Judgment of the Court (Fifth Chamber) of 4 October 2001 in Case C-438/99 (reference for a preliminary ruling from the Juzgado de lo Social Único de Algeciras): Maria Luisa Jiménez Melgar v Ayuntamiento de Los Barrios (Protection of pregnant women — Directive 92/85/EEC — Article 10 — Direct effect and scope — Dismissal — Fixed-term contract of employment)
Date: 2001-11-24
Institutions: Court of Justice
Subjects: care of mothers and infants, female work, interpretation of the law, job security, motherhood

C 331/4

EN

Official Journal of the European Communities

24.11.2001

JUDGMENT OF OF THE COURT

(Fifth Chamber)

of 4 October 2001

in Case C-326/99 (reference for a preliminary ruling from
the Hoge Raad der Nederlanden): Stichting ‘Goed Wonen’
v Staatssecretaris van Financiën (1)

(Sixth VAT Directive — Power of a Member State to treat
certain rights in rem in immovable property as tangible
property capable of supply — Restriction of the exercise of
that power to cases where the price of the right in rem is at
least equal to the economic value of the property concerned —
Letting and leasing of immovable property — Exemptions)

(2001/C 331/05)

(Language of the case: Dutch)

constructies met betrekking tot onroerende zaken (Law to
prevent artificial arrangements relating to immovable property)
of 18 December 1995, whereby classification as a ‘supply of
goods’ of the grant, transfer, modification, waiver or termination
of rights in rem in immovable property is made subject to the
condition that the total considerations, plus turnover tax, must
amount
least the economic value of the immovable
property to which those rights in rem relate.

to at

2. On a proper construction of Article 13B(b) and C(a) of
Directive 77/388/EEC, it does not preclude adoption of a
national provision such as Article 11(1)(b), point 5, of the
VAT Law of 28 June 1968, as amended by the Law of
18 December 1995, which, for the purposes of the application
of the exemption from value added tax, allows the grant, for an
agreed period and for payment, of a right in rem entitling the
holder to use immovable property, such as the usufructuary
right in question in the present case, to be treated as the leasing
or letting of immovable property.

(1) OJ C 333 of 20.11.1999.

(Provisional translation; the definitive translation will be published
in the European Court Reports)

JUDGMENT OF THE COURT

In Case C-326/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Hoge Raad der
Nederlanden (Supreme Court of the Netherlands)
(Nether-
lands), for a preliminary ruling in the proceedings pending
before that court between Stichting ‘Goed Wonen’ and Staats-
secretaris van Financiën — on the interpretation of Article 5(3)
and Article 13B(b) and C(a) of the Sixth Council Directive
(77/338/EEC) of 17 May 1977 on the harmonisation of the
laws of the Member States relating to turnover taxes —
Common system of value added tax; uniform basis of assess-
ment (OJ 1977 L 145, p. 1) — the Court, composed of: A. La
Pergola (Rapporteur), President of the Chamber, M. Wathelet,
D.A.O. Edward, P. Jann and C.W.A. Timmermans, Judges;
F.G. Jacobs, Advocate General; D. Louterman-Hubeau, Head of
Division, for the Registrar, has given a judgment on 4 October
2001, in which it has ruled:

1. On a proper construction of Article 5(3)(b) of the Sixth
Council Directive (77/388/EEC) of 17 May 1977 on the
harmonisation of the laws of the Member States relating to
turnover tax — Common system of value added tax: uniform
basis of assessment, it does not preclude adoption of a national
provision, such as Article 3(2) of the Wet houdende vervanging
van de bestaande omzetbelasting door een omzetbelasting
volgens het stelsel van heffing over de toegevoegde waarde (Law
replacing turnover tax by the system of taxing added value) of
28 June 1968, as amended by the Wet ter bestrijding van

(Fifth Chamber)

of 4 October 2001

in Case C-438/99 (reference for a preliminary ruling from
the Juzgado de lo Social U´ nico de Algeciras): Maria Luisa
Jiménez Melgar v Ayuntamiento de Los Barrios (1)

(Protection of pregnant women — Directive 92/85/EEC —
Article 10 — Direct effect and scope — Dismissal — Fixed-
term contract of employment)

(2001/C 331/06)

(Language of the case: Spanish)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-438/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Juzgado de lo
Social U´ nico de Algeciras (Social Court, Algeciras), (Spain) for
a preliminary ruling in the proceedings pending before that
court between Maria Luisa Jiménez Melgar and Ayuntamiento
de Los Barrios — on the interpretation of Article 10 of Council
Directive 92/85/EEC of 19 October 1992 on the introduction
of measures to encourage improvements in the safety and

24.11.2001

EN

Official Journal of the European Communities

C 331/5

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) — the Court, composed
of: A. La Pergola, President of the Chamber, M. Wathelet
(Rapporteur), P. Jann, L. Sevo´ n and C.W.A. Timmermans,
Judges; A. Tizzano, Advocate General; H. von Holstein, Deputy
Registrar, for the Registrar, has given a judgment on 4 October
2001, in which it has ruled:

1. Article 10 of Council Directive 92/85/EEC of 19 October
1992, on the introduction of measures to encourage improve-
ments in the safety and health at work of pregnant workers and
workers who have recently given birth or are breastfeeding (10th
individual Directive within the meaning of Article 16(1) of
Directive 89/391/EEC), has direct affect and is to be interpreted
to the effect that, in the absence of transposition measures taken
by a Member State within the period prescribed by that
Directive, it confers on individuals rights on which they may
rely before a national court against the authorities of that State.

2.

In allowing derogations from the prohibition of dismissal of
pregnant workers, workers who have recently given birth or
workers who are breast feeding in cases ‘not connected with
their condition which are permitted under national legislation
and/or practice’, Article 10(1) of Directive 92/85/EEC, does
not require the Member States to specify the particular grounds
on which such workers may be dismissed.

3. Whilst the prohibition of discrimination laid down in Article 10
of Directive 92/85/EEC applies to both employment contracts
for an indefinite period and fixed-term contracts, 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
it constitutes
motivated by the worker’s state of pregnancy,
direct discrimination on grounds of sex, contrary to Article 2(1)
and 3(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.

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
applicable, provided that competent authority has given its
consent’, Article 10(1) of Directive 92/85/EEC 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 a pregnant worker,
give its consent prior to the employer’s decision to dismiss the
worker.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 2 October 2001

in Case C-449/99 P: European Investment Bank v Michel
Hautem (1)

(Appeal — Members of the staff of the European Investment
Bank — Dismissal — Interpretation of the Staff Regulations
of the European Investment Bank — Plea alleging mistaken
characterisation of the legal nature of the facts and an error
in the statement of reasons — Alleged infringement of
the rules applicable to relations between the European
Investment Bank and its staff)

(2001/C 331/07)

(Language of the case: French)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-449/99 P: European Investment Bank (Agent:
G. Marchegiani, assisted by G. Vandersanden) appeal against
the judgment of the Court of First Instance of the European
Communities (Fifth Chamber) of 28 September 1999 in Case
T-140/97 Hautem v EIB [1999] ECR-SC I-A-171 and II-897,
seeking to have that judgment set aside in part, the other party
to the proceedings being: Michel Hautem, a member of the
staff of the European Investment Bank, residing in Schouweiler
(Luxembourg) (Avocats: M. Karp and J. Choucroun) — the
Court (Sixth Chamber), composed of: C. Gulmann, President
of the Chamber, V. Skouris (Rapporteur), J.-P. Puissochet,
R. Schintgen and N. Colneric, Judges; L.A. Geelhoed, Advocate
General; R. Grass, Registrar, has given a judgment on 2 October
2001, in which it:

1. Dismisses the appeal;

2. Orders the European Investment Bank to pay the costs.

(1) OJ C 20 of 22.1.2000.

(1) OJ C 34 of 5.2.2000.