FIRST SECTION
CASE OF JURČIĆ v. CROATIA
(Application no. 54711/15)
 
 
JUDGMENT
Art 14 (+ Art 1 P1) • Unjustified, direct sex discrimination owing to refusal of employment-related benefit to pregnant woman who underwent in vitro fertilisation shortly before employment • Financial obligations imposed on State during a woman’s pregnancy incapable of justifying difference in treatment on basis of sex • Problematic character of insurance verification measures frequently targeting pregnant women and women who had entered into employment contract at advanced stage of their pregnancies or with close family members • Employment-related protection of women during pregnancy not to be dependent on whether their presence at work during maternity was essential for proper functioning of their employer or whether they were temporarily prevented from performing their work • Maternity protection measures essential to uphold principle of equal treatment of men and women in employment • Authorities’ conclusion that in vitro fertilisation rendered applicant medically unfit to take up employment tantamount to discouraging her from seeking employment owing to possible pregnancy and indicative of gender stereotyping, in direct contravention of both domestic and international law
 
STRASBOURG
4 February 2021
 
FINAL
 
04/05/2021
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Jurčić v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Krzysztof Wojtyczek, President,
 Ksenija Turković,
 Alena Poláčková,
 Péter Paczolay,
 Gilberto Felici,
 Erik Wennerström,
 Raffaele Sabato, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to:
the application (no. 54711/15) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Ms Kristina Jurčić (“the applicant”), on 28 October 2015;
the decision to give notice of the applicant’s discrimination complaint to the Croatian Government (“the Government”) and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 16 December 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applicant entered into an employment contract ten days after she had undergone in vitro fertilisation. When she subsequently went on sick leave on account of pregnancy-related complications, the relevant administrative authority re-examined her health insurance status and rejected her application for insurance as an employed person, concluding that her employment had been fictitious. The applicant complained that she had been discriminated against on the basis of her sex and the manner in which she had become pregnant. THE FACTS
2. The applicant was born in 1975 and lives in Rijeka. She was represented by Ms K. Jajaš, a lawyer practising in Rijeka. 3. The Government were represented by their Agent, Ms Š. Stažnik. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant had been employed, with short interruptions, since 1993. Her last relevant employment lasted from 19 August 2006 until 31 October 2009. Since 1 November 2009 she has been unemployed. 6. On 17 November 2009 the applicant underwent in vitro fertilisation. The doctor in charge recommended that she take rest (mirovanje). 7. On 27 November 2009 the applicant entered into an employment contract with company N. (hereinafter “the company”), which had its headquarters near Split, about 360 km away from the applicant’s place of residence. Pursuant to the contract, the applicant was to start full-time work on administrative tasks in Split on that date for a monthly salary of 4,400 Croatian kunas (HRK – approximately 600 euros (EUR)). 8. On 11 December 2009 the applicant’s application to register with the compulsory health insurance scheme was filed with the Croatian Health Insurance Fund (Hrvatski zavod za zdravstveno osiguranje – “the Fund”) and she was registered as an insured employee. 9. On 14 December 2009 the applicant started feeling nauseous. Her doctor established that the in vitro fertilisation had been successful, and that the applicant needed rest owing to pregnancy-related complications. A period of sick leave was thus prescribed. 10. On 17 December 2009 an ultrasound confirmed that the applicant was pregnant with twins. 11. On 28 December 2009 the applicant filed a request for payment of compensation for loss of salary during her sick leave on account of pregnancy-related complications (see paragraph 26 below). 12. On 5 January 2010 the relevant office of the Fund, of its own motion, initiated a review of the applicant’s health insurance status. 13. On 16 February 2010 the Fund reopened the case concerning the applicant’s health insurance and rejected her application for registration as an insured employee, along with her request for compensation for loss of salary due to sick leave on account of pregnancy-related complications. It based its decision on an in-house expert report according to which, when the applicant had taken up her employment with the company on 27 November 2009, she had been medically unfit for employment because she had undergone in vitro fertilisation ten days earlier. It was therefore considered that her employment was fictitious and aimed solely at obtaining pecuniary advantages related to the status of employed person, including compensation for loss of salary during her absence from work due to pregnancy-related complications. 14. The applicant challenged this decision before the Central Office of the Croatian Health Insurance Fund (hereinafter “the Central Office”). She argued that she had felt well after undergoing the in vitro fertilisation and that she had had no way of knowing whether the implantation would be successful. There had therefore been no reason for her to miss out on an opportunity to take up employment on 27 November 2009. 15. According to an expert report by a specialist in gynaecology and obstetrics dated 3 March 2010 and submitted by the applicant, on the date on which the applicant took up employment with the company she had been healthy and awaiting the results of her in vitro fertilisation. The expert also stressed that neither the applicant nor her gynaecologist could have known in advance whether the in vitro fertilisation would be successful and how the pregnancy would develop. 16. Following the applicant’s appeal, the Central Office carried out a further assessment of the circumstances of the applicant’s employment and her medical condition. According to the information obtained from her employer, the applicant was to work at the company headquarters in Split, but a part of her tasks could be performed by working remotely from home. Her employer confirmed that her position in the company required travelling within and outside Croatia. The Central Office also obtained another in-house expert report, the relevant part of which reads as follows:
“In the case at hand, [the applicant] had been unfit to work on 27 November 2009 because the gynaecologist recommended that she rest following the implantation of two fertilised ova, that is to say, as of 17 November 2009. In other words, rest was recommended ten days prior to [the applicant’s] employment. We would emphasise that, on the date on which she entered into the employment contract, namely 27 November 2009, [the applicant] might not have known whether she was pregnant but in any event she should have rested until a BHCG test could be performed; this was planned for 3 December 2009. It is standard practice for gynaecologists to recommend rest immediately after in vitro fertilisation and embryo transfer until the outcome of the procedure can be established (via a BHCG test to determine whether pregnancy has occurred). Rest in these cases entails not only avoiding physical and psychological effort, but in particular avoiding travel owing to its negative mechanical effects (shaking) during the sensitive phase following embryo transfer and its potential implantation. Besides, every journey involves a potentially stressful situation and may negatively impact the outcome of the pregnancy because, in the experience of gynaecologists, psychological stability improves the chances of a favourable outcome of in vitro fertilisation.”
17. On the basis of the above evidence, the Central Office dismissed the applicant’s appeal on 30 March 2010, holding that although pregnancy in itself could not be a reason for not taking up employment, the particular circumstances of the applicant’s case suggested that her employment could be considered fictitious and aimed solely at obtaining the compensation for loss of salary granted to employed persons. 18. The applicant challenged this decision before the High Administrative Court (Visoki upravni sud Republike Hrvatske), arguing, in particular, that she had been discriminated against as a woman who had undergone in vitro fertilisation. The applicant expressly relied on the Prevention of Discrimination Act and the Convention. She also explained that she had planned to move close to Split, where her husband had his registered residence, and that most other employees of the company resided elsewhere, since the nature of the company’s work had been compatible with remote working, which she herself did. 19. On 5 December 2012 the High Administrative Court dismissed the applicant’s administrative action, upholding the reasoning of the administrative bodies. It stressed that, in view of her in vitro fertilisation, on 27 November 2009 the applicant had not been fit to take up employment that was at a distance from her place of residence and also required travelling. The relevant part of that court’s judgment reads as follows:
“The facts established in the proceedings resulting in the impugned decision lead to the conclusion that on the day she entered into the employment contract [the applicant] had been unfit to work and, in that most sensitive phase of a twin pregnancy, had been unfit to fulfil the obligations arising from her employment within the meaning of section 3(1) of the Labour Act, according to which the employee is to personally perform the activities for which he or she has entered into an employment contract, in the [applicant’s] case administrative tasks in a city some distance from her place of residence, entailing an obligation to travel within the country and abroad. These facts lead to the conclusion that the employment was not entered into with a view to fulfilment of the mutual obligations of the employer and employee but that the present case concerns an employment contract entered into solely in order to benefit from statutory social security benefits. In this court’s view, such a contract cannot be a basis for obtaining the status of insured person. The court finds [the applicant’s] discrimination complaint ill-founded, since she was not denied, on the basis of either her sex or her pregnancy, the right to take up employment or related rights (and specifically the rights stemming from compulsory health insurance). Pregnancy is not an obstacle to taking up employment, and any restriction of an employment-related right in the case of an employee who has actually entered into an employment contract during pregnancy (if that pregnancy does not affect the pregnant woman’s ability to work) would constitute a prohibited interference with her rights. However, in the present case it has been established that [the applicant] had undergone in vitro fertilisation ten days prior to the conclusion of the employment contract, as a consequence of which, according to concurring expert opinions (which are not in contradiction with the medical documentation in the case file), at the time of the conclusion of the employment contract [the applicant] had been unfit for work. Therefore, it is this court’s opinion that the competent bodies did not deprive [the applicant] of her rights under the compulsory health insurance scheme in breach of the Constitution, [the Convention] or [the applicable legislation] ...”
20. The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), reiterating her previous arguments and alleging that she had been discriminated against. 21. Meanwhile, the applicant complained to the Gender Equality Ombudsperson (Pravobraniteljica za ravnopravnost spolova), alleging discrimination. On 18 December 2010 the Ombudsperson informed the applicant that she had issued a warning to the Fund that its decision in the applicant’s case had violated the prohibition of less favourable treatment on grounds of pregnancy, and that this constituted discrimination based on sex. The Ombudsperson stressed that the relevant authorities’ interpretation of the applicant’s situation had been based on the premise that every woman who had undergone in vitro fertilisation should be considered physically unfit to take up employment, and that a women who was undergoing in vitro fertilisation or was pregnant would not in reality be employed by any employer. She also recommended to the Fund that it abandon its interpretation of the relevant guidelines in similar cases, according to which a woman undergoing in vitro fertilisation or otherwise liable to have a high-risk pregnancy was unfit to perform any type of work. 22. On 22 April 2015 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded, upholding the findings of the administrative authorities and the High Administrative Court. This decision, which was served on the applicant’s representative on 29 April 2015, reads, in so far as relevant, as follows:
“The Constitutional Court notes that [it has been established in the proceedings that the applicant], who lives in Rijeka, entered into an employment contract on 27 November 2009 with [the company], which has its headquarters in Klis and one employee. The employment contract stipulated that [the applicant was to perform her duties in Split], and it transpires from the statement made by the employer ... that only part of her contractually established duties could be performed at her place of residence in Rijeka. The Constitutional Court points out that the distance between Rijeka and Split is ... 360.82 km by road ... Therefore, the Constitutional Court considers that in the present case the administrative authorities ... were justified in checking whether the employment contract at issue had been entered into solely in order to acquire rights arising out of the compulsory medical insurance scheme, or with a view to establishing an employment relationship.”
23. Meanwhile, according to the information provided by the Fund, the applicant’s employment insurance with the company had been terminated with effect from 13 December 2009. RELEVANT LEGAL FRAMEWORK AND PRACTICE
Relevant domestic law AND PRACTICE
24. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 56/90 with subsequent amendments) read as follows:
Article 14
“All persons in the Republic of Croatia shall enjoy rights and freedoms, regardless of race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth, education, social status or other status.”
Article 62
“The State shall protect maternity ...”
Article 64 § 3
“Young people, mothers ... shall be entitled to special protection at work.”
25. The relevant provisions of the Labour Act (Zakon o radu, Official Gazette no. 38/95 with subsequent amendments) read as follows:
Section 3(2)
“All measures regulated by this law ... and by the employment contract, relating to the special protection of certain categories of employees, and in particular those concerning the protection of ... pregnant women ..., shall not be considered discriminatory, nor can they be the basis for discrimination.”
Section 7(1)
“The person providing employment (hereinafter ‘the employer’) is under an obligation to assign tasks to the employee and to pay his or her salary for the work performed; the employee is under an obligation to personally perform the assigned work, complying with the instructions given by the employer in accordance with the nature and the type of work.”
Section 64
“1. The employer may not, on the grounds of pregnancy, refuse to employ a woman, dismiss her or transfer her to another position, save in accordance with section 65 of this Act [which provides for a temporary transfer at the pregnant woman’s own request or in accordance with a decision of the employer if her health condition so requires]. 2. The employer may not request any information concerning a woman’s pregnancy or instruct another person to request such information ...”
26. The relevant provisions of the Compulsory Health Insurance Act (Zakon o obveznom zdravstvenom osiguranju, Official Gazette nos. 150/08, 94/09 and 153/09), in force at the material time, read as follows:
Section 26
“An insured person shall be entitled to compensation for loss of salary in relation to the use of healthcare under the compulsory health insurance scheme or other circumstances provided for in this Act, if he or she is:
...
3.  isolated as a carrier or owing to an outbreak of infection in his or her environment, or temporarily unfit for work as a result of donating live tissue or organs for transplantation to another person insured by the Fund;
4.  designated to accompany an insured person referred for treatment or medical examination provided by an entity contracted with the Fund outside the place of domicile or residence of the insured person being referred;
5.  designated to care for a sick child or spouse under the conditions prescribed by this Act;
6.  temporarily unfit for work owing to pregnancy-related or childbirth-related illness and complications;
7.  temporarily prevented from working on account of taking maternity leave and claiming the right to work half-time, in accordance with section 15(2) and (3) of the Act concerning maternity and parental allowances;
8.  temporarily prevented from working on account of using leave for the death of a child, the birth of a stillborn child or the death of a child during maternity leave;
...”
Section 28
“1. Compensation for loss of salary under section 26, subsections 3 to 8 of this Act shall be paid to the insured person by the Fund from the first day of the use of that right ...”
Section 42
“(2)  Compensation for loss of salary shall be equal to 100% of the [calculation] base during:
...
2.  sick leave due to pregnancy-related or childbirth-related illness and complications;
...”
Section 43
“1. Compensation by the Fund for loss of salary shall be payable ... provided that, prior to the date of occurrence of the insured event giving rise to the entitlement to compensation, the insured person had [been] employed or ... pursu[ed] an economic activity or a professional activity independently ..., or ... receiv[ed] compensation for loss of salary pursuant to this Act after the termination of employment ..., [for] a period of insurance with the Fund of at least twelve months without interruption or eighteen months with interruption in the preceding two years (prior insurance) ...”
Section 104
“1. The status of insured person shall be determined by the Fund on the basis of applications for compulsory health insurance filed in accordance with the provisions of this Act by persons paying contributions ... 2. Applications to register with the compulsory health insurance scheme or to change or terminate registration shall be filed within fifteen days from the date of creation, change or termination of the circumstances giving rise to the status of insured person ...”
Section 106
“1. Following receipt of the application to register for compulsory health insurance, and for the entire duration of the insured person’s status, the Fund shall have the right and obligation to verify the circumstances on the basis of which the application was made, or on which an individual’s status has been recognised. 2. At the request of the Fund, all natural and legal persons who have submitted an application to register for compulsory health insurance ... shall produce all facts and evidence proving the validity of their registration, or the validity of the status of insured person. 3. If the Fund refuses an application for registration, establishes that the insured person is to be insured on a different ground, or disputes the status of a person insured with the compulsory health insurance scheme owing to the absence of a factual basis for such status, it shall issue a decision which will be served on the person who sought registration ...”
27. The relevant provisions of the Regulations on the rights, conditions and manner of exercise of rights under the compulsory health insurance scheme (Pravilnik o pravilima, uvjetima i načinu ostvarivanja prava iz obveznog zdravstvenog osiguranja, Official Gazette no. 67/09), as in force at the material time, read as follows:
Section 6
“2. Any registration [with the Fund] must be based on true facts and on the existence of actual circumstances which confer the right to compulsory health insurance, and the Fund is entitled and required, in line with these Regulations, on receipt of the application for registration and throughout the duration of the status of the insured person, to verify the existence of the circumstances under which the application was filed and/or the basis on which the person is recognised as having the status of an insured person. 3. Should such verification result in a finding that the circumstances required to obtain the status [of insured person] ... do not exist or ... that the application for registration is based on false information, the Fund shall reject the application or reopen the proceedings in order to establish the insured person’s status ...”
28. The relevant provisions of the Prevention of Discrimination Act (Zakon o suzbijanju diskriminacije, Official Gazette no. 85/2008) provide as follows:
Section 1
“(1)  This Act ensures the protection and promotion of equality as the highest value of the constitutional order of the Republic of Croatia; it creates the conditions for equal opportunities and regulates protection against discrimination on the basis of race or ethnic origin or skin colour, gender, language, religion, political or other conviction, national or social origin, state of wealth, membership of a trade union, education, social status, marital or family status, age, health, disability, genetic inheritance, gender identity and expression or sexual orientation. (2)  Discrimination within the meaning of this Act means putting any person in a disadvantageous position on any of the grounds under subsection (1) of this section, as well as his or her close relatives. ...”
Section 16(1)
“Anyone who considers that, owing to discrimination, any of his or her rights has been violated may seek protection of that right in proceedings in which the determination of that right is the main issue, and may also seek protection in separate proceedings under section 17 of this Act.”
Section 17
“(1)  A person who claims that he or she has been a victim of discrimination within the meaning of this Act may bring a claim and seek:
1.  a ruling that the defendant has violated the plaintiff’s right to equal treatment or that an act or omission by the defendant may lead to the violation of the plaintiff’s right to equal treatment (claim for an acknowledgment of discrimination);
2.  a ban on [the defendant’s] undertaking acts which violate or may violate the plaintiff’s right to equal treatment or an order for measures to be taken aimed at removing the discrimination or its consequences (claim for a ban or for removal of discrimination);
3.  compensation for pecuniary and non-pecuniary damage caused by a violation of the rights protected by this Act (claim for damages);
4.  an order for a judgment finding a violation of the right to equal treatment to be published in the media at the defendant’s expense.”
29. The relevant provisions of the Gender Equality Act (Zakon o ravnopravnosti spolova, Official Gazette nos. 82/08 and 69/17) read as follows:
Section 6
“(1)  Discrimination on the grounds of sex [refers to] any difference, exclusion or restriction made on the grounds of sex with the effect or purpose of jeopardising or frustrating the recognition, enjoyment or exercise of human rights and fundamental freedoms in the political, social, cultural, economic, civil or other area on the grounds of equality between men and women. (2)  ... Less favourable treatment of women for reasons of pregnancy and maternity shall be deemed to be discrimination ...”
Section 9
“(3)  Measures aimed at protecting women, in particular in relation to pregnancy and maternity, shall not be deemed to be discrimination.”
Section 13
(1)  There shall be no discrimination in the field of employment and occupation in the public or private sector, including public bodies, in relation to: ...
7.  pregnancy, giving birth, parenting and any form of custody ...”
30. The Government submitted the following judgments of the Administrative Court of the Republic of Croatia (Upravni sud Republike Hrvatske – “the Administrative Court”) in which pregnant women were considered to have entered into fictitious employment during pregnancy:
–  Us-4154/2006-4 of 4 February 2009, in which a pregnant woman entered into an employment contract for cleaning services three months before her delivery date;
–  Us-9890/2005-6 of 5 February 2009, in which a pregnant woman entered into an employment contract four months before her delivery date and was found unfit to work as a salesperson owing to a pre-existing medical condition;
–  Us-3136/2003-4 of 11 July 2007, in which a pregnant woman entered into an employment contract, went on pregnancy-related sick leave and only afterwards filed the requisite application for registration with the Fund;
–  Us-10040/2002-4 of 29 November 2006, in which a pregnant woman had first been employed only a month before her delivery date;
–  Us-2885/2006 of 4 December 2008, in which a pregnant woman had been employed by her mother late in her high-risk pregnancy;
–  Us-2953/2006 of 11 December 2008, in which a pregnant woman entered into an employment contract seventeen days before her departure on statutory maternity leave;
–  Us-2955/2006-5 of 11 December 2008, in which a pregnant woman entered into an employment contract three days before her departure on maternity leave;
–  Us-5531/2006-4 of 12 March 2009, in which a pregnant woman submitted her application for registration as an insured employee the day after she had given birth to her third child;
–  Us-9223/2002-4 of 28 December 2006, in which a pregnant woman had entered into an employment contract when she was 35 weeks pregnant for a job that required hours of standing, bending over and carrying;
–  Us-1464/2006-6 of 20 November 2008, in which a pregnant woman had entered into an employment contract when she was 36 weeks pregnant; and
–  Us-2958/2006-5 of 11 December 2008, in which a pregnant woman entered into an employment contract with her mother and 20 days later went on pregnancy-related sick leave. 31. The Government also submitted the following judgments of the Administrative Court in which the employment taken up by a woman during pregnancy had not been found to be fictitious. In judgment Us-6545/2002-9 of 5 October 2006, the court concluded that the administrative authorities had failed to establish whether or not a pregnant woman had actually started performing her employment tasks. In judgment Us-11891/2005-4 of 28 May 2009, the court, in so far as relevant, held as follows:
“[The competent authority] doubted the claimant’s application for insurance based on employment and in such a case it should have established, primarily, whether the claimant had actually worked on the basis of the employment contract that had been entered into. That means that the [competent authority] should have established whether there had been elements of an employment relationship, for example working hours and salary, and in particular whether the claimant had started working and how much she had worked. The [competent authority] did not establish any of the foregoing, but instead based its decision on the conclusion that the claimant had been unfit to work on the day she had taken up employment, something that in this court’s opinion has not been correctly established. This is because [the competent authorities] based [their decisions] essentially on the assumption that the claimant had been unfit to work because she had been at an advanced stage of her pregnancy, it had been her sixth pregnancy and she was an older pregnant woman. This view, however, was not based on any specialist opinion on the basis of which it could have actually been established whether the claimant was fit to work ...”
In judgment Us-6588/2005-5 of 5 June 2008, a pregnant woman entered into an employment contract with her father-in-law at an advanced stage of pregnancy and the medical expert opinion concluded that she had been medically fit for work. 32. The relevant part of the 2012 Annual Report of the Gender Equality Ombudsperson, published in March 2013, read as follows:
“For several years now, the Ombudsperson has been regularly warning about the discriminatory practice operated by the Croatian Health Insurance Fund throughout the last decade, which it consistently applies to pregnant women despite frequent warnings about its unlawfulness. That discriminatory practice is based on the Fund’s stereotypical attitude that a woman who takes up employment at an advanced stage of pregnancy ... must have entered into a fictitious employment contract with the aim of exploiting the health insurance system. The Fund in such cases appropriates for itself judicial functions and declares such a contract fictitious even when the Croatian Employment Fund has found the employment contract to be formally valid ... Once it takes the stance that a pregnant woman’s employment contract is fictitious, it automatically deprives her of the status of an insured employee and denies her the right to compensation for loss of salary during sick leave for pregnancy-related complications and the right to pregnancy-related allowances during maternity leave. This practice, based on the stereotype that women during their pregnancies ... enter employment with fraudulent intentions, is contrary to the Gender Equality Act and the Labour Act and is insulting to the dignity of pregnant women. In order to ensure that the Fund changes the said practice, the Ombudsperson not only issued a number of warnings based on discrimination complaints from women, but also decided to act proactively and organised a meeting on 9 October 2012 with representatives from the Ministry of Health, the Ministry of Social Policies and Youth, and the Fund. This led to the conclusion that the said practice of the Fund was indeed problematic from the point of view of protection of the social rights of pregnant women, following which the Minister of Health requested the Fund in October to take steps in order to implement the agreement reached and subsequently to inform the Ombudsperson about the actions taken. The Ombudsperson wishes to stress in the report that the Fund accepted her recommendations on 25 March 2013 and stated in its letter that ‘the regional offices [of the Fund] have been instructed that, in proceedings concerning the recognition of status under the compulsory health insurance scheme on the basis of employment, they may only assess whether the employment relationship at issue has been validly entered into [– in other words, whether the formal requirements are fulfilled –] but not whether the employment relationship is legally valid. In cases of doubt as to the legality of an employment relationship, it is necessary to institute civil proceedings to establish the validity of the employment’.”
RELEVANT LAW AND PRACTICE OF THE EUROPEAN UNIONDirectives of the Council of the European Union

33. The relevant provisions of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, OJ 1992 L 348, p. 1, read as follows:
“Whereas the risk of dismissal for reasons associated with their condition may have harmful effects on the physical and mental state of pregnant workers, workers who have recently given birth or who are breastfeeding; whereas provision should be made for such dismissal to be prohibited;
... Whereas, moreover, provision concerning maternity leave would also serve no purpose unless accompanied by the maintenance of rights linked to the employment contract and or entitlement to an adequate allowance;
... Article 10
Prohibition of dismissal
In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognized under this Article, it shall be provided that:
1. Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8 (1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;
2.  if a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing;
3. Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.”
34. The relevant provisions of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (which repealed Directive 76/207/EEC), OJ 2006 L 204, p. 23, read as follows:
“Whereas:
... 23. It is clear from the case-law of the Court of Justice that unfavourable treatment of a woman related to pregnancy or maternity constitutes direct discrimination on grounds of sex. Such treatment should therefore be expressly covered by this Directive. 24. The Court of Justice has consistently recognised the legitimacy, as regards the principle of equal treatment, of protecting a woman’s biological condition during pregnancy and maternity and of introducing maternity protection measures as a means to achieve substantive equality. This Directive should therefore be without prejudice to Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. This Directive should further be without prejudice to Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC. 25. For reasons of clarity, it is also appropriate to make express provision for the protection of the employment rights of women on maternity leave and in particular their right to return to the same or an equivalent post, to suffer no detriment in their terms and conditions as a result of taking such leave and to benefit from any improvement in working conditions to which they would have been entitled during their absence
... Article 29
Gender mainstreaming
Member States shall actively take into account the objective of equality between men and women when formulating and implementing laws, regulations, administrative provisions, policies and activities in the areas referred to in this Directive.”
Case-law of the Court of Justice of the European Union
35. In its case-law, the Court of Justice of the European Union (hereinafter “the CJEU”) established that, as only women could become pregnant, a refusal to employ a pregnant woman based on her pregnancy or her maternity, or the dismissal of a pregnant woman on such grounds, amounted to direct discrimination on grounds of sex, which could not be justified by any other interest. 36. In the Dekker judgment (8 November 1990, C‑177/88, EU:C:1990:383), the CJEU ruled that a refusal to employ a woman who met the conditions for a post, because she was pregnant, constituted direct discrimination on grounds of sex. The applicant in the Dekker case applied for the post, was considered the most suitable candidate, but ultimately was not hired because she was pregnant. The employer argued that, in accordance with the law, she was not eligible to be paid pregnancy benefits by the relevant insurer, and thus the employer would have to pay those benefits during her maternity leave. As a result, the employer would be unable to afford to employ a replacement during her absence, and would thus be short-staffed. The CJEU found as follows. “12  In that regard it should be observed that only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex. A refusal of employment on account of the financial consequences of absence due to pregnancy must be regarded as based, essentially, on the fact of pregnancy. Such discrimination cannot be justified on grounds relating to the financial loss which an employer who appointed a pregnant woman would suffer for the duration of her maternity leave.”
37. The CJEU further held that any unfavourable treatment directly or indirectly connected to pregnancy or maternity constituted direct discrimination on grounds of sex. In the Webb judgment (14 July 1994, C-32/93, EU:C:1994:300), the CJEU found that the situation of a pregnant woman could not be compared with that of a man who was absent because of illness. The applicant in the Webb case found out that she was pregnant a few weeks after being hired to replace a worker who had herself become pregnant. She was dismissed as soon as the employer found out about her pregnancy. The CJEU ruled as follows:
“24  First, in response to the House of Lords’ inquiry, there can be no question of comparing the situation of a woman who finds herself incapable, by reason of pregnancy discovered very shortly after the conclusion of the employment contract, of performing the task for which she was recruited with that of a man similarly incapable for medical or other reasons.
25  As Mrs Webb rightly argues, pregnancy is not in any way comparable with a pathological condition, and even less so with unavailability for work on non-medical grounds, both of which are situations that may justify the dismissal of a woman without discriminating on grounds of sex. Moreover, in the Hertz judgment, cited above, the Court drew a clear distinction between pregnancy and illness, even where the illness is attributable to pregnancy but manifests itself after the maternity leave. As the Court pointed out (in paragraph 16), there is no reason to distinguish such an illness from any other illness.
26  Furthermore, contrary to the submission of the United Kingdom, dismissal of a pregnant woman recruited for an indefinite period cannot be justified on grounds relating to her inability to fulfil a fundamental condition of her employment contract. The availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract. However, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed. Any contrary interpretation would render ineffective the provisions of the directive.
27  In circumstances such as those of Mrs Webb, termination of a contract for an indefinite period on grounds of the woman’s pregnancy cannot be justified by the fact that she is prevented, on a purely temporary basis, from performing the work for which she has been engaged ...”
38. In the Tele Danmark judgment (4 October 2001, C-109/00, EU:C:2001:513), the CJEU extended the protection for absence due to pregnancy to temporary contracts. The applicant had been recruited for a six‑month fixed period. She failed to inform the employer that she was pregnant, even though she was aware of this when the contract was concluded. Because of her pregnancy, she was unable to work during a substantial part of the term of that contract. The relevant parts of the judgment read as follows:
“29  In paragraph 26 of Webb, the Court also held that, while the availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during the period corresponding to maternity leave is essential to the proper functioning of the undertaking in which she is employed. A contrary interpretation would render ineffective the provisions of Directive 76/207.
30  Such an interpretation cannot be altered by the fact that the contract of employment was concluded for a fixed term.
31  Since the dismissal of a worker on account of pregnancy constitutes direct discrimination on grounds of sex, whatever the nature and extent of the economic loss incurred by the employer as a result of her absence because of pregnancy, whether the contract of employment was concluded for a fixed or an indefinite period has no bearing on the discriminatory character of the dismissal. In either case the employee’s inability to perform her contract of employment is due to pregnancy.
32  Moreover, the duration of an employment relationship is a particularly uncertain element of the relationship in that, even if the worker is recruited under a fixed-term contract, such a relationship may be for a longer or shorter period, and is moreover liable to be renewed or extended.”
39. With regard to the possibility of a female worker being dismissed because of a pregnancy-related illness which arose prior to her maternity leave, the CJEU has held that, although pregnancy is in no way comparable to a pathological condition, it is a period during which disorders and complications may arise compelling a woman to undergo strict medical supervision and, in some cases, to rest absolutely for all or part of her pregnancy. In the Brown v. Rentokil judgment (30 June 1998, C‑394/96, EU:C:1998:331), the CJEU found that those disorders and complications, which could cause incapacity for work, formed part of the risks inherent in the condition of pregnancy and were thus a specific feature of that condition. 40. In the McKenna judgment (8 September 2005, C-191/03, EU:C:2005:513), the CJEU concluded that Community law did not require the maintenance of full pay for a female worker who was absent during her pregnancy because of an illness related to that pregnancy. During an absence resulting from such an illness, a female worker could thus suffer a reduction in her pay, provided that she was treated in the same way as a male worker who was absent on grounds of illness, and provided that the amount of payment made was not so low as to undermine the objective of protecting pregnant workers. 41. In the Mayr judgment (26 February 2008, C-506/06, EU:C:2008:119), the CJEU held as follows:
“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 ...
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.”
Relevant international materials
42. The relevant parts of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (“the CEDAW”), which was ratified by the respondent State on 9 September 1992, read as follows:
Article 5
“States Parties shall take all appropriate measures:
(a)  To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women ...”
Article 11
“1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:
(a)  The right to work as an inalienable right of all human beings;
... (e)  The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave;
(f)  The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. 2. In order to prevent discrimination against women on the grounds of ... maternity and to ensure their effective right to work, States Parties shall take appropriate measures:
(a)  To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave ...;
(b)  To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;
...”
43. The relevant provisions of the Maternity Protection Convention 2000 (No. 183), adopted by the General Conference of the International Labour Organization (ILO) on 15 June 2000, read as follows:
Benefits
Article 6
“1. Cash benefits shall be provided, in accordance with national laws and regulations, or in any other manner consistent with national practice, to women who are absent from work on leave referred to in Articles 4 or 5 [maternity leave and leave in case of illness or complications].
... 5. Each Member shall ensure that the conditions to qualify for cash benefits can be satisfied by a large majority of the women to whom this Convention applies.
... 8. In order to protect the situation of women in the labour market, benefits in respect of the leave referred to in Articles 4 and 5 shall be provided through compulsory social insurance or public funds, or in a manner determined by national law and practice. An employer shall not be individually liable for the direct cost of any such monetary benefit to a woman employed by him or her without that employer’s specific agreement except where:
(a)  such is provided for in national law or practice in a member State prior to the date of adoption of this Convention by the International Labour Conference; or
(b)  it is subsequently agreed at the national level by the government and the representative organizations of employers and workers.”
Employment protection and non-discrimination
Article 8
“1. It shall be unlawful for an employer to terminate the employment of a woman during her pregnancy or absence on leave referred to in Articles 4 or 5 or during a period following her return to work to be prescribed by national laws or regulations, except on grounds unrelated to the pregnancy or birth of the child and its consequences or nursing. The burden of proving that the reasons for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing shall rest on the employer. 2. A woman is guaranteed the right to return to the same position or an equivalent position paid at the same rate at the end of her maternity leave.”
44. Article 12 § 1 of the Council of Europe Convention on preventing and combating violence against women and domestic violence (“the Istanbul Convention”), which entered into force in respect of the respondent State on 1 October 2018, provides as follows:
“Parties shall take the necessary measures to promote changes in the social and cultural patterns of behaviour of women and men with a view to eradicating prejudices, customs, traditions and all other practices which are based on the idea of the inferiority of women or on stereotyped roles for women and men.”
45. The relevant parts of the Appendix to Recommendation CM/Rec(2019)1 of the Council of Europe’s Committee of Ministers to member States on preventing and combating sexism, adopted on 27 March 2019, reads as follows:
“For the purpose of this Recommendation, sexism is:
Any act, gesture, visual representation, spoken or written words, practice or behaviour based upon the idea that a person or a group of persons is inferior because of their sex, which occurs in the public or private sphere, whether online or offline, with the purpose or effect of:
...
v.  maintaining and reinforcing gender stereotypes.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 14 taken IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
46. The applicant complained that she had been discriminated against, as a pregnant woman who had undergone in vitro fertilisation, on account of the revocation of her status as an insured employee, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 to the Convention. Those provisions read as follows:
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Admissibility
47. The Government submitted that the applicant had not exhausted domestic remedies in that she had failed to institute separate civil proceedings for damages under the Prevention of Discrimination Act. 48. The applicant disagreed. 49. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 70-71, 25 March 2014, and Gherghina v. Romania (dec.) [GC], no. 42219/07, § 85, 9 July 2015). 50. Article 35 § 1 also requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Vučković and Others, cited above, § 72). 51. However, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999; Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V; Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-XII; and Jasinskis v. Latvia, no. 45744/08, § 50, 21 December 2010). 52. In previous cases against Croatia, the Court has already established that the Prevention of Discrimination Act provides two alternative avenues through which an individual can seek protection from discrimination: the individual concerned may either raise his or her discrimination complaint in the proceedings concerning the main subject matter of a dispute, or opt for separate civil proceedings, as provided for under section 17 of that Act (see paragraph 28 above). Given that the applicant in the present case explicitly complained of discrimination both before the High Administrative Court and before the Constitutional Court (see paragraphs 18 and 20 above), the Court considers that she was therefore not required to pursue another remedy under the Prevention of Discrimination Act with essentially the same objective in order to meet the requirements of Article 35 § 1 of the Convention (see Guberina v. Croatia, no. 23682/13, § 50, 22 March 2016). 53. The Court further notes that the parties did not dispute the applicability of Article 14 taken in conjunction with Article 1 of Protocol No. 1 to the Convention to the facts of the present case. In view of its case-law on the matter (see, among many other authorities, Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, §§ 55-56, ECHR 2005‑X), the Court considers those provisions to be applicable to the present case. 54. The Court also notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant
55. The applicant maintained that she had been discriminated against both on the basis of her sex and on the basis of the medical procedure she had had to undergo in order to become pregnant. When she took up her employment she had had no way of knowing whether the in vitro fertilisation had been or would be successful. The fact that the authorities concluded retroactively that she had been unfit to work at that point was discriminatory because they would never have come to such a conclusion in respect of a woman who had not undergone in vitro fertilisation and become pregnant. 56. The applicant stressed that the domestic law expressly provided pregnant women with the possibility of taking up employment and that the Fund had no legal basis on which to question employment contracts entered into freely by private employers and pregnant women. Such practice was in direct opposition to the CJEU’s case-law, which considered any unfavourable treatment towards pregnant women to be direct discrimination on the basis of sex. Moreover, the practice was based on the premise that no “reasonable” employer would actually enter into an employment contract with a pregnant woman and that no “honest” pregnant woman would take up employment in such circumstances. (b)   The Government
57. The Government maintained that the applicant had been treated in the same way as all pregnant women who sought to obtain undue pecuniary gain from the State health insurance scheme by entering into fictitious employment contracts and thereby obtaining the status of insured employees. The Government explained that, unlike unemployed women, pregnant women who were employed were entitled to compensation for loss of salary on account of pregnancy-related complications, paid for from the State budget and not by their employer. 58. In support of their claim, the Government submitted a number of judgments by the Administrative Court showing that the State Health Insurance Fund regularly performed factual checks in all cases it deemed suspicious (see paragraphs 30 and 31 above). If it established that a person’s insurance status had been obtained on the basis of a fictitious transaction, as in the applicant’s case, it revoked that insurance. The applicant could therefore not be compared to other women who became pregnant by means of in vitro fertilisation or to pregnant women who were employed, but only to those pregnant women (regardless of the method they had used to become pregnant) who had entered into an employment contract immediately before claiming compensation for loss of salary on account of pregnancy-related complications or precisely in order to do so. 59. The Government further argued that the conduct of the national authorities in the applicant’s case had had the legitimate aim of preventing individuals from “cheating the system”. The authorities had a duty to implement the applicable regulations and verify all the facts of relevance to the enjoyment of particular rights. Failure to perform such checks with a view to revoking the rights of individuals not entitled to them would jeopardise not only the rights of persons who were actually entitled to such rights, but also the entire healthcare system. 60. The applicant had entered into an employment contract despite the fact that she had been advised to rest following her in vitro fertilisation. Although at that time her pregnancy might not have been confirmed, she could have at least assumed that she would become pregnant after the procedure, and she would probably have become aware of that fact as early as 3 December 2009, when the relevant blood test was to be performed. However, the applicant had nonetheless entered into an employment contract with a company whose headquarters were located in Split, about 360 km away from her place of residence. Given that the applicant had never registered her residence in Split, the Government took the view that she had never actually intended to work there. 61. Lastly, the Government pointed out that the applicant had not been left without healthcare protection during her pregnancy despite the Fund’s revocation of her employed person status. The applicant had continued to enjoy the healthcare protection afforded to all pregnant women in the respondent State, except for compensation for loss of salary during sick leave arising from pregnancy-related complications, which was granted exclusively to employed persons.

Outcome for Article 14: violation