Maria Luisa Jiménez Melgar v Ayuntamiento de Los Barrios.
Date: 2001-10-04
32 It is settled case-law that the Member States' obligation arising from a directive to achieve the result prescribed by the directive and their duty, under Article 5 of the EC Treaty (now Article 10 EC), to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation is binding on all the authorities of the Member States (judgments in Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 26, and Case C-258/97 HI [1999] ECR I-1405, paragraph 25), including decentralised authorities such as municipalities (Case 103/88 Fratelli Costanzo [1989] ECR I839, paragraph 32, and Case C-224/97 Ciola [1999] ECR I-2517, paragraph 30).
33 It must therefore be concluded that the provisions of Article 10 of Directive 92/85 impose on Member States, in particular in their capacity of employer, precise obligations which afford them no margin of discretion in their performance.
34 The answer to be given to the first question must therefore be that Article 10 of Directive 92/85 has direct effect and is to be interpreted to the effect that, in the absence of transposition measures taken by a Member State within the period prescribed by that directive, it confers on individuals rights on which they may rely before a national court against the authorities of that State.
The second question
37 It is clear from the wording of that provision that Directive 92/85 does not impose on the Member States any obligation to draw up a specific list of the reasons for dismissal which, by exception, would be allowed in the case of pregnant workers, workers who have recently given birth and workers who are breastfeeding.  Nevertheless, that directive, which lays down minimum provisions, does not in any way prevent the Member States from providing for higher protection for those workers, by laying down specific grounds on which such workers may be dismissed.
43 In that regard, it must be concluded that Directive 92/85 makes no distinction, as regards the scope of the prohibition of dismissal of pregnant workers, workers who have recently given birth or workers who are breastfeeding, according to the duration of the employment relationship in question.  If the Community legislature had intended to exclude fixed-term contracts, which represent a significant proportion of employment relationships, from the scope of that directive it would have made express provision to that effect (judgment of 4 October 2001 in Case C-109/00 Tele Danmark [2001] ECR I-0000, paragraph 33).
45 It is also clear that non-renewal of a fixed-term employment contract, when it comes to the end of its stipulated term, cannot be regarded as a dismissal; as such, non-renewal is not contrary to Article 10 of Directive 92/85.
46 However, as both the Advocate General, in point 50 of his Opinion, and the Commission point out, in certain circumstances, non-renewal of a fixed-term contract could be viewed as a refusal of employment.  It is settled case-law that a refusal to employ a female worker, who is otherwise judged capable of performing the work concerned, based on her state of pregnancy constitutes direct discrimination on grounds of sex, contrary to Articles 2(1) and 3(1) of Directive 76/207 (Dekker, paragraph 12, and Mahlburg, paragraph 20).  It is for the national court to determine whether the non-renewal of an employment contract following a succession of fixed-term contracts was in fact motivated by the worker's state of pregnancy.