JUDGMENT OF THE COURT (Fifth Chamber)

16 September 1999 (1)

(Interpretation of Article 119 of the EC Treaty (Articles 117 to 120 of the ECTreaty have been replaced by Articles 136 EC to 143 EC) and of Directives75/117/EEC and 76/207/EEC — Collective agreement providing for an allowancefor pregnant women going on maternity leave)

In Case C-218/98,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234EC) by the Conseil de Prud'hommes du Havre, France, for a preliminary ruling inthe proceedings pending before that court between

Oumar Dabo Abdoulaye and Others

and

Régie Nationale des Usines Renault SA,

on the interpretation of Article 119 of the EC Treaty (Articles 117 to 120 of theEC Treaty have been replaced by Articles 136 EC to 143 EC), of Council Directive75/117/EEC of 10 February 1975 on the approximation of the laws of the MemberStates relating to the application of the principle of equal pay for men and women(OJ 1975 L 45, p. 19) and of Council Directive 76/207/EEC of 9 February 1976 onthe implementation of the principle of equal treatment for men and women as

regards access to employment, vocational training and promotion, and workingconditions (OJ 1976 L 39, p. 40),

THE COURT (Fifth Chamber),

composed of: J.-P. Puissochet, President of the Chamber, P. Jann, J.C. Moitinhode Almeida (Rapporteur), C. Gulmann and D.A.O. Edward, Judges,

Advocate General: S. Alber,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

—    the Régie Nationale des Usines Renault SA, by Catherine Guillotin-LeJouan and Jean-Pierre Spitzer, of the Paris Bar,

—    the United Kingdom Government, by Stephanie Ridley, of the TreasurySolicitor's Department, acting as Agent, and Sara Masters, Barrister,

—    the Commission of the European Communities, by Marie Wolfcarius, of itsLegal Service, acting as Agent,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 3 June 1999,

gives the following

Judgment

1.

    By judgment of 24 April 1998, received at the Court on 15 June 1998, the Conseilde Prud'hommes (Industrial Tribunal), Le Havre, referred to the Court for apreliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) aquestion on the interpretation of Article 119 of the EC Treaty (Articles 117 to 120of the EC Treaty have been replaced by Articles 136 EC and 143 EC), of CouncilDirective 75/117/EEC of 10 February 1975 on the approximation of the laws of theMember States relating to the application of the principle of equal pay for men andwomen (OJ 1975 L 45, p. 19) and of Council Directive 76/207/EEC of 9 February1976 on the implementation of the principle of equal treatment for men andwomen as regards access to employment, vocational training and promotion, andworking conditions (OJ 1976 L 39, p. 40).

2.

    The question has been raised in proceedings between Oumar Dabo Abdoulaye andother plaintiffs and the Régie Nationale des Usines Renault SA (hereinafter'Renault‘).

3.

    The plaintiffs in the main proceedings are male workers at Renault. They claimthat Article 18 of the agreement on social benefits for Renault employees(hereinafter 'the Agreement‘) is incompatible with the prohibition ofdiscrimination laid down in Article 119 of the Treaty, which was implemented byArticle L. 140-2 of the French Code du Travail (Employment Code).

4.

    Article 18 of the Agreement provides that 'when taking maternity leave, a femaleemployee shall be granted a sum of FRF 7 500‘.

5.

    Article 19 of the Agreement provides that 'during the duration of maternity leavepaid as such by social security, a female employee shall receive 100% of her netsalary, less the daily allowances paid by social security‘.

6.

    Finally, Article 20 of the Agreement provides that 'on the adoption of a child, thefather or the mother employed by the undertaking shall receive a sum ofFRF 2 000. If both spouses work in the undertaking, that right may be exercisedby only one of the spouses‘.

7.

    According to the plaintiffs in the main proceedings, whereas certain instances ofdiscrimination, such as maternity leave granted exclusively to women, are justifiedbecause they are related to the physiological characteristics of one sex, this is notthe case with regard to the payment in question, since, although the birth of a childconcerns women alone from a strictly physiological point of view, it is, in at leastequal measure, a social event which concerns the whole family, including the father,and to deny him the same allowance amounts to unlawful discrimination.

8.

    The national court found that the Court of Justice has never ruled on the questionof the compatibility with Article 119 of the Treaty of an allowance of the kind inquestion in the main proceedings although in its judgment in Case C-342/93Gillespie and Others [1996] ECR I-475 it did consider a relatively similar case.

9.

    In those circumstances, it decided to stay proceedings and to refer the followingquestion to the Court for a preliminary ruling:

'Does the principle of equal pay for men and women laid down by Article 119 ofthe Treaty of Rome and by subsequent legislation authorise payment to a pregnantwoman only, and not to the father of the child, of the sum of FRF 7 500 when shetakes maternity leave, given that:

—    such payment is provided for by the last part of Article 18 of the collectiveagreement of 5 July 1991 on social benefits for Renault employees;

—    Article 19(2) of the agreement provides that employees' salaries are tocontinue to be paid during maternity leave?‘

10.

    By its question the national court is asking essentially whether the principle ofequal pay laid down in Article 119 of the Treaty precludes the making of alump-sum payment exclusively to female employees who take maternity leave.

11.

    Article 119 of the Treaty lays down the principle of equal pay for men and womenfor the same work. That provision is clarified by Article 1 of Directive 75/117.

12.

    According to the case-law of the Court, the definition contained in the secondparagraph of Article 119 of the Treaty makes clear that the term 'pay‘ used in theabovementioned provisions includes all consideration which workers receive directlyor indirectly from their employers in respect of their employment. The legal natureof such consideration is not important for the purposes of the application ofArticle 119 of the Treaty provided that it is granted in respect of employment (see,in particular, Gillespie and Others, cited above, paragraph 12).

13.

    Consideration classified as pay includes, inter alia, consideration paid by theemployer by virtue of legislative provisions and under a contract of employmentwhose purpose is to ensure that workers receive income even where, in certaincases specified by the legislature, they are not performing any work provided forin their contracts of employment (Case C-360/90 Bötel [1992] ECR I-3589,paragraphs 14 and 15; see also Case C-33/89 Kowalska [1990] ECR I-2591,paragraph 11, and Case C-262/88 Barber [1990] ECR I-1889, paragraph 12, andGillespie, cited above, paragraph 13).

14.

    Since the benefit paid by an employer to a female employee when she goes onmaternity leave, such as the payment in question in the main proceedings, is basedon the employment relationship, it constitutes pay within the meaning of Article119 of the Treaty and Directive 75/117.

15.

    While such a payment is not made periodically and is not indexed on salary, itscharacteristics do not, contrary to what Renault contends, alter its nature of paywithin the meaning of Article 119 of the Treaty (see Case 12/81 Garland [1982]ECR 359, paragraph 9).

16.

    According to the case-law of the Court, the principle of equal pay, like the generalprinciple of non-discrimination of which it is a particular expression, presupposesthat male and female workers whom it covers are in comparable situations (seeGillespie, cited above, paragraphs 16 to 18).

17.

    The compatibility with Article 119 of the Treaty of a payment such as that inquestion in the main proceedings thus depends on the question whether, withregard to that payment, female workers are in a situation comparable to that ofmale workers.

18.

    In its answer to a question put by the Court, Renault mentioned severaloccupational disadvantages, inherent in maternity leave, which arise for femaleworkers as a result of being away from work.

19.

    First of all, a woman on maternity leave may not be proposed for promotion. Onher return, her period of service will be reduced by the length of her absence;second, a pregnant woman may not claim performance-related salary increases;third, a female worker may not take part in training; lastly, since new technologyis constantly changing the nature of jobs, the adaptation of a female workerreturning from maternity leave becomes complicated.

20.

    As the United Kingdom Government and the Commission rightly point out, Article119 of the Treaty does not preclude the making of a payment such as that inquestion in the main proceedings exclusively to female workers since it is designedto offset the occupational disadvantages, such as those mentioned by Renault. Inthis case, male and female workers are, in their view, in different situations, whichexcludes any breach of the principle of equal pay laid down in Article 119 of theTreaty.

21.

    It is for the national court to determine whether this is the case.

22.

    The answer to be given to the national court must therefore be that the principleof equal pay laid down in Article 119 of the Treaty does not preclude the makingof a lump-sum payment exclusively to female workers who take maternity leavewhere that payment is designed to offset the occupational disadvantages which arisefor those workers as a result of their being away from work.

Costs

23.

    The costs incurred by the United Kingdom Government and by the Commission,which have submitted observations to the Court, are not recoverable. Since theseproceedings are, for the parties to the main proceedings, a step in the proceedingspending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber),

in answer to the question referred to it by the Conseil de Prud'hommes, Le Havre,by judgment of 24 April 1998, hereby rules:

The principle of equal pay laid down in Article 119 of the EC Treaty (Articles 117to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) does notpreclude the making of a lump-sum payment exclusively to female workers whotake maternity leave where that payment is designed to offset the occupationaldisadvantages which arise for those workers as a result of their being away fromwork.

PuissochetJann Moitinho de Almeida Gulmann Edward

Delivered in open court in Luxembourg on 16 September 1999.

R. Grass

J.-P. Puissochet

Registrar

President of the Fifth Chamber

1: Language of the case: French.