EN Official Journal of the European Union C 92/7

Judgment of the Court (Grand Chamber) of 26 February 2008 (reference for a preliminary ruling from the Oberster Gerichtshof (Austria)) — Sabine Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG

(Case C-506/06) (1)

(Social policy - Directive 92/85/EEC - Measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding - Meaning of ‘pregnant worker’ - Prohibition of dismissal of pregnant workers during the period from the beginning of their pregnancy to the end of the maternity leave - Woman dismissed where, at the date she was given notice of her dismissal, her ova had been fertilised in vitro, but not yet transferred to her uterus - Directive 76/207/EEC - Equal treatment for men and women - Woman undergoing in vitro fertilisation treatment - Prohibition of dismissal - Scope)

(2008/C 92/11)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Appellant: Sabine Mayr

Respondent: Bäckerei und Konditorei Gerhard Flöckner OHG

Re:

Reference for a preliminary ruling — Oberster Gerichtshof — Interpretation of Article 2(a) 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) (OJ 1992 L 348, p. 1) — Worker dismissed where, on the date she was given notice of her dismissal, her ova have been fertilised ‘in vitro’, but not yet implanted — Categorisation of that worker as a ‘pregnant worker’ or not

Operative part of the judgment

1. 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) and, in particular, the prohibition of dismissal of pregnant workers provided for in Article 10(1) of that directive must be interpreted as not extending to a female worker who is undergoing in vitro fertilisation treatment where, on the date she is given notice of her dismissal, her ova have already been fertilised by her partner's sperm cells, so that in vitro fertilised ova exist, but they have not yet been transferred into her uterus;

2. Articles 2(1) and 5(1) 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, preclude the dismissal of a female worker who, in circumstances such as those in the main proceedings, is at an advanced stage of in vitro fertilisation treatment, that is, between the follicular puncture and the immediate transfer of the in vitro fertilised ova into her uterus, inasmuch as it is established that the dismissal is essentially based on the fact that the woman has undergone such treatment.

(1) OJ C 56, 10.3.2007.