Opinion of the Advocate General — ECLI:EU:C:1997:354
Date: 1997-07-10
Language of the case: Danish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary of the Judgmen t 
1. Social policy — Men and women — Equal pay — Pregnant woman unfit f or work by reason 
of the pregnancy — National rules providing for loss of full pay from her employer — Dis­
crimination based on sex — Unlawful 
(EC Treaty, Art. 119; Council Directive 75/117) 
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SUMMARY — CASE C-66/96 
2. Social policy — Men and women — Equal pay — Pregnant woman absent from work for 
reasons not based on incapacity for work caused essentially by the pregnancy — National rules 
providing for loss of pay from her employer — Lawful 
(EC Treaty, Art. 119; Council Directive 75/117) 
3. Social policy — Men and women — Access to employment and working conditions — Equal 
treatment — Directive 76/207 — Protection of safety and health at work — Pregnant workers 
and workers who have recently given birth or are breastfeeding — Directive 92/85 — Preg­
nant woman fit for work — Employer sending on leave without full pay — Unlawful 
(Council Directives 76/207 and 92/85) 
1. It is contrary to Article 119 of the Treaty 
and Directive 75/117 on the approxima­
tion of the laws of the Member States 
relating to the application of the principle 
of equal pay for men and women for 
national legislation to provide that a preg­
nant woman who, before the beginning of 
her maternity leave, is unfit for work by 
reason of a pathological condition con­
nected with her pregnancy, as attested by 
a medical certificate, is not entitled to 
receive full pay from her employer but 
benefits paid by a local authority, when in 
the event of incapacity for work on grounds 
of illness, as attested by a medical certifi­
cate, a worker is in principle entided to 
receive full pay from his or her employer. 
The fact that a woman in such a situation 
is deprived of her full pay must be regarded 
as treatment based essentially on the preg­
nancy and thus as discriminatory. 
2. It is not contrary to Article 119 of the 
Treaty or Directive 75/117 on the approxi­
mation of the laws of the Member States 
relating to the application of the principle 
of equal pay for men and women for 
national legislation to provide that a preg­
nant woman is not entitled to receive her 
pay from her employer where, before the 
beginning of her maternity leave, she is 
absent from work by reason either of rou­
tine pregnancy-related minor complaints, 
when there is in fact no incapacity for 
work, or of medical recommendation 
intended to protect the unborn child but 
not based on an actual pathological condi­
tion or on any special risks for the unborn 
child, while any worker who is unfit for 
work on the grounds of illness is in prin­
ciple entitled thereto. 
The fact that the employee forfeits some, 
or even all, of her salary by reason of such 
absences which are not based on an inca­
pacity for work cannot be regarded as 
treatment based essentially on the preg­
nancy but rather as based on the choice 
made by the employee not to work. 
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HØJ PEDERSEN AND OTHERS 
3. It is contrary to 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, 
and to Directive 92/85 on the introduction 
of measures to encourage improvements 
in the safety and health at work of preg­
nant workers and workers who have 
recently given birth or are breastfeeding 
for national legislation to provide that an 
employer may send home a woman who 
is pregnant, although not unfit for work, 
without paying her salary in full when he 
considers that he cannot provide work for 
her. 
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