Gabriele Habermann-Beltermann v Arbeiterwohlfahrt, Bezirksverband Ndb./Opf. e.V..
Date: 1994-05-05
10 In applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty (see the judgment in Case C-106/89 Marleasing v La Comercial Internacional de Alimentación [1990] ECR I-4135, paragraph 8).
14 The first question which arises is whether the annulment or avoidance (Anfechtung) of an employment contract in a case such as this constitutes direct discrimination on grounds of sex for the purposes of the directive. To that end, it must be established whether the fundamental reason for the annulment or avoidance of the contract applies without distinction to workers of both sexes or, on the contrary, to one sex only.
15 It is clear that the termination of an employment contract on account of the employee' s pregnancy, whether by annulment or avoidance, concerns women alone and constitutes, therefore, direct discrimination on grounds of sex, as the Court has held in cases where a pregnant woman was denied employment or dismissed (see the judgments in Case C-177/88 Dekker v VJV-Centrum [1990] ECR I-3941 and Case C-179/88 Handels- og Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening [1990] ECR I-3979).
18 The question, therefore, is whether the directive precludes compliance with the prohibition on night-time work by pregnant women, which is unquestionably compatible with Article 2(3), from rendering an employment contract invalid or allowing it to be avoided on the ground that the prohibition prevents the employee from doing the night-time work for which she was engaged.
21 In the first place, so far as concerns the purpose of Article 2(3) of the directive, by reserving to Member States the right to retain or introduce provisions which are intended to protect women in connection with "pregnancy and maternity", that article recognizes the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman' s biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth (see the judgment in Case 184/83 Hofmann v Barmer Ersatzkasse [1984] ECR 3047, paragraph 25).
22 As the Court has held (see the Hofmann judgment cited above, paragraph 27), the directive leaves Member States with a discretion as to the social measures which must be adopted in order to guarantee, within the framework laid down by the directive, the protection of women in connection with pregnancy and maternity and to offset the disadvantages which women, by comparison with men, suffer with regard to the retention of employment.
23 In this case, the questions submitted for a ruling relate to a contract for an indefinite period and the prohibition on night-time work by pregnant women therefore takes effect only for a limited period in relation to the total length of the contract.
24 In the circumstances, to acknowledge that the contract may be held to be invalid or may be avoided because of the temporary inability of the pregnant employee to perform the night-time work for which she has been engaged would be contrary to the objective of protecting such persons pursued by Article 2(3) of the directive, and would deprive that provision of its effectiveness.
25 Accordingly, termination of a contract for an indefinite period on grounds of the woman' s pregnancy, whether by annulment or avoidance, cannot be justified by the fact that she is temporarily prevented, by a statutory prohibition imposed because of pregnancy, from performing night-time work.
26 The answer to the questions submitted by the national court must therefore be that Article 2(1), read in conjunction with Articles 3(1) and 5(1) of Directive 76/207/EEC, precludes an employment contract for an indefinite period for the performance of night-time work concluded between an employer and a pregnant employee, both of whom were unaware of the pregnancy, from being held to be void on account of the statutory prohibition on night-time work which applies, by virtue of national law, during pregnancy and breastfeeding, or from being avoided by the employer on account of a mistake on his part as to the essential personal characteristics of the woman at the time when the contract was concluded.