C-177/88

1. In two sets of questions submitted for a preliminary ruling, the Hoge Raad of the Netherlands and the Danish H jesteret have requested the Court to consider generally the question of maternity and the status to 3. It should be explained that the employees be accorded to it, in the light of the of the Training Centre are not subject to Community-law principle of equal treatment the general law on sickness insurance, the of male and female workers, within the Ziektewet, but to the combined provisions economic and social life of the European of the Royal Decree of 19 December 1967 ' peoples. (hereinafter: 'the Decree') and the Rules governing daily sickness benefits, the Ziekengeldreglement (hereinafter: 'the Rules'), which can provide derogations. However, the rights conferred on workers by the Rules may not be less favourable than those accruing to them under the 2. The facts in Case C-177/88 may be Decree. 2Article 3(1) of the Decree treats an summarized as follows: In June 1981 Mrs inability to work due to pregnancy and Dekker applied for a post as an instructor at confinement in the same way as an inability the Stichting Vormingscentrum voor Jong due to sickness. Article 6 of the Rules Volwassenen Plus (Training Centre for further provides: 'The board of Young Adults) at Wormer in the management [of the Risicofonds] has the Netherlands (hereinafter referred to as 'the power to withhold from a member payment Training Centre'). On 15 June 1981 she of all, or part, of the daily sickness benefits informed the committee dealing with the if an insured person becomes unable to applications that she was three months' work within six months after the date of pregnant. The committee put her name commencement of the insurance, when it forward to the board of management of the was clearly to be anticipated from the state Training Centre as the most suitable of health of the person concerned at the candidate for the post. However, on 10 July time of that commencement that an inability 1981 Mrs Dekker received a letter from the to work would supervene within six Training Centre informing her that it had months'. In that event, an employer decided not to appoint her, on the ground that, having consulted the Assurance Fund required to pay daily benefits 3 to employees for the provision of social benefits in special I — Stbl. No 683, issued under the Algemene Burgerlijke education (Risicofonds Sociale Voorzieningen Pensioenwet—the general law on retirement pensions for Bijzonder Onderwijs, hereinafter: 'the Risi- public servants. 2 — Article 14 of the Royal Decree. 3 — Full salary for 18 months, 80% of it thereafter: Article 4 Original language: French. of the Ziekengeldreglement.

during sick leave, subject to the right to 6. The dispute came before the HogeRaad, claim reimbursement from the Risicofonds, which referred four questions for a obtains no reimbursement from the Risi- preliminary ruling, seeking in essence an cofonds and becomes wholly liable for the interpretation of Articles 2 and 3 of the payments. Directive so as to ascertain, first, whether a refusal to employ a person on grounds of pregnancy is lawful in the light of the principle of equal treatment as regards access to employment and, secondly, what

Basically, the refuse to refund to it the daily benefits Commission takes the view that the which — had it appointed Mrs Dekker—it Directive was not correctly enacted in would have been required to pay her. Netherlands law, since, although there is an 'implementing' law, the domestic law of the Netherlands still contains legislative provisions at variance with it. Accordingly, 5. The Arrondissementsrechtbank (District in the light of the Marshall judgment, 6the Court) Haarlem at first instance and the question is whether the Training Centre can Gerechtshof (Regional Court of Appeal) properly have the provisions of the Directive Amsterdam on appeal held that the Training pleaded against it, given the absence of any Centre's refusal to employ Mrs Dekker was so-called 'horizontal' effect. 7 contrary to the Netherlands Law on the equality of treatment for men and women, 4 designed to bring Netherlands law into line with the provisions of Council Directive 76/207/EEC 5(hereinafter: 'the Directive'). It seems that those courts none the less 8. This is one of the difficulties inevitably ruled that the financial difficulties which the raised by the ambiguity of the national Training Centre would have encountered if provisions at issue. As far as individuals are it had appointed Mrs Dekker afforded concerned, the coexistence of the grounds for exonerating it, with the result Netherlands Law on equality of treatment that its refusal to employ her was not between men and women as regards access unlawful. to employment and the Royal Decree, Article 3 of which, by treating maternity as 4 — Wel gelijke behandeling van mannen en vrouwen of 1 equivalent to sickness, might well represent March 1980, inserting a new Article 1637ij into the (to quote the judgment of the Court in Burgerlijk Wetboek (SM. 1980, No 86) Commission v France): 5 — 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 (OJ 1976 L 39, 6 — Case 152/84 [1986] ECR 723. p. 40). 7 — Written observations of the Commission, pp. 14 and 15.

'an ambiguous state of affairs by main- with the Marshall judgment, the directive taining . . . a state of uncertainty as to the may be relied on only in proceedings possibilities available to them of relying on against the State or State-controlled bodies. Community law'. 8 However, that inference appears to arise from inverted reasoning. The Court has already emphasized that the right of a 9. Where there is such a contradiction person affected to rely on a directive in between disparate national legal provisions, proceedings against a defaulting State is a the Commission may, in my view, in appro- minimum guarantee. 10 The Court's case-law priate circumstances bring infringement on the 'direct effect of directives', as it is proceedings against the Member State commonly known, is no more than a last concerned in reliance on the judgments resort designed to compensate, as far as cited above. If the concept of an 'incorrect possible, for the non-implementation or the implementation' is to be viewed in unitary incorrect implementation of a directive. It terms, it follows that the mere existence of a follows that, if there is some other means particular regulatory provision which available under Community law for making conflicts with a more general law the third paragraph of Article 189 of the implementing a directive will lead to a Treaty fully effective, use should be made of declaration that the directive has not been it before the possibility of 'direct effect' is properly implemented. Although the Court considered. ruled in the Kolpinghuis Nijmegen judgment that: 11. The case-law of the Court on inter- preting national law in accordance with the 'The question whether the provisions of a requirements of Community law seems to be directive may be relied upon as such before particularly well suited to a situation such as a national court arises only if the Member the present one. As the Court has held on State concerned has not implemented the many occasions, directive in national law within the prescribed period or has implemented the directive incorrectly', 9 'in applying the national law and in particular the provisions of a national law specifically introduced in order to it has never defined what is meant by implement the directive, national courts are 'incorrect implementation'. In any event, the required to interpret their national law in term must not be defined differently the light of the wording and the purpose of according to whether the matter before the the directive in order to achieve the result Court is an action by the Commission referred to in the third paragraph of Article against a Member State or a request for a 189 of the Treaty,'· 1 preliminary ruling.

12. This right to rely on a directive is not possibility of relying on a directive, in cases limited to proceedings against the State or where there are no national rules giving a g a i n s t b o d i e s m o r e o r less c o n t r o l l e d b y t h e effect t o its a i m s , s o as t o h a v e its p r o v i s i o n s State, because the legal provisions applied applied directly (doctrine of 'direct effect' 15) are still those of the national law in and reliance on a directive for the sole question, assisted (as it were) by an inter- purpose of the interpretation of national pretation brought into line with Community law, including an interpretation of national law. 13 provisions intended to implement the Community instrument (the doctrine of interprétation con/orme). Whereas the former is confined to those provisions in directives 13. In other words, even though a Member which are sufficiently precise and uncondi- State, despite the adoption of an tional, and cannot, according to the 'implementing' law, may not have case-law, govern relations between indi- implemented a directive correctly, inasmuch viduals, the latter is very broad in scope, as other, conflicting provisions of national regardless of whether or not the directive law have been retained, the national court has direct effect and regardless of the must nevertheless interpret its national parties involved. law — and particularly the provisions of the 'implementing' law — in a manner consistent with the requirements of the directive. 16. The national court's question must therefore be understood to relate exclusively to the interpretation of the Directive, and its 14. In the Mazzalai judgment, moreover, ambiguous wording cannot be construed as the Court dismissed the objection by the meaning that the national court wished to government of a Member State to its juris- raise the question of direct effect. diction, holding that:

I - 3959

OPINION OF MR D A R M O N — C A S E C-177/88

she was informed of her dismissal on more closely connected to the specific account of her frequent absences due to nature of womanhood? Is it conceivable to illness. treat female workers on an equal footing with their male counterparts without taking account of motherhood?

16 — Emphasis added. 17 — Case 96/80 [1981] ECR 911. 23. Defining the question sometimes 18 — Case 170/84 [1986] ECR 1607. supplies the answer to it. Is there any event 19 — Case 171/88 [1989] ECR 2743.

I-3960

DEKKER

27. It must be added that this principle does not impinge on the right of a Member State, 29. In Netherlands law, I propose to when providing for the grant of daily confine my attention to the special position benefits connected with maternity leave, to of those employed in special education, lay down conditions governing the length of which involves the difficulties giving rise to the insurance period or work period. There the Dekker case. As was observed above, is a distinction between the two. The Article 3(1) of the Royal Decree treats the employer may not refuse to employ a female inability to work on grounds of pregnancy employee, but in the event that she fails to and confinement in the same way as fulfil the statutory condition concerning the insurance period or work period, the 21 — Mirttenchafligeld under Paragraph 200 of the Rcichsversi- principle of equality of treatment demands cherungsordnung; daily maximum, DM 25. that she shall be treated like her male 22 — Arheitgeberziuchuunder Paragraph 14 of the Mutters- chafl5gcldgesctz. counterparts and that, in certain circum- 23 — Articles 55 and 75 of the Law of 3 July 1978 on stances, she shall not receive any daily employment. benefits. 24 — Lovbekendlgørelie No 949 of 23 December 1986, Article 33, and No 516 of 23 July 1987, Article 7. 25 — Statutory Maternity Pay. 20 — Case 184/83 [1984] ECR 3047. 26 — Social Security Acts 1975 and 1986, Sections 46 to 50.

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OPINION OF MR D A R M O N —CASE C-177/88

30. I am perfectly aware that, had the Training Centre appointed Mrs Dekker, it would probably have faced certain financial difficulties if the cost of the benefits to 33. For the same reasons as led me to which she might have become entitled was propose that answer, I would also suggest not payable by the Risicofonds. Never- that the answer to the second question theless, I do not consider that the principle should be to the effect that it makes no of equality of treatment such as I am difference whether or not there are male proposing to the Court should be over- candidates at the time the employee is to be ridden by those difficulties, which stem recruited. largely from the treatment of pregnancy as equivalent to sickness — an equivalence technically justified for the purpose of quan- tifying the daily benefits but definitely ques- tionable when it leads to a refusal of 34. The third and fourth questions concern employment. the possible application of the rules of national law regarding civil liability. The Hoge Raad der Nederlanden has enquired, in essence, whether national legal provisions making fault a prerequisite and offering possible grounds for exemption are applicable to a case of discrimination 31. In order to give full effect to the practised by an employer in contravention Directive and to the Community principle of the Directive. This raises the classic of equal treatment as regards access to employment, Member States are under a problem of separating Community law from the national legal system. In its judgments in duty to adopt all relevant measures to Von Colson and Kamann, 27 Harz 28 and ensure that the obligation placed on Commission v Germany, 29 the Court employers to appoint a pregnant considered this problem in the context of woman — provided that she is the most competent candidate, which is not in dispute the sanctions for discrimination prohibited in Case C-177/88 — does not, by reason of 27 — Case 14/83 [1984] ECR 1891. the application of national legal provisions 28 — Case 79/83 [1984] ECR 1921. (especially social security provisions), place 29 - Case 248/83 [1985] ECR 1459.

36. Similarly, it would greatly weaken the practical effect of the Community principle 40. How are periods of sickness occurring of equality of treatment, as well as the after the maternity leave but directly attrib- uniform application of Community rules, if utable to pregnancy and confinement to be it were possible to rely on grounds of viewed? Should it or should it not be subject exemption which necessarily differ between to what might be termed the 'ordinary rules' the legal systems of the Member States. governing absences for reasons of health? Once a female worker has established that she has been discriminated against and has shown the injury caused by that discrimi- nation, it is not, in my opinion, open to the employer to plead any exemption under 41. The legal systems of the Member States national law, and the national court will differ widely in this regard. In many States then have the task of imposing sanctions on the origin of the illness is not taken into the discriminatory conduct in accordance account, but their legislation usually with national law, since the Directive leaves imposes an interval before the employer is that to the discretion of the Member States, permitted to dismiss a person on account of subject to the proviso laid down by the sickness. Thus in Ireland the Unfair Court, that sanctions shall be 'sufficiently Dismissals Act enables employers to dismiss effective to achieve the objective of the an employee on grounds of sickness directive'. 30 rendering him unable to perform his job. In Luxembourg the employer may terminate 30 — Cases 14/83 and 79/83, cited above the contract of employment on the expiry of

42. In Italian law, on the other hand, the employer may not terminate the employment contract in the event of compli- cations arising after the maternity leave but caused by pregnancy or confinement, 33 and, pursuant to Article 2110 of the Civil Code, 44. As was seen above, Article 2(3) of the is so bound for a period laid down by Directive leaves to Member States the task collective agreements by reference to of adopting appropriate provisions seniority. 34 Nor may a female worker be 'concerning the protection of women, dismissed during a period running from the particularly as regards pregnancy and beginning of the pregnancy until the end of maternity'. That provision appears to mark the child's first year of life. In Greek law, the limit of the intervention of Community the legislature distinguishes between the law as it now stands. The directive enjoins specific case of an illness attributable to the strict equality of treatment between male confinement, which cannot justify dismissal and female workers, which in present unless the employer can demonstrate that circumstances means a prohibition on there is a 'serious reason', 35 and the case of treating medical conditions attributable to Ordinary' illness, where dismissal is justified maternity less favourably than conditions merely on the ground that the statutory due to some other cause; it does not in any periods for sick leave have been exceeded. way oblige Member States to introduce positive discrimination by giving preferential treatment to the former category, but merely allows them to do so.

realized that I am now contending with the required to keep on the staff of his under- difficulties of the second question submitted taking an employee unable to work on by the national court. The implications are maternity g r o u n d s might well induce many onerous enough even when their only effect employers to refuse to appoint pregnant is to oblige the employer to keep the person women, probably on spurious pretexts, or concerned on his staff, without his having to even women of an age at which they may be contribute to the payment of benefits for expected to have children soon.

The diffi- culties facing those employers in deter- mining whether or not a given employee could be dismissed can well be imagined. 46. I also believe that the financial diffi- Such a solution — the desirability of which culties that could confront an employer is not denied — would plainly necessitate the intervention of the Community or 36 — Paragraph 47 of the Sozialgcsetzbuch V. 37 — Artie!« 15 to 18 of Law No 1204 of 30 December 1971. national legislatures to lay down precise 38 — Garofalo: Indennità di malattia e maternità, Milan, 1986; rules, especially as regards the duration of Riva-Sanscvcrino: Libro attinto, 'Del lavoro da the protection and the question of who commentano del codice civile', Bologna/Rome, 1986, pp. 499 to 503, 515 and 516 bears the cost.

48. In my opinion, the solution is rather to 49. More generally, I consider that the be found in drawing a distinction between, principle of equal treatment for male and on the one hand, the normal risks of female workers must mean a search for pregnancy and confinement, and the remedies to the problems specific to women common attendant complications sometimes to which pregnancy always gives rise. leading to the grant of additional maternity However, it is necessary to adjust the rules leave, which are risks that should qualify for governing the labour market only in so far Community protection inasmuch as they are as the risk attaching to maternity remains specific to motherhood, and, on the other one of the 'normal' risks of life. It is, surely, hand, medical conditions which do not in the duality of those two principles that belong to the ordinary risks of pregnancy the solution must lie. and should therefore be treated on the same footing as 'ordinary' sickness. In my view, the Court should be guided by whether the risk attaching to maternity is a normal one. 50. Thus, women must have access to In other words, in the absence of national employment without regard being had to legal provisions conferring special their forthcoming maternity, which will protection on women, the employer must be prevent them for a while from meeting the able to dismiss his employee at the end of demands of the work-place. Accordingly, maternity leave, or at the end of any their continued employment must not be additional leave. Thus, once a female jeopardized by the fact of their being worker has exhausted her entitlement to the unavailable when this is due to the usual various types of maternity leave, her periods risks of pregnancy. If, therefore, a situation of absence for reasons of sickness, even if is no longer contained within those usual those reasons can be traced back to risks but is due to a medical condition in the pregnancy or confinement, cannot be full sense of the term, it is not possible to attributed to the normal risks of maternity infer from the principle of equal treatment and must accordingly be viewed in the same special protection which could only be light as the absences of any other worker, afforded by positive discrimi- unless the national legislature provides nation — compatible (in appropriate cases) special protection pursuant to Article 2(3) of with Community law pursuant to Article the Directive. 2(3) of the Directive.

(2) the answer to the first question does not vary according to whether or not there are male candidates for the post in question;

(3) once a breach of the principle of equal treatment as envisaged by Articles 2 and 3 of the aforesaid directive is established, those articles prevent the sanctioning of the breach from being subject either to proof of separate fault on the part of the employer, or to the absence of provision under national law of grounds of exemption, other than those set out in Article 2(2), (3) and (4);

(4) there is no need to answer the fourth question;

(ii) in Case C-179/88:

(1) Articles 2(1) and (5) of Directive 76/207/EEC must be interpreted as meaning that, subject to the application of Article 2(3), the dismissal of a female worker outside the periods of maternity leave, on account of periods of absence due to sickness which is attributable to the pregnancy or confinement does not constitute discrimination directly founded on grounds of sex;

(2) there is no need to answer the second question.