CELEX: C2001/331/06
Language: en
Date: 2001-11-24 00:00:00
Title: 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)

C 331/4                  EN                      Official Journal of the European Communities                                          24.11.2001
               JUDGMENT OF OF THE COURT                                           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
                           (Fifth Chamber)                                        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
                         of 4 October 2001                                        amount to at least the economic value of the immovable
                                                                                  property to which those rights in rem relate.
in Case C-326/99 (reference for a preliminary ruling from                   2.    On a proper construction of Article 13B(b) and C(a) of
the Hoge Raad der Nederlanden): Stichting ‘Goed Wonen’                            Directive 77/388/EEC, it does not preclude adoption of a
               v Staatssecretaris van Financiën (1)                               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
(Sixth VAT Directive — Power of a Member State to treat                           agreed period and for payment, of a right in rem entitling the
certain rights in rem in immovable property as tangible
                                                                                  holder to use immovable property, such as the usufructuary
property capable of supply — Restriction of the exercise of                       right in question in the present case, to be treated as the leasing
that power to cases where the price of the right in rem is at
                                                                                  or letting of immovable property.
least equal to the economic value of the property concerned —
Letting and leasing of immovable property — Exemptions)
                                                                            (1) OJ C 333 of 20.11.1999.
                           (2001/C 331/05)
                     (Language of the case: Dutch)
(Provisional translation; the definitive translation will be published                        JUDGMENT OF THE COURT
                    in the European Court Reports)
                                                                                                        (Fifth Chamber)
                                                                                                      of 4 October 2001
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                   in Case C-438/99 (reference for a preliminary ruling from
Nederlanden (Supreme Court of the Netherlands) (Nether-                     the Juzgado de lo Social Único de Algeciras): Maria Luisa
lands), for a preliminary ruling in the proceedings pending                      Jiménez Melgar v Ayuntamiento de Los Barrios (1)
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                  (Protection of pregnant women — Directive 92/85/EEC —
(77/338/EEC) of 17 May 1977 on the harmonisation of the                     Article 10 — Direct effect and scope — Dismissal — Fixed-
laws of the Member States relating to turnover taxes —                                         term contract of employment)
Common system of value added tax; uniform basis of assess-
ment (OJ 1977 L 145, p. 1) — the Court, composed of: A. La                                              (2001/C 331/06)
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                                      (Language of the case: Spanish)
Division, for the Registrar, has given a judgment on 4 October
2001, in which it has ruled:                                                (Provisional translation; the definitive translation will be published
                                                                                                 in the European Court Reports)
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            In Case C-438/99: reference to the Court under Article 177 of
      turnover tax — Common system of value added tax: uniform              the EC Treaty (now Article 234 EC) from the Juzgado de lo
      basis of assessment, it does not preclude adoption of a national      Social Único de Algeciras (Social Court, Algeciras), (Spain) for
      provision, such as Article 3(2) of the Wet houdende vervanging        a preliminary ruling in the proceedings pending before that
      van de bestaande omzetbelasting door een omzetbelasting               court between Maria Luisa Jiménez Melgar and Ayuntamiento
      volgens het stelsel van heffing over de toegevoegde waarde (Law       de Los Barrios — on the interpretation of Article 10 of Council
      replacing turnover tax by the system of taxing added value) of        Directive 92/85/EEC of 19 October 1992 on the introduction
      28 June 1968, as amended by the Wet ter bestrijding van               of measures to encourage improvements in the safety and
 ---pagebreak--- 24.11.2001               EN                      Official Journal of the European Communities                                            C 331/5
health at work of pregnant workers and workers who have                                      JUDGMENT OF THE COURT
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                                              (Sixth Chamber)
of: A. La Pergola, President of the Chamber, M. Wathelet
(Rapporteur), P. Jann, L. Sevón and C.W.A. Timmermans,
Judges; A. Tizzano, Advocate General; H. von Holstein, Deputy                                       of 2 October 2001
Registrar, for the Registrar, has given a judgment on 4 October
2001, in which it has ruled:
                                                                            in Case C-449/99 P: European Investment Bank v Michel
                                                                                                         Hautem (1)
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         (Appeal — Members of the staff of the European Investment
     workers who have recently given birth or are breastfeeding (10th       Bank — Dismissal — Interpretation of the Staff Regulations
     individual Directive within the meaning of Article 16(1) of            of the European Investment Bank — Plea alleging mistaken
     Directive 89/391/EEC), has direct affect and is to be interpreted      characterisation of the legal nature of the facts and an error
     to the effect that, in the absence of transposition measures taken     in the statement of reasons — Alleged infringement of
     by a Member State within the period prescribed by that                 the rules applicable to relations between the European
     Directive, it confers on individuals rights on which they may                           Investment Bank and its staff)
     rely before a national court against the authorities of that State.
                                                                                                      (2001/C 331/07)
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                             (Language of the case: French)
     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.                                (Provisional translation; the definitive translation will be published
                                                                                               in the European Court Reports)
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.        In Case C-449/99 P: European Investment Bank (Agent:
                                                                            G. Marchegiani, assisted by G. Vandersanden) appeal against
     However, where non-renewal of a fixed-term contract is
     motivated by the worker’s state of pregnancy, it constitutes           the judgment of the Court of First Instance of the European
                                                                            Communities (Fifth Chamber) of 28 September 1999 in Case
     direct discrimination on grounds of sex, contrary to Article 2(1)
                                                                            T-140/97 Hautem v EIB [1999] ECR-SC I-A-171 and II-897,
     and 3(1) of Council Directive 76/207/EEC of 9 February
     1976 on the implementation of the principle of equal treatment         seeking to have that judgment set aside in part, the other party
                                                                            to the proceedings being: Michel Hautem, a member of the
     for men and women as regards access to employment, vocational
                                                                            staff of the European Investment Bank, residing in Schouweiler
     training and promotion, and working conditions.
                                                                            (Luxembourg) (Avocats: M. Karp and J. Choucroun) — the
                                                                            Court (Sixth Chamber), composed of: C. Gulmann, President
4.   In providing that the dismissal of a pregnant worker, of a             of the Chamber, V. Skouris (Rapporteur), J.-P. Puissochet,
     worker who has recently given birth or of a worker who is              R. Schintgen and N. Colneric, Judges; L.A. Geelhoed, Advocate
     breastfeeding may take place, in exceptional cases ‘and, where         General; R. Grass, Registrar, has given a judgment on 2 October
     applicable, provided that competent authority has given its            2001, in which it:
     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               1.    Dismisses the appeal;
     exceptional case justifying the dismissal of a pregnant worker,
     give its consent prior to the employer’s decision to dismiss the
     worker.                                                                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.