Isabel González Castro v Mutua Umivale and Others.
Date: 2018-09-19
39


In order to answer that question, it must be noted that, in accordance with the settled case-law of the Court, in interpreting a provision of EU law it is necessary to consider not only its wording but also its context and the objectives of the legislation of which it forms part (see, inter alia, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 44 and the case-law cited).
54


As a preliminary point, it should be observed that, 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 and, in that context, to interpret all provisions of EU 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 (judgment of 19 October 2017, Otero Ramos, C‑531/15, EU:C:2017:789, paragraph 39 and the case-law cited).
55


Consequently, even if, formally, the referring court has limited its second to fourth questions to the interpretation of Article 19(1) of Directive 2006/54 and of Article 5 of Directive 92/85, it is 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 EU law which require interpretation in view of the subject matter of the dispute (see, to that effect, judgment of 19 October 2017, Otero Ramos, C‑531/15, EU:C:2017:789, paragraph 40 and the case-law cited).
62


In that regard, the Court has held that Article 19(1) of Directive 2006/54 applies to a situation 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 (judgment of 19 October 2017, Otero Ramos, C‑531/15, EU:C:2017:789, paragraph 65).
63


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 indeed be regarded as less favourable treatment of a woman related to pregnancy or maternity leave, within the meaning of that directive, and thus constitutes direct discrimination on grounds of sex, within the meaning of Article 2(2)(c) of Directive 2006/54 (judgment of 19 October 2017, Otero Ramos, C‑531/15, EU:C:2017:789, paragraphs 62 and 63).
64


The Court stated, in that regard, 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 (judgment of 19 October 2017, Otero Ramos, C‑531/15, EU:C:2017:789, paragraph 51).
71


Furthermore, it follows from the Guidelines that 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 (judgment of 19 October 2017, Otero Ramos, C‑531/15, EU:C:2017:789, paragraphs 46 and 51).
73


As regards the conditions for the application of that provision, it should be recalled that the rules of evidence that it provides 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, an allowance in respect of risk during breastfeeding, and a risk assessment of her work must, accordingly, be carried out in accordance with Article 4(1) of Directive 92/85 or, where appropriate, Article 7 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 of evidence are to be applied (see, to that effect, judgment of 19 October 2017, Otero Ramos, C‑531/15, EU:C:2017:789, paragraph 67).
74


Nevertheless, in accordance with Article 19(1) of Directive 2006/54, it is for a worker who considers herself wronged because the principle of equal treatment has not been applied to her to raise, 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 19 October 2017, Otero Ramos, C‑531/15, EU:C:2017:789, paragraph 68 and the case-law cited).
81


If so, it will be for the respondent in the main proceedings to prove that the risk assessment provided for by national legislation transposing, inter alia, Articles 4 and 7 of Directive 92/85 into national law included a specific assessment taking into account the individual situation of Ms González Castro, bearing in mind that documents such as a declaration by the employer that the duties performed by that worker and her working conditions do not affect breastfeeding, without any explanations capable of substantiating that assertion, combined with the fact that her work is not included in the list of jobs posing a risk to breastfeeding drawn up by the competent body of the Member State concerned, cannot alone provide an irrebuttable presumption that such is the case. Otherwise, both Articles 4 and 7 of Directive 92/85 and the rules of evidence provided for in Article 19 of Directive 2006/54 would be deprived of any useful effect (see, to that effect, judgment of 19 October 2017, Otero Ramos, C‑531/15, EU:C:2017:789, paragraph 74).