Sabine Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG.
Date: 2008-02-26
32. In that field, the Court has also pointed out that the objective pursued by the Community law rules governing equality as between men and women in regard to the rights of pregnant women and women who have given birth, is to protect female workers before and after they have given birth (see Case C-191/03 McKenna [2005] ECR I-7631, paragraph 42, and Case C-460/06 Paquay [2007] ECR I-0000, paragraph 28).
33. Before Directive 92/85 came into force, the Court had already held that, under the principle of non-discrimination and, in particular, Articles 2(1) and 5(1) of Directive 76/207, protection against dismissal must be granted to women not only during maternity leave, but also throughout the period of the pregnancy. According to the Court, a dismissal occurring during those periods affects only women and therefore constitutes direct discrimination on the grounds of sex (see, to that effect, Case C-179/88 Handels- og Kontorfunktionærernes Forbund  [1990] ECR I-3979, paragraph 13; Case C-394/96 Brown  [1998] ECR I-4185, paragraphs 16, 24 and 25; McKenna , paragraph 47; and Paquay , paragraph 29).
34. It is precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the Community legislature laid down special protection for women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave (Case C-32/93 Webb  [1994] ECR I-3567, paragraph 21; Brown , paragraph 18; Case C-109/00 Tele Danmark  [2001] ECR I-6993, paragraph 26; McKenna , paragraph 48; and Paquay , paragraph 30).
35. It should also be pointed out that, during that period, Article 10 of Directive 92/85 does not provide for any exception to, or derogation from, the prohibition of dismissing pregnant workers, save in exceptional cases not connected with their condition where the employer justifies the dismissal in writing ( Webb , paragraph 22; Brown , paragraph 18; Tele Danmark , paragraph 27; and Paquay , paragraph 31).
38. In that regard, it should be pointed out that, although, as the Austrian Government observed, artificial fertilisation and viable cells treatment is a very sensitive social issue in many Member States, marked by their multiple traditions and value systems, the Court is not called upon, by the present order for reference, to broach questions of a medical or ethical nature, but must restrict itself to a legal interpretation of the relevant provisions of Directive 92/85 taking account of the wording, the broad logic and the objectives of that directive.
43. However, even if Directive 92/85 is not applicable to a situation such as that at issue in the main proceedings, the fact remains that, in accordance with the case-law of the Court, the Court may deem it necessary to consider provisions of Community law to which the national court has not referred in its question (Case C-241/89 SARPP [1990] ECR I-4695, paragraph 8, and Case C-392/05 Alevizos [2007] ECR I-3505, paragraph 64).
46. As is clear from paragraph 33 of this judgment, the Court has already held that, under the principle of non-discrimination and, in particular, Articles 2(1) and 5(1) of Directive 76/207, protection against dismissal must be granted to women not only during maternity leave, but also throughout the period of the pregnancy. According to the Court, dismissal of a female worker on account of pregnancy, or for a reason essentially based on that state, affects only women and therefore constitutes direct discrimination on the grounds of sex (see, to that effect, Handels- og Kontorfunktionærernes Forbund , paragraph 13; Brown , paragraphs 16, 24 and 25; McKenna , paragraph 47; and Paquay , paragraph 29).
49. The Court has already held that, given that male and female workers are equally exposed to illness, if a female worker is dismissed on account of absence due to illness in the same circumstances as a man then there is no direct discrimination on grounds of sex ( Handels‑ og Kontorfunktionærernes Forbund , paragraph 17).
50. It is true that workers of both sexes can be temporarily prevented from carrying out their work on account of the medical treatment they must receive. Nevertheless, the treatment in question in the main proceedings – namely a follicular puncture and the transfer to the woman’s uterus of the ova removed by way of that follicular puncture immediately after their fertilisation – directly affects only women. It follows that the dismissal of a female worker essentially because she is undergoing that important stage of in vitro fertilisation treatment constitutes direct discrimination on grounds of sex.