Handels- og Kontorfunktionærernes Forbund i Danmark, acting on behalf of Berit Høj Pedersen v Fællesforeningen for Danmarks Brugsforeninger and Dansk Tandlægeforening and Kristelig Funktionær-Organisation v Dansk Handel & Service.
Date: 1998-11-19
22 Ms Høj Pedersen, Ms Andresen, Ms Pedersen and Ms Sørensen are all covered by the Danish Law on non-manual workers. In all their cases, pregnancy followed an abnormal course prior to the three months preceding the expected date of confinement.
29 The first point to be borne in mind here is that Directive 75/117 is designed essentially to facilitate the practical application of the principle of equal pay laid down in Article 119 of the Treaty and thus that it in no way alters the content or scope of the principle as defined in that article (Case 192/85 Newstead v Department of Transport [1987] ECR 4753, paragraph 20).
31 As the Court has consistently held, Article 177 of the Treaty is based on a distinct separation between the functions of national courts and tribunals and those of the Court of Justice, and does not give the Court jurisdiction to ascertain the facts of a case or to criticise the reasons for a reference. When a national court or tribunal seeks a ruling on the interpretation of a provision of Community law, it is to be supposed that it considers that interpretation necessary to enable it to give judgment in the action (Case 5/77 Tedeschi v Denkavit [1977] ECR 1555, paragraphs 17 and 18).
32 A further relevant consideration is that, as the Court held in Case 171/88 Rinner-Kühn v FWW Spezial-Gebäudereinigung [1989] ECR 2743, the pay to be provided by an employer during a worker's period of sick leave constitutes pay within the meaning of Article 119 of the Treaty, which comprises any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his or her employment from his or her employer, and irrespective of whether it is received under a contract of employment, by virtue of legislative provisions or on a voluntary basis (see Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889, paragraph 12, and Case C-457/93 Kuratorium für Dialyse und Nierentransplantation v Lewark [1996] ECR I-243, paragraph 21).
33 It must next be noted that although pregnancy is not in any way comparable to a pathological condition (Case C-32/93 Webb v EMO Air Cargo [1994] ECR I-3567, paragraph 25), the fact remains that it is a period during which disorders and complications may arise compelling a woman to undergo strict medical supervision and, in some cases, to take absolute rest for all or part of her pregnancy. Those disorders and complications, which may cause incapacity for work, form part of the risks inherent in the condition of pregnancy and are thus a specific feature of that condition (Case C-394/96 Brown v Rentokil [1998] ECR I-4185, paragraph 22).
34 In this case, it is clear from the case-file that all workers are in principle entitled, under the legislation at issue in the main proceedings, to continue to be paid in full in the event of incapacity for work.
35 Thus, the fact that a woman is deprived, before the beginning of her maternity leave, of her full pay when her incapacity for work is the result of a pathological condition connected with the pregnancy must be regarded as treatment based essentially on the pregnancy and thus as discriminatory.
37 It follows that the application of legislative provisions such as those at issue in the main proceedings involves discrimination against women, in breach of Article 119 of the Treaty and of Directive 75/117.
39 It must be noted here that Article 11(3) of Directive 92/85 only allows a ceiling to be laid down under national legislation for pay or benefits received by workers in the context of maternity leave, as it is defined in Article 8 of the same directive.
40 The discrimination found in paragraph 35 above cannot be justified by the aim of sharing the risks and economic costs connected with pregnancy between the pregnant worker, the employer and society as a whole. That goal cannot be regarded as an objective factor unrelated to any discrimination based on sex within the meaning of the case-law of the Court (see Lewark, cited above, paragraph 31).
45 It is true that, as the Court held in Case 244/78 Union Laitière Normande v French Dairy Farmers [1979] ECR 2663, at paragraph 5, the need to afford an interpretation of Community law which is helpful to the national court makes it essential to define the legal context in which the interpretation requested should be placed. From that point of view it may, depending on the circumstances, be an advantage for the facts in the case to be established and for questions of purely national law to be settled at the time the reference is made to the Court of Justice so that it can be in a position to take cognisance of all the factual and legal elements which may be relevant to the interpretation of Community law which it is called upon to give (Joined Cases 36/80 and 71/80 Irish Creamery Milk Suppliers Association and Others v Ireland and Others [1981] ECR 735, paragraph 6).
46 However, those considerations do not in any way restrict the discretion of the national court, which alone has a direct knowledge of the facts of the case and of the arguments of the parties, which will have to take responsibility for giving judgment in the case and which is therefore in the best position to appreciate at what stage in the proceedings it requires a preliminary ruling from the Court of Justice (Irish Creamery Milk Suppliers Association and Others, paragraph 7).
54 It is true that, 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 Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, of protecting a woman's biological condition during and after pregnancy (Webb, cited above, paragraph 20).
57 Turning to Directive 92/85, it must be noted that Articles 4 and 5 set up an assessment and information procedure in respect of activities liable to involve a risk to safety or health or an effect on workers who are pregnant or breastfeeding. That procedure can lead to the employer making a temporary adjustment in working conditions and/or working hours or, if such an adjustment is not feasible, a move to another job. It is only when such a move is also not feasible that the worker is granted leave in accordance with national legislation or national practice for the whole of the period necessary to protect her safety or health.