Case C-506/06: 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 (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)
Date: 2008-02-26
Institutions: Court of Justice
Subjects: dismissal, embryo and foetus, female work, humanisation of work, interpretation of the law, occupational safety, test tube fertilisation

12.4.2008

EN

Official Journal of the European Union

C 92/7

2002 (OJ 2002 L 270, p. 10) — Scope of the guarantee offered
by the guarantee institution — Compensation in the event of
termination of the employment relationship — National rules
which require judgment or administrative decision for such
compensation — Principles of equality and non-discrimination

Parties to the main proceedings

Appellant: Sabine Mayr

Operative part of the judgment

Respondent: Bäckerei und Konditorei Gerhard Flöckner OHG

the

their

insolvency of

The first paragraph of Article 3 of Council Directive 80/987/EEC of
20 October 1980 relating to the protection of employees in the event
employer, as amended by Directive
of
2002/74/EC of
the Council of
the European Parliament and of
23 September 2002, is to be interpreted as meaning that a Member
State has the power
to exclude compensation granted for unfair
from the payment guarantee of the guarantee institutions
dismissal
pursuant to that provision where they have been recognised by an
extra-judicial conciliation settlement and such exclusion, objectively
justified, constitutes a measure necessary to avoid abuses within the
meaning of Article 10(a) of that directive.

(1) OJ C 56, 10.3.2007.

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

(Case C-506/06) (1)

(Social policy — Directive 92/85/EEC — Measures to encou-
rage improvements in the safety and health at work of preg-
nant workers and workers who have recently given birth or
are breastfeeding — Meaning of ‘pregnant worker’ — Prohi-
bition of dismissal of pregnant workers during the period
from the beginning of their pregnancy to the end of the mater-
nity 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 — Prohibi-
tion of dismissal — Scope)

(2008/C 92/11)

Language of the case: German

Referring court

Oberster Gerichtshof

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 intro-
duction 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 fertilisa-
tion 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,
training and promotion, and working conditions,
vocational
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 punc-
ture and the immediate transfer of the in vitro fertilised ova into
her uterus, inasmuch as it is established that the dismissal is essen-
tially based on the fact that the woman has undergone such treat-
ment.

(1) OJ C 56, 10.3.2007.