Caisse nationale d'assurance vieillesse des travailleurs salariés (CNAVTS) v Evelyne Thibault.
Date: 1998-04-30
21 On this point it should be recalled that, in accordance with the allocation of functions between the Court of Justice and the national courts which underlies Article 177 of the EEC Treaty, it is for the national court to establish the facts giving rise to the dispute, to interpret national legal provisions and to rule on their application to the particular case (see, to that effect, Case 139/85 Kempf v Staatssecretaris van Justitie [1986] ECR 1741, paragraph 12, and Case 296/84 Sinatra v Fonds National de Retraite des Ouvriers Mineurs [1986] ECR 1047, paragraph 11).
22 However, as the French Government has stated, it is for the national court, within the limits of its discretion under national law, to interpret and apply the law adopted to implement a directive in accordance with the requirements of Community law (see Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, paragraph 28).
24 It must be borne in mind that the directive allows national provisions which guarantee women specific rights on account of pregnancy and maternity, such as maternity leave (see Case  C-179/88 Handels- og Kontorfunktionaerernes Forbund [1990] ECR I-3979, paragraph 15).
25 Furthermore, by reserving to Member States the right to retain or introduce provisions which are intended to protect women in connection with `pregnancy and maternity', Article 2(3) of the Directive recognises 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, in particular, Case 184/83 Hofmann v Barmer Ersatzkasse [1984] ECR 3047, paragraph 25, Case C-421/92 Habermann-Beltermann [1994] ECR I-1657, paragraph 21, and Case C-32/93 Webb v EMO Air Cargo [1994] ECR I-3567, paragraph 20).
26 The conferral of such rights, recognised by the Directive, is intended to ensure implementation of the principle of equal treatment for men and women regarding both access to employment (Article 3(1)) and working conditions (Article 5(1)).  Therefore, the exercise of the rights conferred on women under Article 2(3) cannot be the subject of unfavourable treatment regarding their access to employment or their working conditions.  In that light, the result pursued by the Directive is substantive, not formal, equality.
27 The right of any employee to have their performance assessed each year and, consequently, to qualify for promotion, forms an integral part of the conditions of their contract of employment within the meaning of Article 5(1) of the Directive.
29 The principle of non-discrimination requires that a woman who continues to be bound to her employer by her contract of employment during maternity leave should not be deprived of the benefit of working conditions which apply to both men and women and are the result of that employment relationship.  In circumstances such as those of this case, to deny a female employee the right to have her performance assessed annually would discriminate against her merely in her capacity as a worker because, if she had not been pregnant and had not taken the maternity leave to which she was entitled, she would have been assessed for the year in question and could therefore have qualified for promotion.
30 It is true, as the United Kingdom Government was right to point out, that the Court has recognised that the Member States have a discretion as to the social measures they adopt in order to guarantee, within the framework laid down by the directive, protection of women in connection with pregnancy and maternity and as to the nature of the protection measures and the detailed arrangements for their implementation (see inter alia Hofmann, cited above, paragraph 27).
32 It must therefore be held that a woman who is accorded unfavourable treatment regarding her working conditions, in that she is deprived of the right to an annual assessment of her performance and, therefore, of the opportunity of qualifying for promotion as a result of absence on account of maternity leave, is discriminated against on grounds of her pregnancy and her maternity leave.  Such conduct constitutes discrimination based directly on grounds of sex within the meaning of the Directive.