Opinion of the Advocate General — ECLI:EU:C:2018:289
Date: 2018-04-26
Language of the case: Spanish
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (Fifth Chamber), 19 September 2018 1. Social policy — Protection of the safety and health of workers — Pregnant workers and workers who have recently given birth or are breastfeeding — Directive 92/85 — Night work — Scope — Shift work performed in part at night — Included (European Parliament and Council Directive 2003/88, Recital 14; Council Directive 92/85, Art. 7) 2. Social policy — Male and female workers — Access to employment and working conditions — Equal treatment –Burden of proof in the case of discrimination — Scope — Refusal to grant a breastfeeding worker 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 — Challenge by that worker of the assessment of those risks — Absence of a specific assessment taking into account her individual situation and permitting the presumption that there is direct discrimination on the grounds of sex — Included — Verification by the referring court — Conditions of application of the rules of evidence (European Parliament and Council Directive 2006/54, Art. 19(1); Council Directive 92/85, Art. 4(1) and 7) 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. It must be noted that, since it is in the interest of pregnant workers, workers who have recently given birth or are breastfeeding to be subject, in accordance with Recital 14 of Directive 2003/88, to the specific provisions laid down by Directive 92/85 relating to night work, in particular in order to strengthen the protection that those workers must enjoy in that regard, those specific provisions must not be interpreted less favourably than the general provisions of Directive 2003/88 which are applicable to other categories of workers. (see paras 47, 53 and operative part 1) 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. As regards the conditions for the application of that provision, it should be recalled that the rules of evidence that it provides do not apply at the time that the worker in question requests an adjustment of her working conditions or, as in the case in the main proceedings, an allowance in respect of risk during breastfeeding, and a risk assessment of her work must, accordingly, be carried out in accordance with Article 4(1) of Directive 92/85 or, where appropriate, Article 7 of Directive 92/85. It is only at a later stage, when a decision relating to that risk assessment is challenged by the worker in question before a court or any other competent authority, that those rules of evidence are to be applied (see, to that effect, judgment of 19 October 2017, Otero Ramos, C‑531/15, EU:C:2017:789, paragraph 67). Nevertheless, in accordance with Article 19(1) of Directive 2006/54, it is for a worker who considers herself wronged because the principle of equal treatment has not been applied to her to raise, before a court or any other competent authority, facts or evidence from which it may be presumed that there has been direct or indirect discrimination (see, to that effect, judgment of 19 October 2017, Otero Ramos, C‑531/15, EU:C:2017:789, paragraph 68 and the case-law cited). (see paras 73, 74, 83, operative part 2)