- 22 Aug 2016
- Sara Baldus
It was not contrary to EU law for an Italian magistrate not to receive a "special judicial allowance" during her maternity leave.
Male and female employees are entitled to equal pay under EU law. When female employees take maternity leave (the first 14 weeks after child birth), however, special rules apply as to which income they are entitled to receive during their leave. In this case before the EU Court, the question from an Italian court was whether a magistrate who had taken maternity leave was entitled to receive a "special judicial allowance" during her maternity leave.
The Italian magistrate had taken maternity leave in 1997-1998 and again in 2000-2001. While on leave, she had received her ordinary pay, but not a "special judicial allowance", which is an allowance paid to Italian magistrates to cover the costs incurred by them in the performance of their duties and which forms part of their pay. Italian law was amended in 2004 so as to also provide magistrates on maternity leave with the allowance.
Following the amendment of Italian law, the magistrate asked the Italian Ministry of Justice to pay her the allowance for the two periods of maternity leave. Her request was refused as the amendment did not have retroactive effect, according to the Ministry of Justice. The matter ended up in Italy's highest administrative court, which decided to ask the EU Court for a preliminary ruling on the matter.
Difference between maternity leave and work
The EU Court noted that the Pregnancy Directive does not require employees on maternity leave to receive full pay while on leave as though they were actually working. The Pregnancy Directive only requires female employees on maternity leave to receive an adequate income which is at least equivalent to what an employee on sick leave would receive. Accordingly, it was not contrary to the Pregnancy Directive for the Italian magistrate not to receive all elements of pay while on maternity leave.
Norrbom Vinding notes
- that the judgment shows that there is no obligation under the Pregnancy Directive to pay full pay to female employees on maternity leave, but only an obligation to ensure that employees on maternity leave are entitled to receive an adequate income while on leave which is at least equivalent to the income the employee would have been entitled to receive if on sick leave, unless this income has been set at a level that would jeopardise the purpose of the maternity leave.