Z. v A Government department and The Board of management of a community school.
Date: 2014-03-18
51. As regards discrimination as referred to in Article 2(1)(a) and (b) of Directive 2006/54, the refusal to provide maternity leave in the situation outlined by the referring tribunal constitutes direct discrimination on grounds of sex within the meaning of Article 2(1)(a) if the fundamental reason for that refusal applies exclusively to workers of one sex (see, to that effect, Case C‑177/88 Dekker  [1990] ECR I‑3941, paragraph 10; Case C‑421/92 Habermann-Beltermann  [1994] ECR I‑1657, paragraph 14; and Case C‑506/06 Mayr  [2008] ECR I‑1017, paragraph 50).
53. The Court has consistently held that indirect discrimination on grounds of sex arises where a national measure, albeit formulated in neutral terms, puts considerably more workers of one sex at a disadvantage than the other (see, to that effect, Case C‑1/95 Gerster  [1997] ECR I‑5253, paragraph 30; Case C‑123/10 Brachner  [2011] ECR I‑10003, paragraph 56; and Case C‑7/12 Riežniece  [2013] ECR, paragraph 39).
64. With regard, lastly, to the validity of Directive 2006/54 in the light of Article 3 TEU, Articles 8 TFEU and 157 TFEU, and Articles 21, 23, 33 and 34 of the Charter, it must be noted that it has been held consistently that the Court may decide not to give a preliminary ruling where the provision whose validity is the subject-matter of the reference manifestly has no bearing on the outcome of the main proceedings (see Case C‑222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I‑289, paragraph 75).
69. As a preliminary point it should be noted that the purpose of Directive 2000/78, as stated in Article 1, is to lay down a general framework for combating discrimination, as regards employment and occupation, on any of the grounds referred to in that article, which include disability (see Case C‑13/05 Chacón Navas [2006] ECR I‑6467, paragraph 41). In accordance with Article 3(1)(c) of the directive, it applies, within the limits of the areas of competence conferred on the European Union, to all persons, in relation inter alia to employment and working conditions, including dismissals and pay.
71. It must be borne in mind that, by virtue of Article 216(2) TFEU, where international agreements are concluded by the European Union they are binding on its institutions and, consequently, they prevail over acts of the European Union (Case C‑366/10 Air Transport Association of America and Others  [2011] ECR I‑13755, paragraph 50, and Joined Cases C‑335/11 and C‑337/11 HK Danmark  [2013] ECR, paragraph 28).
72. The primacy of international agreements concluded by the European Union over instruments of secondary law means that those instruments must as far as possible be interpreted in a manner that is consistent with those agreements (Joined Cases C‑320/11, C‑330/11, C‑382/11 and C‑383/11 Digitalnet and Others  [2012] ECR, paragraph 39, and HK Danmark , paragraph 29).
73. It is apparent from Decision 2010/48 that the European Union has approved the UN Convention. The provisions of that Convention are thus, from the time of its entry into force, an integral part of the European Union legal order (see Case 181/73 Haegeman  [1974] ECR 449, paragraph 5, and HK Danmark , paragraph 30).
75. It follows that, in the present case, the UN Convention is capable of being relied on for the purposes of interpreting Directive 2000/78, which must, as far as possible, be interpreted in a manner that is consistent with that Convention (see HK Danmark , paragraph 32).
76. That is why, following the ratification by the European Union of the UN Convention, the Court held that the concept of ‘disability’ within the meaning of Directive 2000/78 had to be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers (see HK Danmark , paragraphs 37 to 39).
84. As regards examination of the validity of that directive in the light of the UN Convention, it follows from the case-law cited in paragraph 71 of the present judgment that the validity of an act of the European Union may be affected by the fact that it is incompatible with rules of international law. Where such invalidity is pleaded before a national court, the Court of Justice verifies whether certain conditions are satisfied in the case before it, in order to determine whether, pursuant to Article 267 TFEU, the validity of the act of European Union law concerned, in light of the rules of international law relied on, may be ascertained (see Case C‑308/06 Intertanko and Others [2008] ECR I‑4057, paragraph 43, and Air Transport Association of America and Others , paragraph 51).
85. So far as concerns the conditions referred to in the preceding paragraph, it is important to bear in mind that in a situation where the nature and the broad logic of an international treaty permit the validity of the act of European Union law to be reviewed in the light of the provisions of that treaty, it is still necessary that the provisions of that treaty which are relied on for the purpose of examining the validity of the act of European Union law appear, as regards their content, to be unconditional and sufficiently precise (see Intertanko and Others , paragraph 45, and Air Transport Association of America and Others , paragraph 54).
86. Such a condition is fulfilled where the provision relied on contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure (see Case 12/86 Demirel  [1987] ECR 3719, paragraph 14; Case C‑213/03 Pêcheurs de l’étang de Berre [2004] ECR I‑7357, paragraph 39; and Air Transport Association of America and Others , paragraph 55).