Case C‑531/15

Elda Otero Ramos

v

Servicio Galego de Saúde

and

Instituto Nacional de la Seguridad Social

(Request for a preliminary ruling

from the Tribunal Superior de Justicia de Galicia)

(Reference for a preliminary ruling — Directive 92/85/EEC — Article 4(1) — Protection of the safety and health of workers — Breastfeeding worker — Risk assessment of her work — Challenged by the worker concerned — Directive 2006/54/EC — Article 19 — Equal treatment — Discrimination on grounds of sex — Burden of proof)

Summary — Judgment of the Court (Fifth Chamber), 19 October 2017

Social policy — Male and female workers — Access to employment and working conditions — Equal treatment — Article 2(2)(c) of Directive 2006/54 — Scope — Less favourable treatment of a female worker due to her being a breastfeeding woman — Included — Burden of proof in the case of discrimination — Applicability in litigation concerning a challenged by a breastfeeding worker contestant the risk assessment of her work — Permutations in the application of the rules of evidence

(European Parliament and Council Directive 2006/54, Arts 2(2)(c) and 19(1); Council Directive 92/85, Recital 14 and Arts 4(1) and (8))

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 must be interpreted as applying to a situation such as that at issue in the main proceedings in which a breastfeeding worker challenges, before a court or other competent authority of the Member State concerned, the risk assessment of her work in so far as she claims that the assessment was not conducted in accordance with Article 4(1) 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.

In that regard, the point must be made that, for the purposes of Article 2(2)(c) of Directive 2006/54, discrimination includes, inter alia, ‘any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive [92/85]’.

As the Court has already held, the objective pursued by the rules of EU law governing equality between men and women is, with regard to the rights of pregnant women and women who have given birth and breastfeeding mothers, to protect those women before and after they give birth (judgment of 11 November 2010, Danosa, C‑232/09, EU:C:2010:674, paragraph 68 and the case-law cited).

Furthermore, it is clear from recital 14 and Article 8 of Directive 92/85 that ‘the vulnerability of pregnant workers, workers who have recently given birth or who are breastfeeding makes it necessary for them to be granted the right to maternity leave of at least 14 continuous weeks, allocated before and/or after confinement, and renders necessary the compulsory nature of maternity leave of at least 2 weeks, allocated before and/or after confinement’. Thus maternity leave is intended to protect pregnant workers, workers who have recently given birth or who are breastfeeding.

It follows that, the condition of a breastfeeding woman being intimately related to maternity, and in particular ‘to pregnancy or maternity leave’, workers who are breastfeeding must be protected on the same basis as workers who are pregnant or have recently given birth.

Accordingly, any less favourable treatment of a female worker due to her being a breastfeeding woman must be regarded as falling within the scope of Article 2(2)(c) of Directive 2006/54 and therefore constitutes direct discrimination on grounds of sex.

On a proper construction of Article 19(1) of Directive 2006/54, in a situation such as that at issue in the main proceedings, it is for the worker in question to provide evidence capable of suggesting that the risk assessment of her work had not been conducted in accordance with the requirements of Article 4(1) of Directive 92/85 and from which it can therefore be presumed that there was direct discrimination on grounds of sex within the meaning of Directive 2006/54, which it is for the referring court to ascertain. It would then be for the defendant to prove that that risk assessment had been conducted in accordance with the requirements of that provision and that there had, therefore, been no breach of the principle of non-discrimination.

(see paras 55, 57-60, 65, 76, operative part 1 and 2)