Summary
Parties
Grounds
Decision on costs
Operative part
Summary
$$Article 2(1) and (3) of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions precludes a refusal to appoint a pregnant woman to a post for an indefinite period on the ground that a statutory prohibition on employment attaching to the condition of pregnancy prevents her from being employed in that post from the outset and for the duration of the pregnancy. The application of provisions concerning the protection of pregnant women cannot result in unfavourable treatment regarding their access to employment.
( see paras 27, 30 and operative part )
Parties
In Case C-207/98,
REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Landesarbeitsgericht Mecklenburg-Vorpommern (Germany) for a preliminary ruling in the proceedings pending before that court between
Silke-Karin Mahlburg
and
Land Mecklenburg-Vorpommern
on the interpretation of Article 2(1) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40),
THE COURT (Sixth Chamber),
composed of: P.J.G. Kapteyn (Rapporteur), acting for the President of the Sixth Chamber, G. Hirsch and H. Ragnemalm, Judges,
Advocate General: A. Saggio,
Registrar: H. von Holstein, Deputy Registrar,
after considering the written observations submitted on behalf of:
- Ms Mahlburg, par K. Bertelsmann, Rechtsanwalt, Hamburg,
- the Finnish Government, by T. Pynnä, Legal Adviser in the Ministry of Foreign Affairs, acting as Agent,
- the Commission of the European Communities, by P. Hillenkamp, Legal Adviser, and M. Wolfcarius, of its Legal Service, acting as Agents, and T. Eilmansberger, of the Brussels Bar,
having regard to the Report for the Hearing,
after hearing the oral observations of Ms Mahlburg and of the Commission at the hearing on 3 June 1999,
after hearing the Opinion of the Advocate General at the sitting on 7 October 1999,
gives the following
Judgment
Grounds
1 By order of 16 April 1998, received at the Court on 2 June 1998, the Landesarbeitsgericht (Regional Labour Court) Mecklenburg-Vorpommern referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) a question on the interpretation of Article 2(1) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40, the Directive).
2 That question was raised in proceedings between Ms Mahlburg and the Land Mecklenburg-Vorpommern concerning the latter's refusal to employ Ms Mahlburg under a contract for an indefinite period on the ground that she was pregnant and therefore could not, from the outset, take on the functions envisaged for the post in question.
Legal background
Community law
3 Article 2 of the Directive provides:
1. For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsover on grounds of sex either directly or indirectly by reference in particular to marital or family status.
...
3. This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.
...
German law
4 Paragraph 611a of the Bürgerliches Gesetzbuch (German Civil Code, the BGB) was introduced in 1980 in order to transpose the Directive into German law and provides inter alia:
An employer may not discriminate against an employee on grounds of sex under any agreement or measure, in particular when initiating the contractual relationship, in connection with promotion, when giving instructions and in connection with dismissal.
5 The relevant provisions of the Mutterschutzgesetz (Law on the Protection of Working Mothers) of 24 January 1952 (BGBl. I, p. 315) are Paragraphs 3 to 5.
6 Paragraph 3 of the Mutterschutzgesetz provides:
1. Pregnant women must not be employed if, as attested by a medical certificate, the life or health of the mother or child will be jeopardised if the mother continues to work.
...
7 Paragraph 4 of the Mutterschutzgesetz, which lists other prohibitions on employment, states:
1. Pregnant women must not be assigned to heavy physical work or to work exposing them to the harmful effects of substances or rays, dust, gases or steam, heat, cold or humidity, vibrations or noise that pose a risk to health.
2. In particular pregnant women must not be assigned to
1. work involving the regular lifting, moving or carrying, without mechanical assistance, of loads of more than 5 kg or, on occasion, of loads of more than 10 kg. If heavier loads must be lifted, moved or carried with mechanical assistance, the physical effort required of the pregnant woman must not be greater than that required for the work referred to in the first sentence.
...
3. work frequently requiring a considerable amount of bending and stretching or continual crouching or stooping.
...
6. work exposing them to a particular risk, as a result of their pregnancy, of contracting an occupational illness or which, by reason of that risk, endangers the pregnant woman or the foetus to a greater degree.
...
8. work exposing them to an increased risk of accident, in particular the risk of falling or tripping over.
...
8 Paragraph 5(1) of the Mutterschutzgesetz provides:
A pregnant woman must inform her employer of the pregnancy and probable date of confinement as soon as she knows she is pregnant. At her employer's request she must produce a doctor's or midwife's certificate. The employer must immediately inform the supervising authority of the notification of pregnancy but may not inform others without authorisation.
Facts and dispute in the main proceedings
9 From 26 August 1994 to 31 August 1995 Ms Mahlburg was employed as a nurse by the Rostock University Heart Surgery Clinic of the Land Mecklenburg-Vorpommern under a fixed-term contract. From February 1995 she tried to secure a contract for an indefinite period. She was supported by the matron, who submitted a request to the University's personnel department that Ms Mahlburg's employment contract be converted into a contract for an indefinite period. Having been informed that employment for an indefinite period was only possible if there was a specific vacancy in that type of post, Ms Mahlburg applied, on 1 June 1995, for two posts for an indefinite period which had been internally advertised.
10 The posts were to be taken up immediately or as soo
