Elda Otero Ramos v Servicio Galego de Saúde and Instituto Nacional de la Seguridad Social.
Date: 2017-10-19
39


According to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court has a duty to interpret all provisions of European Union law which national courts require in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court by those courts (judgments of 19 September 2013, Betriu Montull, C‑5/12, EU:C:2013:571, paragraph 40 and the case-law cited, and of 13 February 2014, TSN and YTN, C‑512/11 and C‑513/11, EU:C:2014:73, paragraph 32).
40


Consequently, even if, formally, the referring court has limited its questions to the interpretation of Article 19 of Directive 2006/54 and of Article 5(2) and (3) of Directive 92/85, that does not prevent this Court from providing the referring court with all the elements of interpretation of European Union law that may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of European Union law which require interpretation in view of the subject matter of the dispute (see, to that effect, judgments of 19 September 2013, Betriu Montull, C‑5/12, EU:C:2013:571, paragraph 41 and the case-law cited, and of 13 February 2014, TSN and YTN, C‑512/11 and C‑513/11, EU:C:2014:73, paragraph 33).
46


For the purposes of interpreting Article 4(1) of Directive 92/85, account must be taken of the Guidelines, for they are intended, in accordance with Article 3(2) of that directive, to serve as the basis for the assessment referred to in Article 4(1) thereof.
51


It is thus clear from the Guidelines that, in order to be in conformity with the requirements of Article 4(1) of Directive 92/85, the risk assessment of the work of a breastfeeding worker must include a specific assessment taking into account the individual situation of the worker in question in order to ascertain whether her health or safety or that of her child is exposed to a risk.
57


As the Court has already held, the objective pursued by the rules of EU law governing equality between men and women is, with regard to the rights of pregnant women and women who have given birth and breastfeeding mothers, to protect those women before and after they give birth (judgment of 11 November 2010, Danosa, C‑232/09, EU:C:2010:674, paragraph 68 and the case-law cited).
61


It should be noted, in that context that, as regards the protection of women in connection with pregnancy and maternity, the Court has repeatedly held that, by reserving to Member States the right to retain or introduce provisions intended to ensure that protection, Article 2(2) of Directive 2006/54 recognises the legitimacy, in terms of the principle of equal treatment of the sexes, 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 childbirth (judgment of 30 September 2010, Roca Álvarez, C‑104/09, EU:C:2010:561, paragraph 27 and the case-law cited).
62


As the Advocate General stated in point 57 of her Opinion, where the risks posed by the work of a breastfeeding worker have not been assessed in conformity with the requirements of Article 4(1) of Directive 92/85, the worker concerned and her child are deprived of the protection they should receive under that directive, since they are likely to be exposed to the potential risks the existence of which was not correctly established in the course of the risk assessment of the work of the worker in question. In that regard, a breastfeeding worker may not be treated in the same way as any other worker, since her specific situation necessarily requires special treatment on the part of the employer.
63


Accordingly, failure to assess the risk posed by the work of a breastfeeding worker in accordance with the requirements of Article 4(1) of Directive 92/85 must be regarded as less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of that directive and constitutes, as appears from paragraph 60 above, direct discrimination on grounds of sex within the meaning of Article 2(2)(c) of Directive 2006/54.
65


In the light of those considerations, the answer to the first question referred is that Article 19(1) of Directive 2006/54 must be interpreted as applying to a situation, such as that at issue in the main proceedings, in which a breastfeeding worker challenges, before a court or other competent authority of the Member State concerned, the risk assessment of her work in so far as she claims that the assessment was not conducted in accordance with Article 4(1) of Directive 92/85.
67


It should be pointed out, in that regard, that the rules of evidence provided for in that provision do not apply at the time that the worker in question requests an adjustment of her working conditions or, as in the case in the main proceedings, a financial allowance in respect of risk during breastfeeding, requiring a risk assessment of her work to be carried out in accordance with Article 4(1) of Directive 92/85. It is only at a later stage, when a decision relating to that risk assessment is challenged by the worker in question before a court or any other competent authority, that those rules are to be applied.
68


Nevertheless, in accordance with Article 19(1) of Directive 2006/54, it is for a female worker who considers herself wronged because the principle of equal treatment has not been applied to her to establish, before a court or any other competent authority, facts or evidence from which it may be presumed that there has been direct or indirect discrimination (see, to that effect, judgment of 21 July 2011, Kelly, C‑104/10, EU:C:2011:506, paragraph 29).
70


It is only when the worker in question has established such facts or evidence that the burden of proof is shifted back and that it is for the defendant to prove that there has been no breach of the principle of non-discrimination (see, to that effect, judgment of 21 July 2011, Kelly, C‑104/10, EU:C:2011:506, paragraph 30).
74


It will therefore be for the defendant to prove that the risk assessment provided for in Article 4 of Directive 92/85 was conducted in accordance with the requirements of that provision, bearing in mind that documents such as a certificate from the employer according to which the work is classified as ‘risk-free’, in conjunction with a certificate according to which the worker in question is ‘fit’ to work, without any explanations capable of substantiating those conclusions, cannot alone provide an irrebutable presumption that such is the case. Otherwise both that provision and the rules of evidence provided for in Article 19 of Directive 2006/54 would be deprived of all practical effect.