Judgment_paragraph 15 · Susanne Lewen v Lothar Denda (C-333/97)

15The national court made, among others, the following observations:5. ...In this Chamber's opinion, the Christmas bonus is “pay”, within the meaning of Article 119 of the EC Treaty and Article ll(2)(b) of Directive 92/85/EEC, in respect of work performed in the year in which the bonus is awarded.To exclude women who are on parenting leave at the time when the bonus is paid from the sphere of those potentially entitled to a special Christmas bonus does not take into account the fact that the employment relationships of those women still exist despite the suspension of their mutual obligations as a result of the parenting leave and accordingly that a mother on parenting leave continues to be loyal to the business. A threatened refusal of bonus payments may, moreover, contribute to dissuading women who have recently given birth from claiming their right to parenting leave in the interests of the child. The Chamber considers it to be wholly incompatible with the prohibition of direct and indirect discrimination in the EC Treaty and the secondary law adopted thereunder for a distinction to be drawn, in regard to the payment of a bonus, between employees who are actively employed and those on parenting leave, in such a way that not even work already performed in the reference year nor periods in which pregnant women and new mothers are prohibited from working are taken into account in such a way as to maintain the claim in part. When he awards bonus payments, i.e. when awarding pay and payment within the meaning of provisions of EC law, the employer's motive — which the defendant claims to be the case here — of wishing to give an incentive for subsequent work by means of the bonus (which he cannot expect in the near future where the mother is on a lengthy period of parenting leave) does not, in this Chamber's view, provide a sufficient justification for failing to take into account the fact that work was actually performed in the year of the award and the periods in which pregnant and recent mothers were prohibited from working. The employer has in fact profited from the mother's work in the reference year and the prohibition on work pursuant to the MuSchG applies by virtue of that statute, without the need for the mother to make any application in that regard. The fact that, directly after the expiry of the prohibition on her working activity, the mother has made use of her right to parenting leave, and is on such leave when the bonus payment is made, is based essentially on a gender-specific factor.In this Chamber's view, when an employer is awarding and calculating a bonus, his failure to take into account periods in which work is prohibited for reasons of motherhood protection is, moreover, inconsistent with the aim of Directive 92/85/EEC, which is to secure the “maintenance of a payment” within the meaning of Article ll(2)(b) thereof. In Case C-342/93 Gillespie v Northern Health and Social Services Board and Others [1996] ECR I-475 the Court of Justice did not have an opportunity to interpret Article ll(2)(b) of Directive 92/85/EEC, since the relevant events took place before the expiry of the period for the transposition of that directive. Leaving to one side the fact that, in the case of employees given a bonus in 1996, the defendant employer did not take their periods of incapacity for work in his business into account as periods leading to a reduction in the bonus, according to that provision periods in which working activity is prohibited under the MuSchG may not be equated with periods of incapacity for work, which the Federal Labour Court held may be taken into account so as to reduce a bonus.Nor, in view of the first paragraph of Article 119 of the EC Treaty and Article 1 of Directive 75/117/EEC, is it permissible under Community law to curtail an annual special payment on the ground that periods of work have not been performed by reason of statutory motherhood protection. Although, in so far as in its judgment in Gillespie the Court of Justice adopted a position in regard to the interpretation of Article 119 of the EC Treaty and Article 1 of Directive 75/117/EEC, it stated that the abovementioned provisions do not “lay down any specific criteria for determining the amount to be paid to [the women] during that period” (paragraph 20 of the judgment), nevertheless, “a woman on maternity leave should receive a pay rise awarded before or during that period” (paragraph 21 of the judgment). Consequently when such a female employee has a right under national statutory rules to continue to receive full pay — which is the case in the Federal Republic of Germany under Paragraphs 13 and 14 of the MuSchG — she also has a right under Community law to receive all subsequent pay rises relating to her period of absence by reason of motherhood protection. This must also apply to an annual special payment exhibiting mixed characteristics (see paragraph 1 above), which is paid, at least in part, also in recognition of work performed in the year in which it is awarded.’