C-109/00

TELE DANMARK

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 10 May 2001 1

1. The Højesteret (Danish Supreme Court) I — The facts has made a reference to the Court of Justice, under Article 234 EC, for a pre- liminary ruling on two questions regarding the interpretation of Article 5(1) of Direc- 2. The appellant in the main proceedings is tive 76/207/EEC 2 and of Article 10 of Tele Danmark A/S, a telephone company Directive 92/85/EEC. 3 which employed Ms Brandt-Nielsen to work in its customer service department under a contract which ran from 1 July to 31 December 1995. At the recruitment interview, the worker was informed that the first two months would be given over to training and that, during this period, there would be 14 days of actual teaching.

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end of September, the date on which she Ms Brandt-Nielsen, concluding that it had was obliged to cease work. The reason been proved that pregnancy was the reason given was that the respondent had breached for her dismissal. The Vestre Landsret took the conditions of her employment, by fail­ into account the fact that neither the ing to point out in the interview that she preparatory documents prior to adoption was pregnant and that the birth would take of the Law on Equal Treatment nor the place in November. case-law of the Court of Justice supported the view that temporary workers were not protected, holding that it was immaterial that the worker was aware of her condition and of the fact that she would be unable to meet her employment commitments in full. 5. In March 1996, the Handels- og Kon­ torfunktionærernes Forbund (Union of Commercial and Clerical Workers), acting on behalf of Ms Brandt-Nielsen, brought aņ action before the Retten de Århus (Århus District Court), seeking compensa­ tion on the ground that dismissal by reason I I — The questions referred for a preli­ of pregnancy is contrary to Article 9 of the minary ruling Law on Equal Treatment for Men and Women, which refers to employment and maternity leave 4('the Law on Equal Treat­ ment'). 7. In September 1998, Tele Danmark A/S brought an appeal against the decision before the Højesteret which, prior to deli- vering its judgment, referred the following questions to the Court of Justice for a preliminary ruling: Tele Danmark A/S submitted that the court should dismiss the action on the ground that the worker, who was employed under a six-month contract, had failed to point out that she was pregnant and that she expected to give birth in November. This '(1) Do Article 5(1) of Council Directive was, in fact, the ruling which the Retten de 76/207... and/or Article 10 of Council Århus made on 14 January 1997. Directive 92/85..., or other provisions in those directives or elsewhere in Community law preclude a worker from being dismissed on the ground of pregnancy in the case where:

Article 10(1) of Directive 92/85 prohibits the dismissal of such workers for reasons connected with their condition, the effect of 'Application of the principle of equal treatment with regard to working condi- tions, including the conditions governing 5 — Council Directive 89/391/EECof 12 June 1989 on the introduction of measures to encourage improvements m the dismissal, means that men and women shall safety and health of workers at work (OJ 1989 L 18.5, p. 1 ).

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which might be harmful to their physical 13. Article 16 of the Law on Equal Treat- and mental health, in the following terms: ment provides:

'1. If a worker is dismissed contrary to Article 9, the dismissal will be set aside if a '(1) Member States shall take the necessary request is made to that effect, unless, in measures to prohibit the dismissal of exceptional cases and after balancing the workers... during the period from the interests of the parties, it is found to be beginning of their pregnancy to the end manifestly unreasonable to require that the of the maternity leave..., save in excep- employment relationship be maintained or tional cases not connected with their restored. condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent.' 2. If a worker is dismissed contrary to Article 9 and the dismissal is not set aside, the employer shall pay the worker com- pensation.

IV — The Danish legislation

Association (EFTA) Surveillance Author- ground of pregnancy in Ms Brandt-Niel- ity 6and the Commission have submitted sen's case and that a refusal to employ a written observations in these proceedings pregnant women, or the dismissal of such a within the time limit laid down for that woman, is only contrary to Community purpose by Article 20 of the Statute of the law where the contract is for an indefinite Court of Justice. term. In the appellant's view, the principle of equal treatment cannot extend to a fixed-term employment relationship, in which the absence of the employee due to maternity leave assumes vital importance At the hearing, which took place on because it obstructs performance of the 29 March 2001, oral argument was pre- obligations under the contract. Likewise, sented by the representatives of the appel- the fact that an employee conceals her lant and the respondent and the agents of condition when she is recruited is of the EFTA Surveillance Authority and the fundamental importance in fixed-term con- Commission. tracts.

VI — Examination of the questions re- ferred for a preliminary ruling The appellant maintains that the circum- stances surrounding the dismissal of Ms Brandt-Nielsen fall outside the scope of Directive 92/85, a provision which cannot, under any circumstances, justify A. The first question imposing obligations unilaterally on an employer.

afford limited in the sense that an employee time of Ms Brandt-Nielsen's dismissal. In must have worked for a minimum period. the opinion of the EFTA Surveillance Authority, it was the legislature's wish to afford greater protection to pregnant work- ers and there is nothing in the preamble or the enacting terms to support the view that not all workers, irrespective of the length of In the respondent's opinion, the costs their contracts, are entitled to the same associated with maternity leave should be protection. covered by the employer who, in turn, would have had to cope with a shorter absence than would have been the case if the contract had been for an indefinite term. The respondent asserts that she intended to remain in her post until giving birth and that, since the birth took place on 13 November 1995, had she not been dismissed, she would have been able to By way of a subsidiary matter, the EFTA work for four out of the six months. The Surveillance Authority considers the facts respondent believes that the fact that she in the light of Directive 76/207, starting was aware of her condition when she was from the assumption that pregnancy was recruited is immaterial because the parties' the ground for the dismissal. For this mutual obligation to show good faith does reason, the worker was the victim of direct not mean that a worker is under a duty to discrimination on the ground of sex, which notify her employer that she is pregnant at cannot be justified by the financial burden the time when she is recruited. which maternity leave can cause an employer, nor by the fact that the worker failed to inform the employer that she was pregnant when she was recruited.

22. The Court has frequently had to inter- pret Directive 76/207 in situations where 20. Once again, the Court of Justice finds access to employment for women has been itself faced with questions, referred for a restricted or prevented, 10 or where the preliminary ruling by a Danish court, working conditions provided to women which highlight the treatment in the work- proved to be discriminatory. 11 Within this place of pregnant workers in that Member subject area, the different treatment suf- State. I will cite the following examples: fered by pregnant women with regard to Ms Hertz, who was dismissed one year access to employment and working condi- after her maternity leave because of tions merits special attention. As will absences due to an illness caused by the emerge throughout my discussion, Den- birth; 7 Ms Larsson, who was dismissed mark does not hold a monopoly on dis- immediately after her maternity leave crimination against women in the work- because she continued to be unable to place. work as a result of an illness caused by pregnancy, which had already prevented her from working for more than four months before she gave birth; 8Ms Høj Pedersen, Ms Andresen and Ms Sørensen, who, being unfit to work by reason of illnesses caused by pregnancy, ceased to 23. According to the settled case-law of the receive any of their wages, payment of Court, it follows from the provisions of which workers whose illnesses are due to Directive 76/207 that the dismissal of a different causes are entitled to receive; and female worker on account of pregnancy Ms Pedersen, employed by a dentist who constitutes direct discrimination on the suspended her from employment and pay ground of sex. 12 The referring court is when he learnt that, due to complications aware of this interpretation but wonders arising from her pregnancy, the obstetrician whether the circumstances in which had said she should only work part time. 9 It appears that Ms Brandt-Nielsen is des- tined to lengthen the saga. 10 — As demonstrated by, for example. Case 14/83 Von Colson and Kamann [1984 ] ECR 1891, Case 79/83 Hartz [1984] ECR 1921 and Case C-285/98 Kreil |2000] ECR I-69. 11 — I will cite the following by way of examples: Case 152/84 7 — Case C-179/88 Handels- og Kontorfunktionærernes for- Marshall [1986] ECR 723, Case C-188/99 Foster and Others |1990| ECR I-3313, Case C-345/89 Stoeckel bund, -Hertz' [1990] ECR I-3979. [19911 ECR I-4047, Case C-158/91 Levy [1993] ECR 8 — Case C-400/95 Larsson [1997] ECR I-2757. I-4287 and Case C-13/93 Minne |1994| ECR I-371. 9 — These were the facts at issue in Case C-66/96 Ho/ Pedersen 12 — This statement first appears in the judgment in Hertz, cited and Others [1998] ECR I-7327. in footnote 7 above, paragraph 13.

25. In the first case, Ms Habermann-Bel- termann, a nurse qualified in the care of the elderly, signed a contract in which she undertook to work as a night attendant in a 26. In the second case, Ms Webb had been home for the elderly. Several days after recruited for a probationary period of three commencing work, she was absent for over months. During the interview prior to a month due to illness and her doctor recruitment, she was informed that the certified that she had been pregnant for 12 post was vacant because Ms Stewart, days before she signed the contract of another employee in the same department, was pregnant. Ms Stewart intended to continue working until the end of the year 13—Jacqmain, J., 'Pregnancy as Grounds for Dismissal', Industrial Law Journal, 1994, pp. 355-359, and in particular p. 356: 'However, both the Habennann and the Webb judgments are surprising because of the impor- tance accorded by the Court 1of Justice to the duration of 14 —Case C-421/92 Habermann-Beltermann [1994] ECR the contract of employment. I-1657, paragraph 15.

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However, when making them, it restricted itself to taking the factual context of each case into consideration without prejudging whether the solution would have to be different where the In its judgment, the Court pointed out that, in a situation such as Mrs Webb's, termina- tion of a contract for an indefinite period, 16 — Naturally, it is not the only undertaking to hold this view. Much of what has been written on this issue had already on the ground of the worker's pregnancy, hinted that these judgments would be so interpreted.

. . Il est permis de penser que la solution aurait été différente s'il s'était agi d'un contrat à durée déterminée' (It will be noted that this solution only applies to employment contracts for an indefinite term. . . It is possible to imagine that the solution would have been different if there had been a fixed-term contract). 17 — This, however, was the line taken by the House of Lords when it applied the Court of Justice's ruling in its own

. . the House of Lords has Court wished to draw a clear distinction distinguished the rights of pregnant women engaged on fixed-term contracts from those of women engaged on indefinite or open-ended contracts. The scenario was distinguished "in order to avoid a situation likely to be perceived as unfair to employers and as tending to bring 15 — Case C-32/93 Webb [1994] ECR I-3567, paragraph 27. the law on sex discrimination into disrepute."'

Finally, Clause 4 of the framework agree- Second, once the Court has established that ment on fixed-term work concluded dismissal of a worker by reason of preg- between the European Trade Union Con- nancy constitutes direct discrimination on federation, the Union of Industrial and the ground of sex, then a dismissal will be Employers' Confederations of Europe and equally discriminatory regardless of whe- the European Centre of Enterprises with ther the employment relationship is indefi- Public Participation, 19 which concerns the nite or temporary in nature. principle of non-discrimination, provides, in subparagraph 1, that, in respect of employment conditions, fixed-term work- ers shall not be treated in a less favourable 18 — Lousada Arochena, J.E, 'La prohibición de despido de las trabajadoras embarazadas y la discriminación por embar- manner than comparable permanent work- azo: dos instituciones diferentes llamadas a integrarse' ers solely because they have a fixed-term (The Prohibition of Dismissal of Pregnant Workers and Discrimination on the Ground of Pregnancy: Two Distinct Institutions Required to Merge), Revista del Poder Judi- contract unless different treatment is justi- cial, 1999, No 54, pp. 563 to 586, in particular p. 570: fied on objective grounds. 20 There can be 'Tanto el caso Habermann-Beltermann, como el caso Webb, han levantado, con razón, algunas susceptibili- no doubt that the circumstances in which a dades, al hacer hincapié en el hecho de ser los contratos de carácter indefinido: ¿acaso sería diferente el fallo si fuesen dismissal takes place form part of the temporales? Esperemos que el Tribunal, si llegase el working conditions and that pregnancy is momento, no incidiese en una circunstancia que, en buena dogmática, resulta intrascendente' (Both the Webb and not an objective ground capable of justify- Habermann-Beltermann cases have justifiably aroused certain sensitivities, due to their highlighting of the fact that the contracts were for an indefinite term; would the judgment perhaps have been different had they been temporary contracts? Let us hope that, should the moment 19 — This framework agreement was concluded on 18 March arrive, the Court does not stress a factor which, logically 1999 by the general cross-industry organisations. It was speaking, is irrelevant); and Boch, Ch., Common Market implemented by Council Directive 1999/70/EC of 28 June Law Review, 1996, pp. 547 to 567, in particular p. 560: 1999 (OJ 1999 L 175, p. 43). 'This distinction — fixed term/indefinite term — is at 20 — The time limit for transposing Directive 1999/70 into the odds with the reasoning of the Court elsewhere in the judgment.' national laws of the Member States expires on 10 July 2001.

33. In Mahlburg, the Court stressed that the application of the provisions concern- 30. In the summary of the facts which the ing the protection of pregnant women Højesteret sets out in the order for refer- cannot result in unfavourable treatment regarding their access to employment, so that an employer may not refuse to take on 21 — On the subject of this requirement, Jacqmain, J., op. cit., p. 358, wonders: 'Is it possible that a visibly pregnant woman who does nothing to inform her employer of her pregnancy is not protected?' 22 — Case C-177/88 [1990] ECR I-3941, paragraph 12.

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35. In Dekker, the Court examined the financial losses which maternity leave can 36. Webb also concerned reliance on a impose on an undertaking. The employer woman's inability to fulfil one of the had refused to engage a pregnant woman,

24 — Judgmenr cited in footnote 23 above, paragraph 12. 23 — Case C-207/98 [2000] ECR I-549, paragraph 27. 25 — Judgment cited in footnote 23 above, paragraph 29.

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have to a large extent shed the stigma of Directive 76/207 is to preclude a pregnant instability which characterised them at worker, who is engaged under a fixed-term their outset. 27 contract and who, despite being aware of her condition, did not inform her employer of it when she was recruited, from being dismissed on the ground that the pregnancy would prevent her from meeting her employment commitments in full.

27 — Moore, S., 'Sex, Pregnancy and Dismissal', European Law 42. The Court observed in Webb that, in Review, 1994, pp. 653 to 660, and in particular p. 659: 'Nevertheless, in the light of the unequivocal ruling of the view of the harmful effects which the risk Court of Justice that detrimental action taken against a woman on the grounds of her pregnancy constitutes direct of dismissal may have on the physical and discrimination on grounds of sex, it now seems difficult to mental state of pregnant workers, including distinguish in law between women employed pursuant to indeterminate contracts, such as Ms Webb, and women the serious risk that they may be prompted employed pursuant to determinate contracts... In each case, the woman's inability to perform her contract of voluntarily to terminate their pregnancy, employment is essentially due to her pregnancy, however fundamental that inability may be in relation to the terms the Community legislature provided, in of the contract.' Article 10 of Directive 92/85, for special

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However, the only provision which envi- sages different treatment is Article 11(4), about which the national court has failed to 45. Consequently, it is appropriate to enquire and under which Member States declare that Article 10 of Directive 92/85 may make the entitlement to pay or an also precludes a dismissal which takes place allowance during maternity leave condi- in the circumstances described above. tional upon women fulfilling a period of previous employment which must not exceed 12 months immediately prior to 30 — At the hearing, in response to a question I asked, the representatives of both Tele Danmark and Ms Brandt- confinement. Nielsen agreed that Danish legislation does not provide for any specific circumstances where it would be permissible to dismiss a pregnant worker and that it is the courts which decide based on the circumstances of each case. 28 — Protection of which they are in real need, to judge by the 31 — Gorelli Hernandez, J.,: 'Situación de embarazo y principio article which appeared in the newspaper El Pais on de igualdad de trato. La regulación comunitaria y su 19 March 2001, describing how the contract of a profes- jurisprudencia' (The Condition of Pregnancy and the sional female handball player was terminated when her Commencement of Equal Treatment. Community Legisla- club discovered that she was pregnant. Apparently, her tion and Case-law), CIVITAS Revista Espanola de Dere- contract contained a clause which stipulated that preg- cho del Trabajo, 1999, No 97, pp. 729 to 768, and in nancy was a ground for termination. On 23 March 2001, particular p. 764, where the author states that Article 10 tile same newspaper reported that the player bad suffered a of Directive 92/85 would not preclude the dismissal of a miscarriage, possibly as a result of having played a pregnant worker on disciplinary grounds where she bad, competitive match when she was two months pregnant. through her own fault, committed a serious breach of her duties, provided that the breach was not justified by reason 29 —Judgment cited in footnote 15 above, paragraph 21. of her condition.

The appellant is of the opinion that it would be unacceptable for the legal posi- 49. The same must be said in relation to the tion to vary depending on the size of the fact that the undertaking which dismissed a undertaking and that, in addition, it would pregnant worker, with whom it had con- be difficult to demarcate size and problems cluded a fixed-term employment contract, would arise if workers in the same situation frequently used this type of contract. As I were entitled to differing levels of protec- have already pointed out in my discussion tion according to the scale of the under- of the bearing which the temporary nature taking by which they were employed. The respondent and the Commission agree that this is a factor which should only be taken 32 — As a result of the amendments introduced under the Treaty into consideration where the purpose of Amsterdam, this provision is now contained in Arti- cle 137(2) EC. behind the appointment of temporary 33 — Boch, Ch., op. cit., points out, on p. 561, that: 'The employees is to circumvent the rules which preamble to the Pregnancy Directive which the Court relies upon, also refers, in its third recital, to the need to avoid confer rights on workers. Otherwise, it imposing administrative, financial and legal constraints in must be understood that this factor has no a way which would hold back the creation and develop- ment of small and medium-sized undertakings. Presum- bearing on the reply which they propose to ably, Air Cargo, Ms Webb's employer, with 16 employees, falls within the SME category, yet the Court made no the first question. reference to this recital.'

(1) Articles 2(1) and 5(1), in conjunction, of Council Directive 76/207/EEC of 9 February 1976, on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, and Article 10 of Council Directive 92/85/EEC of 19 October 1992, on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive

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89/391/EEC), preclude a pregnant worker, who is employed under a fixed- term contract and who, despite being aware of her condition, did not inform her employer of it when she was recruited, from being dismissed on the ground that the pregnancy would prevent her from meeting her employment commitments in full.

(2) The fact that the worker was employed by a large undertaking which frequently engages temporary workers has no bearing on the reply to the first question.

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