61992J0421

++++

Social policy ° Men and women ° Access to employment and working conditions ° Equal treatment ° Contract without a fixed term for night-time work between an employer and a pregnant woman, both of whom were unaware of the pregnancy ° Void on account of the statutory prohibition on night-time work by pregnant women or avoided by the employer on account of a mistake on his part ° Not permissible

(Council Directive 76/207/EEC, Arts 2(1) and (3), 3(1) and 5(1))

Article 2(1) and (3), read in conjunction with Articles 3(1) and 5(1) of Council Directive 76/207/EEC 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 an employment contract without a fixed term for night-time work entered into by an employer and a pregnant employee, both of whom were unaware of the pregnancy, from being held to be void on account of the statutory prohibition on night-time work which applies, by virtue of national law, during pregnancy and breastfeeding, or from being avoided by the employer on account of a mistake on his part as to the essential personal characteristics of the woman at the time when the contract was concluded.

In the case of a contract without a fixed term, the prohibition on night-time work by pregnant women takes effect only for a limited period in relation to the total length of the contract, and to hold the contract invalid or to avoid it because of the temporary inability of the pregnant employee to perform the night-time work for which she was engaged would be contrary to the objective of protecting such persons pursued by Article 2(3) of the directive and would deprive that provision of its effectiveness.

In Case C-421/92,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Arbeitsgericht Regensburg, Landshut (Federal Republic of Germany), for a preliminary ruling in the proceedings pending before that court between

Gabriele Habermann-Beltermann

and

Arbeiterwohlfahrt, Bezirksverband Ndb./Opf. eV,

on the interpretation of Articles 2(1), 3(1) and 5(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: G.F. Mancini, President of the Chamber, C.N. Kakouris, F.A. Schockweiler, P.J.G. Kapteyn (Rapporteur) and J.L. Murray, Judges,

Advocate General: G. Tesauro,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

- the Arbeiterwohlfahrt, Bezirksverband Ndb./Opf. eV, by B. Branekow, of the Regensburg Bar,

- the United Kingdom, by J.E. Collins, Treasury Solicitor, acting as Agent,

- the Commission of the European Communities, by K. Banks, a member of its Legal Service, assisted by C.-M. Happe, a German official seconded to the Commission under the exchange scheme for officials of the Member States, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the German Government, represented by E. Roeder, Ministerialrat in the Federal Ministry for Economic Affairs, acting as Agent, the Italian Government, represented by D. del Gaizo, Avvocato dello Stato, the United Kingdom, represented by E. Sharpston, Barrister, and the Commission of the European Communities, represented by K. Banks, a member of its Legal Service, assisted by C.-M. Happe, a German official seconded to the Commission under the exchange scheme for officials of the Member States, acting as Agents, at the hearing on 9 December 1993,

after hearing the Opinion of the Advocate General at the sitting on 27 January 1994,

gives the following

Judgment

1 By order of 24 November 1992, which was received at the Court on 18 December 1992, the Arbeitsgericht (Labour Court) Regensburg, Landshut, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation 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.

2 Those questions were raised in the course of proceedings brought by Mrs Habermann-Beltermann against the Arbeiterwohlfahrt Bezirksverband Ndb./Opf. eV (Regional Federation of the employees' social security organization, hereinafter referred to as "the Arbeiterwohlfahrt").

3 Mrs Habermann-Beltermann, a nurse qualified in the care of the elderly, applied for a post as a night attendant in a home for the aged. For family reasons, she was able to work at night only. An employment contract between Mrs Habermann-Beltermann and the Arbeiterwohlfahrt was signed on 23 March 1992, with effect from 1 April 1992. The contract stipulated that Mrs Habermann-Beltermann was to be assigned night-time work only. She was absent from work because of illness from 29 April to 12 June 1992. A medical certificate dated 29 May 1992 stated that she was pregnant. The pregnancy is said to have begun on 11 March 1992.

4 In a letter of 4 June 1992 the Arbeiterwohlfahrt relied on Paragraph 8(1) of the Mutterschutzgesetz (Law on the protection of mothers) in order to terminate the employment contract. That paragraph is worded as follows:

"Paragraph 8 - Overtime, night-time work and Sunday work

(1) It is prohibited to assign to women who are pregnant or breastfeeding overtime or night-time work between 8 p.m. and 6 a.m. or work on Sundays or public holidays. The prohibition on working on Sundays and public holidays shall not apply to pregnant or breastfeeding women in domestic employment with a family..."

5 In its order for reference, the national court explains that, in Germany, according to prevailing case-law and legal theory, contravention of a prohibition on night-time work as a rule renders the contract void in accordance with Paragraph 134 of the German Civil Code, which provides that:

"Any legal act contrary to a statutory prohibition shall be void except as otherwise provided by law."

6 Again according to prevailing opinion, a contract entered into in the circumstances described above may likewise be avoided by the employer on account of a mistake on his part concerning an essential characteristic of the other party to the contract. That is based on Paragraph 119(2) of the German Civil Code, which provides as follows:

"(1) Any person who, in concluding a contract, is mistaken as to its content ... may avoid (anfechten) the contract where it is clear that he would not have concluded it if he had been aware of the actual circumstances and had appraised the matter with full knowledge of the facts.

(2) A mistake as to personal characteristics ... deemed by custom to be essential also constitutes a mistake as to the content of the contract".

7 However, the national court is uncertain whether the principle of equal treatment referred to in Articles 2(1), 3(1) and 5(1) of the directive precludes the national legislation from being applied in that way. For that reason it decided to stay the proceedings and refer to the Court for a preliminary ruling the following questions:

"(1) Are the principles laid down by the Court of Justice in its judgment in Case C-177/88 Dekker [1990] ECR I-3941, concerning the interpretation of Council Directive 76/207/EEC of 9 February 1976 (OJ 1976 L 39, p. 40) 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, contained in Article 2(1) of that directive, to be interpreted in such a way that a contract of employment concluded between an employer and a pregnant employee, where both are unaware of the pregnancy, is not rendered invalid by the prohibition on certain work (night-time work) existing by virtue of the pregnancy?

(2) In particular, is the principle of equal treatment contained in Articles 3(1) and 5(1) of Directive 76/207/EEC infringed in the event of:

(a) the contract of employment concluded with the pregnant employee being held to be void by reason of the infringement of the prohibition on certain work (night-time work) applying during pregnancy for the protection of pregnant employees;

(b) the employer being able, by reason of his mistake regarding the existence of pregnancy at the time when the contract was concluded, to avoid (anfechten) the contract of employment and thus bring it to an end?"

8 As a preliminary point, the Arbeiterwohlfahrt submitted that the directive cannot have direct effect since the dispute is between two persons governed by private law and the Court has not so far held that directives have direct horizontal effect.

9 That argument cannot be accepted. It is apparent from the documents before the Court that the national court is asking for a ruling on the interpretation of a directive that has already been transposed into national law, to assist it in interpreting and applying two provisions of the German Civil Code. One of those provisions concerns the right of a party to a contract to plead that the contract is void if it is contrary to a statutory prohibition, and the other concerns his right to avoid (anfechten) the contract on account of a mistake as to the characteristics, deemed to be essential, of the person with whom he has concluded the contract.

10 In applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty (see the judgment in Case C-106/89 Marleasing v La Comercial Internacional de Alimentación [1990] ECR I-4135, paragraph 8).

11 The questions submitted relate to an employment contract for an indefinite period for the performance of night-time work, concluded between an employer and a pregnant employee, both of whom were unaware of the pregnancy. In its questions, the national court seeks essentially to ascertain whether Article 2(1), read in conjunction with Articles 3(1) and 5(1) of the directive, are to be interpreted as precluding such a contract, first, from being held to be void on account of the prohibition on night-time work which applies, by virtue of national law, during pregnancy and breastfeeding and, secondly, from being avoided by the employer on account of a mistake on his part as to the essential personal characteristics of the other party at the time when the contract was concluded.

12 According to Article 1(1) of the directive, its purpose is to put into effect in the Member States the principle of equal treatment as regards access to employment, including promotion, and vocational training and as regards working conditions.

13 That principle is more specifically defined in Articles 2, 3 and 5 of the directive. Article 2(1) provides that "the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status." Under Article 3(1), "application of the principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts...". As to Article 5(1), it provides that "application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex."

14 The first question which arises is whether the annulment or avoidance (Anfechtung) of an employment contract in a case such as this constitutes direct discrimination on grounds of sex for the purposes of the directive. To that end, it must be established whether the fundamental reason for the annulment or avoidance of the contract applies without distinction to workers of both sexes or, on the contrary, to one sex only.

15 It is clear that the termination of an employment contract on account of the employee' s pregnancy, whether by annulment or avoidance, concerns women alone and constitutes, therefore, direct discrimination on grounds of sex, as the Court has held in cases where a pregnant woman was denied employment or dismissed (see the judgments in Case C-177/88 Dekker v VJV-Centrum [1990] ECR I-3941 and Case C-179/88 Handels- og Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening [1990] ECR I-3979).

16 However, the unequal treatment in a case such as this, unlike the Dekker case referred to by the national court, is not based directly on the woman' s pregnancy but is the result of the statutory prohibition on night-time work during pregnancy.

17 The basis for that prohibition, laid down by Paragraph 8(1) of the Mutterschutzgesetz, is Article 2(3) of the directive, according to which the directive is without prejudice to the provisions concerning the protection of women, particularly as regards pregnancy and maternity.

18 The question, therefore, is whether the directive precludes compliance with the prohibition on night-time work by pregnant women, which is unquestionably compatible with Article 2(3), from rendering an employment contract invalid or allowing it to be avoided on the ground that the prohibition prevents the employee from doing the night-time work for which she was engaged.

19 According to the Arbeiterwohlfahrt, the Member States possess a wide and independent discretion in appraising the interests of workers, both male and female, and of employers and society. Excessive protection of mothers might lead to abuse by women and also to discrimination against men who do not have the same opportunity of being paid without having to work in return.

20 That argument must be rejected.

21 In the first place, so far as concerns the purpose of Article 2(3) of the directive, by reserving to Member States the right to retain or introduce provisions which are intended to protect women in connection with "pregnancy and maternity", that article recognizes the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman' s biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth (see the judgment in Case 184/83 Hofmann v Barmer Ersatzkasse [1984] ECR 3047, paragraph 25).

22 As the Court has held (see the Hofmann judgment cited above, paragraph 27), the directive leaves Member States with a discretion as to the social measures which must be adopted in order to guarantee, within the framework laid down by the directive, the protection of women in connection with pregnancy and maternity and to offset the disadvantages which women, by comparison with men, suffer with regard to the retention of employment.

23 In this case, the questions submitted for a ruling relate to a contract for an indefinite period and the prohibition on night-time work by pregnant women therefore takes effect only for a limited period in relation to the total length of the contract.

24 In the circumstances, to acknowledge that the contract may be held to be invalid or may be avoided because of the temporary inability of the pregnant employee to perform the night-time work for which she has been engaged would be contrary to the objective of protecting such persons pursued by Article 2(3) of the directive, and would deprive that provision of its effectiveness.

25 Accordingly, termination of a contract for an indefinite period on grounds of the woman' s pregnancy, whether by annulment or avoidance, cannot be justified by the fact that she is temporarily prevented, by a statutory prohibition imposed because of pregnancy, from performing night-time work.

26 The answer to the questions submitted by the national court must therefore be that Article 2(1), read in conjunction with Articles 3(1) and 5(1) of Directive 76/207/EEC, precludes an employment contract for an indefinite period for the performance of night-time work concluded between an employer and a pregnant employee, both of whom were unaware of the pregnancy, from being held to be void on account of the statutory prohibition on night-time work which applies, by virtue of national law, during pregnancy and breastfeeding, or from being avoided by the employer on account of a mistake on his part as to the essential personal characteristics of the woman at the time when the contract was concluded.

Costs

27 The costs incurred by the German and Italian Governments, the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Arbeitsgericht Regensburg, Landshut, by order of 24 November 1992, hereby rules:

Article 2(1), read in conjunction with Articles 3(1) and 5(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, precludes an employment contract for an indefinite period for the performance of night-time work concluded between an employer and a pregnant employee, both of whom were unaware of the pregnancy, from being held to be void on account of the statutory prohibition on night-time work which applies, by virtue of national law, during pregnancy and breastfeeding, or from being avoided by the employer on account of a mistake on his part as to the essential personal characteristics of the woman at the time when the contract was concluded.