C-421/92
ECLI:EU:C:1994:29
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HABERMANN-BELTERMANN
OPINION OF ADVOCATE GENERAL TESAURO delivered on 27 January 1994 *
Mr President, 2. A brief summary of the relevant provi- Members of the Court, sions of Community and national law is nec- essary for an understanding of the question.
1. The questions referred to this Court for a According to Article 2(1) of the directive, preliminary ruling by the Arbeitsgericht 'the principle of equal treatment shall mean (Labour Court), Regensburg, concern the that there shall be no discrimination whatso- interpretation of certain provisions of Coun- ever on grounds of sex either directly or cil Directive 76/207/EEC of 9 February 1976 indirectly by reference in particular to mari- on the implementation of the principle of tal or family status'. The implementation of equal treatment for men and women as that principle concerns in particular 'the con- regards access to employment, vocational ditions, including selection criteria, for access training and promotion, and working condi- to all jobs or posts' (Article 3(1)), and also tions ' (hereinafter referred to as 'the direc- 'working conditions, including the condi- tive'). tions governing dismissal' (Article 5(1)). Finally, it must be borne in mind that Arti- cle 2(3) provides that the directive 'shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity'.
The national court wishes to ascertain in par- ticular whether, according to and for the pur- poses of that directive, the application of national legislation which, by prohibiting night-time work during pregnancy, allows a Among the relevant provisions of German contract of employment concluded between law, Paragraph 8(1) of the Mutters- an employer and a pregnant employee, both chutzgesetz (Law on the protection of moth- unaware of the pregnancy at the time the ers), according to which 'it is prohibited to contract was made, to be considered invalid assign to pregnant women night-time work or to be terminated, is incompatible with the between 8 p. m. and 6 a. m. (...)', must be principle of equal treatment. mentioned first. Next, for the purposes of this case, reference must be made to Para- graph 119 of the German Civil Code, * Original language: Italian. according to which 'any person who, in con- 1 — OJ 1976 L 39, p. 40. cluding a contract, is mistaken as to its con-
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tent (...) may avoid the contract where it is employment contract concluded on 23 clear that he would not have concluded it if March 1992 to be void. he had been aware of the actual circum- stances and had appraised the matter with full knowledge of the facts' (Paragraph 119 (1)) and 'a mistake as to personal characteris- tics (...) deemed by custom to be essential also constitutes a mistake as to the content of the contract' (Paragraph 119 (2)). Finally, I would refer to Paragraph 134, according to which 'any legal act contrary to a statutory prohibition shall be void except as otherwise provided by law'. 4. It is apparent from the order for reference that in German theory and case-law there is agreement in considering that, in the absence of exemption, the contravention of the pro- hibition of night-time work renders the con- tract void in accordance with Paragraph 134 of the German Civil Code. It is also apparent 3. I now turn to the facts of the case. On 23 from that order that the abovementioned let- March 1992 Mrs Habermann, a nurse quali- ter of 4 June 1992 could also be interpreted fied in the care of the elderly, was engaged as terminating the contract, given that, under by the Arbeiterwohlfahrt, Bezirksverband Paragraph 119(2) of the German Civil Code, Niederbayern/Oberpfalz (Regional Federa- the contract may be challenged by the tion of the employees' social security organi- employer, with the result that it is terminated zation, hereinafter referred to as 'the Arbeit- on account of the mistake as to the existence erwohlfahrt') as a night attendant in a home of pregnancy at the time when it was con- for- the elderly. The relevant employment cluded, being a mistake concerning an essen- contract, under which Mrs Habermann was tial personal characteristic. to perform night-time duties only, took effect from 1 April. From a medical certifi- cate dated 29 May 1992 it was apparent that Mrs Habermann, who had stopped work on 29 April because of illness, was pregnant. According to the findings of the national court, her pregnancy had begun on 11 March 1992, that is to say 12 days before the employment contract was signed.
In view of its doubts as to the compatibility of the principle of equal treatment, as laid down by the Community directive, with the practice in the case-law whereby the prohibi- tion of night-time work for pregnant women Referring to Paragraph 8(1) of the Law on renders a contract of employment invalid or the protection of mothers, which prohibits in any case allows it to be terminated, the night work for pregnant women, the Arbeit- national court considered it appropriate to erwohlfahrt informed Mrs Habermann in a refer certain questions to the Court for a letter of 4 June 1992 that it considered the preliminary ruling.
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5. Those questions are as follows: the prohibition on certain work (night- time work) applying during pregnancy for the protection of pregnant employees;
'Question 1
(b) the employer being able, by reason of his mistake regarding the existence of preg- nancy at the time when the contract was Are the principles laid down by the Court of concluded, to avoid the contract of Justice in its judgment in Case C-177/88 employment and thus bring it to an end?' Dekker [1990] ECR 1-3941, concerning the interpretation of Council Direc- tive 76/207/EEC of 9 February 1976 (OJ 1976 L 39, p. 40) on the implementation of the principle of equal treatment for men and women as regards access to employment, As is quite clear from their wording, the two vocational training and promotion, and questions set out above do not require two working conditions, contained in Article 2(1) separate answers, given that the first puts in of that directive, to be interpreted in such a more general terms the queries then specified way that a contract of employment con- in the second. Hence I need only consider cluded between an employer and a pregnant the second question, in so far as it raises the employee, where both are unaware of the issue whether the possibility of treating the pregnancy, is not rendered invalid by the contract of employment (concluded with a prohibition on certain work (night-time pregnant woman who at the time the con- work) existing by virtue of the pregnancy? tract was entered into was unaware of her pregnancy) as void in accordance with Para- graph 134 of the Civil Code (Question 2 (a)), or the possibility for the employer of repu- diating the contract in question and seeking its termination in accordance with Para- Question 2 graph 119 of the Civil Code (Question 2(b)), is compatible with the principle of equal treatment.
In particular, is the principle of equal treat- ment contained in Articles 3(1) and 5(1) of Directive 76/207/EEC infringed in the event 6. That said, it is necessary to deal first of all of: with a matter of principle raised by the Arbeiterwohlfahrt, which points out that the outcome of the main dispute cannot be made to depend on Directive 76/207/EEC, given that it is a dispute between two private indi- (a) the contract of employment concluded viduals and that the Court has until now with the pregnant employee being held to held that directives do not have direct hori- be void by reason of the infringement of zontal effect.
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Since, as has already been said, the possibil- In short, in such a case as this, there is no ity of pleading that the contract of employ- problem with respect to the 'horizontal' ment is invalid in a case such as this depends effects of the directive concerned, since the on the interpretation given by the higher national court is bound, when applying the German courts (also) of the rules adopted in relevant national rules, and in particular implementation of Directive 76/207/EEC Paragraph 8 of the Law on the protection of (which, so far as I can see, has been correctly mothers, to interpret them in the light of the transposed into national law), it does not wording and the aims of the directive. seem right to me to view the problem in terms of the directive's 'horizontal effects'.
I would point out that in the present case the national court has been asked to establish whether or not there exists a right for 7. I now turn to the substance. The national women to retain their employment by virtue court points out that to consider a contract of the principle of equal treatment, as laid of employment concluded with a pregnant down by Directive 76/207/EEC, and thus b y employee invalid on the ground that for the virtue of the national provisions adopted in duration of the pregnancy she cannot per- implementation thereof. In this kind of situ- form the work contractually required of her, ation, as the Court explained some time ago, could deny women access to certain occupa- 'regardless of the effects of the directive, (...) tions by reason of their sex, since pregnancy an interpretation of the directive may be existing (although not established) at the helpful to the national court so as to ensure time the contract was concluded would ren- that the law adopted for the implementation der it invalid. Women would, therefore, be of the directive is interpreted and applied in denied access to certain jobs because of preg- a manner which conforms to the require- nancy, even though they were only tempor- ments of Community law'. 2 arily unable to perform the work.
In addition, as the Court has stated, in applying national law 'the national court called upon to interpret it is required to do so (...) in the light of the wording and the From that point of view, a declaration of purpose of the directive in order to achieve invalidity, since it operates retroactively and the result pursued by the latter and thereby thus has precisely the same effect as if the comply with the third paragraph of Arti- contract had never been concluded, would cle 189 of the Treaty'. 3 amount to a refusal to engage her. However, termination of the contract by reason of a mistake as to the existence of pregnancy 2 _ Judgment in Case 111/75 Mazzalai [1976] ECR 657, para- would, by bringing the employment rela- graph 10/11. tionship to an end with immediate effect as 3 _ Judgment ¡n Case C-106/89 Marleasing [1990] ECR 1-4135, from that date, be comparable to dismissal. paragraph 8.
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8. It is quite true that, beyond the formal would therefore lead to a fundamental defect legal distinction, both situations would in in the employment relationship. fact cause the woman concerned to lose her employment. I consider it necessary, how ever, to consider the question with regard to both possibilities, as requested by the national court.
Since to perform night-time work would constitute an offence contrary to criminal law, therefore, it has been maintained in the proceedings that in a case of this sort there is no direct discrimination on grounds of sex, With regard to the possibility of her being especially as Article 2(3) of the directive refused employment, the relevant rule is leaves to Member States the right to adopt or Article 3(1) of the directive, which sets out maintain in force measures aimed at protect the principle of equal treatment as regards ing women, particularly as regards 'pregnan the conditions, including selection criteria, cy and maternity'. for access to all jobs. In the Dekker judg ment to which the national court refers in its first question, the Court gave a ruling on the interpretation of that provision in which it confirmed that 'only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex', 4 as such 10. At this point it should be stated that, incompatible with the directive. Pregnancy with respect to Article 2(3) of the directive, may not, therefore, be a ground for refusing the legality of the German legislation pro employment and that, plainly, is so, regard hibiting night-time work for pregnant less of the type of activity involved. women is beyond dispute. That legislation accords special protection to female workers in such circumstances and is clearly covered by the derogations provided for in the direc tive.
9. It is true that the case in point differs from the Dekker case, at least at first sight, in that the refusal of employment is not a direct and immediate result of the pregnancy but rather of the prohibition on night-time For the purposes of this case, however, the work for pregnant women, which is imposed question to be asked is whether the deroga on account of pregnancy. Non-compliance tion in question may lawfully be applied in with the prohibition on night-time work such a way as to allow an employment con tract concluded with a pregnant worker to be declared void or in any event terminated. That is the question of principle raised by 4 — Judgment in Case C-177/88 Dekker [1990] ECR I-3941, paragraph 12. the present case.
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11. In that connection, I note first of all that, by definition — affects women alone, should as pointed out by the Court, 5 it is a woman's not be taken into consideration, even at the specific condition in the period before and time of access to employment. And, it is immediately after childbirth that is the sub- worth repeating, it would be paradoxical if ject of special protection and may therefore recognition of the social function of mater- lay her open to unequal treatment. O n closer nity, and consequent protection of pregnant inspection then, the provisions adopted in women, should come about through their implementation of Anicie 2(3) of the direc- exclusion from the labour market. tive cannot properly be called derogations from the principle of equality, in that they seek rather to ensure that that principle oper- ates in substance, by permitting such 'ine- qualities' as are necessary in order to achieve equality. In short, different treatment is allowed or imposed, in favour of and to pro- tect female workers, in order to arrive at 12. The foregoing considerations lead me to material and not formal equality, since that the conclusion that the prohibition on night- would constitute a denial of equality. time work, while in itself lawful, may be applied not in such a way as to jeopardize the validity of a contract for night-time work entered into by a pregnant woman, but only so as to bar her from actually carrying out such work. b In other words, temporary inability to perform night-time work, as a result of the special protection granted to pregnant women, may not be relied on to justify a refusal to engage a woman and may not have the effect of preventing the valid That being indubitably the ratio of the pro- formation of an employment relationship. vision, it seems to me, at least in principle, that 'discrimination' permitted in order to take account of maternity, and therefore to protect women, cannot be practised in such a way as to exclude women from the labour market. It is only too clear that if such a con- clusion were to be reached, both the object of the directive (ensuring equal treatment for In short, the principle of equal treatment, as men and women) and that of the derogation laid down by Article 3(1) of the directive, (allowing different treatment in favour of precludes reliance on pregnancy as a ground pregnant women to protect the special for refusing to engage a woman, even in the nature of their condition) would be com- case of night-time work. This also implies pletely undermined. Material equality that awareness of the condition, at the time between men and women in the field of when the employment relationship is employment requires that an event, which —
6 — That national law, moreover, lays down a prohibition on 5 _ Judgment in Case 184/83 Hofmann [1984] ECR 3047, para- 'assigning' to pregnant women night-time work and not on graph 25. engaging such women.
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formed, is quite irrelevant, and that a fortiori only be true of women. 8 Moreover, as the the termination of a contract of employment national court pointed out in the order for entered into when the woman concerned was reference, the German Law on the protection not aware of her condition cannot be consid- of mothers precludes the possibility of ered lawful. dismissal on grounds of pregnancy (Para- graph 9).
13. With regard to the possibility of the con- tract being terminated, reference must also 14. Council Directive 92/85/EEC of 19 be made to Article 5(1) of the directive, October 1992, on the introduction of mea- according to which there must not be any sures to encourage improvements in the discrimination on grounds of sex with regard safety and health at work of pregnant work- to the conditions governing dismissal. In that ers and workers who have recently given connection, the Court stated in the Hertz birth or are breastfeeding, 9 is also important case that 'the dismissal of a female worker on in this connection. It provides that pregnant account of pregnancy constitutes direct dis- women carrying out night-time work are to crimination on grounds of sex, as is a refusal be given the right to be transferred to day- to appoint a pregnant woman'. 7 Dismissal time work or allowed a period of leave (Arti- by reason of the worker's pregnancy has, cle 7), without the loss of employment in therefore, been treated by the Court as direct any circumstances (Article 10). discrimination on grounds of sex and thus as incompatible with the directive.
Although that directive has not yet come into force (its transposition into national law The termination of an employment contract is to be completed by October 1994), the for the sole reason that the worker in ques- aforesaid provisions support the interpreta- tion is pregnant cannot but constitute, at tion given here of Article 5(1) of the direc- least in principle, direct discrimination on tive, which is that a contract of employment grounds of sex, as is particularly clear in the may not be terminated on account of preg- case in point. In that regard, it is sufficient to nancy, even where there is a statutory prohi- point out that to allow a contract to be ter- bition on night-time work. minated because of a mistake as to an essen- tial personal characteristic, where the charac- teristic in question is the condition of 8 — In that connection, it might be helpful to bear in mind that, pregnancy, necessarily implies that this can referring to the Hertz judgment, the Bundesarbeitsgericht considered, thereby reversing its earlier decisions, that an employer may not have a contract of employment entered into with a pregnant woman terminated on the basis of Para- graph 119(2) of the Civil Code, that is by claiming to have been intentionally misled as to the existence of the preg- 7 — Judgment in Case C-179/88 Handels-og Kontorfunktionaer- nancy (judgment of 15 October 1992, 2 AZR 227/92). emes fortuna [1990] ECR 3979, paragraph 13. 9 — OJ 1992 L 348, p. 1.
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15. It has also been argued during the pro- loss suffered by an employer in employing a ceedings that a declaration that a contract is person who is on leave throughout her preg- invalid or a dismissal should not, in a case nancy may not be put forward either, while such as this, be regarded as direct discrimina- it must be acknowledged that to maintain the tion on grounds of sex, in that the operative employment relationship, in a situation like factor (statutory prohibition on a certain the one in point, produces increased financial kind of employment) would lead to the same burdens which may be especially heavy for results if a male worker were in the same sit- small businesses. uation.
The Court, which has already ruled on that point in the Dekker case, decided that 'a refusal of employment on account of the Let me state at once that such a contention financial consequences of absence due to appears to be groundless and that, in my pregnancy must be regarded as based, essen- view, the Hertz 10 judgment cannot usefully tially, on the fact of pregnancy. Such discrim- be relied on in that regard; in that judgment, ination cannot be justified on grounds relat- the Court considered that the dismissal of a ing to the financial loss which an employer female worker on account of repeated peri- who appointed a pregnant woman would ods of absence due to illness, even illness suffer for the duration of her maternity attributable to pregnancy or confinement, leave.' n Those considerations are equally does not constitute direct discrimination on valid in the present case, given the irrele- grounds of sex, if those absences take place vance, from that point of view, of the fact after the period of maternity leave and that the longer the period of absence from would, in the same circumstances, lead to the work, the greater the financial outlay. dismissal of a male worker. In that case, the same conditions (a given number of absences over a given period of time) applied to work- ers of both sexes. In this case, on the other hand, the termination of the employment relationship is due to a condition (pregnan- cy) that clearly applies only to women.
17. Finally, the argument of the Arbeiter- wohlfahrt, according to which the solution adopted here could lead to abuse by women, does not seem to me to have the least rele- 16. It is scarcely necessary to point out, vance either. It is self-evident that there is no moreover, that in order to justify discrimina- question of abuse if it is recognized that tion which has been established, the financial pregnant women do not lose the right to be
10 — Judgment cited above at footnote 7, especially para- graphs 14-17. 11 — Judgment cited at footnote 4, paragraph 12.
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engaged and to keep their jobs, solely pregnant only after signing the contract, because they are pregnant. which would enable her to avoid the prob- lems encountered by Mrs Habermann. It is scarcely necessary to draw attention to the fact that had the pregnancy commenced not on 11 but on 24 March, the day after the contract was entered into, it would have Moreover, if we start from the premise that a been enough to provide a defence to any woman may actually 'programme' the birth challenge. In other words, it does not seem of a child on the basis of the possibility of to me that the point at issue can be settled on night-time work, she should also have the the basis of the remote and unlikely possibil- right to plan it in such a way as to become ity of abuse.
18. In the light of the foregoing considerations, therefore, I propose that the Court reply to the questions submitted by the Arbeitsgericht Regensburg as follows:
(1) Articles 2(1) and 3(1) of Directive 76/207/EEC preclude an interpretation of national law that renders a contract of employment concluded with a pregnant woman invalid, where such invalidity is the result solely of the prohibition on night-time work imposed for the protection of pregnant women.
(2) Articles 2(1) and 5(1) of Directive 76/207/EEC must be interpreted as preclud- ing the termination of a contract of employment concluded with a pregnant woman, on account of a mistake as to the existence of pregnancy.
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