OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 21 February 2013 (1)
Joined Cases C‑512/11 and C‑513/11
Terveys- ja sosiaalialan neuvottelujärjestö TSN ry
v
Terveyspalvelualan Liitto ry
and
Mehiläinen Oy
and
Ylemmät Toimihenkilöt YTN ry
v
Teknologiateollisuus ry
and
Nokia Siemens Networks Oy
(Request for a preliminary ruling from the Työtuomioistuin (Finland))
(Maternity leave — Directive 92/85/EEC — Conditions governing the continued receipt of full pay during maternity leave — Equal treatment of men and women — Directive 2006/54/EC — Parental leave — Directive 96/34/EC — Collective agreement)
I – Introduction
1. In Kiiski, the Court ruled that EU law precludes a measure prohibiting a worker from interrupting her child-care leave, which had already been applied for and granted, because of her new pregnancy, in order to take maternity leave. (2)
2. The present cases concern two Finnish workers who became pregnant during a period of child-care leave (3) and subsequently took maternity leave. Under Finnish law, workers are entitled only to an adequate allowance during maternity leave. However, the collective agreements applying to the respective employment relationships provide for that part of the worker’s salary which exceeded the entitlement to maternity pay is to continue to be paid for the duration of the maternity leave, provided that the maternity leave does not start during a period of unpaid leave, such as child-care leave.
3. It is therefore necessary to determine in these cases whether a worker who exercises her right, established in the Kiiski judgment, to move from child-care leave to maternity leave may also deduce an entitlement to continued pay from EU law.
II – Relevant legislation
A – EU law
4. The relevant EU legislation background to this case is to be found in 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. (4)
5. Article 11 of that directive provides:
‘…
2. in the case referred to in Article 8, the following must be ensured:
…
(b) maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2;
3. the allowance referred to in point 2(b) shall be deemed adequate if it guarantees income at least equivalent to that which the worker concerned would receive in the event of a break in her activities on grounds connected with her state of health, subject to any ceiling laid down under national legislation;
4. Member States may make entitlement to pay or the allowance referred to in points 1 and 2(b) conditional upon the worker concerned fulfilling the conditions of eligibility for such benefits laid down under national legislation.
These conditions may under no circumstances provide for periods of previous employment in excess of 12 months immediately prior to the presumed date of confinement.’
6. Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (5) is also relevant.
7. Article 2 of Directive 2006/54 contains the following definitions:
‘1. For the purposes of this Directive, the following definitions shall apply:
(a) “direct discrimination”: where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation;
(b) “indirect discrimination”: where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary;
…
2. For the purposes of this Directive, discrimination includes:
…
(c) any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC.’
8. Article 4 sets out the prohibition of discrimination in relation to pay:
‘For the same work or for work to which equal value is attributed, direct and indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration shall be eliminated.
…’
B – National law
9. Under Chapter 4, Paragraph 1 of the Työsopimuslaki (6) and Chapter 9 of the Sairausvakuutuslaki, (7) an employee is entitled to maternity leave of 105 working days and, on its conclusion, to parental leave for a period of 158 working days. In addition to these forms of leave, an employee is also entitled, under Chapter 4, Paragraph 3 of the Työsopimuslaki, to child-care leave which may last until the child reaches the age of three.
10. During maternity and parental leave an employee is paid a daily allowance under the Law on Sickness Insurance. No daily allowance is paid during child-care leave.
11. Under Chapter 4, Paragraph 8 of the Law on Employment Contracts, an employer is not required to pay an employee remuneration for the periods of family-related leave described above.
12. Clause 21 of the collective agreement applying between the parties in Case C‑512/11 provides inter alia that an employer is to pay an employee her full salary during the period of maternity leave for 72 working days. However, if an employee’s maternity leave starts during a period of unpaid leave, which includes child-care leave, the remuneration in question will not be paid, unless otherwise provided in the legislation.
13. Under Clause 8 of the collective agreement for senior personnel in the technology industry applying between the parties in Case C‑513/11, full remuneration is to be paid for three months during the maternity leave. The referring court stated that the parties to the collective agreement had agreed that Clause 8 of that agreement should be construed in the same manner as the corresponding provisions of the collective agreements for other employees in the sector. According to the guidance annexed to those provisions, if new maternity leave commences during a period of family-related leave, an employer is not required to pay remuneration in respect of the new maternity leave. According to the employers, the relevant provision in the collective agreement for senior personnel is likewise consistently interpreted to that effect.
14. The referring court has observed that the common intention of the parties to the collective agreement and its consistent application carry significant weight in interpreting a collective agreement. It also observes, however, that the content of a provision of such an agreement must not be contrary to mandatory statutory or regulatory provisions.
III – Request for a preliminary ruling
15. The facts underlying the reference for a preliminary ruling in Case C‑512/11 are as follows: Ms Noora Kultarinta, a nurse, has worked for the company Mehiläinen Oy (8) without interruption in a permanent employment relationship since 15 August 2008. Following her first period of maternity leave, she took child-care leave for the period between 7 January 2010 and 11 April 2012. Ms Kultarinta became pregnant a second time and notified her employer of her intention to cease to take child-care leave and to commence a new period of maternity leave from 9 April 2010 onwards.
16. Ms Kultarinta requested Mehiläinen to pay her full remuneration for 72 days during this period of maternity leave in accordance with the collective agreement in the health service sector. The employer accepted Ms Kultarinta’s notification that she would be ceasing child-care leave but refused to pay her remuneration during the maternity leave, citing a restriction set out in the collective agreement.
17. In the main proceedings Terveys- ja sosiaalialan neuvottelujärjestö TSN ry (9) has brought an action against Terveyspalvelualan Liitto ry and Mehiläinen. (10) TSN requests that Ms Kultarinta’s employer be ordered to pay her EUR 5 770.05 plus interest as remuneration for the period of maternity leave.
18. The facts underlying the reference for a preliminary ruling in Case C‑513/11 are comparable inasmuch as the employee, Ms Jenni Novamo, has been working since 6 June 2005 at Nokia Siemens Networks Oy (‘Nokia Siemens’). She started her maternity leave on 8 March 2008 and subsequently gave notification that she would be taking child-care leave from 19 March 2009 to 4 April 2011. In 2010 she notified her employer that she was pregnant, would be interrupting her child-care leave on 23 May 2010 and starting her maternity leave on 24 May 2010.
19. Ms Novamo called on Nokia Siemens to pay her three months’ salary during her maternity leave in accordance with the collective agreement, less the benefits paid for that period. However, Nokia Siemens refused to pay her during her maternity leave, citing the moment in which the collective agreement was applied in practice, since the new period of maternity leave had started during the unpaid child-care leave.
20. In the main proceedings Ylemmät Toimihenkilöt YTN ry (11) has brought an action against Teknologiateollisuus ry (12) and Nokia Siemens.
21. The Työtuomioistuin, (13) before which the two actions are pending, has decided to stay the proceedings and refer the following question, which is essentially the same (14) in the two cases, to the Court of Justice of the European Union for a preliminary ruling:
‘Do Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation and 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 preclude provisions of a national collective agreement, or the interpretation of those provisions, under which an employee moving from unpaid child-care leave to maternity leave is not paid remuneration during maternity leave in accordance with the collective agreement?’
22. In the proceedings before the Court, TSN acting jointly with YTN, Teknologiateollisuus Mehiläinen, Teknologiateollisuus ry acting jointly with Nokia Siemens, the Finnish and United Kingdom Governments and the European Commission have made written and oral submissions. The Spanish and Estonian Governments have also taken part in the written procedure.
IV – Legal assessment
23. By its request for a preliminary ruling the referring court wishes to know whether EU law precludes a provision or the application of such an agreement in practice under which women who move from unpaid child-care leave directly to maternity leave do not continue to receive full pay during their maternity leave, as the collective agreement otherwise provides for in respect of that leave.
24. First it is necessary to address Directive 92/85, which lays down specific requirements for the protection of pregnant workers and takes priority over the provisions on equal treatment between women and men in working life. (15)
A – Directive 92/85
25. This Directive is applicable ratione personae. Under Article 2(a), a pregnant worker is defined as a worker who informs her employer of her condition, in accordance with national legislation and/or national practice.
26. The two women’s status as workers was not ended by virtue of their being on child-care leave before the maternity leave in question started in 2010. As the Court of Justice has already stated, there is nothing to suggest that the EU legislature intended to exclude a worker from the enjoyment of maternity leave if, at the time when she wished to take up such leave, she was not practising her professional activity for a temporary period because she was enjoying another form of leave. (16)
27. Moreover, it is clear from Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC (17) that the employment relationship between the worker and the employer is maintained during the period of parental leave. (18) In Kiiski, the Court of Justice proceeded from the premiss that Finnish child-care leave is parental leave within the meaning of Directive 96/34 and consequently that a Finnish worker on such child-care leave is a worker within the meaning of EU law and thus also for the purposes of the directive on maternity leave.
28. It must therefore be examined below whether a right to continued pay during maternity leave arises from Directive 92/85.
29. Under Article 11(2)(b) of Directive 92/85, workers on maternity leave must be guaranteed maintenance of a payment to them and/or entitlement to adequate allowances.
30. Under Article 11(3) of Directive 92/85 an allowance is to be deemed adequate if it guarantees income at least equivalent to that which the worker concerned would receive in the event of a break in her activities on grounds connected with her state of health. (19) She must be guaranteed an income of that level during her 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, remuneration or a combination of the two. (20)
31. The seventeenth recital in the preamble to the directive underlines the importance of financial security if maternity leave is to serve any purpose.
32. However, it cannot be inferred either from Article 157 TFEU or from Article 11(2) and (3) of Directive 92/85 that female workers are entitled to continue to receive full pay during their maternity leave as though they were actually working, like other workers. (21)
33. By Directive 92/85 the EU legislature in fact sought to guarantee, as a measure of minimum protection (22) only, that a worker would receive income at least to the level of an adequate allowance during her maternity leave. The directive does not set out an entitlement to continued full pay. (23)
34. The collective agreements applying in the main proceedings exceed the minimum protection and provide for continued full pay during maternity leave. However, in both cases payment of that remuneration is subject to the maternity leave not starting during a period of unpaid leave. According to the Finnish Government, Ms Kultarinta and Ms Novamo while on maternity leave received allowances only in an amount which met the requirements of Article 11(2) and (3) of Directive 92/85.
35. It is uncertain whether Directive 92/85 prohibits such a condition in respect of an allowance which exceeds the minimum entitlements under the directive.
36. Under Article 11(4) of Directive 92/85, Member States may make the continued payment of remuneration or the grant of allowances for the purposes of Article 11 during maternity leave dependent on the fulfilment of certain conditions laid down under national legislation. (24) That discretion must apply a fortiori to the parties to the collective agreement if they exceed the minimum entitlements conferred by the Member State, provided, in any case, that those conditions are not contrary to other EU law.
37. In Boyle as well, the Court of Justice had to determine whether it is permissible to subject maternity allowances which exceed the minimum requirements of Directive 92/85 to a condition. In that case the condition agreed in the employment contract consisted in the worker having to undertake to return to work afterwards in order to continue to receive full pay during maternity leave. Otherwise, she would have to repay the difference between the remuneration she continued to receive and the statutory allowance for which she would otherwise be eligible.
38. The Court ruled that a condition of that kind is compatible with Directive 92/85 in so far as the level of those allowances is not lower than the minimum income required by the directive. (25)
39. Whereas the workers in Boyle had to resume their employment activities after their maternity leave so as not retroactively to lose their entitlement to continued full pay, the workers in the present circumstances should have resumed their employment activities immediately before commencing maternity leave in order to benefit from continued full pay. In both cases the prerequisite for continued full pay therefore involves the workers engaging in their respective work; in one case before, and in the other case after the maternity leave concerned.
40. In a subsequent decision, the Court of Justice held that the national legislature enjoys discretion in laying down conditions, provided that they do not fall short of the minimum protection afforded by the directive. (26)
41. In the light of those decisions, I take the view that Article 11 of Directive 92/85 does not preclude the conditions governing the continued payment of remuneration in this case, provided that the allowances that are granted whether or not those conditions are fulfilled meet the requirements of Article 11(2)(b) and (3) of Directive 92/85.
42. My interim conclusion is therefore that Directive 96/34 does not preclude conditions governing continued pay, such as those underlying the present cases.
B – Directive 2006/54
43. The conditions should not, however, be contrary to other rules of EU law. In this connection, Directive 2006/54, which is the subject of the referring court’s inquiries, must be examined at the outset.
44. Article 2(1) of Directive 2006/54 prohibits direct and indirect discrimination on grounds of sex. Under Article 2(2)(c) of Directive 2006/54, discrimination within the meaning of that directive includes any less favourable treatment of a woman related to pregnancy or maternity leave.
45. The principle of non-discrimination is set out in specific terms in the first paragraph of Article 4 of Directive 2006/54. Under that paragraph, for the same work or for work to which equal value is attributed, direct and indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration are to be eliminated.
46. Since the benefit paid by an employer under the collective agreement to a woman on maternity leave is based on the employment relationship, it constitutes pay within the meaning of Article 157 TFEU and of the first paragraph of Article 4 of Directive 2006/54. (27)
47. It is settled case-law that discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations. (28) Discrimination on grounds of sex can therefore be considered to exist if the women concerned and their male colleagues are in comparable situations but are treated differently.
48. The Court has repeatedly ruled that workers on maternity leave are in a special position which requires them to be afforded special protection, but which is not comparable with that of a man or woman actually at work or on sickness leave. (29)
49. The fact that a woman on maternity leave does not continue to receive full pay does not, therefore, in itself constitute discrimination as compared with a male worker who is actually at work.
50. This is also borne out in the general structure of the directive on maternity protection, under which remuneration is not required to be continued during maternity protection; on the contrary, the payment of an allowance is considered to be adequate. If under the principle of equal treatment workers afforded maternity protection had to continue to receive full pay, the directive itself would offend against the principle of equal treatment.
51. The special feature of this case, however, is that, under the applicable collective agreements, workers are in general entitled to continued pay, unless the worker concerned is on unpaid child-care leave on commencing her maternity leave.
52. Inasmuch as it remains the case that greater numbers of women than men take child-care leave, the fact that a negative outcome is connected with the enjoyment of child-care leave could constitute indirect discrimination. (30) Indirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of many more women than men. (31)
53. The continued remuneration in the main proceedings is paid only to women on maternity leave. It is paid solely in respect of the maternity leave. As EU law currently stands, male workers can take child-care leave but they cannot enjoy paternity leave that is comparable with maternity leave. (32) Finnish law does not provide for any comparable paternity leave either. From the outset, men cannot therefore enjoy the continued remuneration in question. Accordingly, there is no comparable situation between men and women workers, which would be a prerequisite for a finding of discrimination on grounds of sex. Consequently, the conditions governing the continued payment of remuneration cannot lead to women being treated unfavourably as compared with men.
54. It may, at most, be the case that one category of women (workers who are on child-care leave when they commence their maternity leave) is put at disadvantage compared with another category of women (workers who are actively at work when they commence their maternity leave). However, such unfavourable treatment does not fall to be assessed in the light of the prohibition of discrimination between men and women.
55. The referring court believes that it is possible that the case-law of the Court provides no clear indication as to whether or how it forms the reference categories needed to assess whether discrimination between men and women has arisen. However, I cannot agree with that analysis.
56. A distinction between two types of measure may be inferred from the case-law: first, the granting to workers of benefits which, by their specific nature or amount, are directly connected with pregnancy or maternity, and secondly the treatment of women generally as workers, a matter which could affect male workers also and which arises only on the occasion of pregnancy or maternity.
57. The latter area includes the following circumstances: a rejection of a suitable female candidate because of her pregnancy, (33) a reduction in benefits in the event of a pregnancy-related illness, (34) a woman’s exclusion from an annual performance appraisal and the associated possibility of her qualifying for promotion because of her maternity leave, (35) a failure to take account of a period of maternity leave in the context of career development, (36) an obligation incumbent on an employee who wishes to return to work following parental leave to inform her employer if she is pregnant, (37) or a dismissal of an employee providing maternity cover because she herself is also pregnant. (38)
58. The measures or benefits at issue here can affect any person with employee status, irrespective of their sex. In these circumstances, therefore, a man is considered to be a comparator, even though the Court may not have given an express opinion on the matter in all decisions.
59. That is not the case, however, in circumstances involving the grant to workers of benefits which, by their specific nature or amount, are directly connected with pregnancy or maternity. Examples of this are a reduction in pay because of a transfer to another job during pregnancy (39) or the fact that a worker must fulfil a given condition if she is to continue to receive full pay during her maternity leave. (40) These are benefits which are granted in direct relationship with measures protecting the worker concerned on account of pregnancy or maternity. The sole purpose of transferring a pregnant worker to a less dangerous job or of granting her maternity leave is to protect the women concerned. These measures and their associated benefits can therefore apply to female workers only. Male workers cannot in principle receive such a benefit, and thus male workers cannot be considered to be a reference category in examining whether there is discrimination.
60. This assessment is not inconsistent with Alabaster. In that case the Court ruled inter alia as follows: ‘Article 119 of the EC Treaty [now Article 157 TFEU] must be interpreted as requiring that, in so far as the pay received by the worker during her maternity leave is determined at least in part on the basis of the pay she earned before her maternity leave began, any pay rise awarded between the beginning of the period covered by the reference pay and the end of the maternity leave must be included in the elements of pay taken into account in calculating the amount of such pay’. (41)
61. The passage cited relates to the amount of pay awarded during the maternity leave. It might therefore be assumed that the matter concerns the grant to workers of benefits which, by their specific nature or amount, are directly connected with pregnancy or maternity. The case in point in fact addresses the issue whether a pay rise, to which the worker would be entitled if she was not on maternity leave, should be taken into account in calculating the pay to be received by the worker during her maternity leave.
62. Whether or not a worker qualifies for a pay rise affects her in her general capacity as a worker. A male worker could also qualify for a pay rise. The matter in dispute, in this case the pay rise, is gender neutral. The issue of whether to take the pay rise into account is raised in the Alabaster case only at the point when the maternity leave is taken. Consequently, this is an example of a case in which male workers are considered to be a reference category.
63. The present case also differs from the Kiiski case as regards the nature of the measure. Kiiski was concerned with whether a new pregnancy must confer the right to interrupt child-care leave. Male and female workers could interrupt or terminate child-care leave, for instance because of a death or separation. However, female workers were not entitled to do so if they became pregnant. Provided that pregnancy constitutes a situation comparable with the permissible grounds for terminating child-care leave, discrimination arises in connection with the pregnancy and thus on grounds of sex.
64. Accordingly to line of reasoning adopted by the Court in Kiiski, the fact that the aim of Directive 92/85 is to counteract multiple burdens on the pregnant worker was crucial. Such burdens could occur in caring for the first child in the course of the child-care leave during the final stages of pregnancy. The Court emphasised that workers must not be deprived of the benefits connected with maternity leave provided for under the directive. It could be inferred prima facie from that statement that workers must not be deprived of the benefit of continued pay either. However, there is specifically no obligation in Directive 92/85 to maintain pay; on the contrary, it provides for an adequate allowance. Whether or not a payment in excess of that allowance is also made under the specific arrangements of the collective agreement in particular circumstances does not alter the fact that the directive deems the adequate allowance to be sufficient. In Kiiski, the workers who had their claim to maternity leave rejected did not even receive an adequate allowance.
65. Consequently, there is no infringement of Directive 2006/54.
C – Directive 96/34
66. The referring court has not expressly sought an interpretation of Directive 96/34. (42) Since the continued payment of remuneration is precluded if the worker is on child-care leave, a comprehensive assessment of the requirements of EU law also calls for that directive and, by extension, the framework agreement on parental leave to be examined.
67. Clause 2(1) of the framework agreement grants male and female workers a right to parental leave of at least three months.
68. The first question that arises is whether the child-care leave laid down by Finnish law is parental leave within the meaning of Directive 96/34 and therefore whether the present circumstances do in fact fall within the scope of the directive. Finland grants an initial period of 158 working days as paid parental leave. Employees can add onto that an unpaid period of child-care leave which may last until the child has reached the age of three. In the respective main proceedings, the women concerned are on the child-care leave described above. Finnish parental leave lasts longer than the minimum three-month duration of parental leave laid down in the directive. This applies a fortiori in the case of child-care leave.
69. In Kiiski, which likewise involved Finnish child-care leave, the Court held that the contents of the documents before the Court did not justify a finding that the child-care leave did not fall among the categories of parental leave covered by the regime provided for under the framework agreement. (43)
70. I accordingly proceeded in my Opinion in Chatzi from the premiss that a period of parental leave exceeding the minimum duration prescribed is also in principle covered by Directive 96/34. (44)
71. However, the Court has recently ruled, with regard to the directive on leave, that leave exceeding the minimum duration prescribed in the directive falls outside the scope of its regulatory regime. (45) If that statement were transposed onto the directive on parental leave, Directive 96/34 would consequently apply only for the first three months of parental leave, but guarantees exceeding that would be subject to the law of the Member States only. In my view, this raises the question of the extent to which, in the case of directives which set out minimum provisions only, Member States’ rules which extend beyond, and are more favourable than, those provisions are still subordinate to the directive’s regulatory regime, or otherwise the extent to which the Member States, when defining their rules in this area beyond the directive’s scope, are completely free from any obligation to provide further comprehensive and coherent clarification.
72. Since, however, as I will show below, no obligation to maintain pay results from the application of Directive 96/34 either, no clarification is necessary in this case.
73. Clause 2.6 could be of prime relevance in this context; it states 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.
74. It is clear from the objectives of the framework agreement on parental leave that the concept of ‘[r]ights acquired or in the process of being acquired’ covers all rights and benefits, whether in cash or in kind, derived directly or indirectly from the employment relationship, which the worker is entitled to claim from the employer at the date on which parental leave starts. (46) The rights derived from the employment relationship are those which the worker was enjoying at the date on which the leave commenced. (47)
75. Clause 2.6 of the framework agreement does not, however, govern the entitlements and obligations derived from an employment relationship during parental leave, which are to be defined, pursuant to Clause 2.7, by the Member States and/or by management and labour. (48)
76. The right to payment of remuneration during maternity leave is not a ‘right acquired’ by the worker for the purposes of those provisions. It is clear at the outset from the provisions of the collective agreement that this right is excluded specifically in respect of the period of parental leave. Therefore, there is no contradiction with Clause 2.6 of the framework agreement on parental leave.
77. The new version of Directive 96/34 and, by extension, of the framework agreement (49) provides in Clause 5.4 that, in order to ensure that workers can exercise their right to parental leave, Member States and/or the social partners are to take the necessary measures to protect workers against less favourable treatment or dismissal on the grounds of an application for, or the taking of, parental leave.
78. Since the periods of parental and maternity leave forming the subject-matter of the dispute occurred in 2010, the present case falls outside the temporal scope of the new version of the directive. (50) Directive 96/34 does not contain a provision that is comparable with the new Clause 5.4. (51) It is my view that Clause 4 of the new version of the directive merely serves to provide clarification. Even under the old version, it follows from the general principle of equal treatment, as it is also enshrined in Article 20 of the Charter of Fundamental Rights of the European Union, that no one may be subject to discrimination because they exercise rights, such as the right to parental leave in this instance, conferred on them by EU law.
79. Women who are on child-care leave and, consequently, on switching to maternity leave are not entitled to continued pay are not as a result subject to discrimination vis-à-vis women who become pregnant during their active employment.
80. There are indeed significant doubts whether the respective situations of the two categories can be compared. A worker who is already on unpaid child-care leave has less need for financial cushioning during her maternity leave than a worker who is in active employment when she becomes pregnant. The worker who is already on unpaid child-care leave has already prepared herself for being without income for a certain period of time; she does not therefore encounter any unexpected loss of income.
81. As justification for the restriction on continued pay which is the subject of the action, the defendants’ agents have submitted that its purpose is to create an incentive for women to go back to work again for a certain period before leaving once more on child-related grounds. Otherwise, if a number of periods of parental and maternity leave are taken consecutively, this could result in workers being absent from their jobs without interruption for many years.
82. Incentives for returning to working life are an objective consistent with Directive 96/34 — which itself refers in its fifth recital to the importance of returning to working life — and is therefore legitimate.
83. To my mind the measure is both necessary and proportionate in the strict sense. The sixth recital in the preamble to Directive 96/34 states that measures to reconcile working and family life take account of the requirements of undertakings and employees alike.
84. In a case such as this, an obligation to maintain pay during maternity leave does not therefore arise from Directive 96/34 either.
V – Conclusion
85. In the light of the foregoing considerations, I propose that the Court should answer the question from the referring court as follows:
Directives 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, 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation and 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC do not preclude the provisions of a national collective agreement, or the interpretation of those provisions, under which a worker moving from unpaid child-care leave to maternity leave is not entitled to receive any remuneration during maternity leave, as defined by the collective agreement, which is greater than the payments provided for in the national legislation on maternity leave.