C-320/01

3. On 22 March 2001, the defendant con- 2. Ms Wiebke Busch, the plaintiff in the sented to the termination of Ms Busch's main proceedings, is a nurse who, since parental leave, but did not ask her if she April 1998, has been employed in a hospi- was pregnant. Ms Busch took up her post tal run by the defendant, Klinikum Neu- on 9 April 2001 and, on the following day, stadt GmbH & Co. Betriebs-KG. she informed her employer that she was seven months' pregnant. The reason she had returned to work was so that she 1 — Original language: Spanish. would receive maternity allowance, which 2 — Council Directive of 9 February 1976 on the implemen- is higher than the allowance paid during tation of the principle of equal treatment for men and women as regards access to employment, vocational train- parental leave, together with the supple- ing and promotion, and working conditions (OJ 1976 L 39, p. 40). mentary allowance paid by the employer.

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5. Ms Busch confirms that the duties of a nurse on her ward include helping bed- 7. It appears that the parties do not dispute ridden patients to sit up to eat, washing that Ms Busch could not have been patients in need of intensive care, regularly employed in administration during the repositioning patients with the help of period concerned. another nurse, and preparing and adminis- tering injections. She asserts that, during her first pregnancy, she continued to carry out her normal duties, but that she also worked in administration. She states that she could have worked until the start of her maternity leave, meaning that no prohib- ition of employment would have applied I I— The national legislation 3 until 23 May 2001 since, in the hospital concerned, beds were pushed and a special- ised internal service took care of trans- portation within the building. 8. Paragraph 3 of the Law on the Pro- tection of Working Mothers provides that pregnant women must not work during the six weeks prior to the birth unless they expressly state that they are willing to do so.

Ms Busch claims payment of DEM 4 181.77 3 — Information provided by the Commission in its written (EUR 2 138.11) gross as remuneration, and observations.

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Under Paragraph 4(1), pregnant women 9. Paragraph 5 of the Federal Law on must not be assigned to heavy physical Parental Allowance and Parental Leave work or work exposing them to the harm- (Gesetz über Gewährung von Erziehungs- ful effects of substances or rays, dust, gases, geld und Erziehungsurlaub) sets the steam, heat, cold, humidity, vibrations or amount of the allowance paid during noise that pose a risk to health. parental leave at DEM 600 4 (EUR 306.78) Paragraph 4(2) prohibits pregnant women per month. Under Paragraph 7, after the from being assigned to work involving the birth, the maternity allowance is offset regular lifting, moving or carrying, without against the parental allowance. mechanical assistance, of loads of more than 5 kg, or, on occasion, of more than 10 kg.

10. Paragraph 123 of the German Civil Code (Bügerliches Gesetzbuch; 'the BGB') provides that anyone is entitled to rescind his consent where it was obtained by deceit or threats. Under Paragraph 13, workers who are registered with a sickness fund receive an 4 — From 1 January 2001, this amount was set at either DEM allowance during the period of maternity 900 (EUR 460.16) for the first year after the child's birth or at DEM 600 for the first two years after the birth, leave in the amount of DEM 25 (EUR depending upon the income and the wishes of the recipient. 12.78) per day. Paragraph 14 provides that, 5 — This provision was amended and extended, with effect from 1 January 2001, with the result that, from that date, an where a woman is entitled to that allow- employer may only object to the shortening of parental ance, she shall also receive from her leave on account of the birth of another child or of absolute necessity, in the case of pressing requirements linked to the employer a supplementary allowance equal smooth running of the business. An employee may not, however, shorten parental leave during the period which to the difference between DEM 25 and her corresponds to maternity leave. These reforms do not apply average daily remuneration, minus the to the facts of the main proceedings because of the transitional provision laid down in Paragraph 24(1) of the deductions required by law. law concerned.

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Under Paragraph 119(1), a person may also (2) In the event that Question 1 is rescind his consent if, when he gave it, he answered in the affirmative, in the case was mistaken as to its content, or would described, does it constitute unlawful not have given it if he had been aware of discrimination on the grounds of sex, the actual circumstances and had appraised within the meaning of Directive the matter with full knowledge of the facts. 76/207, if the employer then has the Paragraph 2 provides that a mistake can right to rescind his consent to the also include a mistake as to the character- shortening of parental leave because istics of a person or thing, deemed by he was mistaken about the fact that the custom to be essential. woman was pregnant?'

3. This Directive shall be without prejudice VI — The first question referred for a to provisions concerning the protection of preliminary ruling women, particularly as regards pregnancy and maternity.'

14. By this question, the national court enquires whether Article 2(1) and (3) and Article 5(1) of Directive 76/207 preclude a 'Article 5 requirement that an employee — who, after she has started her parental leave, wishes to shorten that leave with the consent of her employer — must inform her employer that she is pregnant before the agreement on her return to work is 1. Application of the principle of equal concluded, where, owing to her condition, treatment with regard to working con- she is unable to carry out all her duties ditions, including the conditions governing because, from the very first day, a statutory dismissal, means that men and women shall prohibition applies. be guaranteed the same conditions without discrimination on grounds of sex.'

A — The positions set out in the observa- tions V — The procedure before the Court of Justice

16. The defendant in the main proceedings maintains that the work that the employee was prohibited from carrying out repre- 18. The Commission considers that the sented a significant part of the work refusal by an employer to permit a preg- involved in her job. In its view, there has nant employee to return to her job before been no discrimination because the the end of her parental leave, on account of contract of employment has not been her condition, constitutes discrimination on rescinded, and a six-week period of work the grounds of sex, contrary to Directive is comparable to a fixed term employment 76/207. Since the contract in question is for relationship where the employee is unable an indefinite term, there is no opportunity to perform her job. In accordance with the to examine whether the fact that, in the duty of good faith implicit in the employ- period leading up to her maternity leave, ment contract, only the principal obli- the employee was unable to carry out all gations of which are suspended during the duties that form part of her job as a parental leave, Ms Busch should have result of a statutory prohibition is an disclosed that, owing to her condition, she exception to the general principle of non- was unable to care for sick people. Any discrimination. On the basis that pregnancy discrimination that may have occurred is not a criterion which may be taken into would be justified because the provisions account by an employer, since to do so which restrict the activities of women in would be discriminatory, it follows that the certain circumstances were adopted in matter of whether or not the employee order to protect women during maternity. disclosed her condition is immaterial.

tain general cross-industry organisations States may apply or introduce more favour- (UNICE, CEEP and the ETUC) to set out able measures than those set out in the minimum requirements on parental leave, agreement. The agreement does not restrict as an important means of reconciling work the individual right to parental leave to and family life and promoting equal oppor- those employees with an employment rela- tunities and treatment between men and tionship for an indefinite term. women. It was made binding on the Member States, with the exception of the United Kingdom, by Directive 96/34/EC, 7 adopted on 3 June 1996 pursuant to Article 4(2) of the Agreement on Social Policy, 8which provides that management and labour may request jointly that agree- 21. Under Clause 2(7), it is also left to the ments at Community level be implemented Member States and to management and by a Council decision on a proposal from labour to define the status of the employ- the Commission. The time-limit for trans- ment contract or employment relationship posing the terms of the Framework Agree- for the period of parental leave. Never- ment on Parental Leave into national law theless, it is clear that, although the pri- expired on 3 June 1998. 9 mary obligations of the parties have been suspended, the contract remains in force, since Clause 2(5) provides that, at the end of parental leave, workers have the right to return to the same job or, if that is not possible, to an equivalent or similar job.

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lated that an employee could return to pretation of the principle of equal treat- work before the end of the agreed period ment laid down in Directive 76/207, where provided only that the employer, who had the employment rights of pregnant a margin of discretion for the purpose, employees are at issue. To date, the Court consented. has always held that direct discrimination on the grounds of sex exists in cases where an employer relies on the fact that a woman is pregnant as a ground for refusing to employ her, 11 for dismissing her, 12 or for refusing to renew a fixed-term contract. 13 23. Directive 76/207 is aimed at the imple- It is also discriminatory to dismiss a preg- mentation of the principle of equal treat- nant employee for absences due to an ment for men and women as regards access illness attributable to her condition. 14The to employment, including promotion, voca- Court has never accepted that such dis- tional training and working conditions. 10 crimination may be justified on the basis of Article 5 provides that application of the arguments relating to the financial loss principle of equal treatment with regard to suffered by an employer of a pregnant working conditions means that men and woman during the period of maternity women are guaranteed the same conditions leave or during pregnancy. without discrimination on the grounds of sex.

Implicit in the status of an employee is the right to parental leave, during which the employment contract remains in force. Accordingly, the conditions governing an employee's early return to work form part of the working conditions and, as such, are subject to the provisions of Directive 76/207, from which it follows that they may not vary according to an employee's According to the above case-law, since the sex. prohibition of discrimination on the grounds of sex is mandatory in nature, it not only applies to the action of public authorities but extends also to all agree- ments which are intended to regulate paid

25. It is true that Ms Busch's case does not concern access to employment or dismissal but rather the conditions under which the 26. The Court has also ruled on the rights and obligations derived from the termination of an employment contract on employment contract are exercised and the grounds of pregnancy where the fulfilled. However, as I have already contract was held invalid or avoided on pointed out, the provisions of Directive account of a mistake as to the essential 76/207 prohibit an employer from relying characteristics of the employee, owing to a on the fact that an employee is pregnant as statutory prohibition on night-time a ground for taking a decision which is work, 17 and on the refusal to employ a prejudicial to her employment rights. It pregnant woman on the ground that a follows that, if the reason why an employer statutory prohibition on employment refuses to allow an employee to return to existed in relation to the post to which work before the end of parental leave is she had been assigned. 18 As in the case of that she is pregnant, there is direct dis- Ms Busch, both prohibitions were laid crimination on the grounds of sex contrary down by the German Law on the Pro- to Article 5(1) of Directive 76/207, since tection of Working Mothers. the conditions laid down for her return to work are part of the working conditions which must apply equally to men and women, whereas pregnancy is a state which affects only women.

In that connection, the Court has held that In the second case, the Court concluded the exercise of the rights conferred on that the application of provisions concern- women under Article 2(3) of Directive ing the protection of pregnant women 76/207 cannot be the subject of unfavour- cannot result in unfavourable treatment able treatment regarding their access to regarding their access to employment, so employment or their working conditions. that it is not permissible for an employer to In that light, the result pursued by the refuse to take on a pregnant woman on the Directive is substantive, not formal, equal- ground that a prohibition on employment ity. 20 arising on account of the pregnancy would prevent her being employed, from the outset and until she goes on maternity leave, in the post of unlimited duration to be filled. The Court went on to hold that, in addition, a refusal to employ a woman on account of her pregnancy cannot be justi- 29. The defendant in the main proceedings fied on the basis of the financial loss maintains that if Ms Busch were to return suffered by an employer as a result of the to work in the circumstances described, it fact that the woman appointed cannot be would d i s c r i m i n a t e against o t h e r employed in the post concerned for the employees who remain on parental leave, duration of her pregnancy. despite the fact that they are pregnant.

30. It is difficult to agree with that view in 28. The prohibition applying to Ms Busch the light of the case-law of the Court, on account of her pregnancy is similar to, which defines discrimination as consisting although less stringent than, the one which of the application of different rules to applied to Ms Habermann-Beltermann and Ms Mahlburg, and it is laid down in the Law on the Protection of Working 19—Judgment in Case 184/83 Hofmann [1984] ECR 3047, Mothers, pursuant to Article 2(3) of Direc- paragraph 27. tive 76/207. That provision leaves Member 20 —Judgment in Case C-136/95 Thibault [19981 ECR I-2011, paragraph 26.

In the light of the Court's recent case-law, 32. That observation is of interest because those conclusions could not be more erron- the national court, relying on several of the eous. judgments that I have just examined, which were delivered in cases where there was a

21—Judgments in Case C-279/93 Scbumacker [1995] ECR 33. In Tele Danmark, the Court was I-225, paragraph 30; in Case C-107/94 Asscher [1996] ECR I-3089, paragraph 40; in Case C-391/97 Gschwind required to determine whether it was dis- [19991 ECR I-5451, paragraph 21; and in Case C-411/98 Ferlini [2O0O] ECR I-8081, paragraph 51. 22 — Cited above. 23 — Cited above. 24 — Tele Danmark and Jiménez Melgar.

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The Court went on to state that such an 36. It cannot be denied that the fact that an interpretation cannot be altered by the fact employee is unable to perform all the duties that the contract of employment was con- which form part of her job after she has cluded for a fixed term. The Court was of returned to work is likely to have an impact the opinion that, since the dismissal of a on the business, from both an organisa- worker on account of pregnancy consti- tional and a financial point of view. How- tutes direct discrimination on the grounds ever, Article 5 of Directive 92/85 provides of sex, whatever the nature and extent of employers with some room for manoeuvre the economic loss incurred by the employer since, where there is a risk to the safety or as a result of her absence because of pregnancy, whether the contract of employ- ment was concluded for a fixed or an 26 — Council Directive 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 25 — Cited above. 89/391/EEC) (OJ 1992 L 348, p. 1).

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health, or an effect on the pregnancy or 38. In any event, as the Commission rightly breastfeeding, of a worker, it gives an points out in its written observations, it is employer the right, in the first instance, to for the Member States to define the costs to adjust temporarily the working conditions be assumed by employers and those which and/or the working hours of the worker are to be borne from public funds, financed concerned. If that is not feasible, the through taxation to cover collective social employer must take the necessary measures responsibilities, having regard at all times to move the worker concerned to another to the fact that the protection granted to job. Only where those solutions are imprac- pregnant women must not be at the ticable may the employer then grant the expense of her individual status in the worker concerned leave for the period labour market. necessary for her protection.

Firstly, German law provides that Rather than relying on the measures avail- employees have the right to return to work able to it under Article 5 of Directive 92/85, following parental leave. the defendant in the main proceedings decided to relieve the employee of her duties with immediate effect, 28 rescinding its consent to the early termination of her parental leave on the grounds of fraudulent misrepresentation and mistake about an essential characteristic. Secondly, although the request to return to work was made in January, the employer did not give its consent until March, 27 — Judgment in Case C-66/96 Høj Pedersen and Others meaning that, had the agreement not taken [1998] ECR I-7327, paragraphs 58 and 59. so long to conclude, the employee would 28 — However, at the hearing, the defendant's representative informed the Court that most of the nursing staff at the have been able to continue working for a hospital are women and that, when planning staffing longer period before starting her maternity requirements, regard is always had to the possibility of pregnancies. leave.

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40. For the reasons set out, it should be held that Article 2(1) and (3), and It seems clear to me that, since an employer Article 5(1), of Directive 76/207 preclude may not refuse to allow a woman to return a requirement that an employee — who, to work before the end of parental leave on after she has started her parental leave, account of her pregnancy, it would be wishes to shorten that leave with the unacceptable for an employer who has consent of her employer — must inform already given his consent then to do so by her employer that she is pregnant before relying on Articles 123 and 119 of the the agreement on her return to work is German Civil Code.

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43. For that reason, I am of the opinion was mistaken about her condition, con- that giving an employer the right to rescind stitutes direct discrimination on the his consent to the shortening of parental grounds of sex, contrary to Directive leave by a pregnant employee, because he 76/207.

VIII — Conclusion

4 4 . In the light of the foregoing considerations, I propose that the Court of Justice should reply to the Arbeitsgericht Lübeck as follows: