observations have been submitted in these proceedings, within the time-limit laid down in Article 20 of the EC Statute of the Court of Justice, by the plaintiff and the defendant in the main proceedings, the German and United Kingdom Governments and the Commission.
At the hearing on 28 January 1999, oral argument was presented by representatives of the plaintiff and the defendant in the main proceedings, the German Government, the United Kingdom Government and the Commission.
11 The plaintiff takes the view that the Christmas bonus claimed by her forms part of `pay' within the meaning of Article 119 of the Treaty, even if it is awarded by the employer as an incentive for future work and loyalty to the firm, and that the fact that it is paid on the basis of a unilateral declaration of intent by the employer, even though he is not required to pay it either by law or by the contract of employment, is irrelevant. What matters is that it is a pecuniary allowance paid in connection with the employment relationship.
In her view, the fact that the employer, when paying the contested bonus, did not take into account the period during which she was on maternity leave constitutes direct discrimination based on sex and, in so far as he refused to pay the Christmas bonus for 1996 to all female employees who were on parenting leave, the employer also engaged in indirect discrimination based on sex since, although the possibility of taking such leave is open to both men and women, it is still predominantly women who are responsible for taking care of and bringing up children, so that, in Germany, over 90% of workers who take parenting leave are women. Furthermore, the parenting leave provided for by the German law, which can last until the child is three years old, is comparable to the parental leave provided for in Directive 96/34, under which rights acquired or in the process of being acquired by the worker on the date on which parental leave starts must be maintained as they stand until the end of parental leave. In the plaintiff's case, this means that, when the bonus was paid, she retroactively acquired a right which had accrued at the beginning of 1996 and which corresponded at least to the period in which she was in active employment.
12 The defendant contends that the bonus at issue is not `pay' within the meaning of Article 119 of the Treaty, and that he was not required to give a year's notice of his intention not to pay the bonus to employees whose employment contract was in abeyance, for a number of reasons: first, because neither the collective agreement applicable to the dental sector nor the clauses of his employees' contracts of employment impose on him any obligation to pay them a Christmas bonus; furthermore, by paying the Christmas bonus in 1996 to employees who were in active employment, his aim was to motivate them to produce good work in the months to follow, and any employees who were at that time engaged in military service or were performing alternative social duties would have lost the bonus in the same way as employees who had terminated their contract of employment. Secondly, because, when paying the bonus in previous years, he clearly stated in writing, in the declaration which employees were required to sign, that it was a special, voluntary, social payment, revocable at any time and restricted to Christmas of the year in question. That declaration also stated that the fact of its payment that year did not presuppose any right as regards its receipt in future or as regards its amount. Finally, because he wishes to reserve the right, at the end of each year, to decide for himself, on the basis of his financial circumstances, whether or not to award a bonus and, if so, how much and to whom.
13 The German Government considers that the bonus at issue is `pay' within the meaning of Article 119 of the Treaty and that the fact that the employer left it until December 1996 before deciding to pay the bonus and on what terms is immaterial.
It maintains, however, that workers whose contract of employment is in abeyance cannot claim payment of salary as if they were in active employment, and that the same reasoning applies to women on maternity leave. Accordingly, since female employees do not work during that period or during parenting leave, an employer cannot be required to pay them the Christmas bonus on the basis of the principle of equal pay since that bonus is not a pay rise with retroactive effect but an additional reward for the work performed at the time when the bonus is paid, and an incentive to remain loyal to the firm in future. Furthermore, taking into account the fact that it is a voluntary payment by the employer, Mrs Lewen was not entitled to the bonus when she started her parenting leave and she cannot claim that it was a right which she was in the process of acquiring. It further states that, in the absence of any provisions laid down by law or arising from an agreement or even a contract, the employer alone is entitled to decide whether, and on what terms, to pay the bonus, no court having jurisdiction to consider whether there is any justification for paying the bonus in full to an employee who starts work in December.
14 The United Kingdom Government maintains that a Christmas bonus such as that at issue in the main proceedings is `pay' within the meaning of Article 119 of the Treaty, even if it is paid on an entirely voluntary basis as an incentive for future work and loyalty to the firm. To the question whether the Christmas bonus is related to work performed during a given period which includes the period of maternity leave, it offers two answers: if the 1996 bonus was paid in respect of work performed during 1996, including the period of maternity leave, the bonus would be one element of `payment' within the meaning of Article 11(2)(b) of Directive 92/85. If, on the other hand, as appears to be the case, the bonus did not serve that purpose, but was intended to constitute an incentive for future work, it would not form part of the payment provided for in Article 11(2)(b), to which women are entitled during maternity leave.
It takes the view that, if the national court finds that the bonus payment is an incentive for future work and loyalty to the firm, the decision to exclude a particular group of workers from the right to receive the bonus, including employees on parenting leave and those whose contract of employment has been suspended for any other reason, may amount to indirect discrimination if that decision affects a considerably greater proportion of women than men. However, having regard to its purpose, the decision to limit the bonus payment to those employees who are in fact working pursues a legitimate aim which is objectively justified and unconnected with any form of discrimination based on sex.
It further states that, in so far as the bonus does not appear to have been intended to reward work performed prior to the start of parenting leave, the view must be taken that, at that time, there were no acquired rights or rights in the process of being acquired. There could not therefore be any rights to preserve or maintain under Clause 2(6) of the framework agreement on parental leave.
15 The Commission states that the bonus at issue forms part of `pay' within the meaning of Article 119 of the Treaty and `payment' within the meaning of Article 11 of Directive 92/85 and that, as such, it is subject to the prohibition of discrimination even if it is shown that the bonus was paid by the employer mainly or exclusively in order to act as an incentive for future work and loyalty to the firm. In that regard, it submits that the actual reasons why the employer pays the bonus are matters of fact which must be appraised by the national court; that, according to the information available to it, the position of the courts and legal commentators in Germany is that, in principle, Christmas bonuses are paid both to reward past work and to encourage future work; and that it is not possible to determine, solely on the basis of the explanation offered by the employer during the proceedings, whether he paid that bonus mainly or exclusively as an incentive for future work since he had made no prior declaration to that effect.
It maintains that the fact that the period in which a female employee is on parenting leave is not taken into account as a period of active employment when it comes to calculating the bonus, with the result that she is paid less, is not contrary to Article 119 of the Treaty. The same is not true, however, of a refusal to pay the bonus in full on the ground that a female employee is on parenting leave at the time when the bonus is paid, which might constitute discrimination prohibited by Article 119 if the work she has already performed or will perform in the period to which the bonus relates is not taken into account. Since a considerably greater percentage of women than men take parenting leave in order to care for children, there is indirect discrimination.
V - Examination of the questions referred
A. The first question
16 By the first of its three questions, the Arbeitsgericht, Gelsenkirchen, asks whether a Christmas bonus awarded mainly or exclusively as an incentive for future work and/or loyalty to the firm may constitute `pay' or `payment' for services provided during the year in which it is awarded, within the meaning of Article 119 of the Treaty and Article 11(2)(b) of Directive 92/85 respectively. It also seeks to ascertain whether it is significant in that regard that the employer failed to give due notice of his intention, the following Christmas, to determine the amount of the bonus exclusively on the basis of future performance, and not to pay the bonus to employees whose employment relationships were in abeyance at the time of payment.
17 I shall look first of all at whether the bonus at issue falls within the concept of `pay' for the purposes of Article 119 of the Treaty, and then whether it constitutes `payment' within the meaning of Article 11(2)(b) of Directive 92/85.
18 The principle that men and women should receive equal pay for equal work, contained in Article 119 of the Treaty, forms part of the foundations of the Community. (6) That article gives a broad definition of `pay' as meaning `... the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer'.
That definition has been supplemented by the case-law of the Court, which, since 1971, has regarded the concept of `pay' as including `immediate or future' consideration, (7) and, in 1990, added that benefits paid by an employer to a worker by reason of the employment relationship fall within the concept of pay `... whether they are paid under a contract of employment, by virtue of legislative provisions or on a voluntary basis'. (8)
19 By way of example, the following are instances - not exhaustively listed - of what the Court has, over the years, held to fall within the concept of pay: travel facilities granted by a railway undertaking to its employees on their retirement and extended to the members of their families; (9) a travel concession granted by an employer, on the basis of the contract of employment, to the employee's spouse or the person of the opposite sex with whom the employee has a stable relationship outside marriage; (10) temporary assistance granted by an employer to a worker on account of termination of the employment relationship and paid on termination with a view to enabling him to adjust to his new circumstances; (11) compensation paid to staff council members in the form of paid leave or overtime pay for attending training courses imparting the knowledge necessary for working on staff councils, even where, during such courses, they are not performing work provided for in their contracts of employment; (12) compensation granted to a worker in connection with his redundancy; (13) the payment of wages by an employer to an employee in the event of illness, (14) even where a woman's incapacity for work is the result of pregnancy; (15) and the benefit paid by an employer under legislation or collective agreements to a woman on maternity leave. (16)
20 The Court of Justice has also held that, since Article 119 of the Treaty is mandatory in nature, the prohibition of discrimination between men and women which it lays down applies not only to the action of the public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as contracts between individuals. (17)
21 Is the definition of pay laid down by the Treaty, as interpreted and supplemented by the case-law of the Court, to be regarded as including a bonus which an employer awards to a worker at Christmas mainly or exclusively as an incentive for future work and/or loyalty to the firm?
22 I am convinced that the answer to this question must be in the affirmative. The bonus in question is paid in cash directly and on a voluntary basis by the employer to the worker in respect of the employment relationship.
In the case of ex gratia payments by the employer, the Court has held that Article 119 of the Treaty applies also to advantages which an employer grants to workers although he is not required to do so by the contract. (18)
23 As Community law stands at present, however, it is not possible to determine whether the bonus constitutes pay for the services provided during the year in which it was awarded or whether it is intended, as the plaintiff in the main proceedings appears to claim, to act as an incentive for future work and loyalty to the firm. These questions will have to be resolved in accordance with national law.
In any event, the employer's reasons for paying the bonus cannot alter the fact that it is deemed to be pay within the meaning of Article 119 of the Treaty, and it must therefore be awarded to men and women on the same basis without discrimination based on sex.
24 Does the contested bonus also constitute `payment' within the meaning of Article 11(2)(b) of Directive 92/85?
25 In my opinion, the answer here must be in the negative. Article 11(2)(b) provides that female employees must continue to receive a payment and/or be entitled to an adequate allowance for the duration of their maternity leave, which is laid down in Article 8 of the same directive as being a continuous period of at least fourteen weeks at least two of which are compulsory. In Gillespie, (19) the Court held that, since the benefit paid by an employer under legislation or collective agreements to a woman on maternity leave was based on the employment relationship, it constituted pay within the meaning of Article 119 of the Treaty.
In Boyle, (20) the Court, commenting specifically on the term `payment' used in Article 119 of Directive 92/85, held that, like the definition of `pay' in Article 119 of the Treaty, it encompassed all consideration paid directly or indirectly by the employer to the worker during maternity leave in respect of her employment relationship, and that the term `allowance' to which that provision also refers includes all income received by the worker during her maternity leave which is not paid to her directly by her employer pursuant to the employment relationship.
It is therefore settled that `payment' within the meaning of Article 11(2)(b) of Directive 92/85, the definition of which is the same as that of `pay' within the meaning of Article 119 of the Treaty, is confined to the remuneration received by the worker during her maternity leave which is paid by her employer.
In view of the fact that the bonus at issue is not intended to guarantee workers a certain level of income for the period of their maternity leave, it cannot, in my opinion, be regarded as a payment which they must continue to receive throughout that period.
26 The interpretation which I propose does not mean, however, that the right to receive the Christmas bonus therefore falls outside the scope of Directive 92/85, which is intended to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. Nothing could be further from the truth.
27 In addition to the maintenance of a payment and/or entitlement to an appropriate allowance, Article 11(2)(b) requires rights connected with the employment contract also to be guaranteed during maternity leave. As I see it, the right to receive the bonus at issue is one of those rights.
28 Classification of the bonus at issue as `pay' within the meaning of Article 119 and as a right connected with the employment contract within the meaning of Article 11(2)(a) of Directive 92/85, and not as `payment' within the meaning of Article 11(2)(b), is perfectly compatible, and indeed consistent, with the case-law of the Court of Justice.
The conditions which an employer lays down in respect of membership of a company pension scheme by his employees fall within the scope of Article 119 of the Treaty, (21) and pensions paid under private occupational pension schemes (22) fall within the concept of pay since they constitute consideration paid by the employer to the worker in respect of the employment relationship. This has not, however, prevented the Court from classifying the accrual of pension rights in the context of an occupational pension scheme wholly financed by the employer as one of the rights connected with the employment contracts of the workers for the purposes of Article 11(2)(a) of Directive 92/85, (23) which must be ensured during the period of maternity leave.
29 In view of the foregoing, I am now able to state that the bonus at issue falls within the concept of `pay' within the meaning of Article 119 of the Treaty, with the result that it must be paid to men and women on the same basis without discrimination based on sex, and furthermore that, for the purposes of Directive 92/85, it is deemed to be a right connected with the employment contract the accrual of which must be ensured during the period of maternity leave to which female workers are entitled under Article 8 of that directive.
30 It follows from this line of reasoning that both the aim pursued by the employer in paying the bonus and the fact that he failed to give sufficient notice of his intention, the following Christmas, to fix the amount of the bonus exclusively on the basis of future performance and not to pay the bonus to workers whose employment relationship was in abeyance at the time of payment or thereafter are insignificant in that regard. Those are in any event issues of fact which it is for the national court to appraise on the basis of the guidelines given by the Court of Justice, since the bonus in question is not governed by law or by a collective agreement, it is not prescribed by the contract of employment, and the national courts disagree as to its purpose and the terms on which it is awarded.
B. The second question
31 By its second question, the national court seeks to ascertain whether there is a breach of one or more of the provisions of Community law which it cites, namely Article 119 of the Treaty, Article 11(2) of Directive 92/85 and Clause 2(6) of the framework agreement on parental leave, as implemented by Directive 96/34, if an employer wholly excludes from receipt of the bonus at issue a woman who is on parenting leave at the time when it is paid, and does not take into account the work she has performed during the year in which it is granted or the period for the protection of mothers which she has completed.
32 Article 119 of the Treaty establishes the principle that men and women should receive equal pay for equal work and, as has been shown in the answer to the first question, the bonus at issue falls within the concept of `pay' within the meaning of that article. It must therefore be awarded to men and women on the same basis without discrimination based on sex.
33 Article 11(2)(a) of Directive 92/85 provides that women must continue to enjoy the rights connected with their employment contract during the maternity leave provided for in Article 8. As I said in my answer to the first question, it is my view that the bonus at issue is one of those rights.
34 The national court also seeks from the Court an interpretation of Clause 2(6) of the framework agreement on parental leave, as implemented by Directive 96/34, which had not yet been transposed into German law at the time when the order for reference was made, Member States having been given until 3 June 1998 to effect such transposition. I note, however, that the German legislature is a few years ahead of the Community legislature in that it has already enacted legislation allowing workers to take parenting leave on grounds of the birth of a child which can last until the child is three years old. There is therefore no reason why the Court should not provide the national court required to give judgment in the main proceedings with some guidelines which may be of assistance to it in interpreting national law in accordance with the substance and the purpose of the framework agreement.
Clause 2(6) of the framework agreement on parental leave, as implemented by Directive 96/34, provides that rights acquired or in the process of being acquired by the worker on the date on which parental leave starts are to be maintained as they stand until the end of parental leave.
In view of the wording of Clause 2(6) and the fact that, in the second question, the national court is concerned to ascertain the consequences of calculating the amount of the bonus without taking into account either the period of active employment or the period for the protection of mothers, while in its third question, it addresses directly the issue of calculating the amount of the bonus without taking into account the periods of parenting leave, I shall consider how that provision should be interpreted when answering the third question.
35 In the light of Article 119 of the Treaty, and Article 11(2)(a) of Directive 92/85, may an employer wholly exclude from receipt of the bonus at issue a woman who is on parenting leave at the time when it is paid, namely 1 December, without taking into account the period she has worked during the year in which the bonus is awarded or the period for the protection of mothers which she has completed?
36 The answer to this question will depend entirely on how the right was acquired by the workers in question, and I have already pointed out that the Court of Justice does not have the factual information necessary to enable it to give a specific answer since the bonus at issue is not governed by law or by a collective agreement and it is not even referred to in the individual contract of employment. Furthermore, there is disagreement between the parties as to whether it is intended to reward work and loyalty to the firm over the past year, whether it is meant as an incentive for future work and loyalty to the firm in a period which appears to extend until 1 July of the following year, or whether it serves a combination of both purposes in proportions which are likewise unspecified.
37 That being the case, it will be for the national court, once it has ascertained how workers acquire the right to the Christmas bonus, to determine whether it is contrary to Community law for an employer to exclude a woman who is on parenting leave from payment of the bonus without taking into account the work performed during the year in which the bonus was awarded or a period of protection for mothers. In so doing it should have regard to the following guidelines:
- If the reference period is that period of the year which has already elapsed and it is shown that the bonus is intended exclusively to reward work and loyalty to the firm during that period, the right to the bonus will be acquired gradually over the year and it will not be possible to penalise a person such as Mrs Lewen, who has worked for part of that year, by excluding her entirely from receipt of the bonus, unless it has been established that, in the event of termination or suspension of the contract of employment before 1 December, the worker loses any right to receive the proportion which would have accrued to him up to the time of the termination or the start of the suspension. When deciding whether that is the employer's aim in awarding the bonus, the national court may take into account whether a worker whose employment relationship began during the reference period would, on 1 December, receive the full bonus or that proportion of it corresponding to the months worked.
- If the reference period is the following year, and it is shown that the bonus is intended exclusively as an incentive for work and loyalty to the firm during that period, a worker who is not going to be actively employed during the reference period will not be entitled to receive the bonus. However, I find it hard to believe that any employer who awards a bonus at Christmas one year seeks to encourage only work and loyalty to the firm over the following year. When deciding whether that is the employer's aim in awarding the bonus, the national court may take into account whether a worker whose employment relationship starts on 1 December will receive the full bonus, only part of it or nothing at all, and whether a worker whose parenting leave was due to start at the beginning of January would receive all or only part of the bonus in view of the fact that suspension of the contract of employment was not stipulated, in the document which employees were required to sign on receiving the bonus in previous years, as one of the grounds on which the worker would be required to repay the bonus.
- There is a third scenario, which partly coincides with the previous two, and according to which the reference period can be assumed to run from July one year to June the following year. This possibility is suggested by the condition requiring a worker who has received the bonus and terminates his contract of employment before 1 July the following year to repay the amount awarded to him. In that event, the aim of the bonus might be partly to reward work and loyalty to the firm over the period of the year which has elapsed at the time of payment (between July and November) and partly to give an incentive for work and loyalty to the firm up to the end of June the following year. When deciding whether that is the employer's aim in awarding the bonus, the national court will need to take into account factors such as whether a worker whose employment relationship began in January and another whose employment relationship began after July but before December would receive the full bonus or whether the second would be entitled only to a proportion of it; whether a worker who joined the firm on 1 December would receive the full bonus or a proportion of it; whether someone who joined between January and July of the following year would receive the corresponding proportion of the bonus; and whether a worker whose contract of employment was to be suspended before July of the following year, because he was about to discharge military obligations, because he had applied for extended leave, or because he was about to take parenting leave, would receive the full bonus and, if so, whether he would be required to pay it back, either in full or in part.
38 I believe that the only justification for excluding a female worker such as Mrs Lewen from receipt of all or part of the contested bonus would be for the employer to make its award subject to the sole condition that the worker should be in active employment on 1 December. However, I am not convinced, in the light of the documents available to me, that the defendant in these proceedings awards the same amount to workers whose employment relationship started in the course of the year and who have worked only for a short period before Christmas as he does to those who have worked all or most of the year, and I find it difficult to believe that he awards the same amount to the latter group as to those who start work on 1 December.
39 I turn now to the question whether there is direct or indirect discrimination based on sex where workers whose contracts of employment are in abeyance on the day when the bonus is paid, including workers on parenting leave, are excluded from receiving it.
40 Parental leave is defined in the preamble to the framework agreement as a means of reconciling work and family life and promoting equal opportunities and treatment between men and women. The framework agreement grants men and women workers an individual right to parental leave on the grounds of the birth or adoption of a child to enable them to take care of that child for at least three months until a given age up to eight years to be defined by Member States and/or management and labour. As I said earlier, even though the German law governing parenting leave pre-dates the adoption of Directive 96/34, as far as I have been able to ascertain from the documents before the Court, its aims are at least in part the same as those of the framework agreement.
41 Both the plaintiff in the main proceedings and the Commission take the view that excluding a female worker from the right to receive the Christmas bonus because she is on parenting leave is discriminatory to some degree. They argue that, even though male workers are also entitled to take parenting leave, most of them do not, with the result that it is predominantly women who avail themselves of that possibility in order to take care of children.
42 Leaving aside cases where the reference period has included periods of active employment and maternity leave, which I have already dealt with, I take the view that excluding workers who are on parenting leave from receipt of the Christmas bonus is not necessarily discriminatory.
43 As the Court of Justice has consistently held, discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations. (24) However, a worker who is on parenting leave is in a special situation - protected by Community law following the adoption of Directive 96/34 - which he or she enjoys by reason of his or her maternity or paternity, but which cannot be likened to that of men or women who are working, especially when the Christmas bonus is intended to reward work and loyalty to the firm in the past, or to give an incentive for work and loyalty to the firm in the future, or to serve both those aims to varying degrees, since the very effect of parenting leave is that the contract of employment and the parties' respective obligations thereunder to work and remunerate work are suspended.
According to the national court, the defendant in the main proceedings states that he excludes from receipt of the Christmas bonus all workers who are not in active employment on 1 December, including those whose contract of employment is in abeyance, that is to say men who are on parenting leave, discharging military obligations or on extended leave, and women who are on parenting leave or extended leave. The condition therefore applies to male and female workers in the same way and cannot be regarded as constituting discrimination directly based on sex. (25)
44 The Court has also held that indirect discrimination arises where a national measure, although formulated in neutral terms, works to the disadvantage of far more women than men. (26)
45 In Boyle, (27) the Court ruled that, despite the fact that substantially more women than men take periods of unpaid leave during their career because they are entitled to unpaid supplementary maternity leave granted to them by their employers in addition to the period of protection guaranteed by Article 8 of Directive 92/85, the application of a contractual clause whereby annual leave ceases to accrue during such a period of maternity leave cannot be regarded as putting women who exercise that right at a disadvantage compared with men. The Court considered that the fact that such a clause applies more frequently to women results from the exercise of the right to unpaid supplementary maternity leave, which constitutes a special advantage available only to women, and cannot amount to discriminatory treatment of women.
46 In this case, it may well be that a higher percentage of women than men take parenting leave in order to take care of a child in the course of their career. Accordingly, the exclusion from receipt of the Christmas bonus of workers whose contract of employment is in abeyance will, in fact, apply to substantially more women than men. However, the fact that it applies more frequently to women will result from the exercise of the right to parenting leave, which is not a working condition but a special advantage available to workers only on grounds of recent paternity or maternity.
I therefore take the view that depriving workers who avail themselves of the possibility of taking parenting leave of the right to receive the Christmas bonus for the entire duration of that leave cannot amount to indirect discrimination based on sex against women.
47 In the absence of the factual information necessary for a specific ruling, I propose that the answer to the second question should be that it is for the national court which is to give judgment in the main proceedings to determine, in the light of the conditions under which workers acquire the right to receive the Christmas bonus, and taking into account the guidelines in the above reasoning, whether there is a breach of Article 119 of the Treaty and Article 11(2)(a) of Directive 92/85 if an employer wholly excludes from receipt of the bonus at issue a female employee who worked until 15 May 1996, then completed a period for the protection of mothers lasting until 6 September 1996 and immediately thereafter began a period of parenting leave which is expected to last until 12 June 1999, on the ground that she was on parenting leave at the time when the Christmas bonus was paid.
C. The third question
48 By the third question, the national court seeks to ascertain, in the event that the previous question is answered in the affirmative, whether there is a breach of Article 119 of the EC Treaty, Article 11(2)(b) of Directive 92/85 and Clause 2(6) of the framework agreement on parental leave if an employer, when calculating the Christmas bonus payable to a woman who is on parenting leave, takes into account the periods for the protection of mothers and the period of parenting leave she has already completed in order to impose a pro rata reduction.
49 I pointed out when dealing with the second question that the almost complete lack of detailed information as to how workers acquire the right to the Christmas bonus made it impossible for the Court to give a definite ruling on that question and, accordingly, the answer I proposed was neither in the affirmative nor in the negative. The same is true of the third question. I am once again forced to give some guidelines for the national court to take into account when giving judgment on the substance of the case.
50 It has been shown that the bonus at issue is `pay' within the meaning of Article 119 of the Treaty, and I have already stated that, for the purposes of Directive 92/85, the bonus at issue is deemed to be a right connected with the contract of employment which female workers must continue to enjoy during their maternity leave, in accordance with Article 11(2)(a) of Directive 92/85.
51 Clause 2(6) of the framework agreement on parental leave, as implemented by Directive 96/34, requires that rights acquired or in the process of being acquired by the worker on the date on which parental leave starts should be maintained as they stand until the end of parental leave.
52 If the national court concludes that the reference period creating entitlement to the bonus is that period of the year which has already elapsed and that the bonus is intended exclusively to reward work and loyalty to the firm during that period, without its having been established that, in the event of termination or suspension of the contract of employment prior to 1 December, a worker loses all rights to receive the proportion of the bonus which would have accrued to him until the time of the termination or the start of the suspension, the ruling will have to be, first, that Article 11(2)(b) of Directive 92/85 precludes an employer, when calculating the amount of the Christmas bonus, from taking into account the period for the protection of mothers in order to impose a pro rata reduction..
Secondly, if the right to the Christmas bonus were a right acquired or in the process of being acquired within the meaning of Clause 2(6) of the framework agreement on parental leave, as implemented by Directive 96/34, which, I should say in passing, I find highly unlikely, it would have to be found be that Mrs Lewen was not entitled to the 1996 Christmas bonus, to which she would have acquired rights up to 6 September, but that, on rejoining the firm in 1999, she would re-acquire the right to that bonus, which would be payable to her in its entirety on 1 December 1999.
In my view, however, Clause 2(6) was not created to protect situations such as these, and would not be applicable to the payment of a periodic benefit such as the Christmas bonus.
53 If, on the other hand, the national court concludes that the reference period is the following year and that the bonus is intended exclusively to give an incentive for work and loyalty to the firm in the year commencing on the day when the bonus is paid, then there is no breach of Article 119 of the Treaty, Article 11(2)(a) of Directive 92/85 or Clause 2(6) of the framework agreement on parental leave, as implemented by Directive 96/34, if a female worker whose contract of employment is going to be in abeyance throughout the reference period because she is on parenting leave is excluded from the right to the bonus .
54 If, finally, the national court concludes that the reference period runs from July one year to June the following year, and that the aim of the bonus is partly to reward work and loyalty to the firm during that period of the year which has already elapsed at the time of payment, and partly to give an incentive for work and loyalty to the firm up to June the following year, it must find that there is a breach of Article 11(2)(a) of Directive 92/85 if an employer, when calculating the Christmas bonus, takes into account the period for the protection of mothers completed by a female worker in order to impose a pro rata reduction. With regard to the periods of parenting leave, Community law as it stands at present does not protect the right of workers to have periods of active employment taken into account for the purpose of acquiring rights to a bonus of the kind described.
VI - Conclusion
55 In the light of the foregoing considerations, I suggest that the Court's answers to the questions referred by the Arbeitsgericht, Gelsenkirchen, should be as follows:
(1) A bonus such as that at issue falls within the concept of `pay' within the meaning of Article 119 of the EEC Treaty and is to be regarded as a right connected with the contract of employment within the meaning of 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 (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). The aim pursued by the employer in paying the bonus and the fact that he failed to give sufficient notice of his intention, the following Christmas, to fix the amount of the bonus exclusively on the basis of future performance and not to pay the bonus to workers whose employment relationship was in abeyance are insignificant in that regard.
(2) It is for the national court which is to give judgment in the main proceedings to determine, in the light of the conditions under which the right to receive the bonus at issue is acquired, and taking into account the guidelines in points 37 and 38 of this Opinion, whether Article 119 of the Treaty and Article 11(2)(a) of Directive 92/85 preclude an employer from withholding the bonus in its entirety from a female employee who worked until 15 May 1996, then completed a period for the protection of mothers lasting until 6 September 1996, and immediately thereafter commenced parenting leave lasting until 12 July 1999, on the ground that she was on parenting leave on the date of payment.
(3) It is for the national court which is to give judgment in the main proceedings to determine, in the light of the conditions under which the right to receive the bonus at issue is acquired, and taking into account the guidelines in points 52 to 54 of this Opinion, whether Article 119 of the Treaty, Article 11(2)(a) of Directive 92/85 and Clause 2(6) of the framework agreement on parental leave, as implemented by Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, preclude an employer, when calculating the bonus payable to a woman on parenting leave, from taking into account the period for the protection of mothers in order to impose a pro rata reduction. As it stands at present, Community law does not protect the right of workers to have periods of parenting leave taken into account as periods of active employment for the purpose of acquiring rights to a bonus of the kind described.
(1) - 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 89/331/EEC) (OJ 1992 L 348, p. 1).
(2) - Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC (OJ 1996 L 145, p. 4).
(3) - This German allowance has been held by the Court of Justice to be a `family allowance' within the meaning of Article 4(1)(h) of Council Regulation (EEC) No 1408/71 of 14 June 1971 (OJ English Special Edition 1971 (II), p. 416), and a `social advantage' within the meaning of Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 (OJ, English Special Edition 1968 (II), p. 475). See Joined Cases C-245/94 and C-312/94 Hoever and Zachow v Land Nordrhein-Westfalen [1996] ECR I-4895, and Case C-85/96 Martínez Sala [1996] ECR I-2691.
(4) - Agreement on social policy concluded between the Member States of the European Community with the exception of the United Kingdom of Great Britain and Northern Ireland, annexed to Protocol No 14, incorporated in the Treaty establishing the European Community by the Treaty on European Union signed in Maastricht on 7 February 1992. The text of the agreement on social policy has been incorporated in Articles 117 to 120 of the Treaty establishing the European Community (which will become Articles 136 to 143) by the Treaty of Amsterdam, signed on 2 October 1997 and awaiting entry into force.
(5) - Council Directive 97/75/EC of 15 December 1977 amending and extending to the United Kingdom of Great Britain and Northern Ireland Directive 96/34/EC on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC (OJ 1998 L 10, p. 24).
(6) - Case 43/75 Defrenne v Sabena [1976] ECR 455, paragraph 12.
(7) - Case 80/70 Defrenne v Belgium [1971] ECR 445, paragraph 6.
(8) - Case C-262/88 Barber [1990] ECR I-1889, paragraph 20. In that case, the employer, on making the employee redundant, paid him, in addition to compensation consisting of the cash benefits provided for in the severance terms and an amount equal to the statutory redundancy payment, an ex-gratia, tax-free cash sum equal to half of the gross amount of the compensation.
(9) - Case 12/81 Garland v British Rail Engineering [1982] ECR 359, paragraph 9.
(10) - Case C-242/96 Grant v South-West Trains [1998] ECR I-621, paragraph 14.
(11) - Case C-33/89 Kowalska [1990] ECR I-2591, paragraph 11.
(12) - Case C-360/90 Bötel [1992] ECR I-3589, paragraphs 14 and 15; and Case C-457/93 Kuratorium für Dialyse und Nierentransplantation v Lewark [1992] ECR I-243, paragraph 23.
(13) - Barber, cited in footnote 8 above, paragraph 14.
(14) - Case 171/88 Rinner-Kühn v FWW Spezial-Gebäudereinigung [1989] ECR 2743, paragraph 7.
(15) - Case C-66/96 Høj Pedersen v Fællesforeningen for Danmarks Brugsforeninger and Dansk Tandlægeforening and Kristelig Funktionær-Organisation v Dansk Handel & Service [1998] ECR I-7327, paragraph 35.
(16) - Case C-342/93 Gillespie and Others v Northern Health and Social Services Board [1996] ECR I-475, paragraph 14.
(17) - Defrenne, cited in footnote 6 above, paragraph 39.
(18) - Barber, cited in footnote 8 above, paragraph 19.
(19) - Gillespie and Others, cited in footnote 16 above, paragraph 14.
(20) - Case C-411 Boyle and Others v Equal Opportunities Commission [1998] ECR I-6401, paragraph 31.
(21) - Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607. In that case, part-time employees were entitled to benefit from the company pension scheme only if they had worked full-time for at least fifteen years out of a total of twenty years. See also Case C-57/93 Vroege v NCIV Instituut voor Volkshuisvesting and Stichtung Pensioenfonds NCIV [1994] ECR I-4541; Case C-128/93 Fisscher v Voorhuis Hengelo and Stichtung Bedrijfspensioenfonds voor de Detailhandel [1994] ECR I-4583; and Case C-435/93 Dietz v Stichting Thuiszorg Rotterdam [1996] ECR I-5223.
(22) - See, in addition to Barber, cited in footnote 8 above, and Vroege, Fisscher and Dietz, cited in footnote 21 above, Case C-109/91 Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers-en Schoonmaakbedrijf [1993] ECR I-4879; Case C-110/91 Moroni v Collo [1993] ECR I-6591; Case C-200/91 Coloroll Pension Trustees v Russell and Others [1994] ECR I-4389; Case C-7/93 Bestuur van het Algemeen Burgerlijk Pensioenfonds v GA Beune [1994] ECR I-4471; and Case C-147/95 DEI v Evrenopoulos [1997] ECR I-2057.
(23) - Boyle, cited in footnote 20 above, paragraph 82.
(24) - Gillespie, cited in footnote 16 above, and Case C-279/93 Schumacker [1995] ECR I-225, paragraph 30.
(25) - Grant, cited in footnote 10 above, paragraph 28.
(26) - Case C-1/95 Gerster v Freistaat Bayern [1997] ECR I-5253, paragraph 30; Case C-100/95 Kording [1997] ECR I-5289, paragraph 16; and Boyle, cited in footnote 20 above, paragraph 76.
(27) - Ibidem, paragraphs 77 to 79.
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