Opinion of the Advocate General — ECLI:EU:C:2001:316
Date: 2001-06-07
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment 
1. Social policy — Protection of safety and health of workers — Pregnant workers and 
workers who have recently given birth or are breastfeeding — Directive 92/85 — 
Prohibition of dismissal — Direct effect 
(Council Directive 92/85, Art. 10) 
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SUMMARY — CASE C-438/99 
2. Social policy — Protection of safety and health of workers — Pregnant workers and 
workers who have recently given birth or are breastfeeding — Directive 92/85 — 
Prohibition of dismissal — Derogations — Requirement that Member States specify 
permissible grounds of dismissal — None 
(Council Directive 92/85, Art. 10) 
3. Social policy — Protection of safety and health of workers — Pregnant workers and 
workers who have recently given birth or are breastfeeding — Directive 92/85 — 
Prohibition of dismissal — Scope — Non-renewal of fixed-term contract because of 
the worker's pregnancy — Direct discrimination on the grounds of sex 
(Council Directives 76/207, Arts. 2(1) and 3(1) and 92/85, Art. 10) 
4. Social policy — Protection of safety and health of workers — Pregnant workers and 
workers who have recently given birth or are breastfeeding — Directive 92/85 — 
Prohibition of dismissal — Derogations — Requirement that Member States provide 
that the competent national authority should give its consent prior to the decision of 
dismissal — None 
(Council Directive 92/85, Art. 10) 
1. Article 10 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 breastfeeding, which prohibits 
the dismissal of such workers, has 
direct effect and is to be interpreted 
to the effect that, in the absence of 
transposition measures taken by a 
Member State within the period pre­
scribed by that directive, it confers on 
individuals rights on which they may 
rely before a national court against the 
authorities of that State. 
(see para. 34 and operative part 1) 
2. In allowing derogations from the pro­
hibition of dismissal of pregnant work­
ers, workers who have recently given 
birth or workers who are breastfeeding 
in cases 'not connected with their 
condition which are permitted under 
national legislation and/or practice', 
Article 10(1) of Directive 92/85 on 
the introduction of measures to encou­
rage improvements in the safety and 
health at work of pregnant workers 
and workers who have recently given 
birth or are breastfeeding does not 
require the Member States to specify 
the particular grounds on which such 
workers may be dismissed. 
(see para. 38 and operative part. 2) 
3. Whilst the prohibition of dismissal laid 
down in Article 10 of Directive 92/85 
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JIMÉNEZ MELGAR 
on the introduction of measures to 
encourage improvements in the safety 
and health at work of pregnant work­
ers and workers who have recently 
given birth or are breastfeeding applies 
to both employment contracts for an 
indefinite period and fixed-term con­
tracts, non-renewal of such a contract, 
when it comes to an end as stipulated, 
cannot be regarded as a dismissal 
prohibited by that provision. However, 
where non-renewal of a fixed-term 
contract is motivated by the worker's 
state of pregnancy, it constitutes direct 
discrimination on grounds of sex, con­
trary to Article 2(1) and 3(1) of Direc­
tive 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. 
(see para. 47, and operative part 3) 
4. In providing that the dismissal of a 
pregnant worker, of a worker who has 
recently given birth or of a worker who 
is breastfeeding may take place, in 
exceptional cases 'and, where applic­
able, provided that the competent 
authority has given its consent', Arti­
cle 10(1) 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 breastfeeding is not to be 
interpreted as imposing on Member 
States any obligation to have a national 
authority, having found that there is an 
exceptional case justifying the dismissal 
of such a worker, give its consent prior 
to the employer's decision to dismiss 
the worker. 
(see para 52, and operative part 4) 
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