Equal pay

Case C 284/02, CJEU, Luxembourg, 18 November 2004, Land Brandenburg v Ursula Sass;

Ground: Interpretation of the Article 119 of the EU Treaty (now Article 141 EC) and Council Directive 76/207/EEC 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 – collective agreement on which base the entire period of maternity leave is taken into account in calculating the qualifying period – collective agreement, whose effect is to bring the proper period of the given maternity under the legislation of the former German Democratic Republic applicable at that time, in compliance with the period envisaged by the legislation of the German Federal Republic.

The abstract of the Judgment

This case, specifically considers if the differentiation in treatment between the legal regime that arranges maternity leave in Former German Democratic Republic and the corresponding legal agreement in German Federal Republic is a gender based discrimination.

Mrs. Sass, a German national, has been employed since 1 July 1982 as a production manager at the Hochschule für Film und Fernsehen ‘Konrad Wolf’ (Konrad Wolf Film and Television College) in Potsdam. When her second child was born, on 27 January 1987, she lived in the German Democratic Republic, so her employment relationship was governed by the AGB-DDR. Following her confinement and in accordance with Paragraph 244 of that law, Mrs. Sass took maternity leave from 27 January 1987 to 16 June 1987, in other words for a period of 20 weeks. Following the reunification of Germany, responsibility for Mrs. Sass’ employment relationship was transferred to Land Brandenburg. By virtue of an agreement between the parties to that effect the employment relationship was therefore governed by the BAT-O. The period of employment completed by Mrs. Sass since the date she took up employment, that is to say, since 1 July 1982, was taken into account at the time of that transfer. She claimed that her classification in a higher salary grade 12 weeks later than a man of the same position, who works for the same employer and who has started job at the same date, is because of a differentiation in treatment because of sex and consequently is a violation of the Article 141 EC. Land Brandenburg calculated her only the first eight weeks of maternity leave after birth giving towards 15 years qualifying period required for classification in a higher salary grade, but it did not calculate the subsequent 12 weeks. She claimed that the interpretation in such a way of provisions leads to illegal discrimination of women. Against that background, the referring court decided to stay proceedings and refer the following question to the Court of Justice for a preliminary ruling:

‘Do Article 119 of the EC Treaty (now Article 141 EC) and Directive 76/207/EEC prohibit, in a provision of a collective agreement under which periods during which an employment relationship is in abeyance do not count towards the qualifying period, the exclusion of the period during which the employment relationship was in abeyance because the employee concerned, on the expiry of the eligible eight-week period of protection pursuant to Paragraph 6 of the [MuSchG] …, claimed maternity leave pursuant to Paragraph 244(1) of the [AGB-DDR], until the end of the 20th week after confinement?’