SQ
ENCase C 284/02, CJEU, Luxembourg, 18.11.2004, Land Brandenburg v Ursula Sass;
Ground: Social policy – Equal pay – Equal treatment – Maternity leave – Passage to a higher salary grade.
The abstract of the Judgment
The object of this judgment has to do with social policies followed for men and women and more concretely has to do with the maternity leave regulated in different terms by the national legislation. From the legal point of view the judgment refers to the Article 141 EC, to the Directive 76/207, as well as to the Article 8 of Directive 92/85 that envisages the right of maternity at least 14 weeks after giving birth including even an obligatory two – week maternity leave period. From the reference results that Mrs. Sass, a German national, has been employed since 1 July 1982 as a production manager. When her second child was born, on 27 January 1987, her employment relationship was governed by the AGB-DDR, and the employment period was taken into account at the time of her transfer. Until 7 May 1998 Mrs. Sass received the salary commensurate with salary grade IIa of the BAT-O. After this moment she was reclassified in the higher salary grade, namely grade Ib, case 2. Land Brandenburg counted the first 8 weeks of the maternity leave which Mrs. Sass had taken under Paragraph 244 of the AGB-DDR towards the qualifying period of 15 years required for classification in a higher salary grade under the BAT-O, but not the subsequent 12 weeks, consequently Mrs. Sass brought an action before the national court of first instance claiming that the whole of the maternity leave, in other words 20 weeks, should have been taken into account. The referring court decided to stay proceedings and refer the following question to the Court of Justice for a preliminary ruling. By its question, the referring court is essentially asking whether Article 141 EC and/or Directive 76/207 preclude a collective agreement such as the BAT-O from excluding from a qualifying period the part of the period for which a female worker took maternity leave which was longer than the protected period of eight weeks provided for by the legislation of the Federal Republic of Germany to which that agreement refers. On those grounds, the Court (First Chamber), rules as follows:
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 precludes a collective agreement such as the Bundes-Angestelltentarifvertrag-Ost (collective agreement for civil servants on a contractual basis in the public sector in East Germany) from excluding from a qualifying period the part of the period for which a female worker took maternity leave, under the legislation of the former German Democratic Republic, which exceeds the protected period of eight weeks provided for by the legislation of the Federal Republic of Germany to which that agreement refers, where the objectives and purpose of both periods of leave are the protection of women as regards pregnancy and maternity, as provided for by Article 2(3) of that directive.
It is for the national court to ascertain whether those conditions are fulfilled