Opinion of the Advocate General — ECLI:EU:C:2001:267
Date: 2001-05-10
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Denmark

summary of the facts which the Højesteret sets out in the order for reference, it does not state that the worker failed to fulfil her obligation under national law to inform the employer of her condition. I deduce, therefore, that the fact that the undertaking complained about her failure to point out that she was pregnant at the time when she was recruited means that, had it been aware of the pregnancy, the offer of employment would not have been made. 31. Pursuant to Article 3(1) of Directive 76/207, application of the principle of equal treatment means that there should be no discrimination whatsoever on the ground of sex in the conditions for access to positions of employment. 32. In Dekker, the Court declared that a refusal of employment on the ground of pregnancy can only apply to women and, therefore, constitutes direct discrimination on the ground of sex. (22) 33. In Mahlburg, the Court stressed that the application of the provisions concerning the protection of pregnant women cannot result in unfavourable treatment regarding their access to employment, so that an employer may not refuse to take on a pregnant woman on the ground that a prohibition on employment arising on account of the pregnancy would prevent her being employed from the outset and for the duration of the pregnancy in the post of unlimited duration to be filled. (23) 34. If, under Directive 76/207, pregnancy is not a factor which may be taken into account when a woman is engaged and a refusal to recruit a woman because of her condition constitutes direct discrimination on the ground of sex, then, to my mind, an employer is not entitled to ask a worker whether she is pregnant. Were he to be so entitled, it would, besides constituting an infringement of the worker's right to privacy, seriously impede access to the labour market for pregnant women. An employer may not therefore rely on a failure to provide this information in order to justify dismissal of the worker later on. (c) The fact that the worker was unable to work for a significant portion of the contract 35. In Dekker, the Court examined the financial losses which maternity leave can impose on an undertaking. The employer had refused to engage a pregnant woman, alleging that, under Dutch legislation, it would have been unable to obtain from its insurer reimbursement of the worker's pay while she was on maternity leave and that, were it to have employed a replacement, it would have had to pay that person from its own funds. To my mind, the financial consequences which the Dutch employer would have had to bear, namely having to pay two salaries during the whole of this period, were more serious than the losses which Tele Danmark would have suffered. Nevertheless, the Court found that not only does a refusal of employment by reason of pregnancy constitute direct discrimination on the ground of sex but also that a refusal of employment on account of the financial consequences of absence due to pregnancy must be regarded as based, essentially, on the fact of pregnancy. Such discrimination cannot be justified on grounds relating to the financial loss which an employer who appointed a pregnant woman would suffer during this period. (24) In Mahlburg, the Court added that the same conclusion applies as regards the financial loss caused by the fact that the woman appointed cannot be employed in the vacant post for the duration of her pregnancy. (25) 36. Webb also concerned reliance on a woman's inability to fulfil one of the essential requirements of her contract of employment as a ground for her dismissal. The Court stated in this regard that the availability of an employee is, for the employer, a precondition for the proper performance of the employment contract, but that the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed. Any contrary interpretation would render ineffective the provisions of Directive 76/207. (26) 37. I concur with the Court's view. Any other interpretation of the directive would have resulted in making it possible to view pregnancy, which normally entails quite a lengthy absence on the part of the worker, as a ground justifying a refusal to employ a woman or her subsequent dismissal. 38. The employer appears to start from the assumption that the first two months, during which the employee was to undergo a period of training, did not form part of her job. However, it was the employer which stipulated that, out of the six months that the contract was to last, two would be given over to training. The employer is not, therefore, entitled to allege that Ms Brandt-Nielsen worked for only a few days when, in reality, she was with the undertaking until the end of September and the reason she did not remain there was that she was dismissed. As regards the time of commencement of her maternity leave, the employee has stated that she was willing to work until a date very close to the birth, which took place in the middle of November. I do not know if she would have been able to do so because I do not have a detailed knowledge of the relevant Danish legislation or of the collective agreement applicable to the undertaking. However, she would not have been precluded from doing so under Directive 92/85, since Article 8 provides that the continuous period of maternity leave of at least 14 weeks must include compulsory maternity leave of at least two weeks, allocated before and/or after confinement. Given that the dismissal took place quite some time before the birth, it is impossible to say when the employee would have commenced her maternity leave, which is essential to know in order to assess whether, in practice, she ceased to work for a significant portion of her contract. 39. Furthermore, as the Commission points out, there is no reason why the impact of maternity leave should be any more significant where the contract is for a fixed term than it is where the contract is open-ended. In recent decades, undertakings have, of course, been relying on temporary employees much more frequently than in the past; fixed-term employment contracts tend to be renewed, and such contracts have to a large extent shed the stigma of instability which characterised them at their outset. (27) The circumstances of Ms Brandt-Nielsen's employment, under a contract for six months, two of which were to be taken up by training, lead me to conclude that there was a likelihood that the contract might have been renewed at least once or more than once because to train a worker for two months represents a significant investment on the part of an employer. Accordingly, had she not been unexpectedly dismissed, I see no reason why Ms Brandt-Nielsen, who had already undergone training, would not have been able to remain with the undertaking, under a new temporary contract, once her maternity leave had ended. 40. It is therefore my view that the combined effect of Articles 2(1) and 5(1) of Directive 76/207 is to preclude a pregnant worker, who is engaged under a fixed-term contract and who, despite being aware of her condition, did not inform her employer of it when she was recruited, from being dismissed on the ground that the pregnancy would prevent her from meeting her employment commitments in full. 41. It still remains for me to examine the facts of the case in the light of Article 10(1) of Directive 92/85, which imposes a duty on the Member States to prohibit the dismissal of workers during the period from the beginning of their pregnancy to the end of their maternity leave, save in exceptional cases not connected with their condition which are permitted under national legislation and practice, provided that the competent authority has given its consent. 42. The Court observed in Webb that, in view of the harmful effects which the risk of dismissal may have on the physical and mental state of pregnant workers, including the serious risk that they may be prompted voluntarily to terminate their pregnancy, the Community legislature provided, in Article 10 of Directive 92/85, for special protection to be given to women, (28) by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave. (29) 43. I note, first, that the provisions of Directive 92/85 make no distinction between indefinite and fixed-term contracts. This is not to suggest that the Community legislature has failed to consider the special nature of temporary employment in a Community where, as the EFTA Surveillance Authority points out, continual thought is given to the question of how best to make the labour market more flexible. However, the only provision which envisages different treatment is Article 11(4), about which the national court has failed to enquire and under which Member States may make the entitlement to pay or an allowance during maternity leave conditional upon women fulfilling a period of previous employment which must not exceed 12 months immediately prior to confinement. 44. Neither the Højesteret nor the parties which have submitted observations in these proceedings have explained to the Court the exceptional cases, unconnected with the condition of the worker, which Danish law permits as a ground for dismissal, irrespective of the fact that a worker is pregnant. (30) It is my view that, for example, a dismissal on the ground of a force majeure situation which permanently prevented a person from working, or a collective dismissal for financial, technical, organisational or production reasons affecting an undertaking, would fulfil this requirement. (31) What is clear, though, is that the exceptional cases must not be connected to the worker's condition. Ms Brandt-Nielsen, however, was dismissed precisely because she was pregnant. 45. Consequently, it is appropriate to declare that Article 10 of Directive 92/85 also precludes a dismissal which takes place in the circumstances described above. B. The second question 46. The Højesteret also wishes to know whether the fact that Ms Brandt-Nielsen was employed by a large undertaking, which frequently employs temporary workers, has any bearing on the answer to the first question. 47. Those who have submitted observations in these proceedings all agree that the answer to this question must be in the negative. The appellant is of the opinion that it would be unacceptable for the legal position to vary depending on the size of the undertaking and that, in addition, it would be difficult to demarcate size and problems would arise if workers in the same situation were entitled to differing levels of protection according to the scale of the undertaking by which they were employed. The respondent and the Commission agree that this is a factor which should only be taken into consideration where the purpose behind the appointment of temporary employees is to circumvent the rules which confer rights on workers. Otherwise, it must be understood that this factor has no bearing on the reply which they propose to the first question. 48. I concur with these views. First, neither the provisions of Directive 76/207 on the principle of equal treatment, nor those of Directive 92/85 on improvements in the safety and health of pregnant workers and workers who have recently given birth or are breastfeeding, state that their scope should differ according to the size of the employer undertaking. As the EFTA Surveillance Authority rightly points out, only the third recital in the preamble to Directive 92/85 refers to Article 118A of the Treaty, (32) pursuant to which directives must avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings. Given that Tele Danmark is a large undertaking, this restriction cannot apply to it. (33) 49. The same must be said in relation to the fact that the undertaking which dismissed a pregnant worker, with whom it had concluded a fixed-term employment contract, frequently used this type of contract. As I have already pointed out in my discussion of the bearing which the temporary nature of the employment might have on the application of both directives, neither piece of legislation provides for a distinction to be made on this ground. Moreover, the documents submitted in these proceedings contain no suggestion that the object behind Tele Danmark's preference for temporary contracts was to circumvent certain rules which confer rights on workers. 50. Accordingly, it is my opinion that this question should be answered in the negative. Conclusion 51. In view of the foregoing considerations, I propose that the Court of Justice should reply as follows to the Højesteret: (1) Articles 2(1) and 5(1), in conjunction, of Council Directive 76/207/EEC of 9 February 1976, 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 Article 10 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 (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), preclude a pregnant worker, who is employed under a fixed-term contract and who, despite being aware of her condition, did not inform her employer of it when she was recruited, from being dismissed on the ground that the pregnancy would prevent her from meeting her employment commitments in full. (2) The fact that the worker was employed by a large undertaking which frequently engages temporary workers has no bearing on the reply to the first question. 1: - Original language: Spanish. 2: - Council Directive 76/207/EEC of 9 February 1976 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 (OJ 1976 L 39, p. 40). 3: - 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 (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1). 4: - Law No 161 of 12 April 1978 (lov om ligebehandling af mænd og kvinder med hensyn til beskæftigelse og barselsorlov m.v.). 5: - Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1). 6: - In accordance with the third paragraph of Article 20 of the Statute, as amended following the Declaration of the European Community on the Rights of the EFTA States before the Court of Justice of the European Communities, annexed to the Final Act of the Agreement on the European Economic Area (OJ 1994 L 1, p. 523 et seq, and in particular p. 567). 7: - Case C-179/88 Handels- og Kontorfunktionærernes Forbund, Hertz [1990] ECR I-3979. 8: - Case C-400/95 Larsson [1997] ECR I-2757. 9: - These were the facts at issue in Case C-66/96 Høj Pedersen and Others [1998] ECR I-7327. 10: - As demonstrated by, for example, Case 14/83 Von Colson and Kamann [1984] ECR 1891, Case 79/83 Hartz [1984] ECR 1921 and Case C-285/98 Kreil [2000] ECR I-69. 11: - I will cite the following by way of examples: Case 152/84 Marshall [1986] ECR 723, Case C-188/99 Foster and Others [1990] ECR I-3313, Case C-345/89 Stoeckel [1991] ECR I-4047, Case C-158/91 Levy [1993] ECR I-4287 and Case C-13/93 Minne [1994] ECR I-371. 12: - This statement first appears in the judgment in Hertz, cited in footnote 7 above, paragraph 13. 13: - Jacqmain, J., Pregnancy as Grounds for Dismissal, Industrial Law Journal, 1994, pp. 355-359, and in particular p. 356: However, both the Habermann and the Webb judgments are surprising because of the importance accorded by the Court of Justice to the duration of the contract of employment. 14: - Case C-421/92 Habermann-Beltermann [1994] ECR I-1657, paragraph 15. 15: - Case C-32/93 Webb [1994] ECR I-3567, paragraph 27. 16: - Naturally, it is not the only undertaking to hold this view. Much of what has been written on this issue had already hinted that these judgments would be so interpreted. See, for example, McGlynn, C.M.S., Webb v EMO: A Hope for the Future?, Northern Ireland Legal Quarterly, 1995, pp. 50 to 62, and in particular p. 59: Although the decision in Webb is itself condemnatory of the dismissal of pregnant women, it would appear to leave the issue open to continued argument, particularly in respect of women employed for a fixed term; Szyszczak, E., The status to be accorded to motherhood: Case C-32/93, Webb v EMO Cargo (UK) Ltd, The Modern Law Review, 1995, pp. 860 to 866, and in particular p. 861; Napier, B., Webb in Europe, New Law Journal, 1994, Vol. 144, p. 1020: What if there had been a fixed-term contract?; and Revue de jurisprudence sociale, 2000, p. 413, On notera que seule l'embauche sous contrat à durée indeterminée est visée par cette solution ... Il est permis de penser que la solution aurait été différente s'il s'était agi d'un contrat à durée déterminée (It will be noted that this solution only applies to employment contracts for an indefinite term ... It is possible to imagine that the solution would have been different if there had been a fixed-term contract). 17: - This, however, was the line taken by the House of Lords when it applied the Court of Justice's ruling in its own judgment, this being contained in the Court's National Decisions database under the reference QP/02459-P1. Busby, N., The Unequal Treatment of Pregnant Workers: Webb v EMO Air Cargo (UK) Ltd (No 2), The Juridical Review, 1996, pp. 156-159, in particular p. 156: In a strict and narrow application of the preliminary ruling of the European Court of Justice ... the House of Lords has distinguished the rights of pregnant women engaged on fixed-term contracts from those of women engaged on indefinite or open-ended contracts. The scenario was distinguished in order to avoid a situation likely to be perceived as unfair to employers and as tending to bring the law on sex discrimination into disrepute. 18: - Lousada Arochena, J.F., La prohibición de despido de las trabajadoras embarazadas y la discriminación por embarazo: dos instituciones diferentes llamadas a integrarse (The Prohibition of Dismissal of Pregnant Workers and Discrimination on the Ground of Pregnancy: Two Distinct Institutions Required to Merge), Revista del Poder Judicial, 1999, No 54, pp. 563 to 586, in particular p. 570: Tanto el caso Habermann-Beltermann, como el caso Webb, han levantado, con razón, algunas susceptibilidades, al hacer hincapié en el hecho de ser los contratos de carácter indefinido: ¿acaso sería diferente el fallo si fuesen temporales? Esperemos que el Tribunal, si llegase el momento, no incidiese en una circunstancia que, en buena dogmática, resulta intrascendente (Both the Webb and Habermann-Beltermann cases have justifiably aroused certain sensitivities, due to their highlighting of the fact that the contracts were for an indefinite term; would the judgment perhaps have been different had they been temporary contracts? Let us hope that, should the moment arrive, the Court does not stress a factor which, logically speaking, is irrelevant); and Boch, Ch., Common Market Law Review, 1996, pp. 547 to 567, in particular p. 560: This distinction - fixed term/indefinite term - is at odds with the reasoning of the Court elsewhere in the judgment. 19: - This framework agreement was concluded on 18 March 1999 by the general cross-industry organisations. It was implemented by Council Directive 1999/70/EC of 28 June 1999 (OJ 1999 L 175, p. 43). 20: - The time limit for transposing Directive 1999/70 into the national laws of the Member States expires on 10 July 2001. 21: - On the subject of this requirement, Jacqmain, J., op. cit., p. 358, wonders: Is it possible that a visibly pregnant woman who does nothing to inform her employer of her pregnancy is not protected? 22: - Case C-177/88 [1990] ECR I-3941, paragraph 12. 23: - Case C-207/98 [2000] ECR I-549, paragraph 27. 24: - Judgment cited in footnote 24 above, paragraph 12. 25: - Judgment cited in footnote 24 above, paragraph 29. 26: - Judgment cited in footnote 15 above, paragraph 26. 27: - Moore, S., Sex, Pregnancy and Dismissal, European Law Review, 1994, pp. 653 to 660, and in particular p. 659: Nevertheless, in the light of the unequivocal ruling of the Court of Justice that detrimental action taken against a woman on the grounds of her pregnancy constitutes direct discrimination on grounds of sex, it now seems difficult to distinguish in law between women employed pursuant to indeterminate contracts, such as Ms Webb, and women employed pursuant to determinate contracts ... In each case, the woman's inability to perform her contract of employment is essentially due to her pregnancy, however fundamental that inability may be in relation to the terms of the contract. 28: - Protection of which they are in real need, to judge by the article which appeared in the newspaper El País on 19 March 2001, describing how the contract of a professional female handball player was terminated when her club discovered that she was pregnant. Apparently, her contract contained a clause which stipulated that pregnancy was a ground for termination. On 23 March 2001, the same newspaper reported that the player had suffered a miscarriage, possibly as a result of having played a competitive match when she was two months pregnant. 29: - Judgment cited in footnote 15 above, paragraph 21. 30: - At the hearing, in response to a question I asked, the representatives of both Tele Danmark and Ms Brandt-Nielsen agreed that Danish legislation does not provide for any specific circumstances where it would be permissible to dismiss a pregnant worker and that it is the courts which decide based on the circumstances of each case. 31: - Gorelli Hernández, J.,: Situación de embarazo y principio de igualdad de trato. La regulación comunitaria y su jurisprudencia (The Condition of Pregnancy and the Commencement of Equal Treatment. Community Legislation and Case-law), CIVITAS Revista Española de Derecho del Trabajo, 1999, No 97, pp. 729 to 768, and in particular p. 764, where the author states that Article 10 of Directive 92/85 would not preclude the dismissal of a pregnant worker on disciplinary grounds where she had, through her own fault, committed a serious breach of her duties, provided that the breach was not justified by reason of her condition. 32: - As a result of the amendments introduced under the Treaty of Amsterdam, this provision is now contained in Article 137(2) EC. 33: - Boch, Ch., op. cit., points out, on p. 561, that: The preamble to the Pregnancy Directive which the Court relies upon, also refers, in its third recital, to the need to avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings. Presumably, Air Cargo, Ms Webb's employer, with 16 employees, falls within the SME category, yet the Court made no reference to this recital.