C-66/96

OPINION OF MR RUIZ-JARABO COLOMER — CASE C-66/96

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 10 July 1997 *

1. The Sø-og Handelsret (Maritime and Com- on the legal relations between employers and mercial Court of Denmark) has referred to non-manual workers ('the Law on non- the Court, pursuant to Article 177 of the EC manual workers'), which covers many com- Treaty, a question relating to a number of dif- mercial and clerical employees and regulates, ferent situations in order to give judgment in among other matters of employment law, dis- four cases before it concerning the employ- missal, compensation for dismissal, failure by ment rights of pregnant women. employers and employees to fulfil their obli- gations, sick leave, protection for pregnancy and maternity leave.

Before replying to this question, I wish to set out the relevant domestic law and the facts of the four main actions, following the sequence of the order for reference.

National law The legal situation of female employees in the event of illness and incapacity for work by reason of pregnancy and confinement is also governed by Law N o 639 of 17 July 1992 on equal pay for men and women, which incor- porated Directive 75/117/EEC 1 into Danish law, by Law N o 244 of 19 April 1989 on A. Law No 516 of 23 July 1987 on the legal equal treatment for men and women, which relations between employers and non-manual refers to, among other things, employment workers and maternity leave and which adapted Danish law to Directive 76/207/EEC, 2 and by Law N o 852 of 20 December 1989 on benefits in

3. In the Law on non-manual workers, which is the one which, according to the order for reference, applied to the applicants, incapacity The first sentence of Paragraph 7(2) provides for work by reason of illness and its conse- that 'where an employee is pregnant, her quences are regulated by Paragraph 5, sub- employer is required to pay half her salary paragraph 1 of which reads as follows: 'If an for a maximum of five months over the period employee is unable to carry out his or her from the date on which the incapacity for work by reason of illness, the resultant absence work arises, such period beginning not earlier from work shall be regarded as due to a than three months before the confinement legitimate impediment unless, in the course of and ending not later than three months after the employment relationship, he or she con- the confinement'. The second sentence adds tracted that illness intentionally or through that 'a similar obligation exists where the gross negligence, or, on entering the post, employer considers it impossible to provide fraudulendy failed to disclose that he or she work for the employee, even though she is was suffering from the illness in question.' not unfit for work'.

The term 'illness' covers any physical or B. Law on benefits mental disorder or infirmity which, in the opinion of a doctor, renders the employee unable to carry out his or her work. The employee is entitled to full pay during illness and the employer is entitled to receive the social security sickness benefit to which the employee would otherwise have been entitled. 5. Employed persons are entitled to receive benefits in various situations:

If work is discontinued by reason of preg- nancy, confinement or adoption, the benefits The national court adds that the employee are paid by local authorities. must, on request by the employer, provide

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documentary proof of her incapacity for work, the expected date of birth. The provisions rel- which must have been assessed by a doctor. evant to the present case are as follows: Detailed information on the causes of inca- pacity need not be given, but she must state whether it is connected with her pregnancy.

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kidney disorders) which is otherwise uncon- The national court points out that this provi- nected with the pregnancy, or if treatment of sion corresponds to the fourth and fifth parts that illness is hampered by the pregnancy.' of the question submitted to the Court of Justice.

This benefit is also payable in the case of 8. The national court observes that there is absence from work owing to incapacity for disagreement between unions and employers work on grounds of miscarriage or abortion. on how to interpret the provisions of the Law on non-manual workers concerning incapacity for work on grounds of illness and pregnancy. Employee representatives argue that, as a result of the Community rules on equal treat- ment for men and women, the Danish Law on non-manual workers should be construed as giving women the right to full pay also where incapacity is due to pregnancy. The employers, on the other hand, contend that it is not contrary to Community law to inter- The national court points out that this provi- pret the Danish Law as meaning that women sion corresponds to the first and second parts are not entitled to full pay where incapacity of the question submitted to the Court of is due to pregnancy, but they are entitled to Justice. benefits.

Facts of the cases pending before the Sø-og Handelsret

'175. In certain situations there is no right to benefit at all. This applies to routine minor complaints associated with the normal devel- opment of pregnancy, not resulting in inca- pacity for work, such as nausea, malaise, vom- iting, slight anaemia or very slight increase in blood pressure, and to cases where absence from work is based on a doctor's certificate 9. The question referred to the Court has advising rest on grounds other than a patho- arisen in the context of four cases. The appli- logical situation in the strict sense or par- cants in each case are women whose employ- ticular risks to the unborn child.' ment relationship is governed by the Law on

non-manual workers. They all suffered an defendant took the view that her absences abnormal pregnancy and were all certified to were due to pregnancy and not to illness in be completely or partly unfit for work by a the strict sense, so her •wages were stopped doctor more than three months before the when she produced the first doctor's certifi- expected date of confinement. Three of them cate. were excused from work and were not entitled to any pay from their employers (the first, second and fourth cases), while the other, whose partial unfitness for work would have permitted her to work shorter hours, was suspended from employment and pay because her employer considered that he was unable to continue to give her work. The diagnoses by the doctors indicated slackening of the pelvic ligaments (in the first case), threat of miscarriage with risk to the health of the Until three months before the expected date pregnant women or the child (in the second of confinement the applicant received only and third cases) and hyperemesis gravidarum the pre-maternity benefits under Paragraph (in the fourth case). 12(2) of the Law on benefits. Thereafter, until one month before the expected date of con- finement, she received in addition half-pay from her employer in accordance with Para- graph 7 of the Law on non-manual workers. During the month preceding the expected date of confinement she received full pay on the basis of the collective agreement which covered her. 10. The facts set out in the order for refer- ence relating to the first case are as follows. The applicant, Berit Høj Pedersen, was engaged as a store assistant in December 1990 by the defendant, which forms part of a nationwide chain of supermarkets in Den- mark. Her work consisted mainly in arranging goods, stocking shelves and general store work. 11. In the second case described by the national court, the applicant, Bettina Andresen, was engaged on 1 August 1991 as a surgery assistant by a dentist, Mr Bagner. O n 25 August 1993 the applicant, who was then pregnant, was found unfit for work because of a risk of miscarriage (abortus imminens), her expected date of confinement She became pregnant in May 1992. She was being 24 April 1994. Her medical certificates unfit for work from 26 June 1992 until she showed that continued employment would gave birth in February 1993, the diagnosis entail a risk to her own health and that of the being 'slackening of the pelvic ligaments'. The unborn child. In September 1993 the defen-

The question referred

The applicant telephoned the defendant to 14. The Sø-og Handelsret found it necessary notify him of her situation and inform him to stay these proceedings and to seek a ruling, that she 'wished to resume work with shorter pursuant to Article 177 of the EC Treaty, hours. The defendant stated that he was not from the Court of Justice on the following prepared to employ her on a part-time basis question: and that he would have to appoint a full-time replacement because, in his opinion, the appli- cant was unable to carry out her work nor- mally. He subsequendy informed the appli- cant that he had appointed a full-time replacement to her post during her absence and that he would not continue to pay her wages, and therefore advised her to claim 'Is it contrary to Community law, including pre-maternity benefit. Article 119 of the E C Treaty and Directives

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75/117/EEC, 76/207/EEC and 92/85/EEC, 4 pathological condition or on any special for national legislation to exempt employers risks for the unborn child; from paying salaries to pregnant employees in cases where:

(6) the absence is attributable to the fact that (1) the absence is attributable to the fact that the employer, on the basis of the preg- the pregnancy substantially aggravates a nancy alone, takes the view that he cannot illness that is otherwise unconnected with provide work for the pregnant employee, the pregnancy; despite the fact that the employee is not unfit for work,

OPINION OF MR RUIZ-JARABO COLOMER — CASE C-66/96

For the purpose of this Article, "pay" means training and promotion and working condi- the ordinary basic or minimum wage or salary tions, provides as follows: and any other consideration, whether in cash or in kind, which the worker receives, directly or indirecdy, in respect of his employment from his employer.

' 1 . For the purposes of the following provi- sions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly ...' or indirectly by reference in particular to marital or family status.

16. Article 1 of Directive 75/117 is worded as follows:

3. This Directive shall be without prejudice to provisions concerning the protection of 'The principle of equal pay for men and women, particularly as regards pregnancy and women outlined in Article 119 of the Treaty - maternity. ... means, for the same work or for work to which equal value is attributed, the elimina- tion of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration. ...';

...' and Article 5 provides:

18. Directive 92/85 of 19 October 1992, the 20. The applicants, who examine each of the purpose of which is to introduce measures to six situations covered by the question referred, improve the safety and health at work of contend that: pregnant women and women who have recently given birth or are breastfeeding, ought to have been incorporated into the domestic law of the Member States not more than two years after the Directive was adopted, that is to say, by 19 October 1994. — if a woman's unfitness for work, proved by a doctor's certificate, is due to the fact that her pregnancy seriously aggravates an illness unrelated to the pregnancy (the first situation) or to an illness caused by preg- nancy (the second situation) — which are In my opinion, because of the time factor this situations where the State guarantees ben- Directive does not apply to the facts of the efits equal to what she would receive if cases in the main proceedings as, according to she were on sick leave — it is contrary to the account given by the national court in the Community law, in particular Article 119 order for reference, the employment-law of the Treaty, for domestic legislation to claims of the employees are limited to the exempt her employer from paying her full period of pregnancy and they all gave birth wages in view of the fact that she would before 19 October 1994. Furthermore, it is be entitled to full pay if her incapacity for not stated whether the Danish legislation had work were not connected with pregnancy; yet been adopted by that date.

At the hearing, counsel for Handels-og Kon- torfunktionærernes Forbund i Danmark, — if absence is due to routine minor com- acting on behalf of Ms Høj Pedersen, Ms plaints which occur in any normal preg- Andresen and Ms Pedersen, the applicants in nancy and do not result in incapacity for cases 1, 2 and 3 respectively, informed the work (the fourth situation) or if absence Court that those cases had been referred to is by reason of a doctor's certificate rec- the National Council for Forensic Medicine, ommending rest, although not based on which acts as a supreme court specialising in the existence of an actual pathological con- medical questions affecting individuals, and dition or any particular risks to the unborn that, after the present question had been child (the fifth situation) — these being referred to the Court of Justice, the National situations where women are not entitled Council decided that the three applicants were to benefits — this should be treated as ill- absent from work for reasons connected with ness although there is no actual patho- pregnancy, which could be deemed an illness. logical condition, and a national provision under which employees in these situations receive neither pay nor benefits is con- trary to Community law; and

21. The defendants argue that employees who are unfit for work by reason of pregnancy cannot be regarded as ill and consequently their entitlement to pay does not fall within — if a 'woman's absence from •work arises the ambit of Article 119 of the Treaty. As from the fact that the employer considers, only women can claim an allowance on the solely by reason of her pregnancy, that he ground of absence due to pregnancy, there cannot use her services even though she can be no comparison with the right of men does not fulfil the conditions for being to receive pay in an equivalent situation and given leave of absence (the sixth situation) therefore no question of discrimination in — a situation where the State guarantees relation to pay.

The defendants add, in the alternative, that 23. The United Kingdom considers that a there are objective reasons justifying the distinction should be drawn between two dif- refusal of full pay to the applicants, that is to ferent situations: first, where the woman's say that Danish law reflects a fair, adequate period of absence occurs within the maternity sharing among female employees, employers leave period provided for by national legisla- and society of the risks and the financial bur- tion; and secondly, where it occurs outside dens associated with pregnancy; the refusal of such period of leave. full pay for women in the event of pregnancy is not discrimination against them, but is due to the fact that pregnancy is, from the view- point of the labour market, an exceptional situation the burden of which should not fall entirely on the employer; and it must be borne in mind that pregnancy is a condition which normally arises intentionally, so that absence connected with that condition cannot be treated as due to an unforeseen illness. If the absence occurs during the period of maternity leave, which is when the disorders inherent in pregnancy and childbirth nor- mally arise, neither Article 119 of the Treaty nor Directives 75/117 and 76/207 guarantee the woman's right to receive full pay from her employer or pay equal to sick pay or any other level of pay. The only requirement to be inferred from Article 119 and Directive 75/117 is that the pay or allowance available to a woman within the national maternity leave period should not be such that the right to maternity leave cannot be effectively exer- 22. The French Government considers cised, but the level of maternity pay is a matter whether payments received for incapacity for left entirely to the national legislature to fix. work caused by pregnancy constitute pay within the meaning of Article 119, paragraph 2, of the Treaty. The actual wording of this provision and the Court's case-law lead the French Government to reply in the affirma- tive. As the benefit received by a pregnant woman whose incapacity for work is caused by pregnancy is less than the pay she would receive if such incapacity were due to an ill- ness unrelated to pregnancy, the French Gov- ernment concludes that the difference in treat- However, a woman who is absent from work ment arising from the Danish legislation is on account of a pregnancy-related illness out- contrary to the principle of equal pay and side the maternity leave period should be there are no objective circumstances to justify treated in the same manner as any other sick such difference, which is disadvantageous to employee who is absent from work, whether pregnant women. male or female.

24. The Commission proposes that a single reply be given to the first, second and third parts of the question for a number of reasons: the situations in question all entail incapacity for work attested by a doctor's certificate; With regard to the fourth and fifth parts of such incapacity is due to a pregnancy-related the question, the Commission notes that these illness or is aggravated by it; the State guar- are not cases of genuine incapacity for work antees that women in any of those situations or illness attested by a doctor's certificate, but receive benefits equal to what they would situations which could be treated in the same receive in the event of absence for sickness; way as a woman's absence from work during and the Law on employees exempts employers maternity leave. As a woman's situation in from giving full pay when incapacity is related these cases is not comparable with that of a to pregnancy. male •worker who is ill, the fact that the woman is not entitled to pay is not a breach of Article 119 of the Treaty.

The Commission observes, firstly, that the With regard to the sixth part of the question, wages or salary paid by an employer to an the Commission observes, firstly, that Para- employee under Paragraph 5 of the Law on graph 7(2) of the Law on non-manual workers, non-manual workers during illness, or to a which provides that an employer who con- pregnant employee under Paragraph 7 of the siders it impossible to continue to employ a same Law, fall within the definition of pay in pregnant woman may require her to give up Article 119 of the Treaty, as construed by the work although she has not been found unfit Court of Justice. Secondly, the situations to for work, the employer's only obligation which the first, second and third parts of the being to pay one half of her wages for a lim- question relate are comparable to those where ited period, gives rise to direct discrimination

Analysis of the question submitted

(3) Thirdly, comparing the facts of the three other cases with the first, second and third situations, it will be seen that the appli- cants' diagnoses fit the second and third situations, but not the first. Nevertheless, I agree with the Commission that, as 25. Before examining the question referred to regards these three situations, a single the Court, I must stress that the national reply can and must be given in the light court, which has stayed proceedings in the of the principle of equal pay laid down in four cases, has submitted a question which Article 119 of the Treaty and in greater

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detail Directive 75/117, when they are or any special risks to the unborn child. In grouped together by reference to their both situations the employer has no obliga- common features, that is to say, the wom- tion to pay wages and the employees have no an's absence is justified by unfitness for right to State benefits. work proved by a doctor's certificate, such unfitness is caused by pregnancy, the employer is consequently entitled to stop her pay and, if unfitness for work is due to an illness unconnected with preg- nancy, the employer would be obliged to give her full pay. 27. However, it is clear from the order for reference that none of the applicants in the four cases had a normal pregnancy and that they all had a doctor's certificate stating that they were totally or partially unfit for work. Therefore none of them was in either of the two situations described above.

to give judgment, and the relevance of the its questions is necessary to enable it to give questions which it submits to the Court of judgment, so that the Court can ascertain Justice, 5 whereas it is the latter's task to whether the interpretation of Community law examine the conditions under which the which is sought is related to the actual nature national court has referred a question to it, so and the subject-matter of the main proceed- as to verify its own jurisdiction. The spirit of ings. If it should appear that the question cooperation which must govern the proce- raised is manifestly irrelevant for the purposes dure for preliminary rulings also means that of deciding the case, the Court must declare the national court should have regard to the that there is no need to proceed to judgment. 9 proper function of the Court of Justice in this field, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypo- thetical questions. 6 30. In the light of this case-law, and as none of the applicants in the proceedings pending before the national court has been in the situ- ations referred to by the fourth and fifth parts 29. In view of that task, the Court has held of the question — because none of them had that it could not give a ruling on a question a normal pregnancy, having been found totally referred by a national court where the inter- or partially unfit for work by a doctor's cer- pretation or examination of the validity of a tificate — I consider that a reply by the Court rule of Community law bore no relation to interpreting the Community law applying to the actual nature or the subject-matter of the those two situations would not assist the main action, 7 or where it was asked for a national court to give judgment in the actions ruling on a hypothetical problem without before it. Therefore I propose that the Court having before it the matters of fact or law rule that the fourth and fifth parts of the necessary to give a useful answer to the ques- question are inadmissible. tions submitted to it. 8

which unfitness for work attested by a doc- necessary for the implementation of the prin- tor's certificate gives rise to less favourable ciple that men and women should receive treatment in relation to pay when such unfit- equal pay, in no way affects the content or ness is pregnancy-related. This was the provi- scope of that principle as laid down in Article sion which enabled the employers of the 119 of the Treaty. 10 applicants Ms Høj Pedersen (first case), Ms Andresen (second case) and Ms Sørensen (fourth case) — who, while pregnant, were diagnosed as suffering from slackening of the pelvic ligaments, a risk of miscarriage and hyperemesis gravidarum respectively and all of whom had to stop working — to discon- tinue their pay and advise them to claim pre- maternity benefits. Therefore, whatever conclusion is reached with regard to the application to the present cases of the definition of 'pay' in Article 119 will also be valid with regard to Directive 75/117.

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whether immediate or future' 12 and, in 1990, an employee in the event of illness 18 and the added that benefits paid by an employer to a benefit paid by an employer under legislation worker in connection with the employment or collective agreements to a woman on mater- relationship fall within the definition of pay, nity leave. 19 'whether they are paid under a contract of employment, by virtue of legislative provi- sions or on a voluntary basis'. 13

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the continued payment of wages by an in relation to the employment rights of preg- employer during sick leave falls within the nant women. However, all the cases hitherto definition of pay in Article 119 of the Treaty. have involved access to employment or It is now necessary to determine whether the working conditions, as laid down by Direc- continued payment of wages by an employer tive 76/207. 23 to a pregnant woman whose unfitness for work is caused by pregnancy is also covered by that definition.

23 — See Case C-177/88 Dekker [1990] ECR I-3941; Case C-421/92 Habermmn-Bekermam [1994] ECR I-1657; Case 38. The Court has on several occasions given C-32/93 Webb [1994] ECR I-3567; and Case C-400/95 Larsson [1997] ECR I-2757. rulings on the application of the principle of 24 — Cited in footnote 19 above. equal treatment of male and female workers 25 — Ibidem, paragraphs 17, 19 and 20.

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their specific situation during that period was submitting to the treatment prescribed by the not comparable with that of a man actually at doctor. work.

42. However, during pregnancy and before maternity leave begins, what is the difference between a woman's unfitness for work caused 41. The problem which arises is whether a by pregnancy and the unfitness for work of a pregnant woman's unfitness for work which man who is ill? is caused by pregnancy must be treated as' 'pre-maternity' leave, in which case she would again be unable to rely on the abovemen- tioned provisions in order to claim a right to full pay.

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tion from that of a woman on maternity leave; C. The sixth part of the question referred it is, in essence, the same as that of a man whose unfitness for work is due to illness.

44. However, the national provision in ques- 46. It seems to me that, in this part of the tion provides for different treatment with question, the national court 'wishes to ascer- regard to pay on the basis of the cause of the tain whether the principle of equal treatment illness and, in practice, the pay entitlement of of men and women with regard to access to a pregnant woman who is unfit for work will employment, vocational training and promo- be less than or the same as that of a man who tion laid down by Directive 76/207 precludes is ill, depending on whether her ailment is a national provision such as the second sen- pregnancy-related or not. As this is a crite- tence of Paragraph 7(2) of the Law on non- rion for differentiation which takes account manual workers, which provides that in the of a circumstance affecting, by definition, event of an employee's pregnancy, her women only, it is direct discrimination on employer must pay her one half of her salary grounds of sex contrary to Article 119 of the for a maximum of five months •within the Treaty and therefore cannot be justified. three months before and the three months after her confinement, if he considers that, although she is not unfit for work, he cannot continue to provide 'work for her.

47. In the order for reference the national court states, with regard to the Law on non- manual workers, that it is for the employer alone to decide whether he can continue to give work to a pregnant employee. It adds that the reasoning behind this provision is presumably that the employer may, in view Therefore, in order to be covered by this of the nature of the post, impose require- exception, the measures must be intended ments with regard to the employee's working directly to protect women in those situations. capacity which may justify her ceasing work at a date prior to the three-month period before her confinement and the employer must be in a position to explain why it was necessary to dismiss her, but the precise requirements relating to that justification are not clear.

49. However, the Danish provision in ques- tion, which leaves it to the employer's discre- tion whether he can continue to give employ- ment to a pregnant employee merely because she is in that situation — as it is not neces- 48. Article 2(3) of Directive 76/207 provides sary for her to be found unfit for work — that the principle of equal treatment laid down cannot be covered by Article 2(3) of Direc- by the directive is without prejudice to provi- tive 76/207 because, instead of protecting sions concerning the protection of women, pregnant women, what it does is to make it particularly as regards pregnancy and mater- possible to leave them temporarily unem- nity. Article 2(3) gives legal cover to protec- ployed merely by their employer's decision. tion measures adopted by the Member States, such as the right of women only to maternity leave. 26 — Case 184/83 Hofmann [1984] ECR 3047, paragraph25.

52. For the reasons I have just given, I believe that the reply to the sixth part of the ques- tion must be that the principle of equal treat- ment with regard to working conditions, 51. The Danish provision in question enables including the conditions governing dismissal, an employer temporarily to dispense with the in Article 5(1) of Directive 76/207, precludes services of a pregnant employee even if she is a national provision which, in the case of a not unfit for work, if he considers that he pregnant employee who has not been found cannot continue to provide her with work. unfit for work, enables the employer to decide However, this option is not available to the in his own discretion whether he can con- tinue to provide her with work, his only obli- gation being to pay her one half of her wage, 27 — Case C-279/93 Schumacker [1995] ECR I-225, paragraph 30. for a maximum of five months within the 28 — Dekker, cited in footnote 23 above. three months before and the three months 29 — Habermann-Beltermann and Webb, cited in footnote 23 above. after her confinement.

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Conclusion

53. O n the foregoing grounds I propose that the Court should:

(1) dismiss as inadmissible the fourth and fifth parts of the question referred by the Sø-og Handelsret;