Opinion of the Advocate General — ECLI:EU:C:2002:708
Date: 2002-11-21
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. Social policy — Men and women — Access to employment and working con­
ditions — Equal treatment — Return to work by a pregnant woman before the end 
of parental leave — Obligation to inform her employer of her pregnancy — None 
(Council Directive 76/207, Art. 2(1) and (3), and Council Directive 92/85, Arts 4(1) 
and (5)) 
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SUMMARY — CASE C-320/01 
2. Social policy — Men and women — Access to employment and working con­
ditions — Equal treatment — Return to work by a pregnant woman before the end 
of parental leave — National legislation allowing the employer to rescind its consent 
on the ground that it was unaware of the employee's pregnancy — Not permitted 
(Council Directive 76/207, Art. 2(1» 
1. Article 2(1) of Council Directive 
76/207 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 is 
to be interpreted as precluding a 
requirement that an employee who, 
with the consent of her employer, 
wishes to return to work before the 
end of her parental leave must inform 
her employer that she is pregnant in the 
event that, because of certain legislative 
prohibitions, she will be unable to 
carry out all of her duties. 
When an employer takes an employee's 
pregnancy into consideration in the 
refusal to allow her to return to work 
before the end of her parental leave, 
that constitutes direct discrimination 
on grounds of sex. Since the employer 
may not take the employee's pregnancy 
into consideration for the purpose of 
applying her working conditions, she is 
not obliged to inform the employer that 
she is pregnant. 
Such discrimination, which may not be 
justified by temporary prohibitions on 
performing certain work duties for 
which she was hired, would be 
contrary to the objective of protection 
pursued by Article 2(3) of Directive 
76/207 and Articles 4(1) and 5 of 
Directive 92/85 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 breast­
feeding and would rob those provisions 
of any practical effect. Nor can such 
discrimination be justified by the finan­
cial consequences which might ensue 
for the employer from the obligation to 
reinstate the employee, nor by the fact 
that, in asking to return to work, she 
intended to receive a maternity allow­
ance higher than the parental leave 
allowance, as well as the supplemen­
tary allowance paid by the employer. 
(see paras 39-40, 43-44, 46-47, 
operative part 1) 
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BUSCH 
2. Article 2(1) of Council Directive 
76/207 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 is 
to be interpreted as precluding an 
employer from contesting under 
national law the consent it gave to the 
reinstatement of an employee to return 
before the end of her parental leave on 
the grounds that it was in error as to 
her being pregnant. 
If an employer may not take an 
employee's pregnancy into consider­
ation in the refusal to reinstate her 
before the end of her parental leave, 
nor can the employer plead that its 
consent to that reinstatement was viti­
ated because it was not aware that she 
was pregnant. Any national provision 
which might serve as a basis for such a 
claim must be set aside by the national 
court in order to ensure the full effect 
of Directive 76/207. 
(see paras 49-50, operative part 2) 
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