Sari Kiiski v Tampereen kaupunki.
Date: 2007-09-20
24. It follows that the Community legislature, with a view to the implementation of Directive 92/85, intended to give the concept of ‘pregnant worker’ a Community meaning, even if, in respect of one element of that definition, namely that relating to the method of communication of her condition to her employer, it refers back to national legislation and/or national practice.
25. As to the concept of worker, it must be borne in mind that, according to settled case-law, it may not be interpreted differently according to each national law but has a Community meaning. That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration (see, in particular, Case 66/85 Lawrie-Blum  [1986] ECR 2121, paragraphs 16 and 17; Case C‑176/96 Lehtonen and Castors Braine [2000] ECR I‑2681, paragraph 45; Case C‑138/02 Collins  [2004] ECR I‑2703, paragraph 26; Case C‑456/02 Trojani  [2004] ECR I‑7573, paragraph 15; and Case C‑392/05 Alevizos [2007] ECR I-0000, paragraph 67).
26. Moreover, the Court has held that the sui generis nature of the employment relationship under national law cannot have any consequence in regard to whether or not the person is a worker for the purposes of Community law (see Case 53/81 Levin  [1982] ECR 1035, paragraph 16; Case 344/87 Bettray  [1989] ECR 1621, paragraphs 15 and 16; Case C-188/00 Kurz  [2002] ECR I-10691, paragraph 32; and Trojani , paragraph 16).
32. It should be pointed out, in the second place, that according to paragraph 7 of Clause 2 of the framework agreement, the Member States and/or management and labour are to define the status of the employment contract or of the employment relationship for the period of parental leave provided for under that agreement. It follows that the Community legislature, in adopting Directive 96/34 which puts into effect that agreement, considered that the working relationship between the worker and his employer was maintained during the period of child-care leave. As a result, the beneficiary of such leave remains, during that period, a worker for the purposes of Community law.
35. In that regard, it should be recalled that paragraph 1 of Clause 2 of the framework agreement grants men and women workers an individual right to leave of at least three months’ duration. That leave is granted to parents to enable them to take care of their child. It may be taken until the child has reached a given age up to eight years (see Case C-519/03 Commission  v Luxembourg  [2005] ECR I‑3067, paragraphs 31 and 32).
40. As regards the rules for application of the collective agreement, they cite, as justified grounds thus envisaged, events such as the serious illness or death of a child or of the other parent, and divorce. On the other hand, those rules do not, in principle, recognise a move to another place, the coming into existence of another employment relationship, or a new pregnancy as unforeseeable and justified grounds.
41. While a move to another place or the coming into existence of another employment relationship, which depend only on the volition of the persons concerned, may justifiably be regarded as not unforeseeable, pregnancy cannot, in that respect, be compared to such events.
46. It is precisely that inevitable course which the Community legislature took into account when making available to pregnant workers a special right, that is to say a right to maternity leave of the kind provided for in Directive 92/85, which is intended, first, to protect a woman's biological condition during and after pregnancy and, second, to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment (see, to that effect, Case C-366/99 Griesmar  [2001] ECR I-9383, paragraph 43; Case C-342/01 Merino Gómez  [2004] ECR I‑2605, paragraph 32; and Commission v Luxembourg , paragraph 32).
49. In those circumstances, the right to maternity leave granted to pregnant workers must be regarded as a particularly important mechanism of protection under employment law. The Community legislature thus considered that the fundamental changes to the living conditions of the persons concerned during the period of at least 14 weeks preceding and after childbirth constituted a legitimate ground on which they could suspend their employment, without the public authorities or employers being allowed in whatever way to call the legitimacy of that ground into question.
54. According to settled case-law, observance of the principles of equality and non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, in particular, Case C-248/04 Koninklijke Coöperatie Cosun  [2006] ECR I‑10211, paragraph 72, and Case C-303/05 Advocaten voor de Wereld  [2007] ECR I-0000, paragraph 56).
56. Moreover, the Court has already held that a period of leave guaranteed by Community law cannot affect the right to take another period of leave guaranteed by that law ( Commission  v Luxembourg , paragraph 33, and Case C-124/05 Federatie Nederlandse Vakbeweging [2006] ECR I‑3423, paragraph 24).