C-438/99

OPINION OF MR TIZZANO — CASE C-438/99

OPINION OF ADVOCATE GENERAL TIZZANO delivered on 7 June 2001 1

Background Legal framework

Community legislation 1. By order of 10 November 1999 the Juzgado de lo Social de Algeciras (Spain) referred to the Court for a preliminary ruling under Article 234 EC a series of 2. Adopted pursuant to Article 118A (Arti- questions on the interpretation of Arti- cles 117 to 120 of the EC Treaty have been cle 10 of Council Directive 92/85/EEC of replaced by Articles 136 EC to 143 EC), 19 October 1992 on the introduction of Directive 92/85 is one of the 'specific measures to encourage improvements in the directives' implementing Council Directive safety and health at work of pregnant 89/391/EEC (hereinafter: 'Directive workers and workers who have recently 89/391'), 3which has laid down 'general given birth or are breast feeding (tenth principles concerning the prevention of individual Directive within the meaning of occupational risks, the protection of safety Article 16(1) of Directive 89/391/EEC) and health, the elimination of risk and (hereinafter 'Directive 92/85'). 2 accident factors, the informing, consulta- tion, balanced participation in accordance with national laws and/or practices and training of workers and their representa- tives, as well as general guidelines for the implementation of the said principles' (Article 1(2)).

Those questions arose within the context of proceedings instituted by a worker follow- ing the decision by her employer not to renew her earlier fixed-term employment 3. Pursuant to Article 15 of the latter contract on grounds which, according to Directive, '[p]articularly sensitive risk the plaintiff, constitute discrimination on groups must be protected against the dan- grounds of sex, in so far as they relate to gers which specifically affect them'. It is her pregnancy. precisely in consideration of the fact that

1. Member States shall take the necessary (b) worker who has recently given birth measures to prohibit the dismissal of shall mean a worker who has recently workers, within the meaning of Arti- given birth within the meaning of cle 2, during the period from the national legislation and/or national beginning of their pregnancy to the practice and who informs her employer end of the maternity leave referred to in of her condition, in accordance with Article 8(1), save in exceptional cases that legislation and/or practice; not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the compe- tent authority has given its consent. (c) worker who is breast-feeding shall mean a worker who is breast-feeding within the meaning of national legisla- tion and/or national practice and who informs her employer of her condition, 2. If a worker, within the meaning of in accordance with that legislation and/ Article 2, is dismissed during the or practice'.

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OPINION OF MR TIZZANO — CASE C-438/99

6. Pursuant to Article 14(1), the date for treatment with regard to working condi- transposing the Directive into the legal tions, including the conditions governing orders of the Member States was fixed at dismissal, means that men and women shall 19 October 1994. be guaranteed the same conditions without discrimination on grounds of sex'.

7. Moreover, it should be noted that Coun- cil Directive 76/207/EEC (hereinafter: The national legislation 'Directive 76/207') 4also deals with this matter, containing, amongst other things, rules relating to dismissal. In accordance with Article 2(1) of that Directive, 'the 9. With regard to pertinent national legis- principle of equal treatment shall mean that lation, it should firstly be noted that the there shall be no discrimination whatsoever principle of non-discrimination on the basis on grounds of sex either directly or indir- of sex is formally set out in Article 14 of ectly by reference in particular to marital or the Spanish Constitution of 27 December family status'. 1978, which states:

where they occur during the period of suspension of a contract of employment on grounds of maternity, risks during 11. The Ley de Procedimiento Laboral pregnancy, adoption or fostering referred (Law on Employment Procedure)6 repro- to in Article 45(1)(d) of this Law, or any duces the provisions of Article 55(5) and dismissal notified on a date such that the (6) of the Estatuto de los Trabajadores in period of notice ends within that period; Article 108(2)(d), and Article 113(1). when a pregnant worker is dismissed between the date of commencement of the pregnancy and the date of commencement of the period of suspension referred to in subparagraph (d) above, and the dismissal of workers who have applied for leave of a kind referred to in Article 37(4) and (5) of this Law, or are benefiting from such leave, or have applied for unpaid leave under 12. Moreover, it must be pointed out that, Article 46(3) hereof. at the time of the facts of this case, Directive 92/85 had not been transposed into the Spanish legal order. In fact, it was only with the 'Ley 39/1999 para Promover la Conciliación de la Vida Familiar y Laboral de las Personas Trabajadoras' (Law for reconciliation of family life with working life), 7that, in order to implement The provisions of the foregoing paragraphs the Directive, some amendments were shall apply except where, in both cases, the made to the Estatuto de los Trabajadores. decision terminating the employment rela- tionship is declared valid for reasons unconnected with the pregnancy or with 6 — Approved bv Legislative Royal Decree No 521/1990 of the exercise of the right to the leave, paid or 27 April 1990 (BOE 2 May 1990). 7 — Law No 39 of 28 October 1999 (BOE 6 November 1999). unpaid, referred to above.'

'We hereby inform you that, in accordance with your contract, the contract will termi- nate on 2 June 1999. Nevertheless, during 15. Once again without a break, the plain- the statutory period of notice for termina- tiff signed a new employment contract on tion, you will be informed of any possibility 3 February 1999, on a fixed-term and part- of extension or renewal thereof, and you time basis for the performance of tasks of should go to our personnel department assistance, the care of and home help for before 2 June 1999 in order, if appropriate,

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JIMÉNEZ MELGAR

18. According to a report drawn up by the The questions submitted to the Court Municipal Counsellor responsible for Social Affairs, on 7 June 1999, Mrs Jime- nez Melgar was summoned to the Munici- pality in order to sign a fifth part-time employment contract, to provide summer holiday cover for staff in the same category as her as home help. However, the plaintiff 20. In the order, the Juzgado de lo Social refused to sign the contract and the next first of all examined the circumstances day wrote to the Municipality objecting under which the employment relationship that her previous relationship with it had of Mrs Jiménez Melgar was entered into in not been extinguished, because she had order to ascertain whether the relevant been dismissed in a manner that was illegal, contract had been concluded illegally. The involved discrimination and infringed her features of continuity over time and the fundamental rights. The Municipality similarity of the work done do indeed should not, therefore, be proceeding to justify the suspicion that the Municipality sign a new contract, but merely to reinstate had misused the legislation on employment her in her job. contracts with a view to concealing a relationship that, in reality, had the char- acteristics of a single contract for an indefinite period behind a series of fixed- term contracts. However, the Spanish court preferred for the time being to set aside this 19. Therefore, on 7 July 1999, Mrs Jime- suspicion, reserving the right to go back to nez Melgar instituted proceedings before it after the Court's ruling on these preli-

2. In providing that "Member States shall take the necessary measures to prohibit the dismissal of workers... [who are pregnant, have given birth or are breast-feeding], during the period from 4. Where Article 10 of the Directive states the beginning of their pregnancy to the that the dismissal of a worker who is end of the maternity leave..., save in pregnant, has given birth or is breast- exceptional cases not connected with feeding is to take place "where applic- their condition", does Article 10 of the able, provided that the competent Directive require the Member States to authority has given its consent", does lay down, on a specific and exceptional the Directive require that a worker basis, the available grounds for dis- who is pregnant, has given birth or is missing a worker who is pregnant, has breast-feeding may be dismissed only given birth or who is breast-feeding, so by means of a special procedure in that they must introduce into national which the appropriate competent legislation, together with the general authority gives its consent prior to the rules on the extinguishment of employ- dismissal which the employer seeks?'

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JIMÉNEZ MELGAR

Legal arguments raised that the contract was, in reality, a contract for an indefinite period and/or that the dismissal was motivated by the plain- tiff's pregnancy, according to the Spanish Government, the case pending before the national court could be resolved solely on the basis of national legislation, which is, moreover, assumed to be in conformity Admissibility with Directive 92/85. Therefore, the refer- ence to the Court for a preliminary ruling should be considered inopportune, irrele- vant and, in any case, premature at this stage and not necessary for reaching a 21. As a preliminary point, the admissibil- decision in the main action. ity of the questions posed by the national court must be examined, given that this has been contested by more than one party during the course of the proceedings.

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to me that they do not take into account the cases when appraising the findings of the fact that the Spanish court itself was national court, excluding if necessary the concerned with forestalling them, explain- admissibility of the reference in particular, ing at some considerable length why it with regard to what interests us here, nevertheless deemed it necessary to request 'where it is quite obvious that the ruling the assistance of the Court in the interpre- sought by that court on the interpretation tation of Article 10 of the Directive and to or validity of Community law bears no make a reference specifically at this stage of relation to the actual facts of the main the proceedings. There may be some dis- action or its purpose, where the problem is agreement as to whether its arguments are hypothetical, or where the Court does not wholly persuasive and whether the proce- have before it the factual or legal material dural route chosen by the Juzgado de lo necessary to give a useful answer to the Social was the most appropriate, or, at questions submitted to it'. 8 least, the simplest and most speedy. But, in my opinion, that would mean criticising the reasoning underlying the choices made, I would repeat, in an explicit and reasoned fashion by the national court; that would mean pushing the appraisal of the court's determination beyond the limits that the Court of Justice itself has established in that regard. 26. In this case, however, despite the con- cern mentioned above, it would be difficult to go so far as to say that the questions posed by the Juzgado de lo Social clearly bear no relation to the actual facts or purpose of the main action, or that they are merely hypothetical in nature, or that the Court does not have the material necessary to give a useful answer to the questions submitted.

29. In this regard, it hardly needs mention- ing that, according to the case-law of the Court of Justice going back over some time, if the provisions of a Directive appear to be sufficiently clear, precise and uncondi- 31. From their point of view, both the tional, they are capable of producing direct Spanish Government and the Commission effects, with the result that individuals can maintain, repeating the objections set out seek their enforcement before the courts of above, that the answer to the question a Member State whenever the latter has not under examination is not necessary for the brought its national law into conformity decision in the main action, as is, however, with the Directive within the prescribed required by Article 234 EC. With specific period, or whenever it has been incorrectly reference to the previously mentioned implemented, and this may occur where grounds for this question, then, they con- that State acts as employer or public tend that the national legislation in force at authority. 9Therefore, the failure to trans- the time of the facts of the case — and, pose or incorrect transposition constitutes therefore, even prior to the adoption of one of the premisses of the theory of direct Law No 39/1999, intended to implement effect. the Directive — was substantively in con- formity with the objective of protecting working mothers because, nonetheless, it provided that a discriminatory dismissal was void and that the dismissed worker had to be reinstated in her job and her out- 30. In this case, according to the order for a standing wages paid. preliminary ruling, the question whether Article 10 has direct effect may be of importance precisely because of the late or incomplete transposition of the Direc- tive, given that, as we have seen, even though it conformed in principle with the objective of Directive 92/85, the Spanish legislation in force at the material time was 32. I have already expressed my view on the admissibility of the questions in this case and can only repeat it in relation to the 9 — Sec, from among many. Case 152/S4 Marshall [1986] ECR 723. question now under discussion. Whilst

recognising that its usefulness may raise leave provided for in Article 8(1) 10). There some doubts, I do not believe that the are therefore good grounds for concluding national court can be denied an answer that Article 10 of Directive 92/85 has direct once it has indicated the grounds for the effect. question and has expressed reasoned doubts (on which see point 36 below) as to the conformity of the Spanish legislation in force at the time of the facts of the case with Community law. In any case, it does not appear to me to be worth pressing this point too much, given that, as far as the 34. The case-law of the Court to some value of the answer is concerned, there is extent helps to confirm the correctness of substantial unanimity of opinion on the that conclusion, in particular the judgments fact that Article 10 of the Directive has in Webb and Brown. In those judgments, direct effect. the Court on the one hand stresses how the Directive has 'provided for special protec- tion to be given to women, by prohibiting dismissal during the period from the begin- ning of their pregnancy to the end of their maternity leave', and, on the other, it underlines the unconditional nature of Article 10, which 'provides that there is no exception to, or derogation from, the prohibition of dismissal of pregnant women during that period, save in excep- tional cases not connected with their con- 33. As already stated, under the wording of dition'. 11 the provision Member States are required to take 'the necessary measures to prohibit the dismissal of workers, within the mean- ing of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Arti- cle 8(1)...'. The obligation placed on Mem- 35. As a consequence, I propose that the ber States (like the corresponding right of first question be answered to the effect that those concerned) is, therefore, uncondi- Article 10 of Directive 92/85, in providing tional and is defined with clarity and that the Member States must take the precision, regarding both the subject-mat- necessary measures to prohibit the dismis- ter (prohibition of dismissal), and the sal of workers during the period from the parties protected (workers who, within beginning of their pregnancy to the end of the meaning of Article 2 and in conformity their maternity leave, save in exceptional with national legislation and/or national cases not connected with their condition, practice, have informed their employer of their condition), and regarding the period to be taken into consideration (the prohibi- 10 — Under that provision, workers must be able to benefit from tion of dismissal covers a period of time maternity leave of at least fourteen uninterrupted weeks, allocated before and/or after confinement in accordance that can be determined with precision, with national legislation and/or practice. starting from the date of the beginning of 11 —Case C-32/93 Webb v EMO Air Cargo [1994] ECR I-3567, paragraphs 21 and 22, and Case C-394/96 the pregnancy to the end of the maternity Brown v Rentokil Ltd [1998] ECR I-4185, paragraph 18.

37. As was the case in respect of the previous question, there has also been broad consensus on this question among the parties who have presented observa- 36. Referring to the judgment in Brown, in tions in this case regarding the fact that which the Court emphasised the specific both a literal and a schematic interpreta- nature of the protection for women pro- tion suggest that no such obligation can be vided for by the Directive, 12 the national derived from the Directive. The plaintiff court points out that that the legislation in herself, even though she had maintained in force at the time of the facts of the case did her written observations that Article 10 of not provide for the detailed regulation of the Directive imposed an obligation to set the grounds for dismissal, because it was out, in a specific, exceptional and limited only with Law No 39/1999 that the Span- manner, the possible grounds for dismissing ish legislature provided for the transposi- protected workers, changed her position at tion of Directive 92/85. Accordingly, with the hearing, no longer considering that a the second question, the Juzgado de lo separate listing of those grounds was Social asks whether that legislative frame- necessary. work conforms to the Directive. It wishes to know whether, in permitting derogation from the rule of the prohibition of dismissal of workers protected in 'exceptional cases not connected with their condition which are permitted under national legislation and/or practice', Article 10(1) of the Direc- tive also obliges Member States to regulate, 38. It seems clear to me that the aim of in a specific way, the grounds for dismissal Article 10(1) is to emphasise the excep- of a worker who is pregnant, has recently tional nature of the dismissal and, in given birth or is breastfeeding. In other particular, the prohibition on linking it, words, it wishes to know whether the where relevant, to the worker's pregnancy, Directive imposes the obligation of intro- confinement or breastfeeding. For that ducing a special, exceptional and more reason too, Article 10(2) expressly requires that, if a protected worker is dismissed during the period referred to in Arti- cle 10(1), 'the employer must cite duly 12 — See Case C-394/96 Brawn, cited i n footnote 11 above, paragraph 18. substantiated grounds for her dismissal in

writing'. However, outside the scope of The third question application of that prohibition, dismissal will be possible, always in exceptional cases, on other grounds permitted under national legislation and/or practice — grounds for dismissal that can be invoked, therefore, in general for any worker, such as, for example, dismissal on disciplinary 40. In its third question, the national court grounds. In order to guarantee the result asks whether Article 10 of Directive 92/85 sought by the provision, however, and in applies for the protection of a worker who particular to ensure that the prohibitions is pregnant to the non-renewal by an and the restrictions imposed by it are fully employer of a fixed-term contract under complied with, there is no reason to infer the same circumstances as prevailed in that Member States are required to provide relation to earlier contracts; more generally, a special and distinct list of grounds for it wants to know whether and, if so, in dismissal that can be invoked in regard to what way, Article 10 also applies to fixed- protected workers; in any event, there is term employment relationships. nothing to suggest that that was the intention of the provision. Of course, given that the Directive only imposes minimum rules, that does not prevent Member States from choosing to adopt measures that offer greater protection and, therefore, also to establish a specific and detailed set of rules for the grounds of dismissal of protected workers. 41. There have also been some doubts expressed in respect of this question, in the written observations and at the hearing, regarding how useful a reply will be in resolving the main action. In particular, the Spanish Government and the plaintiff con- tend that there is no need to answer this question, as Mrs Jimenez Melgar, owing to the characteristics of her employment rela- tionship referred to on several occasions, should not be regarded as a temporary or casual worker, but as a worker with an employment relationship for an indefinite 39. On this point, therefore, I propose that period. Merely on the basis of its national the reply to the Spanish court should be to law, 13 the Spanish court could, therefore, the effect that Article 10(1) of Directive establish that, in this regard, the employer 92/85 does not require the Member States had broken the law and hold that the to introduce into national legislation, employment contract in question was for alongside the general rules on the termina- an indefinite period. To ask, therefore, tion of employment relationships, a further special, exceptional, and more limited set of rules specifically for those cases in which 13 — Article 15 of the Estatuto de los Trabajadores provides the worker is pregnant, has given birth or is that temporary contracts that have been entered into illegally are to be deemed to be contracts entered into for breast-feeding. an indefinite period.

42. However, in my opinion, these objec- tions are not well targeted, because they overlook the fact that not only has the national court not yet decided on whether the employment relationship in question is temporary or not but, rightly or wrongly, it 44. As far as the first part of the question is seems to want to make that decision concerned, it seems to me that the Spanish conditional on the answer that the Court court wants to be reassured that the will give to its questions. In other words, it protection guaranteed to workers by Arti- appears to me to follow from a careful cle 10 also refers to temporary work con- reading of the order that, faced with the tracts. On that point, however, it seems to possible options before it, that court wishes me there can be no doubt: neither the to have at its disposal all the information wording nor the clear purpose of the that will help it to assess every possible provision suggest that those contracts implication of its choices and, for that should be excluded from its scope of reason, it has decided to make a reference application. Therefore, every working to the Court at a stage which might mother — whether on a fixed-term con- otherwise indeed appear to be premature. tract or contract for an indefinite period — If that supposition is correct, it follows that is entitled to the protection provided by the the doubts expressed about the usefulness Directive; and, on this matter, it seems to of the question under examination are not me, there is substantial agreement among justified and that it is therefore necessary to the parties taking part in these proceedings. furnish the national court, as far as possi- ble, with the requested information on which to base its assessment.

46. The foregoing is also confirmed by prohibition of discrimination on grounds of Community case-law. The Court of Justice sex, set out in Directive 76/207; and more has clearly stated that, inasmuch as it only specific protection offered by Directive concerns women, dismissal motivated by 92/85, which, in Article 10, prohibits dis- pregnancy or for reasons solely based on missal. that condition is direct discrimination on grounds of sex and is in breach of Arti- cles 2(1) and 5(1), of Directive 76/207. With specific reference to the provision that the Court has been called upon to interpret; it has stated that: 'It was precisely in view of the harmful effects which the risk of dismissal may have on the physical and 48. Therefore, having clarified the fact that mental state of women who are pregnant, the prohibition of dismissal of working women who have recently given birth or mothers applies as much to contracts for women who are breastfeeding, including fixed-term employment as for employment the particularly serious risk that pregnant contracts for an indefinite period, I shall women may be prompted voluntarily to now move on to examine the third part of terminate their pregnancy, that the Com- the question. This involves, essentially, munity legislature, pursuant to Article 10 ascertaining whether the protection provi- of Council Directive 92/85/EEC of ded by Article 10 of Directive 92/85 also 19 October 1992... provided for special covers a prohibition against refusing to protection to be given to women, by renew the fixed-term employment contract prohibiting dismissal during the period of a pregnant worker on the same condi- from the beginning of their pregnancy to tions as previous contracts. the end of their maternity leave. Article 10 of Directive 92/85 provides that there is to be no exception to, or derogation from, the prohibition of dismissal of pregnant women ... '. 14

rights linked to the employment contract' with regard to an employment relationship and, therefore, obviously implies that the for an indefinite period, that a refusal to contract exists; that is, of course, not the employ a worker considered suitable for case if the contract has expired. Therefore, the job in question because of her preg- although it is true that an employment nancy constitutes direct discrimination on contract cannot be interrupted because of grounds of sex and is prohibited by Arti- the pregnancy of the worker, that is not the cles 2(1) and 3(1) of Directive 76/207. 15 In case where the contract has terminated as a the more recent judgment in Mahlburg, result of the natural expiry of the term of its concerning the case of an employee work- duration. In that case, Article 10 of the ing at a hospital under a fixed-term con- Directive cannot have any relevance. tract who requested to be appointed under a contract for an indefinite period in a post that had in the meantime become vacant, the Court further specified that those provisions preclude 'a refusal to appoint a pregnant woman to a post for an indefinite period on the ground that a statutory prohibition on employment attaching to the condition of pregnancy prevents her 50. That said, however, the subject cannot from being employed in that post from the be considered closed, because the question outset and for the duration of the preg- posed must also be assessed in the light of nancy'. 16 Directive 76/207. As the Commission in fact observed, both in its written observa- tions and at the hearing, the non-renewal of a temporary contract for reasons linked to the pregnancy of the worker, in as far as it is equivalent to a refusal to employ, could constitute discrimination on grounds of sex, prohibited by Articles 2 and 3 of Directive 76/207. In other words, as far as we are given to understand, the Commis- sion recognises that Article 10 of Directive 92/85 does not apply to the case of non- renewal of a temporary contract but con- 52. Although the case-law referred to con- siders that the provisions of Directive cerns cases of refusal to employ in a post 76/207 may, however, be referred to. for an indefinite period, it seems to me that there are features which are of use regard- ing the case of a fixed-term contract. Although it is true that non-renewal of an employment contract which has reached the end of its term cannot be regarded as a dismissal, or be automatically treated as a refusal to employ an applicant because of

55. Finally, with the fourth question, the Juzgado de lo Social wishes to know whether the fact that Article 10(1) of Directive 92/85/EEC states that the dismis- 54. In the light of those considerations, I, sal in exceptional cases of a protected therefore, propose that the third question worker has to take place 'provided that put by the Juzgado de lo Social be answered the competent authority has given its to the effect that the prohibition of dis- consent' means that Member States are missal provided for in Article 10 of Direc- obliged to provide for a special procedure tive 92/85 for the benefit of pregnant which enables the competent authority to workers and workers who have recently give its consent prior to the dismissal. The given birth or are breast feeding applies national court is, in fact, of the opinion both to employment relationships for an that, if this were the case, the plaintiff in indefinite period and to fixed-term employ- the main action will have been deprived of ment relationships. Even if it forms part of that guarantee, with the result that the a series of successive contracts, the non- dismissal should be considered void, even renewal of a temporary contract for work regardless of the fact that the employer when its term has expired cannot, however, could prove that it had not made its be treated of itself as equivalent to a decision because of her pregnancy.

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JIMÉNEZ MELGAR

57. However, that remained an isolated position; both the Commission and the Member States which submitted observa- tions consider that a negative answer should be given to this question, because the Directive does not impose any obliga- tion to obtain prior authorisation from a national authority with special compe- tence. In particular, the Irish Government points out that an obligation of that kind, requiring important changes in the legal orders of some Member States and having an effect on the principle of their autonomy 59. In the light of the foregoing considera- in adapting their procedural systems, tions, I propose that the fourth question be would require a clear and explicit provision answered to the effect that Article 10(1) of which, however, is completely missing in Directive 92/85 does not oblige the Mem- the Directive. ber States to institute a special procedure in which the competent national authority, in the exceptional cases allowed, gives its prior consent to the dismissal, sought by the employer, of a pregnant worker or a worker who has recently given birth or is breast-feeding.

17 — That is the case, in particular, in Portugal, Greece and the 58. Nothing in the Directive supports the Federal Republic or Germany, as is clear from the Report of the Commission on the transposition of Directive 92/85/ plaintiff's argument, starting from the EEC (COM (1999) 100 final of 15 March 1999).

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Conclusion

60. On the basis of the foregoing considerations, I suggest the following answers to the questions submitted by the Juzgado de lo Social:

(4) Article 10(1) of Directive 92/85 does not oblige the Member States to institute a special procedure in which the competent national authority, in the exceptional cases allowed, gives its prior consent to the dismissal, sought by the employer, of a pregnant worker or a worker who has recently given birth or is breast-feeding.

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