All allowances during maternity leave?

HR News
22 Aug 2016

it was not contrary to eu law for an italian magistrate not to receive a "special judicial allowance" during her maternity leave.

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.‎