# C_2018408EN.01001002.xml

| 12.11.2018 | EN | Official Journal of the European Union | C 408/10 |
| --- | --- | --- | --- |

12.11.2018

EN

Official Journal of the European Union

C 408/10

---

Judgment of the Court (Fifth Chamber) of 19 September 2018 (request for a preliminary ruling from the Tribunal Superior de Justicia de Galicia — Spain) — Isabel González Castro v Mutua Umivale, Prosegur España SL, Instituto Nacional de la Seguridad Social (INSS)

(Case C-41/17) (1)

((Reference for a preliminary ruling - Directive 92/85/EEC - Articles 4, 5 and 7 - Protection of the safety and health of workers - Worker who is breastfeeding - Night work - Shift work performed in part at night - Risk assessment of her work - Prevention measures - Challenge by the worker concerned - Directive 2006/54/EC - Article 19 - Equal treatment - Discrimination on grounds of sex - Burden of proof))

(2018/C 408/11)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Galicia

Parties to the main proceedings

Applicant: Isabel González Castro

Defendants: Mutua Umivale, Prosegur España SL, Instituto Nacional de la Seguridad Social (INSS)

Operative part of the judgment

| 1. | Article 7 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 must be interpreted as applying to a situation, such as that at issue in the main proceedings, where the worker concerned does shift work during which only part of her duties are performed at night. |
| --- | --- |

1.

Article 7 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 must be interpreted as applying to a situation, such as that at issue in the main proceedings, where the worker concerned does shift work during which only part of her duties are performed at night.

| 2. | Article 19(1) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) must be interpreted as applying to a situation, such as that at issue in the main proceeding, in which a worker, who has been refused a medical certificate indicating the existence of a risk to breastfeeding posed by her work and, consequently, an allowance in respect of risk during breastfeeding, challenges, before a court or other competent authority of the Member State concerned, the risk assessment of her work, provided that that worker adduces factual evidence to suggest that that evaluation did not include a specific assessment taking into account her individual situation and thus permitting the presumption that there is direct discrimination on the grounds of sex, within the meaning of Directive 2006/54, which it is for the referring court to ascertain. It is then for the respondent to prove that that risk assessment did actually include such a specific assessment and that, accordingly, the principle of non-discrimination was not infringed. |
| --- | --- |

2.

Article 19(1) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) must be interpreted as applying to a situation, such as that at issue in the main proceeding, in which a worker, who has been refused a medical certificate indicating the existence of a risk to breastfeeding posed by her work and, consequently, an allowance in respect of risk during breastfeeding, challenges, before a court or other competent authority of the Member State concerned, the risk assessment of her work, provided that that worker adduces factual evidence to suggest that that evaluation did not include a specific assessment taking into account her individual situation and thus permitting the presumption that there is direct discrimination on the grounds of sex, within the meaning of Directive 2006/54, which it is for the referring court to ascertain. It is then for the respondent to prove that that risk assessment did actually include such a specific assessment and that, accordingly, the principle of non-discrimination was not infringed.

---

(1)  OJ C 121, 18.4.2017.

---