OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 12 February 2004 (1)

Case C-220/02

Österreichischer Gewerkschaftsbund, Gewerkschaft der Privatangestellten

v

Wirtschaftskammer Österreich

(Reference for a preliminary ruling from the Oberster Gerichtshof (Austria))

(Equal pay for male and female workers – Childcare leave (unpaid parental leave) – Military service – Consideration when calculating a termination payment)

I –  Introduction

1.       In its reference for a preliminary ruling the Austrian Oberster Gerichtshof (hereinafter, ‘the national court’) raises several questions on the interpretation of Article 141 EC and Article 1 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (2) (hereinafter, ‘Directive 75/117’).

2.       The essential question is whether a period of parental childcare leave should be taken into account when calculating claims under an employment relationship dependent on length of service – that is to say, when calculating so-called ‘termination payments’ when an employment relationship comes to an end – in the same way as a period of military or alternative civilian service.

II –  Legal background

A – Community law

3.       Article 141 EC and Article 1 of Directive 75/117 form the Community-law background to this case. Article 141(1) and (2) EC state:

‘1.    Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

2.      For the purpose 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.’

4.       Article 1 of Directive 75/117 reads as follows:

‘The principle of equal pay for men and women outlined in Article 119 of the Treaty, hereinafter called ‘principle of equal pay’, means, for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration.

In particular, where a job classification system is used for determining pay, it must be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex.’

B – National law

1.     Entitlement to a ‘termination payment’

5.       Under Austrian law workers are entitled to a so-called ‘termination payment’ in the event of their employment relationship coming to an end. The employer has to pay this if the employment relationship has been in existence for an uninterrupted period of at least three years, the amount of the termination payment increasing according to the length of the employment relationship. If the employee himself brings the employment relationship to an end without good cause or if he bears responsibility for termination on the part of the employer, he will not have any entitlement to compensation.

6.       The relevant provisions of Paragraph 23 of the Austrian Angestelltengesetz  (3) (Law on Employees, hereinafter ‘the AngG’) read as follows:

‘(1)  If the employment relationship has continued uninterruptedly for three years, the employee shall be entitled to a compensation payment on termination of that relationship. That payment shall amount to twice the salary due to the employee for the last month’s employment and after five years’ service shall increase to three times, after ten years’ service to four times, after 15 years’ service to six times and after 20 years’ service to 12 times the monthly salary. All time that the employee has spent as a worker or trainee with the same employer in immediately preceding employment relationships shall be taken into account for termination payment purposes; time spent in a training relationship shall only be taken into account, however, if the employment relationship, including training time, has lasted for an uninterrupted period of at least seven years. Time spent in a training relationship alone shall not give rise to any entitlement to a termination payment.

…

(7)    Without prejudice to Paragraph 23a, there shall be no entitlement to compensation if the employee gives notice, leaves prematurely without good cause or bears responsibility for his premature dismissal.’

7.       Since, according to Paragraph 23(1) of the AngG, the amount of compensation depends upon the length of the employment relationship it is possible that in a particular case, when calculating that compensation, account might have to be taken of periods during which no work has been performed despite the continued existence of the employment relationship. The question of whether and to what extent such periods can be taken into account is not the subject of uniform regulation under relevant Austrian legislation.

2.     Allowance of military and alternative civilian service

8.       As far as service in the Austrian armed forces is concerned, both compulsory military service for men – so-called ‘national service’ (‘Präsenzdienst’) – and voluntary military training service for women are to be allowed in full. The same applies to alternative civilian service, which can be carried out by men who object to doing military service. It is necessary for an employment relationship to have been in existence whilst any such service is carried out and that therefore the employee is called up for service during an ongoing employment relationship. The allowance of periods of military and alternative civilian service for the purposes of calculating entitlement to a termination payment is based on Paragraph 8 of the Austrian Arbeitsplatz-Sicherungsgesetz (4) (Federal law on job security for employees called up for military service or training or assigned to community service, hereinafter ‘the APSG’), which states:

‘Where a worker’s claims are based on length of service, periods

(1)    of military service under Paragraph 27(1) Nos 1-4 and 6-8 of the Wehrgesetz (Law on the Armed Forces),

(2)    of national service as a fixed-term serviceman under Paragraph 27(1) No 5 of the Wehrgesetz of up to 12 months,

(3)    of military training service and

(4)    of alternative civilian service,

during which the employment relationship was in existence, shall be taken into account for the purposes of calculating length of service.’

3.     Allowance of periods of maternity

9.       According to the case-law of the national court (5) account must also be taken of those periods during which expectant mothers are prevented from working by law under maternity protection legislation – that is to say, generally speaking, the eight weeks prior to confinement (Paragraph 3(1) of the Austrian Mutterschutzgesetz (6) (Maternity Protection Law, hereinafter ‘the MSchG’) and the period of eight weeks after confinement (Paragraph 5(1) of the MSchG).

4.     The exclusion of parental childcare leave (unpaid parental leave) according to the present legal position

10.     According to the present legal position in Austria, however, periods of parental childcare leave (so-called ‘parental leave’) cannot be taken into account. This is the facility given to parents to take unpaid leave to care for their children for a minimum period of three months until such time as a child reaches the age of two years.

11.     For women, this inability to take childcare leave into account is currently based on the third sentence of Paragraph 15f(1) of the MSchG:

‘Unless otherwise agreed, the period of parental leave shall not be taken into account for the purposes of claims brought by a female employee based on length of service.’

12.     If childcare leave is claimed by male workers Paragraph 7c of the Austrian Väter-Karenzgesetz (Law on Parental Leave for Fathers, hereinafter ‘the VKG’) (7) similarly provides that it should not be taken into account by making reference to Paragraph 15f(1) of the MSchG applicable to mothers:

‘Paragraph 15f(1) of the MSchG shall apply to entitlement to other remuneration, particularly remuneration of a non-recurrent nature … and to claims by workers dependent on length of service … .’

13.     Since 2001, the aforementioned provision has replaced the Austrian Eltern-Karenzurlaubsgesetz (Law on Parental Leave for Parents, hereinafter ‘the EKUG’) of 1989, (8) which is the only relevant legislation mentioned by the national court in its reference for a preliminary ruling. According to a transitional provision in Paragraph 14(8), however, the VKG only applies, in principle, to workers whose children were born after 31 December 2001. The EKUG therefore continues to be relevant to workers whose children were born before that qualifying date. Paragraph 7c of the EKUG, which unlike Paragraph 7c of the VKG does not contain any express reference to Paragraph 15f(1) of the MSchG, reads as follows:

‘Paragraph 15(1) of the MSchG shall apply to entitlement to other remuneration, particularly remuneration of a non-recurrent nature … and to claims by workers dependent on length of service … .’

5.     The inclusion of parental childcare leave (unpaid parental leave) according to the future legal position

14.     In 2002 the former system of termination payments in Austria was changed by the Betriebliche Mitarbeitervorsorgegesetz (Law on Employees’ Occupational Benefits, hereinafter ‘the BMVG’) (9) to a contribution-funded insurance system (so-called ‘new termination payment’). A workers’ benefit fund now bears responsibility for paying termination payments. Childcare leave will now be taken into account for the purposes of calculating termination payments, with a family burdens equalisation fund being responsible for paying the contributions instead of the employer. (10) According to a transitional provision, (11) however, in the case of employment relationships the contractually agreed commencement of which was dated prior to 31 December 2002 the statutory position will generally be as described above, so that childcare leave cannot be taken into account.

III –  The facts and main proceedings

15.     In the main proceedings before the national court the Österreichischer Gewerkschaftsbund, Gewerkschaft der Privatangestellten (hereinafter, ‘the applicant’) and the Wirtschaftskammer Österreich (hereinafter, ‘the respondent’) are parties to legal proceedings under Paragraph 54(2) of the Austrian Arbeits- und Sozialgerichtsgesetz (Law on Labour and Social Courts, hereinafter ‘the ASGG’). (12) That provision allows employers’ and employees’ organisations which are capable of entering into collective agreements to make application to the Oberster Gerichtshof, within the scope of their activity, for a determination of the existence or non-existence of rights or legal relationships, even independent of a specific factual situation. An application of this kind must concern a point of substantive law in the employment-law field that is of importance for at least three employers or employees. According to the case-law of the European Court of Justice the national court in such proceedings constitutes a court or tribunal within the meaning of Article 234 EC. (13)

16.     The facts submitted by the applicant are binding on the national court under Paragraph 54(4) of the ASGG. According to its submission, the average number of women who are in an employment relationship and who take up the opportunity of childcare leave (unpaid parental leave) each year in Austria is 57 030 and the number of men who do so is 1 014. This means that 98.253% of the people taking childcare leave are women and only 1.747% are men. For many female workers the only possibility open to them is to look after their children themselves because there are insufficient care facilities for children up to the age of two years, so that childcare leave has to be taken. In the majority of cases where an employment relationship is brought to an end the statutory rule will apply to the calculation of termination payments, i.e. periods of childcare leave are not taken into account. Only a minority of collective agreements contain a more favourable provision whereby childcare leave is to be taken into account.

17.     As far as service in the armed forces is concerned, however, in the year 2000 no more than 100 women undertook voluntary military training service in Austria. On the other hand, 122 905 men completed their obligatory eight-month period of military service (national service) with the federal armed forces during the last four years, 110 067 (approximately 90%) serving for a continuous period and the remaining men completing a combination of basic military service and later field exercises. Service in the armed forces and alternative civilian service are by law to be taken into account for the purposes of calculating termination payments in the event of employment relationships being brought to an end, as described above. (14)

18.     The applicant has submitted in the main proceedings that the present Austrian legal position adversely affects those workers who take childcare leave compared to workers who do military or alternative civilian service. This situation works to the disadvantage of far fewer men than women and cannot be justified.

19.     The applicant is therefore asking the national court to establish that childcare leave for mothers (unpaid maternity leave) should be taken into account when assessing the amount of compensation under an employment relationship in the same way as for military or alternative civilian service, that is to say a period of up to eight months.

IV –  Reference for a preliminary ruling and proceedings before the Court of Justice

20.     By an order of 22 May 2002 the national court stayed its proceedings and referred the following questions to the Court of Justice of the European Communities for a preliminary ruling:

1.      Is the term ‘pay’ in Article 141 EC and in Article 1 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19) to be construed as meaning that it also encompasses statutory provisions of general application, such as Paragraph 8 of the Bundesgesetz über die Sicherung des Arbeitsplatzes für zum Präzenz- oder Ausbildungsdienst einberufene oder zum Zivildienst zugewiesene Arbeitnehmer (Federal law on job security for workers called up for military or training service or assigned to alternative civilian service, hereinafter ‘the APSG’), where, in the public interest, periods of service in the performance of public duties as defined therein, during which it is generally not possible to perform services of a private-employment nature, are to be taken into account for the purposes of claims under employment law calculated according to length of service in a private-employment relationship?

2.      Are Article 141 EC and Article 1 of Directive 75/117/EEC to be construed as meaning that,

from the equal pay point of view,

in the case of a system of pay that awards termination payments to workers essentially based on past loyalty to their employer and graduated according to the length of their employment in order to tide them over the actual termination of that employment, unless the employment is brought to an end by the worker without good cause, or if the termination of it is the result of fault on his part, whereby individual periods of employment are categorised as independent and the exclusion of periods of unpaid leave is permitted, if that unpaid leave is taken for reasons that are in the worker’s interests and at his or her own instigation and if those reasons do not constitute a good cause that would entitle the worker to terminate his or her employment and safeguard his or her termination payment,

the internal worker group covered by Paragraph 8 APSG (Group A)

is to be compared with

that group of female workers who decide, in accordance with Paragraph 15 of the Mutterschutzgesetz (Law on Maternity Benefits, hereinafter ‘the MSchG’), to take parental leave (‘childcare leave’) to care for their children without pay after their normal 16-week period of ‘maternity leave’ has expired and until, at the maximum, the child reaches its second birthday (Group B)?

3.      Are Article 141 EC and Article 1 of Directive 75/117/EEC to be construed as meaning that, where the differences between the internal worker groups referred to in Question 2 principally consist of the fact that, in the case of

Group A, ‘men on military service’,

1.      there is normally an obligation to ‘report for duty’ or, in any event, if they should report voluntarily,

2.      reporting for duty is only permissible in so far as it is in the public interest, and

3.      it is normally not possible to perform services under an employment relationship governed by private law – even another employment relationship,

whereas, in the case of Group B, ‘unpaid parental leave’,

1.      it is left to the individual worker in a particular employment relationship alone to choose whether she wishes to take unpaid parental leave to care for her child and

2.      whether, during that parental leave and in the time available to her after caring for her children, she can also undertake work of a limited nature in a private employment relationship,

those differences constitute sufficient objective justification for the different treatment of those periods for the purposes of claims based on length of service?

21.     The applicant, the respondent, the Austrian Government and the Commission have submitted written observations to the Court.

V –  The first question

22.     By its first question the national court essentially wishes to establish whether the term ‘pay’ in Article 141 EC and in Article 1 of Directive 75/117 also encompasses termination payments due on the ending of employment relationships in so far as the calculation thereof includes periods during which no work can generally be performed by the employee because of other statutory obligations, such as the obligation to do military or alternative civilian service. A comparison can only be drawn between childcare leave and military or alternative civilian service for the purposes of Article 141 EC and Article 1 of Directive 75/117 if such periods are included in the first place.

A – Summary of the written observations submitted to the Court of Justice

23.     The applicant takes the view that rules such as the one in Paragraph 8 of the APSG, which lead to increased entitlement to a termination payment, are to be considered ‘pay’ under Article 141 EC and Article 1 of Directive 75/117 in the same way as the termination payment itself.

24.     In the respondent’s opinion, however, there are good grounds for the view in law that the term ‘pay’ does not extend to benefit obligations that are imposed upon private employers in the public interest. Indeed, the respondent presumes that the taking of periods of military service into account for the purposes of calculating termination payments represents a statutorily regulated advantage that has a specific social policy objective.

25.     The Austrian Government and the Commission simply state, with reference to the judgment in the Gruber (15) case, that a termination payment constitutes ‘pay’ within the meaning of Article 141 EC.

B – Appraisal

1.     Introductory observations

26.     The term ‘pay’ has the same meaning when used in Article 141 EC and in Article 1 of Directive 75/117. The Court has repeatedly held that the Directive is essentially designed to facilitate the practical application of the principle of equal pay laid down in Article 141 of the Treaty and in no way alters the scope or content of that principle as defined in Article 141. (16)

27.     For the purposes of both of these provisions, ‘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 (first subparagraph of Article 141(2) EC). If a job classification system is used for determining pay, that system must be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex (second paragraph of Article 1 of Directive 75/117).

28.     As far as the compensation on termination of employment payable in Austrian law under Paragraph 23 of the AngG is concerned, the Court has already held in principle in the Gruber (17) case that such compensation does constitute ‘pay’ within the meaning of Article 141 EC. The Gruber judgment expresses established case-law according to which compensation granted to a worker on leaving his employment relationship constitutes a form of deferred pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the employment relationship, which makes it possible to facilitate his adjustment to the new circumstances resulting from the loss of his employment and which provides him with a source of income during the period in which he is seeking new employment. (18)

2.     The problem concerned

29.     The national court expresses doubt as to whether the classification of a termination payment as pay also applies in so far as, for the purposes of its calculation, it is also necessary to take into account periods during which the performance of private employment duties is generally impossible and where activities in the public interest are carried out instead, that is to say military or alternative civilian service.

30.     The term ‘pay’ within the meaning of Article 141 EC and Article 1 of Directive 75/117 is an autonomous legal concept under Community law to which the Court has always given a wide interpretation.

31.     In particular, a benefit that is paid by virtue of legislative provisions can indirectly signify a connection with the employment relationship and consequently come within the concept of ‘pay’. According to established case-law, the fact that benefits are provided for by law does not in itself disqualify them from being ‘pay’. It is of no importance whether entitlement arises from a legal source other than a contract of employment, such as direct from legislation that is itself based only on the existence of an employment relationship. (19) It is sufficient if the employer grants the benefit in connection with employment. (20)

32.     Consequently, in the Gruber (21) judgment the Court was immediately able to categorise the Austrian termination payment as ‘pay’. The question being asked of the Court in the present case, however, is not whether it intends to affirm or deviate from the decision at which it arrived in the Gruber case. There is a new aspect here, with which the Court did not have to deal in the Gruber case, namely: the consideration to be given to periods during which no work can generally be performed by an employee because of other statutory obligations, such as the duty to do military or alternative civilian service.

3.     Observations

33.     As the Court has decided on a number of occasions, the question of whether and to what extent a benefit from an employer falls within the scope of application of Article 141 EC is governed solely by the criterion of employment derived from the wording of that provision itself. (22) The question to be asked in the present case, therefore, is whether the Austrian termination payment is at least indirectly made by reason of the employment relationship, (23) in so far as account is taken of periods during which no work can generally be performed by the employee because of other statutory commitments.

34.     The starting point when answering this question should be the idea that consideration and counter-consideration in a contract of employment reflect a barter situation (ordinary reciprocal obligations). If the employer grants a benefit to the employee it can only be classified as pay if it constitutes inter alia counter-consideration for services rendered or an incentive for the employee to render future service. Connection with the employment relationship must at least be established from some kind of interest on the part of the business in granting that benefit to the employee.

(a) Current case-law

35.     The Court has at yet only touched upon questions such as the calculation of benefits to include certain periods during which no work is performed by reason of legislative provisions, as raised in this case.

36.     In the Bötel case a member of a staff council, as permitted by law, did not carry out the activities agreed in her contract of employment for the duration of a training course. (24) The Rinner-Kühn case related to the continued payment of wages in the event of illness. (25) The Gillespie case concerned payment of female employees’ wages during their maternity leave. (26)

37.     In all three judgments the Court recognised that the remuneration (27) that was paid for periods during which the female workers concerned did not perform any work by reason of legislative provisions did constitute ‘pay’. However, the money to be paid to the female workers in all three examples had a close connection with their employment relationships despite the fact that they were exempt by law from carrying out any work.

38.     Staff council members are in fact necessarily employees of the undertaking and are entrusted with the task of safeguarding staff interests, thus promoting harmonious working relationships within the undertaking, and their activities are therefore in its interests. (28) The continued payment of wages in the event of illness is also ultimately in the interests of the undertaking since it makes it easier for the employee to recover and return to work. As far as maternity leave is concerned – that is to say, the period during which legislation forbids work to be done immediately before and after confinement – the objective is also to protect the health of expectant employees and therefore ultimately to enable them to return to work. (29)

39.     In all three cases, therefore, the aims in taking into account periods during which no work is done are ultimately the same as those expressed in Article 136(1) EC, in the European Social Charter, (30) in the Community Charter on the Fundamental Social Rights of Workers (31) and in the Charter of Fundamental Rights of the European Union: (32) on the one hand, the right for male and female workers within the undertaking to be given information and to be heard and, on the other hand, the right to healthy, safe and just working conditions. Hence, there is in each case a clear connection with the employment relationship and a clear interest on the part of the undertaking in providing the benefit.

(b) The situation where work is not performed because of other statutory commitments

40.     It is a different picture, however, if it is impossible for the worker to perform his private employment duties because of other statutory commitments, for instance because he is carrying on an activity such as military service or alternative civilian service during the period in question: during the time that his employment relationship is suspended the employee is not idle but is, on the contrary, working for another employer who will generally also be paying him remuneration and providing him with social insurance cover. The employee’s activity during that period is in no way connected with his suspended employment relationship with his former employer. It is being conducted exclusively in the public interest. The undertaking from which the employee is to a certain extent ‘dragged away’ during that time does not benefit from this in any way at all; on the contrary, in the majority of cases it will lead to an additional organisational burden on the undertaking.

41.     A termination payment also loses its classic dual function in so far as periods during which no work can be performed by the employee because of other statutory commitments are included in its computation. The normal function of a termination payment is, firstly, to reward past service and loyalty to the undertaking and, secondly, to bridge the gap whilst a new position is being sought. However, if an employee has been unable to perform his work within the undertaking because of other statutory commitments the reward element becomes much less significant because, during that period, the employee was rendering his services in the public interest and not in the interests of the undertaking. The termination payment therefore loses its ‘deferred pay’ aspect within the meaning of established case-law of the Court of Justice. (33)

42.     By providing nevertheless, for socially motivated reasons, that periods of public service should be taken into account when computing termination payments, the national legislature is shifting the burden from the public at large to one particular group, in this case the employers. The aim of the rule is to protect an employee who is called up by the State to do military or alternative civilian service during the continuance of an employment relationship, who therefore performs a service for the benefit of the general public, from financial disadvantage in comparison with other workers who continue to work in the undertaking during that same period and see their entitlement to a termination payment increase accordingly.

43.     The only connection with an employment relationship in such a case is the demand to contribute placed on the employer by the State, that is to say its statutory obligation (34) to include periods of military and alternative civilian service when calculating his termination payment and to make a correspondingly higher payment to the employee when he leaves his employment than would be justified by the length of his employment within the undertaking. No other connection with the employment relationship is ascertainable – such as, in particular, any kind of interest on the part of the undertaking in making a higher payment.

(c) Conclusion

44.     If the sole connection with the employment relationship is the demand to contribute made of the employer by the legislature, the employment criterion on which Article 141 EC and Article 1 of Directive 75/117 are based cannot be satisfied. Payment of compensation on termination is not directly or indirectly made by reason of the employment relationship, as required under Article 141 EC, in so far as its computation includes periods during which no work can generally be performed by the employee because of statutory obligations towards another employer, such as his obligation to do military or alternative civilian service. Indeed, the national legislature is in this respect shifting the burden from the general public to the employer.

45.     Ultimately, therefore, the term ‘pay’ should be construed as meaning that it does not encompass a monetary benefit such as the termination payment that is payable in Austria when an employment relationship comes to an end in so far as its calculation includes periods during which no work can generally be performed by the employee because of statutory commitments towards another employer, such as his duty to do military or alternative civilian service. (35)

VI –  The second and third questions

46.     In its second and third questions the national court essentially wishes to establish whether, from the indirect discrimination aspect, Article 141 EC and Article 1 of Directive 75/117 preclude a national provision such as the one in the Austrian Mutterschutzgesetz whereby periods of parental childcare leave are not to be included for the purposes of calculating termination payments when employment relationships come to an end.

47.     If the term ‘pay’ were interpreted as advocated above, (36) it would be unnecessary to answer the second and third questions because it would already have been established that they do not come within the scope of application of Article 141 EC and Article 1 of Directive 75/117. For the sake of completeness, however, consideration will be given below to the legal problems raised in the second and third questions referred by the national court.

A – Summary of the observations submitted to the Court

1.     The Austrian Government

48.     The Austrian Government denies the existence of direct discrimination having regard to the rule contained in Paragraph 7c of the VKG, as periods of childcare leave are not taken into account for either men or women when assessing entitlement to a termination payment.

49.     The Austrian Government also takes the view that workers on childcare leave are not comparable with men doing military or alternative civilian service. Hence, the different way in which the periods concerned are taken into account when assessing entitlement to a termination payment is based on objective grounds and is not due to gender-specific factors.

50.     The taking of childcare leave under the MSchG and the VKG lies exclusively within the free will of the employee, who has absolute formative freedom. There is no statutory obligation to take childcare leave. The only purpose of legal entitlement to childcare leave is to strengthen an employee’s legal position in relation to his employer.

51.     According to the Austrian Government, the barter situation in a contract of employment (ordinary reciprocal obligations under employment law) leads, in the event of doubt, to the conclusion that periods during which the employment relationship is suspended by reason of the employee’s formative freedom and during which no work is performed are not to be taken into account.

52.     On the other hand, however, according to the Austrian Government, the provision in Paragraph 8 of the APSG applicable to men doing military or alternative civilian service is justifiably at variance with the barter idea. The constitutionally-based duty to do national service is a legal obligation in the public interest that an individual worker cannot avoid. (37) The legal system imposes this inalienable obligation on the individual and, as a safeguard, makes simultaneous provision for the employment relationship to be suspended. Since the employee is completely powerless in this respect it would be inequitable not to take those periods into account for the purposes of entitlement to a termination payment. Nor is this principle intrinsically abandoned by the rule being partially extended to encompass voluntary service. From this point of view, even elements of voluntariness in service with the armed forces are compelling military interests and therefore come within the public interest.

53.     The Austrian Government considers that comparable compelling and directly applicable legislative provisions with an absence of formative freedom are to be found in the maternity-law prohibitions on working under Paragraphs 3(1) and 5(1) of the MSchG – that is to say, in particular, in the last eight weeks prior to the expected date of confinement and in the first eight weeks thereafter – but not in the case of childcare leave.

2.     Commission

54.     The Commission recalls that, according to established case-law of the Court of Justice, (38) the national court has sole jurisdiction to assess the facts and interpret the national legislation. It is ultimately for the national court to determine whether and to what extent a legislative provision, which, though applying independently of the sex of the worker, actually affects a considerably higher percentage of women than men, is justified by objective reasons. As the Court of Justice is called on to provide answers of use to the national court it may provide guidance in order to enable the national court to give judgment.

55.     The Commission submits that, by not taking into account periods of childcare leave when calculating termination payments under Paragraph 15f of the MSchG, the group of workers who take childcare leave is put at a disadvantage compared to other workers who do not exercise that right. According to the information provided by the national court it is an established fact that it is principally women who are affected by childcare leave not being taken into account. This means that indirect discrimination is indicated unless that inequality is justified by objective factors unrelated to any discrimination on grounds of sex.

56.     With regard to the issue of objective justification the Commission refers, firstly, to the case-law of the Court according to which the mere fact that a legislative provision affects far more women than men at work cannot be regarded as a breach of Article 141 EC. (39) Secondly, it recalls the broad margin of discretion that the Court allows to the Member States in their choice of the measures capable of achieving the aim of their social and employment policy. (40)

57.     However, this broad margin of discretion cannot have the effect of frustrating the implementation of a fundamental principle of Community law such as that of equal pay for men and women; general assertions are not enough to justify inequality. (41) It is the duty of the Austrian Government to demonstrate to the national court that not taking periods of childcare leave into account under Paragraph 15f of the MSchG when calculating a termination payment under Paragraph 23 of the AngG is justified by objective factors unrelated to any discrimination on grounds of sex. It is not clear whether or not the Austrian authorities have submitted any such reasoning.

58.     The Commission doubts the existence of any defensible social policy aim that might justify on objective grounds the established inequality that principally affects women.

59.     It follows from the judgment of the Court in the Roks (42) case that budgetary considerations cannot justify discrimination against one of the sexes. It is immaterial whether the Member State concerned assumes the burden itself or passes the buck to the employer. In both cases these are purely fiscal considerations that the Court does not accept as justification.

60.     It should also be noted that, according to the case-law of the national court, it is possible to take into account periods during which no work is actually done – for example, periods of ill health, annual leave and maternity leave. It could not be contended that these are periods linked to the specific employment relationship. Periods of childcare leave also form part of a valid employment relationship within which the principal obligations are simply suspended.

61.     As far as the judgment of the Court in the Gruber (43) case is concerned, the observations made there by the Court cannot, in the opinion of the Commission, be immediately applied to facts such as those in the present case. In the Gruber case the female worker had indicated before her childcare leave came to an end that she would not be returning to her job. The facts in the present case, however, concern a situation in which employment is terminated by the employer or terminated by the employee for good reason, so that both of these situations represent circumstances ending the relationship that originate exclusively within the employer’s sphere of influence.

62.     Finally, it appears to the Commission to be questionable whether parenthood is really just a private matter or whether it is indeed an issue of predominantly social significance. The Commission refers in this respect to the Hill and Stapleton (44) case, in which the Court considered that protection of women within family life and in the course of their professional activities was, in the same way as for men, a principle recognised in the legal systems of the Member States and by Community law and stressed the need to adapt working conditions to family responsibilities.

63.     In the opinion of the Commission there are no ascertainable objective factors unrelated to any discrimination on grounds of sex that would justify the unequal treatment of women in Paragraph 15f of the MSchG.

3.     The applicant

64.     The applicant takes the view that, whilst this is not a case of direct discrimination because periods of childcare leave are not taken into account when calculating termination payments for either men or women, it does constitute indirect discrimination against female employees inasmuch as childcare leave is not taken into account when calculating termination payments to the same extent as service in the armed forces.

65.     In the applicant’s opinion the Austrian rule in the third sentence of Paragraph 15f(1) of the MSchG and Paragraph 7c of the VKG puts those workers who take childcare leave in a more unfavourable position than those employees who accumulate more time allowable for termination payment purposes as a result of their active periods of employment or who are allowed to take their service in the armed forces into account under Paragraph 8 of the APSG. The applicant concludes from the fact that 98.253% of childcare leave is taken by women and 99.5% of service in the armed forces is done by men that the more unfavourable position of childcare leave when calculating termination payments principally affects women, whereas most of those who benefit from periods of military and alternative civilian service being taken into account are men.

66.     The applicant stresses the importance of childcare in society as well as in the case-law of the Court of Justice and opposes the view that the taking of childcare leave is a voluntary decision whereas the performance of military or alternative civilian service is a mandatory duty in the public interest. In the applicant’s opinion the decision to care for one’s own child oneself by taking childcare leave after statutory maternity leave has come to an end is not really a voluntary one. Indeed, because of the absence of childcare facilities for children up to the age of two years, many women find that they are actually obliged to take childcare leave. There is also the question of statutory obligations in relation to childcare; the inadequate care of children is even a criminal offence to which penalties are attached. (45) In the applicant’s opinion it is also of no significance to the application of Community law whether an obligation under civil or public law results in a worker not carrying out any work for a particular period.

67.     Conversely, the applicant emphasises certain aspects of military service where it considers it to be apparent that consideration is given to private interests rather than public interests, such as the possibility of postponement or deferment at the request of the party concerned.

68.     According to the applicant, childcare leave and military or alternative civilian service are also comparable in as much as, although it is theoretically possible for a small amount of work to be carried out alongside them, in practice, however, it is seldom done.

69.     In the applicant’s opinion there is no objective justification for the unequal treatment. In particular, the risk of an unreasonable burden being imposed upon the employer cannot just apply in the case of childcare leave. The Austrian legislature has also, in the meantime, found the inequality between men doing national service and parents on childcare leave to be unjustified for reasons of social policy (46) although it has only abolished it for the future and not for the past as well. (47)

4.     The respondent

70.     The respondent, however, emphasises the lack of comparability between the group of people taking childcare leave and the group of men on national service. It argues that the taking of childcare leave is an opportunity afforded in the interests of the employee whereas national service is a duty fulfilled in the public interest. Because of the different objectives of the provisions applicable to the two groups the comparability of the facts cannot be assumed.

71.     The respondent also points out that national service applies exclusively to men, who are thereby disadvantaged as against female employees. It follows from the judgment of the Court in the Schnorbus (48) case that provisions giving preferential treatment which take account of delay experienced as a result of military service are objectively justified.

B – Appraisal

1.     Introductory remarks

72.     The following should be noted in as much as the national court is asking the Court of Justice to compare and evaluate the differences between two groups of people – that is to say, between the group of men doing military or alternative civilian service, on the one hand, and the group of workers taking childcare leave, on the other: (49) the national court has sole jurisdiction to assess the facts and interpret the national legislation. According to established case-law it is therefore ultimately for the national court to determine whether and to what extent an impartially worded legislative provision that ultimately affects a considerably higher percentage of workers of one particular sex is justified by objective reasons unrelated to any discrimination on grounds of sex. (50)

73.     However, the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance based on the documents in the file and on the written and oral observations which have been submitted to it, in order to assist the national court to give judgment. (51)

2.     Absence of direct discrimination

74.     If a rule of national law were to make provision for inequality between male and female workers in relation to the calculation of termination payments by making direct reference to gender, this would constitute direct discrimination.

75.     As far as the new Austrian legal position is concerned (so-called ‘new termination payment’), it follows from Paragraph 7(4) of the BMVG that periods of childcare leave are to be taken into account for both men and women without any discrimination. (52)

76.     The former legal position (53) in the third sentence of Paragraph 15f(1) of the MSchG and Paragraph 7c of the VKG, which will continue to apply to a large number of employment contracts, also lays down the same provision for both sexes, albeit the other way round: periods of childcare leave are not to be taken into account.

77.     Doubts could only arise with regard to Paragraph 7c of the EKUG, the predecessor to Paragraph 7c of the VKG. That provision, which will continue to apply to a number of old cases, (54) does not contain any express reference, for male workers, to the exception applicable to mothers contained in the third sentence of Paragraph 15f(1) of the MSchG. The mere wording of Paragraph 7c of the EKUG therefore allows of the conclusion, at first sight, that male workers have an advantage over female workers because their periods of childcare leave are not excluded by legislative provisions when termination payments are calculated. (55) As can be seen from the files and was confirmed in the oral procedure, both the national court and the parties to the main proceedings are proceeding on the assumption that the provision contained in Paragraph 7c of the EKUG produces the same legal effect for men as for women – that is to say, that periods of childcare leave are not to be taken into account when calculating termination payments. (56) The wording of Paragraph 7c of the EKUG would appear, rather than a conscious decision on the part of the legislature, to be an editorial oversight that does not have any discriminatory effect when the provision is applied in practice and which has now been rectified by Paragraph 7c of the VKG. (57)

78.     Ultimately, therefore, none of the various legal provisions applicable to childcare leave in Austria lead to direct discrimination on grounds of sex.

3.     Absence of indirect discrimination

79.     According to established case-law the principle of equal pay precludes not only the application of provisions leading to direct sex discrimination, but also the application of provisions which maintain different treatment between men and women at work as a result of the application of criteria not based on sex where those differences of treatment are not attributable to objective factors unrelated to sex discrimination. (58)

80.     In order to establish whether indirect discrimination exists in a particular case it is therefore necessary to examine two things: firstly, it is necessary to ask whether there is any unequal treatment of male and female workers at all; discrimination can only be assumed where different rules are applied to comparable situations or where the same rule is applied to different situations. (59) If discrimination does exist it is then necessary to consider whether such unequal treatment can be objectively justified.

81.     There are two conceivable approaches here: firstly, the comparison advocated by the national court between workers who take childcare leave and those who do military or alternative civilian service; (60) secondly, a comparison between those workers who take childcare leave and those who continue to work in the undertaking during that same period.

(a) Comparison between childcare leave and military or alternative civilian service

82.     As far as the first two groups to be compared are concerned – on the one hand, those workers who take childcare leave during an ongoing employment relationship and, on the other, those who do military or alternative civilian service during that same period – Austrian law applies different provisions to these two groups of people. (61) However, it is questionable whether the workers covered by those provisions are in comparable situations. (62)

83.     It must first be established that there are parallels between the effects that childcare leave and military or alternative civilian service have on the employment relationship. In both cases the employment relationship continues in existence but the principal obligations arising thereunder are suspended: the employee does not do any work and the employer does not provide any remuneration.

84.     However, there are clear differences with regard to the reasons for suspension of the employment relationship and the margin of discretion retained by the employee concerned. Thus service in the armed forces and alternative civilian service are carried out in the public interest and in the performance of a civic duty, whereby significance is to be attached to considerations relating to the common good and military considerations, in particular. On the other hand, the decision whether or not to take childcare leave is a decision of a voluntary nature on the part of the worker concerned: the law prohibits parents from neglecting their children but it does not oblige them to take childcare leave to care for their children.

85.     It is acknowledged that there are also certain other aspects of significance in both cases. Service in the armed forces and alternative civilian service, despite their fundamentally mandatory nature, are not entirely devoid of any elements of voluntariness or regard for private interests. For example, service by women in the Austrian armed forces (so-called ‘military training service’) is voluntary. It is also possible for men to obtain a postponement or deferment on request. Conversely, the basically voluntary decision whether or not to take childcare leave can be influenced by de facto external forces such as a lack of childcare facilities, as described by the applicant in the case of Austria.

86.     What is decisive, however, is that the decision whether or not to take childcare leave is predominantly a question that comes within the employee’s private domain (63) whereas, in the case of service in the armed forces or alternative civilian service, considerations of a private nature are subjugated to the public interest and do not affect the duty to do military service as such. Childcare leave, on the one hand, and military or alternative civilian service, on the other, are therefore not comparable facts. Consequently, inequality between these two groups of persons cannot be assumed.

87.     Even if – contrary to the view expressed here – childcare leave and military or alternative civilian service were to be considered comparable so that there would be a presumption of inequality, the national court would have to examine whether that inequality could be justified by objective reasons unrelated to any discrimination on grounds of sex. It would be for the Austrian Government to plead such justification reasons in the national court. (64) The following should be noted in this context:

88.     A mere reference to the barter situation (ordinary reciprocal obligations) based on the contract of employment would not suffice because the principal obligations under the contract of employment are suspended in the case of both childcare leave and military or alternative civilian service, which means to say that in both cases no work is carried out and consequently no wages are payable.

89.     The Court has also already held that sex discrimination cannot be justified on grounds relating to the financial loss which the employer would sustain if workers of both sexes were to be treated equally. (65)

90.     As properly stated by the respondent, a national provision can be justified to the extent that it solely helps to counterbalance delay experienced as a result of doing military or alternative civilian service. (66) Conversely, however, the Court has also allowed a certain degree of offsetting of occupational disadvantages to parents which might arise as a result of being away from work. (67)

91.     It would be for the national court to specifically apply such considerations in the main proceedings.

(b) Comparison between workers who take childcare leave and those who work in the undertaking during the same period

92.     The second group to be compared, consisting of those employees who take childcare leave and those who continue to work in the undertaking, is also subject to different provisions under Austrian law. (68)

93.     The mere fact that not taking account of periods of childcare leave under the third sentence of Paragraph 15f(1) of the MSchG in conjunction with Paragraph 7c of the VKG affects far more women than men at work cannot, however, be regarded as a breach of Article 141 EC. (69) The question is rather whether the workers covered by those provisions – those who take childcare leave, on the one hand, and those who continue to work in the undertaking, on the other – are in comparable situations. (70)

94.     Endeavours to promote the compatibility of family and work are clearly ascertainable in Community law. Childcare leave itself is also instrumental in achieving that aim. (71) Nor is the objective of reconciling occupational and family obligations unknown to the case-law of the Court. (72)

95.     However, it does not necessarily follow from the aim of making work and family life compatible that an employee on childcare leave is to be treated in all respects in exactly the same way as an employee in active employment. The Court has also ruled that an essential feature of childcare leave consists of the fact that the contract of employment – and therefore the respective obligations of the employer and the worker – are suspended. A worker who exercises a statutory right to take parental leave is therefore in a special situation, which cannot necessarily be assimilated to that of a man or woman in active employment. (73)

96.     There cannot therefore be any cause for complaint if those differences in the facts also find expression in different calculations of remuneration based on length of service. In the Lewen judgment, therefore, the Court accepted that periods of childcare leave do not have to be taken into account when calculating a Christmas bonus that represents pay for work performed and that the Christmas bonus could be reduced accordingly. (74) If this case-law is applied to the present case of a termination payment, which by its very nature represents deferred pay for services rendered and loyalty to the undertaking, it must also be permissible to leave out of the calculation those periods of childcare leave during which the employment relationship was suspended.

4.     Conclusion

97.     I am therefore ultimately of the opinion that Article 141 EC and Article 1 of Directive 75/117 do not preclude a national legislative provision such as the one contained in the Austrian Mutterschutzgesetz, according to which no periods of parental childcare leave are to be taken into account for the purposes of calculating monetary benefits such as a termination payment when an employment relationship comes to an end.

98.     Even if – contrary to my opinion on the first question – the calculation of ‘pay’ within the meaning of Article 141 EC and Article 1 of Directive 75/117 were to include periods during which no work can generally be performed by the employee because of statutory commitments towards another employer, such as an obligation to do military or alternative civilian service, there would be no direct or indirect discrimination because of the absence of comparability of the facts.

VII –  Conclusion

99.     In the light of the foregoing considerations I propose that the questions referred to the Court by the Austrian Oberster Gerichtshof be answered as follows:

(1)    A monetary benefit such as the termination payment payable in Austria when an employment relationship is brought to an end does not come within the concept of ‘pay’ within the meaning of Article 141 EC and Article 1 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women in so far as its calculation includes periods during which no work can generally be performed by the employee because of statutory commitments towards another employer, such as a duty to do military or alternative civilian service.

(2)    Article 141 EC and Article 1 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women do not preclude a national legislative provision such as the one contained in the Austrian Mutterschutzgesetz, according to which no periods of parental childcare leave are to be taken into account for the purposes of calculating monetary benefits such as a termination payment when an employment relationship comes to an end.

1 –

Original language: German.

2 –

OJ 1975 L 45, p. 19.

3 –

Bundesgesetz vom 12. Mai 1921 über den Dienstvertrag der Privatangestellten (Angestelltengesetz), BGBl. 292/1921, as amended by Bundesgesetz BGBl. I 100/2002.

4 –

Bundesgesetz über die Sicherung des Arbeitsplatzes für zum Präzenz- oder Ausbildungsdienst einberufene oder zum Zivildienst zugewiesene Arbeitnehmer (Arbeitsplatz-Sicherungsgesetz 1991 – APSG), BGBl. 683/1991, as amended by Bundesgesetz BGBl. I 30/1998.

5 –

See the judgment of the Austrian Oberster Gerichtshof in action number 9 ObA 199/00 et seq.

6 –

Mutterschutzgesetz 1979, BGBl. 221/1979, as amended by the Bundesgesetz BGBl. I 100/2002.

7 –

BGBl. I 103/2001.

8 –

BGBl. 651/1989. The EKUG was given a new name and partially amended in 2001 by Bundesgesetz BGBl. I 103/2001 becoming the ‘Bundesgesetz, mit dem Karenz für Väter geschaffen wird – Väter-Karenzgesetz (VKG)’.

9 –

Bundesgesetz über die betriebliche Mitarbeitervororge (Betriebliches Mitarbeitervorsorgegesetz – BMVG), BGBl. I 100/2002.

10 –

Even before this the first period of parental leave in an employment relationship was also to be taken into account, up to a maximum of ten months in total, for the purposes of determining the period of notice, the length of time that wages were to continue to be paid in the event of illness or accident and length of holiday entitlement (fourth sentence of Paragraph 15(1) of the MSchG).

11 –

Article 1 Paragraph 46(1) sentence 1 in conjunction with Article 1 Paragraph 47 BMVG.

12 –

Bundesgesetz vom 7. März 1985 über die Arbeits- und Sozialgerichtsbarkeit (Arbeits- und Sozialgerichtsgesetz), BGBl. 104/1985, as amended by BGBl. 624/1994.

13 –

Case C-195/98 ÖsterreichischerGewerkschaftsbund [2000] ECR I-10497, paragraphs 21 to 32.

14 –

See paragraph 8 of this Opinion.

15 –

Case C-249/97 Gruber [1999] ECR I-5295.

16 –

Case 96/80 Jenkins [1981] ECR 911, paragraph 22, Case C-262/88 Barber [1990] ECR I-1889, paragraph 11, Joined Cases C-399/92, C-409/92, C-425/92, C-34/93, C-50/93 and C-78/93 HelmigandOthers [1994] ECR I-5727, paragraph 19, Case C-236/98 Jämställdhetsombudsmannen [2000] ECR I-2189, paragraph 37, and Case C-381/99 Brunnhofer [2001] ECR I-4961, paragraph 29; similarly Case 43/75 Defrenne [1976] ECR 455, paragraphs 53-55, and Case 69/80 Worringham [1981] ECR 767, paragraph 21.

17 –

Cited in footnote 15, at paragraph 22.

18 –

See, in particular, the Barber judgment (cited in footnote 16, paragraphs 12 to 14), and the judgments of the Court in Case C-33/89 Kowalska [1990] ECR I-2591, paragraphs 9 to 11, and Case C-173/91 Commission v Belgium [1993] ECR I-673, paragraphs 15 to 17, and Case C‑167/97 Seymour-SmithandPerez [1999] ECR I-623, paragraph 25.

19 –

Case C-342/93 GillespieandOthers [1996] ECR I-475, paragraphs 3, 13 and 14; see also the judgments cited in footnote 16 in the cases of DefrenneII (paragraph 40), and Barber (paragraphs 17 and 20).

20 –

Case C-333/97 Lewen [1999] ECR I-7243, paragraph 20, Case C-218/98 AbdoulayeandOthers [1999] ECR I-5723, paragraph 12, Case 12/81 Garland [1982] ECR 359, paragraph 10, and the Gillespie judgment (cited in footnote 19, at paragraph 12).

21 –

Cited in footnote 15.

22 –

Joined Cases C-4/02 and C-5/02 SchönheitandBecker [2003] ECR I-0000, at paragraph 56, Case C-50/99 Podesta [2000] ECR I-4039, paragraph 26, and Case C‑7/93 Beune [1994] ECR I‑4471, paragraph 43.

23 –

See the wording of Article 141(2) EC and the judgments in Barber (cited in footnote 16, at paragraph 12), Seymour-Smith and Perez (cited in footnote 18, at paragraph 23) and Garland (cited in footnote 20, at paragraph 5).

24 –

Case C-360/90 MonikaBötel [1992] ECR I-3589, paragraphs 3, 4, 14 and 15, upheld by the judgment in Case C-457/93 Lewark [1996] ECR I-243, paragraphs 21 and 22, and Case C‑278/93 FreersandSpeckman [1996] ECR I‑1165, paragraphs 18 and 19.

25 –

Case 171/88 Rinner-Kühn [1989] ECR 2743, paragraphs 3 and 7.

26 –

Judgment cited in footnote 19, paragraphs 3, 13 and 14. Similarly the judgments in the Lewen case (cited in footnote 20, at paragraph 41) and Case C-411/96 Boyle and Others [1998] ECR I‑6401, at paragraph 38. Nevertheless the application of Article 141 EC to periods of maternity leave is not an undisputed issue. In Advocate General Léger’s Opinion of 30 September 2003 in Case C-147/02 Alabaster [2004] ECR I-0000, paragraphs 75 to 88, he advocates deviating from the principle in the Gillespie judgment and finding instead that only 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 (OJ 1992 L 348, p. 1; hereinafter ‘Directive 92/85’) should apply to maternity leave.

27 –

In the Bötel and Rinner-Kühn cases payment was made by reason of legislation, whereas in the Gillespie case it was made pursuant to a (collective) agreement.

28 –

See also the judgment of the Court in Bötel (cited in footnote 24, at paragraph 14); see also the judgments in Lewark (cited in footnote 24, at paragraph 22) and Freers and Speckmann (cited in footnote 24, at paragraph 19).

29 –

See also the eighth and ninth recitals in Directive 92/85 (cited in footnote 26).

30 –

Signed in Turin on 18 October 1961 (see, in particular, Part I paragraphs 2 and 3 and Part II Article 3(1) and Article 6(1)).

31 –

Adopted by the European Council in Strasbourg on 9 December 1989 (see paragraphs 17 and 19 in particular).

32 –

Signed and proclaimed at the European Council meeting in Nice on 7 December 2000 (OJ C 364, p. 1); see Article 27 and Article 31(1) in particular.

33 –

See paragraph 28 of this Opinion.

34 –

In the case of Austria the legislative provision is found in Paragraph 8 of the APSG (see paragraph 8 of this Opinion).

35 –

Nor could a termination payment, in so far as the periods concerned are included in its computation, be considered a condition governing dismissal within the meaning of Article 3(1)(c) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40), as amended by Directive 2002/73/EC, OJ 2002 L 269, p. 15. There would not be any connection with the employment relationship in that respect, for the reasons stated.

36 –

See paragraph 45 of this Opinion.

37 –

In the case of people who object to military service the Austrian Government refers to their obligation to do alternative civilian service.

38 –

The Commission cites the judgment in Seymour-SmithandPerez (cited in footnote 18, paragraphs 67 to 68, and other cases cited there).

39 –

The Commission cites the judgment in Seymour-Smith and Perez (cited in footnote 18, at paragraph 69, together with other cases cited there).

40 –

The Commission cites the judgment in Case C-317/93 Nolte [1995] ECR I-4625, paragraph 33.

41 –

The Commission cites the judgment in Seymour-Smith and Perez (cited in footnote 18, paragraphs 73 to 76).

42 –

Case C-343/92 Roks [1994] ECR I-571, paragraphs 35 and 36.

43 –

Cited in footnote 15.

44 –

Case C-243/95 Hill and Stapleton [1998] ECR I-3739, paragraph 42.

45 –

The applicant refers, firstly, to the civil-law provisions in Paragraphs 137 and 144 of the Austrian Allgemeines Bürgerlichen Gesetzbuch (Civil Code) and, secondly, to the criminal-law provision in Paragraph 82 of the Austrian Strafgesetzbuch (Criminal Code). It also mentions the law governing the protection of children and young people and refers to Austrian case-law under which parental care is a legal duty personally imposed upon persons with parental authority.

46 –

The applicant quotes from the legislative background to the Austrian Arbeitsrechtliches Begleitgesetz 1992 BGBl. 833/1992) which states:

‘The inequality between men on military service and parents on unpaid parental leave is not justified for reasons of social policy.’

47 –

The applicant refers to the rule in Paragraph 7 of the BMVG introduced in 2002 (‘new termination payment’); as stated above (paragraph 14 of this Opinion), it will still generally not be possible to take childcare leave into account in the case of employment relationships the contractual commencement date of which was prior to 31 December 2002.

48 –

Case C-79/99 Schnorbus [2000] ECR I-10997.

49 –

See the wording of the second and third questions (reproduced in paragraph 20 of this Opinion) where the national court distinguishes between a Group A and a Group B and sets out what it considers to be the principal differences between these two groups of people.

50 –

Judgment in Schönheit and Becker (cited in footnote 22, paragraph 82); see also the judgments in Case C-77/02 Steinicke [2003] ECR I-0000, paragraphs 57 to 58, in the Rinner-Kuhn case (cited in footnote 25, paragraph 15) and the Seymour-Smith and Perez judgment (cited in footnote 18, paragraph 67).

51 –

Case C-187/00 Kutz-Bauer [2003] ECR I-2741, paragraph 52, Schönheit and Becker (cited in footnote 22, paragraph 83), Steinicke (cited in footnote 50, paragraph 59), Seymour-Smith and Perez (cited in footnote 18, paragraph 68) and Freers and Speckmann (cited in footnote 24, paragraph 24).

52 –

See paragraph 14 of this Opinion.

53 –

See paragraph 13 of this Opinion for details of the transitional provision.

54 –

Ibid.

55 –

The Commission also referred to this in paragraph 57 of its written observations and in its oral submissions.

56 –

The national court states on pages 31 and 32 of its order referred for a preliminary ruling: ‘all of the parties are now in agreement in starting from the premiss that the legislative provisions in this case, which do not take account of gender and apply without discrimination to both fathers and mothers, … do not constitute direct discrimination under Article 141 EC’.

57 –

Otherwise Paragraph 7c of the EKUG – in those cases in which it continues to apply – would have to be interpreted in the light of Article 141 EC and in a manner compatible with the Treaty so that it leads to the same rule for men as for women.

58 –

Judgments in Schönheit and Becker (cited in footnote 22, paragraph 67), Seymour-Smith and Perez (cited in footnote 18, paragraph 52) and Gruber (cited in footnote 15, paragraph 26).

59 –

.Gillespie (cited in footnote 19, paragraph 16), Case C-279/93 Schumacker [1995] ECR I-225, paragraph 30. See also the judgment in Brunnhofer (cited in footnote 16, paragraph 28).

60 –

In its second and third questions (reproduced in paragraph 20 of this Opinion) the national court describes these two groups of people as Group A and Group B.

61 –

Paragraph 8 of the APSG, on the one hand, and the third sentence of Paragraph 15f(1) of the MSchG and Paragraph 7c of the VKG, on the other.

62 –

The judgment in Abdoulaye (cited in footnote 20, paragraphs 16 and 17), the judgments in Case C-206/00 Mouflin [2001] ECR I-10201, paragraph 28, and Case C-400/93 RoyalCopenhagen [1995] ECR I-1275; see also the judgment in Gruber (cited in footnote 15, paragraphs 27 to 32), where the synonymous wording ‘situation identical to or similar to’ is used.

63 –

The Gruber judgment (cited in footnote 15, paragraphs 29 to 33) does not provide a straight answer to this question. It does indicate nevertheless that the decision not to work and to devote oneself instead to the care of one’s children is taken voluntarily and is to be categorised within the employee’s private domain (see, in particular, the arguments put forward in paragraph 30 of the Gruber judgment, which the Court has ultimately followed).

64 –

Judgment in Hill and Stapleton (cited in footnote 44, paragraph 43).

65 –

See, with regard to the protection of pregnant employees, the judgments in Case C-177/88 Dekker [1990] ECR I-3941, paragraph 12, Case C-207/98 Mahlburg [2000] ECR I-549, paragraph 29 and Case C-109/00 TeleDanmark [2001] ECR I-6993, paragraph 28. See also the judgments in Schönheit and Becker (cited in footnote 22, paragraph 85), Steinicke (cited in footnote 50, paragraphs 66 and 67), Kutz-Bauer (cited in footnote 51, paragraphs 59 and 60) and Roks (cited in footnote 42, paragraphs 35 and 36), also the judgment in Case C-226/98 Jørgensen [2000] ECR I-2447, paragraph 39.

66 –

Judgment in Schnorbus (cited in footnote 48, paragraph 44).

67 –

Case C-366/99 Griesmar [2001] ECR I-9383, paragraph 41, Abdoulaye and Others (cited in footnote 20, paragraphs 18, 20 and 22). Both of these cases refer to maternity protection. However, the judgment in Griesmar (paragraphs 45 to 58) does not preclude taking into consideration other occupational disadvantages which might arise as a result of bringing up children and simply requires in this context that a legislative provision should not be discriminatory.

68 –

Paragraph 23 of the AngG, on the one hand, and the third sentence of Paragraph 15f(1) of the MSchG and Paragraph 7c of the VKG, on the other.

69 –

Judgments in Freers and Speckmann (cited in footnote 24, paragraph 28) and Seymour-Smith and Perez (cited in footnote 18, paragraph 69).

70 –

See the case-law already cited in footnote 62.

71 –

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; see in particular the third recital of the Directive and the Preamble, Part I No 4 and Part II Clause 1(1) of the framework agreement).

72 –

Judgment in Hill and Stapleton (cited in footnote 64, paragraph 42).

73 –

.Lewen (cited in footnote 20, paragraphs 37 to 40).

74 –

.Lewen (cited in footnote 20, paragraphs 39 and 40); see, in particular, the words ‘… a bonus, even one reduced proportionately …’.