C-136/95

1. In this case, the Court is called upon to Throughout 1983, Mrs Thibault's attendance answer a question submitted by the French at work suffered from a certain lack of con- Cour de Cassation (Court of Cassation) con- tinuity: she was absent on sick leave for a cerning the interpretation of certain pro- total of fifty-two days (4 to 13 February, 3 to visions of Council Directive 76/207/EEC of 16 March and 16 May to 12 June); then she 9 February 1976 on the implementation of took a sixteen-week period of maternity the principle of equal treatment for men and leave (13 June to 1 October), followed by a women as regards access to employment, six-week period of child-care leave (3 Octo- vocational training and promotion, and ber to 16 November) under Article 46 of the working conditions 1 (hereinafter 'Directive Convention Collective Nationale du Travail 76/207'). du Personnel des Organismes de Sécurité Sociale (national collective labour agreement for the staff of social security institutions) (hereinafter 'the collective agreement'). Her attendance at work for the whole year was recorded as totalling one hundred and fifty- five days. That question arose in relation to an applica- tion by the Caisse Nationale d'Assurance Vieillesse des Travailleurs Salariés (National Old-Age Insurance Fund for Employees) (hereinafter 'CNAVTS'), a social security institution, for review of a judgment given in 3. Relying on Chapter XIII of the standard 1990 by the Conseil de Prud'hommes service regulations for the application of the (Labour Tribunal), Melun, in favour of Eve- collective agreement (hereinafter 'the service lyne Thibault. regulations'), which provides that employees who are present at work for at least six months in any year must be the subject of an assessment of performance by their immedi- ate superiors, the CNAVTS refused to draw up an assessment for Mrs Thibault in rela- tion to 1983. 2. As is evident from the order for reference, Mrs Thibault was engaged by the CNAVTS as an agent technique in 1973 and promoted to the position of rédacteur juridique in 1983. The fact that no assessment of performance was drawn up by her superiors meant that * Original language: Spanish. Mrs Thibault could not be included on the 1 — OJ 1976 L 39, p. 40. list of staff, classified according to their

'Must Articles 1(1), 2(1), 5(1) and, if relevant, 2(4) of Council Directive 76/207/EEC of 9 February 1976 be interpreted as meaning that a woman may not be deprived of the 5. The CNAVTS applied for review of that right to an assessment of performance, and judgment. The Cour de Cassation set it aside consequently to the possibility of an on 9 February 1989 and referred the case advancement in career, on the ground that back to the Conseil de Prud'hommes, she was absent from work by reason of Melun, for a new judgment. maternity leave?'

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CNAVTS v THIBAULT

10. Chapter XIII of the service regulations implements Articles 29 to 31 of the collective 9. Articles 29 to 31 of the collective agree- agreement. In particular, with regard to the ment provide for a system of advancements discretionary award of the 2 % increase, it which, over a period of time, can amount to provides that any employee who has been

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OPINION OF MR RUIZ-JARABO — CASE C-136/95

present at work for at least six months must regards access to employment, including have an assessment of performance drawn u p promotion, and to vocational training and as by his or her immediate superiors. regards working conditions and, on the con- ditions referred to in paragraph 2, social security. This principle is hereinafter referred to as "the principle of equal treatment".

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CNAVTS v THIBAULT

ing existing inequalities which affect wom- independent occupations and professions en's opportunities in the areas referred to in shall be, or may be declared, null and Article 1 (1).' void or may be amended;

14. Finally, by virtue of Article 5:

15. Written observations were submitted, within the time-limit laid down for that pur- pose by Article 20 of the Protocol on the EC ' 1 . Application of the principle of equal Statute of the Court of Justice, and oral treatment with regard to working conditions, observations were put forward at the hear- including the conditions governing dismissal, ing, by the French Government, the United means that men and women shall be guaran- Kingdom and the Commission. teed the same conditions without discrimi- nation on grounds of sex.

16. The French Government states that Directive 76/207 has been transposed into national law, and specifically into Article L 123-1 of the Labour Code, that infringe- 2. To this end, Member States shall take the ment of its provisions entails criminal sanc- measures necessary to ensure that: tions, and that the prohibition of discrimi- nation contained in the directive must be observed not only in the legislation of the Member States but also in the context of col- lective agreements concluded by employers and workers. (a) any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished;

17. The United Kingdom is of the opinion that Mrs Thibault was not the victim of dis- crimination on grounds of sex, for four rea- sons: first, because the reason for which an In Mrs Thibault's case, the employer should assessment of performance was not drawn have separated the period of maternity leave up for her relates to her absence from work; from the period of sick leave; the latter is the second, because the situation of a woman only period which can be counted as absence who is absent from work as a result of taking from work for the purpose of applying maternity leave cannot be compared to that Chapter XIII of the service regulations with- of a man or woman who is working; third, out infringing the principle of equal treat- because the determination of all rights ment, since equating maternity leave with extended to women during maternity leave is absence from work for any other reason is a matter for the Member States, without contrary to the Court's case-law on equal prejudice to the provisions of Directive treatment in so far as, in this case, it meant 92/85/EEC; 4and, finally, because Directive that an assessment of performance, the exist- 76/207 does not confer any right to have ence of which is a necessary precondition for periods of absence by reason of maternity inclusion on the list of employees eligible to counted as periods of work which could give receive the advancement on merit amounting rise to entitlement to an assessment of per- to 2% of salary, was not drawn up for her in formance. relation to 1983.

case of a female worker who, having taken 20. Starting from the assumption that equal- maternity leave, was not at work for that ity, as defined by the constitutional court of minimum period. one of the Member States, '... is not a reality or an abstract mathematical concept, but rather unequal treatment of that which is unequal or equal treatment of that which is similar or alike' 5 and taking into account the Court's consistent case-law according to which '... discrimination can only arise 18. The Commission points out that preg- through the application of different rules to nancy is a condition which can affect only comparable situations or the application of women and that, consequently, simply to the same rule to different situations', 6 I shall treat maternity leave in the same way as sick now consider whether, by simply treating leave even though they are two distinct situ- maternity leave in the same way as sick leave, ations constitutes direct discrimination the contested rule in the collective agree- despite the fact that the criterion governing ment, which applies to men and women the application of the rule, namely, absence alike, guarantees equal treatment because from work for more than six months in the both situations are similar, or whether, on year in question, is neutral. It adds that the contrary, it introduces direct discrimi- refusal to draw up an assessment of perfor- nation on grounds of sex by applying the mance for a pregnant woman in the circum- same rule to different situations since, for the stances described constitutes direct discrimi- purpose of calculating attendance at work, it nation on grounds of sex, since that refusal is takes into consideration a category of leave based on a method of calculating periods of which only women can take. absence from work which adversely affects only pregnant women.

in connection with "pregnancy and mater- material and not formal equality, since that nity", the directive recognises the legitimacy, would constitute a denial of equality.' 8 in terms of the principle of equal treatment, of protecting a woman's needs in two respects. First, it is legitimate to ensure the protection of a woman's biological condition during pregnancy and thereafter until such time as her physiological and mental func- tions have returned to normal after child- 23. However, this case is concerned not with birth; secondly, it is legitimate to protect the national provisions for the protection of special relationship between a woman and women, adopted on the basis of Article 2(3) her child over the period which follows of Directive 76/207, but with the application pregnancy and childbirth ...'. of the principle of equal treatment as regards access to employment and working condi- tions, laid down in Article 5(1) of the direc- tive.

Maternity leave, the rules for which are set out in Articles 45 and 46 of the collective agreement governing Mrs Thibault's 24. In interpreting Directive 76/207, the employment relationship, which is normally Court has established clear and consistent split between the weeks immediately before case-law setting out its views on unfavour- and after childbirth and is restricted to able treatment received by a woman in the women, undoubtedly falls within the scope labour market because of the fact that she is of that derogation. pregnant.

for him of employing a pregnant woman, 26. In its judgment in the Webb case, 12 the owing to rules on unfitness for work Court refused to comply with the national adopted by the public authorities which court's request that it consider whether the assimilate inability to work on account of situation of a woman who finds herself inca- pregnancy and confinement to inability to pable, by reason of pregnancy discovered work on account of illness. very shortly after the conclusion of an employment contract, of performing the task for which she was recruited can be compared with that of a man similarly incapable for medical or other reasons, since '... pregnancy is not in any way comparable with a patho- logical condition, and even less so with In its judgment of the same date in the Hertz unavailability for work on non-medical case, 10 the Court stated: 'It follows from the grounds ...'. Further on, it added that '... dis- provisions of the Directive ... [Articles 2 (1) missal of a pregnant woman recruited for an and (3) and 5 (1)] that the dismissal of a indefinite period cannot be justified on female worker on account of pregnancy con- grounds relating to her inability to fulfil a stitutes direct discrimination on grounds of fundamental condition of her employment sex, as is a refusal to appoint a pregnant contract. The availability of an employee is woman.' necessarily, for the employer, a precondition for the proper performance of the employ- ment contract. However, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during maternity is essential to the 25. A few years later, in Habermann- proper functioning of the undertaking in Beltermann, 11 the Court confirmed that which she is employed. Any contrary inter- case-law and held that '... Article 2 (1), read pretation would render ineffective the pro- in conjunction with Articles 3 (1) and 5 (1) visions of the directive.' of Directive 76/207/EEC, precludes an employment contract for an indefinite period for the performance of night-time work con- cluded between an employer and a pregnant employee, both of whom were unaware of the pregnancy, from being held to be void on account of the statutory prohibition on night-time work which applies, by virtue of national law, during pregnancy and breast- feeding, or from being avoided by the 27. It is clear from that case-law that any employer on account of a mistake on his part decision by the employer which is directly as to the essential personal characteristics of related to the sex of a female candidate, the woman at the time when the contract which affects the possibilities of access to a was concluded.' job or modifies the working conditions offered to her as compared with those

29. Like the Commission, I note that that 31. I take the view that the right of all rule, which requires a minimum of six employees to have their work assessed annu- months' attendance at work in order for a ally is an integral part of the conditions of right to an assessment of performance to their contracts of employment particularly arise, lays down a neutral criterion which since the existence or absence of such an applies equally to men and women and is not assessment has very practical consequences, bound, in principle, to affect either group such as, in the former case, the possibility of adversely since all are likely, for example, to inclusion on the list of recipients of an be absent on account of illness. However, in advancement on merit of 2 % of salary if the reality, it is obvious that that rule is liable to marks awarded were sufficiently high, or, in operate consistently to the disadvantage of the latter case, denial of that possibility. women since it allows the employer to refuse to assess a female employee whose absence during the year under consideration was due, in large measure, to the fact that she took maternity leave. In those circumstances, it seems obvious to me that treating the period of maternity leave as a period of sick leave has a direct adverse effect on the woman who has given birth, since the risk which she runs on that 30. In fact, the way in which the CNAVTS account of receiving no annual assessment of applies that rule of the collective agreement performance is much greater than that run

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In any event, given that this case involves direct discrimination on grounds of sex, it is not appropriate even to consider the exist- 33. For that reason, since the substantive ence of any justification. equality between men and women as regards employment precludes any consideration, either when they take up employment or during the employment relationship, of a factor which — by definition — affects only women, 13 it will not be possible, when cal- culating the attendance at work of a female employee in order to establish a right to an 35. At the hearing, the United Kingdom assessment of performance, to add the period argued in favour of the applicability to this of maternity leave either to periods of sick case of the precedent established by the leave or to absences justified for any other Court in its judgment in the Gillespie case, 14 reason. according to which '... women taking mater- nity leave provided for by national legisla- tion ... are in a special position which requires them to be afforded special protec- tion, but which is not comparable either with that of a man or with that of a woman actu- 34. I must admit that, where immediate ally at work'. It infers from that statement superiors are required to comment on certain that Mrs Thibault, not having been at work aspects of an employee's performance over a for at least six months, is not entitled to have particular period of time, the requirement of an assessment of performance drawn up for a minimum time of attendance at work is her in relation to 1983 since otherwise she would receive the same treatment as a man or woman who had been working.

In my opinion, if it were assumed that the Court's judgment in Gillespie were appli- However, the issue in this case is the applica- cable to this case, it would serve to confirm tion of the principle of equal treatment for that the act of equating maternity leave with men and women as regards working condi- sick leave, when calculating attendance at tions, and the Court has stated, in the work for the purpose of determining Gillespie judgment, that Directive 76/207, as whether a woman is entitled to an assess- is clear from the second recital in its pre- ment of performance, is discriminatory. In amble, 16 does not apply to the principle of fact, one could take up the Court's wording equal pay. and, adapting it to this case, state that to deny a woman the right to an assessment of performance because she has been absent from work on maternity leave would dis- criminate against her purely in her capacity as a worker since, had she not been pregnant and given birth, she could not have been denied that right. 37. Secondly, even if I took the view that the precedent set by Gillespie was applicable to this case, I would still not agree with the conclusions which the United Kingdom draws from it. In fact, the Court also stated in that judgment that, since the benefit paid during maternity leave is calculated on the basis of the average pay received by the 38. For all the reasons which I have just set out, I propose that the Court state in answer to the question referred to it that Article 5(1) of Directive 76/207 must be interpreted as 15 — Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to precluding a neutrally worded national pro- the application of the principle of equal pay for men and vision contained in a collective agreement, women (OJ 1975 L 45, p. 19). 16 — Cited in footnote 14 above, paragraph 24. under which an employee who proves at

39. Before concluding, let me make one final point. The French Government, in its obser- vations, maintains that the discrimination which Mrs Thibault has suffered arises nei- ther from the relevant legislation (namely Article L 123-1 of the Labour Code which incorporates Directive 76/207 into national law) nor from the applicable rules of the col- lective agreement and internal rules, but from the interpretation which the CNAVTS has placed on those provisions. That is clearly borne out by the fact that both Mrs Thibault, in the proceedings before the national courts, and the French Govern- ment and the Commission, both in their written observations and in the oral observa- tions submitted in these preliminary-ruling 40. I am only partly in agreement with that proceedings, have had to rely, in order to view. Although those rules do not oblige the show that national law did not allow the employer to count maternity leave as interpretation adopted by the CNAVTS, on absence from work for purposes of establish- the one hand, on Article L 122-26-2 of the ing the right to an assessment of perfor- Labour Code, which applies only for pur- mance, they likewise do not prohibit him poses of calculating length of service and, on from so doing, thereby in fact allowing the the other, on Article 3bis of the agreement of interpretation which the CNAVTS adopted 13 November 1975 appended to the collec- in Mrs Thibault's case. tive agreement, which applies only for the purpose of classifying posts. In any event, the latter provision did not enter into force until January 1984, that is, later than the year under consideration.

Article 5(1) of Council Directive 76/207/EEC of 9 February 1976 on the applica- tion of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions must be interpreted as meaning that it precludes a neutrally-worded national provision contained in a collective agreement, under which an employee who proves at least six months' attendance at work must b e the subject of an assessment of perfor- mance b y his or her immediate superiors, but which, when applied in practice, produces direct discrimination on grounds of sex in so far as it allows maternity leave to be counted as sick leave for the purpose of calculating the time spent at work b y a female employee.

18 — Case C-334/92 Wagner Miret [1993] ECR I-6911, para- 19 — Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8. graph 20.

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