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Document 61997CJ0333

Summary of the Judgment

Judgment of the Court (Sixth Chamber) of 21 October 1999.
Susanne Lewen v Lothar Denda.
Reference for a preliminary ruling: Arbeitsgericht Gelsenkirchen - Germany.
Equal pay for male and female workers - Entitlement to a Christmas bonus - Parental leave and maternity leave.
Case C-333/97.

Keywords
Summary

Keywords

1 Social policy - Men and women - Equal pay - Pay - Meaning - Christmas bonus paid as an incentive or as a reward for loyalty to the undertaking - Covered - Article 11(2) of Directive 92/85 - Not applicable

(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 EC to 143 EC); Council Directive 92/85, Art. 11(2)(b))

2 Social policy - Men and women - Equal pay - Whether women on parenting leave may be excluded from a Christmas bonus, classed as retroactive pay - Not permissible - Whether the bonus may be reduced because of absences on motherhood protection leave - Not permissible - Article 11(2) of Directive 92/85 and Clause 2(6) of the Annex to Directive 96/34 - Not applicable

(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 EC to 143 EC); Council Directives 92/85, Art. 11(2), and 96/34, Annex, Clause 2(6))

Summary

1 A Christmas bonus paid by way of a special benefit at Christmas constitutes pay within the meaning of Article 119 of the Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 EC), even if it is paid voluntarily and even if it is paid mainly or exclusively as an incentive for future work or loyalty to the undertaking or both. For the purposes of Article 119, the reason for which an employer pays a benefit is of little importance provided that the benefit is granted in connection with employment.

However, such a bonus does not fall within the concept of payment within the meaning of Article 11(2)(b) of Directive 92/85 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.

2 Article 119 of the Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 EC) precludes an employer from excluding female workers on parenting leave entirely from the benefit of a bonus paid voluntarily as an exceptional allowance at Christmas without taking account of the work done in the year in which the bonus is paid or of the periods for the protection of mothers (in which they were prohibited from working) where that bonus is awarded retroactively as pay for work performed in the course of that year. However, Article 119 does not preclude a refusal to pay such a bonus to a woman on parenting leave where the award of that allowance is subject to the sole condition that the worker be in active employment when it is awarded.

Moreover, although Article 119 does not preclude an employer, when granting that bonus, from taking periods of parenting leave into account, so as to reduce the benefit pro rata, it does preclude the employer from taking periods for the protection of mothers (in which they were prohibited from working) into account for the same purpose.

Neither Article 11(2) of Directive 92/85 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 nor Clause 2(6) of the Annex to Directive 96/34 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC covers the payment of the above bonus; consequently, neither provision precludes a refusal to pay the bonus or the taking into account of the aforementioned periods.

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