C-207/98
ECLI:EU:C:1999:490
- Súd
- Súdny dvor Európskej únie
- IČS
- 61998CC0207
- Zdroj
- eur-lex.europa.eu ↗
MAHLBURG
OPINION OF ADVOCATE GENERAL SAGGIO delivered on 7 October 1999 *
1. By order of 16 April 1998, the Landes- 3. Article 2(1) of the Directive defines the arbeitsgericht (Higher Labour Court) principle of equal treatment, slating that it Mecklenburg-Vorpommern referred to the is to mean that '... there shall be no Court for a preliminary ruling a question discrimination whatsoever on grounds of on the interpretation of Article 2(1) of sex either directly or indirectly by reference Council Directive 76/207/EEC. 1 Its pur- in particular to marital or family status.' pose is to clarify whether the refusal by an employer to employ a pregnant woman on the grounds that, under national maternity legislation, she could not carry out from the outset the duties entailed by the post, should be considered to be discrimination on grounds of sex, which is incompatible with Community law.
Paragraph 3 of the same article introduces a kind of derogation by which 'this Direc- tive shall be without prejudice to provisions concerning the protection of women, par- ticularly as regards pregnancy and mater- nity.' Community law
2. Council Directive 76/207/EEC of 9 Feb- ruary 1976 (hereinafter 'the Directive')2 put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, 4. For the purposes of this case Article 3 of including promotion, and to vocational the Directive is also important, which states training and as regards working conditions 'application of the principle of equal treat- and social security. 3 ment means that there shall be no discri- mination whatsoever on grounds of sex in the conditions, including selection criteria, * Original language: Italian. 1 — OJ 1976 L 39, p. 40. for access to all jobs or posts, whatever the 2 — Cited above. sector or branch of activity, and to all levels 3 —Article 1(1). of the occupational hierarchy.'
I - 551
OPINION OF MR SAGGIO — CASE C-207/98
National law ful effects of substances or rays, dusts, gases or steam, heat, cold or humidity, vibrations or noise that pose a risk to health. In addition, it is specifically prohibited, 5. The national law relevant to this case is among other things, for pregnant women contained primarily in Paragraph 611a of to carry out work after the fifth month the BGB (German Civil Code). which requires them to stand for more than four hours a day, and for tasks to be assigned to them which, because of their pregnancy, may expose them to a greater risk of contracting an occupational illness According to this provision, an employer or which, by reason of that risk, endanger may not discriminate against an employee the pregnant women or foetus to a greater on grounds of sex under any agreement or degree. measure, in particular when initiating the contractual relationship, in connection with promotion, when giving instructions and in connection with dismissal. However, different treatment may be considered legitimate in so far as the sex of the worker constitutes a determining factor for carry- ing out the work. Finally Paragraph 5(1) provides that the pregnant worker must inform her employer of the pregnancy and probable date of confinement as soon as she knows that she is pregnant. 6. Paragraphs 3 to 5 of the Mutterschutz- gesetz (Law on the Protection of Working Mothers) are also important. Paragraph 3 provides that during pregnancy pregnant women must not be employed if, as attested by a medical certificate, the life or health of the mother or child will be jeopardised if the mother continues to work. In any event, pregnant women must not work during the six weeks preceding confinement unless Facts and question referred for a prelimin- they specifically state their wish to continue ary ruling working. This declaration can be revoked at any time.
7. Ms Silke-Karin Mahlburg (hereinafter Paragraph 4 lists the duties which cannot 'the applicant') is a nurse who worked be carried out during pregnancy. Pregnant under a fixed-term contract from women may not perform heavy physical 26 August 1994 to 31 August 1995 at the work or work exposing them to the harm- Rostock University Heart Surgery Clinic. I-552
MAHLBURG
8. In February 1995, she asked to be under a fixed-term contract, she informed employed for an indefinite period in that the University of her pregnancy on 13 July hospital. However, the University's person- 1995, in accordance with Paragraph 5( 1 ) of nel department told her that such engage- the Mutterschutzgesetz. 4 Following that ment was not possible and that it was letter, and in accordance with the provi- necessary to apply for an advertised post. sions also contained in the Muttcrschutz- gesetz, the applicant was no longer employed in the operating theatre, but employed in clerical work until the expiry of the contract.
9. On 1 June 1995, the applicant applied for two posts for an indefinite period which had become vacant in the hospital. Those posts were for two vacancies for shift work 11. As a further consequence of this letter, in the operating theatre, to be filled imme- on 18 September 1995 the University of diately. The duties were equivalent to her Rostock informed the applicant that she current job under her fixed-term contract. would not be appointed to either of the two They consisted of the preparation and posts. The reason given was that the posts supervision, in accordance with instruc- required the performance of duties in the tions, of all sterile instruments and medi- operating theatre which are prohibited for cines required for operations and the hand- pregnant women, under Paragraphs 3 to 5 ling of instruments during operations. As of the Mutterschutzgesetz. far as the required qualifications were concerned, one of the two posts was for a 'fully qualified operating theatre nurse' whilst the other post was for a 'fully qualified nurse with operating theatre experience.'
12. It should also be noted that only one other candidate applied for the two posts in question. That applicant, who was also pregnant, was also refused. As a result, the two vacancies were not filled until the autumn of 1995 following an open selec- tion procedure.
10. In the meantime, the applicant found that she was pregnant. Since she was still 4 — See point 3 of this Opinion.
I -553
OPINION OF MR SAGGIO — CASE C-207/98
13. Following the refusal, the applicant Court) it can be concluded that Paragraph appealed to the Arbeitsgericht (Labour 611a does not preclude an employer from Court), Rostock, asking that court to rule deciding not to appoint a pregnant worker that her working relationship with the when, because of her condition, she is not University of Rostock continued to exist able to do the job applied for. after 31 August 1995 (expiry date of the fixed-term contract) or, alternatively, that the University of Rostock should pay her compensation.
16. However, the Landesarbeitsgericht also maintains that, as the aforementioned paragraph of the German Civil Code trans- poses the Directive into German law, it must be interpreted in conformity with the Directive. 14. The court rejected the appeal on 15 April 1997. The applicant appealed against that decision to the Landesarbeits- gericht Mecklenburg-Vorpommern and asked it to rule that as from 1 September 1995 an employment relationship had been created by virtue of which she had been employed for an indefinite period as an operating theatre nurse. As stated in the 17. Taking the view that there are legiti- observations presented by the applicant, mate doubts as to whether the interpreta- this claim is based on the circumstance tion of Paragraph 611a of the BGB is that, due to discrimination on the grounds compatible with the Directive and in parti- of sex, the applicant had obtained the right cular with Article 2(1) thereof, the Land- to be employed by the University. esarbeitsgericht has referred the following question to the Court for a preliminary ruling:
15. According to the order for reference, 'Is there unlawful d i s c r i m i n a t i o n on the Landesarbeitsgericht takes the view grounds of sex within the meaning of that the question whether or not the Article 2(1) of Directive 76/207/EEC of applicant has the right to employment 9 February 1976 where an employer does depends on the interpretation to be given not employ an applicant in a vacant post, to Paragraph 611a of the BGB. According which she is qualified to hold, because she to the referring court, from the case-law of is pregnant and cannot from the outset and the Bundesarbeitsgericht (Federal Labour for the duration of her pregnancy be
I-554
MAHLBURG
employed in the post which is intended to the Dekker case, 5a refusal to employ a be occupied permanently, because of a woman must be regarded as direct discri- prohibition on employment under the mination on grounds of sex if the funda- Mutterschutzgesetz ? ' mental reason for the refusal applies only to female workers and not to male workers. Upon the application of this principle, the Court has emphasised many times that '... only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex.' 6
The question referred for a preliminary ruling
18. The Court is asked once again to give a ruling on the question, already widely dealt with in previous judgments, of the imple- 21. More recently, in the Brown case, 7 mentation of the principle of equal treat- concerning the legality of the dismissal of a ment between men and women in the pregnant employee on the grounds of particular case of pregnant women. prolonged absences for illness related to her pregnancy, the Court stated that '... dismissal on account of pregnancy, or essentially on account of pregnancy, can affect only women and therefore constitu- tes direct discrimination on grounds of sex.' It is clear that with this judgment — which 19. In the present case, the national court can also be extended fully to a refusal of asks whether the Court considers the employment 8— the Court wanted to refusal by an employer to employ a preg- stress that, in order for a measure taken nant woman to constitute discrimination with regard to a pregnant woman to be on grounds of sex where the refusal is based considered to be direct discrimination, it is on the fact that the woman could not carry not necessary for it to be explicitly based on out the duties entailed by the post for the her pregnant state. It is sufficient that the duration of her pregnancy, owing to a prohibition laid down in the national 5 — Case C-177/88 Dekker [1990] ECR I-3941, at paragraph maternity legislation. 10. 6 — Dekker, cited above, at paragraph 12. See also Case C-179/88 Handels-og Kontorfunktionærernes Forbund [1990] ECR I-3979, at paragraph 13; Case C-421/92 Habermann-Behermann [1994] ECR I-1657, at paragraph 15, and Case C-32/93 Webb [1994] ECR I-3567, at paragraph 19. 7 — Case C-394/96 Brown [1998] ECR I-4185, at paragraph 16, italics added. 8 — In my opinion it is undisputed that, as regards the aspects 20. On this point, it should be emphasised which interest us here, refusal of employment is equivalent to dismissal. In both cases, in fact, we have a measure by first of all that, as is clear in particular from which the pregnant woman is deprived of her post.
I - 555
OPINION OF MR SAGGIO — CASE C-207/98
reason given relates essentially to that 24. To deal with this question we must state. 9 start from two assumptions. First, the Mutterschutzgesetz represents, in Ger- many, the implementation of the possibility of derogation from equal treatment as provided for in Article 2(3) of the Direc- tive. As can be seen clearly from the text, 11 this provision authorises the Member States to introduce or maintain in force national provisions which involve different treat- ment according to sex if these provisions are designed to protect the woman during 22. In my view, there can be no doubt that her pregnancy and the period immediately in the present case we have the latter after childbirth. Second, as is shown by situation. It is true that the refusal to take case-law which is now well established, 12 into consideration the applicant's applica- when a national court has to give a tion was based on the fact that she would judgment on a case which falls within the not be able to carry out her duties from the scope of a directive, it is under a duty to outset. However, it is also evident that this interpret the national law in the light of situation is clearly due to the pregnancy that directive. and therefore, at least in principle, that the conduct of the University of Rostock must be considered to be contrary to Article 2(1) and Article 3 of the Directive.
25. It follows that, in the case now before us, the possibility of justifying the refusal to employ a pregnant woman by referring to a 23. That being so, it is also necessary to rule laid down in national maternity law examine whether the conduct in question prohibiting the performance of particular can be justified under the national mater- duties does indeed depend on the interpre- nity legislation contained in the Mut- tation of Article 2(3) of the Directive. In terschutzgesetz. As I have already stated, 10 other words, to resolve the question posed the University of Rostock argues that this by the referring court, we must inquire legislation, in prohibiting pregnant women whether the derogation from the principle from carrying out during their pregnancy of equal treatment provided for by the certain duties considered to be dangerous, aforementioned Community provision can imposes a real, actual legal prohibition properly be applied to this case. against employing the applicant. 11 — See point 3 of this Opinion. 12 — See Case 111/75 Mazzalai [1976] ECR 657, at paragraph 9 — On this point, see the Opinion of Advocate General Tesauro 10; Case 14/83 Von Colson and Kamann [1984] ECR in Webo, cited above, in particular points 9 and 10. 1891, at paragraph 26, and Case C-106/89 Marleasing 10 — See point 11 of this Opinion. [1990] ECR 1-4135, at paragraphs 7 and 8.
I-556
MAHLBURG
26. In my opinion, the answer to this ment or their working conditions. In that question must be negative. As the Court light, the result pursued by the Directive is held in the Hoffman case, 13 Article 2(3) of substantive, and not formal, equality.' the Directive, 'by reserving to Member States the right to retain or introduce provisions which are intended to protect women in connection with "pregnancy and maternity", ... recognises the legitimacy, in terms of the principle of equal treatment, of protecting a woman's needs in two respects. First, it is legitimate to ensure the protec- 28. It seems to me that it is clear from the tion of a woman's biological condition case-law cited that the main purpose of the during pregnancy and thereafter, until such Community provision under consideration time as her physiological and mental func- is to allow the Member States the possibi- tions have returned to normal after child- lity of introducing or maintaining in force birth, and secondly, it is legitimate to national legislation which, even though it protect the special relationship between a implies different treatment between the two woman and her child, over the period sexes, is necessary to 'compensate' for the which follows pregnancy and childbirth, disadvantageous situations which may by preventing that relationship from being affect women because of pregnancy, the disturbed by the multiple burdens which idea being to achieve real equality even in would result from the simultaneous pursuit cases where simple formal equality, of employment.' achieved though identical treatment, would not be sufficient. It must therefore be considered that Article 2(3) of the Directive authorises derogations from the principle of equal treatment only if two conditions are met, namely, if women are guaranteed greater protection, and therefore more favourable treatment than men, and if this treatment has the specific aim of obtaining substantial equality which is otherwise not achievable.
27. Moreover, in the Thibault case, 14 the Court held that '... the exercise of the rights conferred on women under Article 2(3) cannot be the subject of unfavourable 29. It is clear that in the case now under treatment regarding their access to employ- consideration these two conditions arc not met. Any application of the national legis- lation adopted in implementation of Arti- 13 — Case 184/83 Hofmann [1984] ECR 3047, at paragraph 25. Also see Habermann-Beltermann, cited above, at para- cle 2(3) of the Directive would, firstly, not graph 2 1 ; Brown, cited above, at paragraph 17; and Webb, cited above, at paragraph 20. offer the applicant more favourable treat- 14 — Case C-136/95 Thibault [1998] ECR I-2011, at paragraph ment but, on the contrary, would penalise 26. Also on this point, sec the Opinion of Advocate General Tesauro in the Habermann-Beltermann case, cited her by denying her access to employment. above, in particular point 11. Secondly, real equality would not be
I - 557
OPINION O F M R SAGGIO — CASE C-207/98
achieved, but would itself become the cause the temporary inability of the pregnant of discriminatory conduct. I therefore con- employee to perform the night-time work sider that such an application of the for which she has been engaged, would be provisions of the Mutterschutzgesetz would contrary to the objective of protecting such be clearly contrary to the ratio of the persons pursued by Article 2(3) of the Community provision. Directive, and would deprive that provision of its effectiveness.' It added that 'termina- tion of a contract for an indefinite period on grounds of the woman's pregnancy, whether by annulment or avoidance, can- not be justified by the fact that she is temporarily prevented, by a statutory pro- hibition imposed because of pregnancy, from performing night-time work.' 1 7 30. The Court has indeed already ruled to this effect in the Habermann-Beltermann case. 15 At issue there was the alleged discriminatory nature of a measure by which an employer had terminated a con- tract with a female worker who had become pregnant soon after starting her job. This action, like that now under consideration, was purportedly based on the fact that, under the provisions of the Mutterschutzgesetz, the female worker could not carry out the contractually sti- pulated night-time work for the duration of her pregnancy and the period immediately after childbirth. 16 31. Another particularly important point emerges from the case mentioned above. As I have already stated, 18 in the present case, the two posts for which the applicant applied were both for an indefinite period. In Habermann-Beltermann19 the Court held that the discriminatory behaviour against the pregnant woman could not be justified under Article 2(3) of the Directive, as '... the questions submitted for a ruling In that case, the Court stated that '... to relate to a contract for an indefinite period' acknowledge that the contract may be held and that 'the prohibition on night-time to be invalid or may be avoided because of work by pregnant women therefore only takes effect for a limited period in relation to the total length of the contract.' 15 — Habermann-Beltermann, cited above. 16 — The similarities of that case with the present case are even greater if we accept the argument of Advocate General Tesauro in Habermann-Beltermann, that '... a declaration 17 — Habermann-Beltermann, cited above, at paragraphs 24 of invalidity, since it operates retroactively and thus has precisely the same effect as if the contract had never been and 2 5 . concluded, would amount to a refusal to engage her' 18 — See point 9 of this Opinion. (point 7). 19 — Habermann-Beltermann, cited above, at paragraph 2 3 .
I-558
MAHLBURG
This aspect assumed even more importance is employed. Any contrary interpretation in the Webb case. 20 That case concerned would render ineffective the provisions of the dismissal of a female worker who found the Directive.' that she was pregnant soon after taking up her employment. The grounds given were that for the period corresponding to the maternity leave the worker could not carry out the main task for which she was employed: to replace another employee who was also pregnant. Despite the fact that the post was temporary, the employer had clearly given the worker an assurance The Court therefore concluded that '... that the contract would be continued after termination of a contract for an indefinite the period of replacement. Consequently, period on the grounds of the woman's the post had to be considered to be for an pregnancy cannot be justified by the fact indefinite period. that she is prevented, on a purely tempor- ary basis, from performing the work for which she has been engaged.' 21 It seems to me that this ruling can be transposed to the present case excluding, from this point of view also, the applicability of the deroga- tion laid down in Article 2(3) of the Directive.
On the basis of these factors, the Court 32. In view of all the considerations set decided that '... dismissal of a pregnant forth above and taking into account the woman, recruited for an indefinite period, case-law cited, I consider that in this case cannot be justified on grounds relating to the conclusion must be that a national law, her inability to fulfil a fundamental condi- adopted in application of Article 2(3) of the tion of her employment contract. The Directive, which bars a pregnant woman availability of an employee is necessarily, from carrying out certain duties considered for the employer, a precondition for the to be dangerous to her health or that of her proper performance of the employment u n b o r n child c a n n o t be successfully contract. However, the protection afforded invoked to justify a directly discriminatory by Community law to a woman during action such as refusal of employment on pregnancy and after childbirth cannot be the grounds that this woman cannot tem- dependent on whether her presence at work porarily carry out the duties for which she during maternity is essential to the proper was employed for an indefinite period. functioning of the undertaking in which she Such use of the national legislation would
20 — Webb, cited above. 21 — Webb, cited above. at paragraphs 26 and 27.
I - 559
OPINION OF MR SAGGIO — CASE C-207/98
be clearly contrary to the aims of the cannot be subject to restrictions to cater for Community provision which it implements this type of requirement. and would render the maternity protection granted by the Directive ineffective.
35. Among other things, at least as far as the economic aspects are concerned, the case-law of the Court is very clear. In its judgment in Dekker it expressly ruled that 33. That being so, I think it is appropriate '...a refusal of employment on account of at this point to make some comments on a the financial consequences of absence due question raised during the hearing. It to pregnancy must be regarded as based, concerns the problem of the costs, some- essentially, on the fact of pregnancy. Such times very high, which employers may be discrimination cannot be justified on forced to bear to ensure equal treatment for grounds relating to the financial loss which pregnant women and thus guarantee mater- an employer who appointed a pregnant nity protection. Indeed, it has been asked woman would suffer for the duration of her whether it is always necessary to favour the maternity leave.' 22 principle of non-discrimination or whether, in certain circumstances, exceptions may be justified to take into account the require- ments of more vulnerable employers.
36. In my opinion, therefore, the question raised at the hearing should find an answer in 'positive' action to protect the position of more vulnerable employers, to be achieved within the context of the social policy of the Member States, perhaps even with the support of coordination at Com- 34. There is no doubt that the fact that munity level. I would only add that provi- often much of the burden of maternity sion for such action would not necessarily protection falls on employers is a real be contrary to the protection of women. problem which deserves attention. How- On the contrary, the position of women ever, I do not think that this can influence would be strengthened by eliminating the in any way the conclusions reached above. raison d'être of much discriminatory beha- Equal treatment for men and women, viour. especially in situations such as those we are now considering, represents a funda- mental principle of Community law, which 22 — Dekker, cited above, at paragraph 12.
I-560
MAHLBURG
Conclusion
37. On the basis of the considerations set out above, I propose that the Court should answer the question from the Landesarbeitsgericht Mecklenburg-Vor- pommern as follows:
The fact that an employer does not appoint a candidate to a vacant post, which she is qualified to hold, on the grounds that, being pregnant, the candidate cannot from the outset and during her pregnancy be employed in the post which is for an indefinite period, because of a maternity law rule prohibiting pregnant women from being employed in certain jobs, must be considered to be unlawful discrimination on grounds of sex within the meaning of Article 2(1) of Council Directive 76/207/EEC of 9 February 1976.
I - 561