1. 

In this request for a preliminary ruling the Tribunal Superior de Justicia de Galicia (High Court of Justice of Galicia, Spain) asks this Court for guidance as to the meaning of the expression ‘night work’ in Directive 92/85/EEC 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. ( 2 ) The referring court wishes to know whether a breastfeeding mother who works shifts under an arrangement whereby some hours are worked at night benefits from specific protection under that directive. That court also asks whether, if the worker concerned challenges a decision refusing to allow her leave to breastfeed her child and payment of an allowance for that period, Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation ( 3 ) applies. Certain provisions of that directive shift the incidence of the burden of proof to the employer (or the competent authority as the case may be) to prove that there has been no discrimination in the case at issue.

2.

Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work ( 4 ) is a framework directive. It defines ‘prevention’ as ‘all the steps or measures taken or planned at all stages of work in the undertaking to prevent or reduce occupational risks’. ( 5 ) Section II sets out the employer’s obligations, which include a duty to ensure the safety and health of workers in every aspect related to the work. ( 6 ) The directive states that particularly sensitive risk groups must be protected against the dangers which specifically affect them ( 7 ) and empowers the EU legislature to adopt individual directives to encourage improvement in the working environment as regards the health and safety of workers. ( 8 )

3.

Directive 92/85 was adopted within the framework of Directive 89/391. The recitals indicate that pregnant workers, workers who have recently given birth or who are breastfeeding are a specific risk group. ( 9 ) The protection of the safety and health of such workers should not treat women on the labour market unfavourably nor work to the detriment of directives concerning equal treatment for men and women. ( 10 ) Some types of activity may pose a specific risk for that group of workers: such risks should be assessed and the result of the assessment should be communicated to the worker concerned. ( 11 ) Where the assessment reveals a risk to the safety or health of the female worker, provision should be made for her protection. ( 12 ) Measures should be taken to ensure that that group of workers is not required to work at night where such provision is necessary from the point of view of their safety and health. ( 13 )

4.

Article 1(1) states that the purpose of Directive 92/85 ‘is to implement measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding’.

5.

The following definitions are set out in Article 2:

6.

Pursuant to Article 3(1) the Commission has drawn up guidelines on, inter alia, the assessment of physical agents considered hazardous for the safety and health of workers within the meaning of Article 2. ( 14 ) The second subparagraph of Article 3(1) states that ‘the [Guidelines] shall also cover movements and postures, mental and physical fatigue and other types of physical and mental stress connected with work done by workers within the meaning of Article 2’. Article 3(2) states that the guidelines serve as the basis of the risk assessment to be conducted for the purposes of Article 4.

7.

Article 4(1) states that for all activities liable to involve a specific risk of exposure to the agents, processes or working conditions listed non-exhaustively in Annex I, ( 15 ) the employer shall assess the nature, degree and duration of exposure, in the undertaking and/or establishment concerned, of workers within the meaning of Article 2. The purpose of the assessment is to evaluate any risks to the safety or health and any possible effect on, inter alia, the breastfeeding of the worker concerned, and to decide what measures should be taken. Pursuant to Article 4(2), the worker concerned must be informed of the results of that assessment and of all measures to be taken concerning health and safety at work.

8.

Article 5 sets out the action to be taken further to the results of an assessment under Article 4 where that assessment reveals a risk to safety or health or an effect on pregnancy or breastfeeding of a worker. In such cases employers are to take the necessary measures to ensure that, by temporarily adjusting the working conditions and/or the working hours of the worker concerned, the exposure of that worker to such risks is avoided (Article 5(1)). If such an adjustment is not technically or objectively feasible, or cannot reasonably be required on duly substantiated grounds, the employer is to take the necessary measures to move the worker concerned to another job (Article 5(2)). If moving her to another job is not technically and/or objectively feasible or cannot reasonably be required on duly substantiated grounds, the worker concerned must be granted leave in accordance with national legislation and/or national practice for the whole of the period necessary to protect her safety or health (Article 5(3)).

9.

Article 7 is entitled ‘Night work’. It provides:

‘1.   Member States shall take the necessary measures to ensure that workers referred to in Article 2 are not obliged to perform night work during their pregnancy and for a period following childbirth which shall be determined by the national authority competent for safety and health, subject to submission, in accordance with the procedures laid down by the Member States, of a medical certificate stating that this is necessary for the safety or health of the worker concerned.

2.   The measures referred to in paragraph 1 must entail the possibility, in accordance with national legislation and/or national practice, of:

10.

Article 11(1) provides that in order to guarantee the rights of workers protected by Directive 92/85, where, inter alia, the assessment carried out under Article 4 reveals a risk and further action is to be taken pursuant to Article 5 or in cases where Article 7 of that directive applies, Member States must make provision for workers, including maintenance of a payment and/or entitlement to an adequate allowance.

11.

Directive 2003/88/EC concerning certain aspects of the organisation of working time ( 16 ) includes the following definition:

‘“night time” means any period of not less than seven hours, as defined by national law, and which must include, in any case, the period between midnight and 5.00;

…’ ( 17 )

12.

The recitals of Directive 2006/54 include the following statements. It is clear from the Court’s rulings 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 the directive. ( 18 ) The Court 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. Directive 2006/54 should therefore be without prejudice to Directive 92/85. ( 19 ) Finally, ‘the adoption of rules on the burden of proof plays a significant role in ensuring that the principle of equal treatment can be effectively enforced. As [the Court] has held, provision should therefore be made to ensure that the burden of proof shifts to the respondent when there is a prima facie case of discrimination, except in relation to proceedings in which it is for the court or other competent national body to investigate the facts. It is however necessary to clarify that the appreciation of the facts from which it may be presumed that there has been direct or indirect discrimination remains a matter for the relevant national body in accordance with national law or practice. Further, it is for the Member States to introduce, at any appropriate stage of the proceedings, rules of evidence which are more favourable to plaintiffs’. ( 20 )

13.

Article 1 provides that the purpose of the directive is ‘to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation’.

14.

Direct discrimination is defined in Article 2(1)(a) as arising ‘where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation’. Under Article 2(1)(b) indirect discrimination arises ‘where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary’. For the purposes of Article 2(2)(c), ‘discrimination’ includes ‘any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of [Directive 92/85]’.

15.

Article 14(1) prohibits discrimination on grounds of sex in relation to, inter alia, employment and working conditions (Article 14(1)(c)).

16.

Article 19 provides:

‘1.   Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

2.   Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.

…

4.   Paragraphs [1 and 2] shall also apply to:

17.

Pursuant to Article 28, Directive 2006/54 is to be without prejudice to (EU and national) provisions concerning the protection of women, particularly as regards pregnancy and maternity. It is also specifically stated to be without prejudice to, inter alia, Directive 92/85.

18.

Article 26 of Ley 31/1995 de Prevención de Riesgos Laborales (Law 31/1995 on the Prevention of Occupational Risks) of 8 November 1995) (‘the LPRL’) is worded as follows:

‘1.   The assessment of the risks [for the safety and health of workers] referred to in Article 16 of this Law must include determination of the nature, degree and duration of exposure of pregnant workers or workers who have recently given birth to agents, processes or working conditions liable to have an adverse effect on the health of the workers or the foetus in any activity likely to present a specific risk. If the results of the assessment reveal a risk to safety or health or a possible effect on the pregnancy or breastfeeding of such workers, the employer shall adopt the measures necessary to avoid exposure to that risk by adjusting the working conditions and the working hours of the worker concerned.

Such measures shall include, where necessary, the non-performance of night work or shift work.

2.   Where the adjustment of working conditions or working hours is not feasible or where, despite such adjustment, working conditions are liable to have an adverse effect on the health of the pregnant worker or the foetus and a certificate to that effect is issued by the medical department of the [Instituto Nacional de la Seguridad Social (‘the INSS’)] or the mutual insurer, depending on the entity with which the undertaking has agreed cover for occupational risks, together with a report from the Servicio Nacional de Salud [National Health Service, Spain] general practitioner who treats the worker, the latter will have to perform a different job or role compatible with her condition. After consultation with the workers’ representatives, the employer must determine the list of jobs that are risk-free for those purposes.

A move to another job or role shall be effected in accordance with the rules and criteria applied in cases of functional mobility and shall take effect until such time as the worker’s state of health allows her to return to her previous job.

…

3.   If such a move to another job is not technically or objectively feasible or cannot reasonably be required on substantiated grounds, the worker concerned may have her contract suspended on the grounds of risk during pregnancy, pursuant to Article 45(1)(d) [of Real Decreto Legislativo 1/1995, por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores (Royal Legislative Decree 1/1995 approving the consolidated text of the Law on the Workers’ Statute) of 24 March 1995], for the period necessary for the protection of her safety and health and for as long as it remains impossible for her to return to her previous job or move to another job compatible with her condition.

4.   The provisions of paragraphs 1 and 2 of this article shall also be applicable during the period of breastfeeding if the working conditions are liable to have an adverse effect on the health of the woman concerned or her child and a certificate to that effect is issued by the medical department of the [INSS] or the mutual insurer, depending on the entity with which the company has agreed cover for occupational risks, together with a report from the National Health Service general practitioner who treats the worker or her child. In addition, the worker concerned may have her contract suspended on the grounds of risk while breastfeeding children under nine months old, pursuant to Article 45(1)(d) of [Royal Legislative Decree 1/1995], if the conditions set out in paragraph 3 of this article are satisfied.’

19.

Under Spanish law, a situation of risk during breastfeeding entails suspension of the employment contract and receipt of a social security payment only where it is demonstrated that there is a risk and it is not possible to adjust the job or to move the individual to another job.

20.

The referring court states that the Tribunal Supremo (Supreme Court) has repeatedly stated in judgments concerning shift work and night work that working patterns may not automatically be considered risks to breastfeeding. It has however ruled that such a risk may be held to exist where the hours of work are inconsistent with the baby’s regular feeding intervals, provided that the incompatibility of direct feeding cannot be alleviated by expressing the milk and that it would, in any case, have to be shown that expressing milk would not be advisable in the particular case for reasons connected with the health of mother or baby.

21.

As regards procedural law, Article 96 of Ley 36/2011 reguladora de la jurisdicción social (Law 36/2011 governing the social courts) of 10 October 2011 (‘Ley 36/2011’) is entitled ‘Burden of proof in the case of discrimination and accidents at work’. Article 96(1) transposes Article 19(1) of Directive 2006/54 by providing that in cases where a person considers themselves wronged because the principle of equal treatment has not been applied to them establishes facts from which it may be presumed that there has been discrimination, inter alia, on grounds of sex the burden of proof will shift to the respondent.

22.

Ms Isabel González Castro was employed as a security guard by Prosegur España SL. On 8 November 2014 she gave birth to her son whom she breastfed. From March 2015 she worked at the As Termas shopping centre in Lugo (Spain). ( 21 ) She worked a variable rotating pattern of eight-hour shifts. The security service at her place of work was provided by at least two security guards, except for the following shifts when there was only one security guard: Monday to Thursday from midnight to 8 a.m.; Fridays from 2 a.m. to 8 a.m.; Saturdays from 3 a.m. to 8 a.m. and Sundays from 1 a.m. to 8 a.m.

23.

It appears from the case file provided by the referring court that on 3 March 2015 Ms González Castro obtained a certificate from the paediatric department of the public health service for risks during breastfeeding, confirming that she was indeed breastfeeding her son. The employer’s insurer, Mutua Umivale, sent Prosegur España a standard form letter dated 3 March 2015 stating that the request for payment of an allowance during pregnancy or breastfeeding was refused, ‘because no risk existed’. Ms González Castro completed a form entitled ‘Request for a medical certificate indicating the existence of a risk during breastfeeding’ dated 9 March 2015 which she submitted to her employer. The standard wording on the form stated, ‘The medical certificate requested will, in your case, justify moving to another job or changing the functions that you perform. Only if that does not occur for the reasons laid down by law, will you be paid the allowance for risk during pregnancy or breastfeeding.’ Prosegur España’s representative filled in a form entitled ‘Certificate for the payment of employer’s contributions to the social security system in relation to a request for the payment of a financial allowance for risk during breastfeeding’ dated 13 March 2015 stating that Ms González Castro was employed as a security guard, her duties entailed doing rounds at the premises and, where necessary, ensuring that crimes are not committed and that her working conditions did not affect breastfeeding. ( 22 )

24.

Mutua Umivale then formally examined Ms González Castro’s request for a medical certificate. On 17 March 2015, Mutua Umivale wrote to Ms González Castro refusing her request for a medical certificate stating that, on the basis of the material that the worker herself had provided, there was no risk inherent to her job that could be prejudicial. The material annexed to that letter quoted from the Spanish Paediatric Association’s handbook ‘Guidance on assessing workplace risk during breastfeeding’ produced for the INSS (‘the Spanish Paediatric Association’s handbook’). Mutua Umivale stated in that letter that ‘night work, shift work or working alone do not in themselves pose a clear risk for breastfeeding, although such work can result in breastfeeding being less convenient because of the pattern of working hours, there is no risk that breastfeeding will be interrupted if the recommendations we have given to you are followed’. ( 23 )

25.

On 24 April 2015 Ms González Castro wrote to the Mutua Umivale contesting the refusal. Her application was refused by the Mutua Umivale by letter of 4 May 2015 on the grounds that there was no risk at Ms González Castro’s post which put at risk the health of the child. On 4 August 2015 Mutua Umivale produced a medical report signed by Dr Maria Renau Escudero. The report cited the certificate from the paediatrician that she had supplied and her employer’s statements that ‘neither her working conditions nor her activities and functions as a security guard affected breastfeeding.’ The report also cited the Spanish Paediatric Association’s handbook. It concludes that there is no risk to the worker concerned which affects breastfeeding citing that handbook: ‘according to our criteria, night work as well as shift work do not imply by themselves a clear risk for breastfeeding, although we can accept that both circumstances will have an impact on breastfeeding meaning that it is less convenient, due to the pattern of working hours’. On 30 December 2015, Ms González Castro’s challenge against that decision was dismissed by the Juzgado de lo Social No 3 de Lugo (Social Court No 3, Lugo) on the ground that shift work or night work does not represent a risk during breastfeeding according to judgments of the Spanish Supreme Court and the Spanish Paediatric Association’s handbook. Ms González Castro lodged an appeal against that judgment with the referring court.

26.

Ms González Castro claims that she was at risk during the period when she was breastfeeding her son for three reasons: (i) the very nature of the work of a security guard (the danger involved and the associated stress); (ii) the fact that her work was done in shifts, sometimes at night and alone; and (iii) the fact that it was not possible to breastfeed at the workplace as, she claims, there was nowhere provided for her to do so and she was unable to leave her work station to breastfeed. Mutua Umivale (the insurer) counters that Ms González Castro’s work did not involve any real risk to breastfeeding, but only constituted a ‘difficulty’ for breastfeeding, which is inherent in any work. It maintains that night work and shift work do not in themselves mean that there is a clear risk to breastfeeding, ‘although they may make breastfeeding more inconvenient’, and that the difficulties or incompatibility of feeding the baby directly ‘can be alleviated by expressing breast milk outside of work, given that it can be stored, even at room temperature, for long periods’.

27.

The referring court states that there was no evidence that Ms González Castro had access to a facility at her workplace to breastfeed her son or to express breast milk, or that her job could be adjusted or moved in order to avoid the factors which Ms González Castro claimed represented a risk to breastfeeding.

28.

Against that background the referring court requests a preliminary ruling on the following questions:

29.

Written observations have been submitted by the INSS, the German and Spanish Governments and the European Commission. At the hearing on 22 February 2018 the same parties, save for the German Government, presented oral argument.

30.

The INSS is of the view that Spanish law provides the answers to the referring court’s questions. Accordingly, it submits that the request for a preliminary ruling is unnecessary.

31.

It seems to me that whilst the national measures implementing Directives 92/85, 2003/88 and 2006/54 fall within the purview of the referring court, the authoritative interpretation of the provisions of EU law which those national measures transpose is a matter for this Court. In essence, the referring court wishes to ascertain whether the concept of night work in Article 7 of Directive 92/85 should be interpreted in the light of Directive 2003/88 and whether Ms González Castro’s circumstances come within the scope of that provision. It also wishes to know to what extent Directive 92/85 should be read together with Directive 2006/54. Those are issues of EU law. Moreover, the Court has consistently ruled that the power to formulate the questions to be referred is vested in the national court or tribunal alone. ( 24 ) By making its request for a preliminary ruling, the referring court has simply exercised that power. I therefore disagree with the INSS: the referring court’s questions should be examined.

32.

It is common ground that Ms González Castro was employed by Prosegur España and that at the material time she was considered to be ‘a worker who is breastfeeding’ for the purposes of Article 2(c) of Directive 92/85. ( 25 ) As the Court stated recently ‘… the condition of a breastfeeding woman being intimately related to maternity, and in particular “to pregnancy or maternity leave”, workers who are breastfeeding must be protected on the same basis as workers who are pregnant or have recently given birth’. ( 26 )

33.

It is also not in dispute that Ms González Castro’s working pattern is that of a shift worker which includes working hours that are performed during the night.

34.

Finally, I should point out that under Article 7 of Directive 92/85 the Member States are to take the necessary measures to ensure that workers are not obliged to perform night work during pregnancy and for a period following childbirth, determined by the competent national authority. The referring court’s description of national law in the order for reference indicates that in Spain that period is 9 months after childbirth. It is common ground that Ms González Castro’s claim for an allowance was made within that period.

35.

By Question 1 the referring court asks whether ‘night work’ for the purposes of Article 7 of Directive 92/85 includes shift work where the employee concerned works only some hours at night.

36.

The INSS submits that it is for the referring court to determine whether Ms González Castro is a night worker under national rules and whether there is a risk to breastfeeding certified by a doctor, in accordance with Article 7 of Directive 92/85 and the relevant national rules.

37.

It is undoubtedly true that the functions of the Court and those of the referring court are clearly distinct and that it falls exclusively to the latter to interpret national legislation. ( 27 ) However, in proceedings under Article 267 TFEU it follows from the division of functions between national courts and this Court that the referring court is required to interpret the national legislation at issue as far as possible in the light of the wording and purpose of the directives at issue to give effect to the result intended. ( 28 ) It is not for this Court to rule on the compatibility of the national rules with those directives. However, the Court does have jurisdiction to supply the referring court with all the guidance as to the interpretation of EU law necessary for that court to perform that function. ( 29 )

38.

Germany submits that Article 7 of Directive 92/85 should be construed in in the light of Directive 2003/88. It argues that ‘night work’ covers shift work where some hours are worked at night. Spain states that shift work carried out at night falls within the concept of night work, but it does not follow that such work entails an intrinsic risk for breastfeeding workers. The Commission submits that night work covers not only work done entirely through the night but also shift work carried out at least partially during the night.

39.

I agree with the Commission for the following reasons.

40.

First, although the concept of night work is not defined in Directive 92/85, night work cannot be limited to a particular pattern of working hours. In my view, ‘night work’ is capable of covering both work performed entirely at night and shift work where only part of the hours worked are at night.

41.

Second, it is settled case-law that in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part. ( 30 )

42.

The reading of Article 7 of Directive 92/85 that I propose is consistent with the aims of that directive. The objective of Directive 92/85 is to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding. ( 31 ) Thus, a worker who is breastfeeding is within the specific risk group for whom measures to protect safety and health should be taken. Furthermore, it is consistent with the general preventive aim of that measure that women falling within Article 2(c) of the directive should be eligible for protection under Article 7 if they work night shifts, rather than through the night time as a matter of course.

43.

Does Directive 2003/88 shed light on the interpretation of the concept of night work in Article 7 of Directive 92/85?

44.

Both directives have the same legal basis. ( 32 ) However, Article 7 of Directive 92/85 does not cross refer to the definition of ‘night time’ in Article 2(3) of Directive 2003/88 and night work is not a term that is defined in the latter directive. ( 33 )

45.

Moreover, Directive 92/85 protects a particularly vulnerable group of workers ( 34 ) and it is necessary to establish whether the worker concerned meets the requirements of that directive in order to benefit from its provisions. The rules in Directive 2003/88 are not necessarily relevant to such an assessment.

46.

It seems to me that night work in Directive 92/85 does not necessarily bear exactly the same meaning as night time in Article 2(3) of Directive 2003/88. Rather, it is a question of interpreting the two directives coherently.

47.

The expression ‘night time’ in Directive 2003/88 is defined in Article 2(3) as meaning any period which is not less than 7 hours as defined by national law and which includes the period between midnight and 5.a.m. I consider that the word ‘night’ in Directive 92/85 should, in the absence of any compelling reason to the contrary, be given the same meaning. It would follow that, if a worker performs her duties during that period, those working hours will constitute night work for the purposes of Article 7 of Directive 92/85. I note that Directive 2003/88 uses the expression ‘any period’, which suggests that shift work is not excluded from the scope of the definition.

48.

I also agree with the observation made by the referring court that, if shift work performed at night were to be excluded from the scope of Article 7 of Directive 92/85, a breastfeeding mother working shifts during those hours would receive less protection than women who work only at night. It is difficult to believe that such a result could have been intended by the legislature.

49.

The Court has repeatedly held (in relation to what is now Directive 2006/54) that Member States are obliged not to lay down in national legislation the principle that night work by women is prohibited, even if that is subject to exceptions, where night work by men is not prohibited. Such a ban would be contrary to the principle of equal treatment. ( 35 )

50.

However, the thirteenth recital of Directive 92/85 states that provision should be made for, inter alia, workers who are breastfeeding not to be required to work at night where that is necessary from the point of view of their safety and health. Taken in conjunction with the scheme of Article 7, that indicates that there is to be an individual evaluation of the circumstances of the worker concerned.

51.

The national court’s case file shows that Ms González Castro did obtain certified medical confirmation that she was indeed breastfeeding and that she launched the process for obtaining a medical certificate in support of her request by completing her section of the form entitled ‘Request for a medical certificate indicating the existence of a risk during breastfeeding’ on 9 March 2015. The INSS stated at the hearing that it is not part of the process for issuing such a medical certificate, which is a matter between the worker, her employer and as the case may be his insurer (here, the Mutua Umivale). The Court was also told that the worker is able to submit a report from another doctor, such as a general practitioner, but that it is unclear whether a report of that type would be sufficient of itself to launch the procedure and render the claimant eligible for protection under Directive 92/85.

52.

It is of course for the referring court to make the necessary findings of fact. However, the Mutua Umivale’s letter to Ms González Castro’s employer of 3 March 2015 suggests that her request was not going to prosper even before she made her formal application for the medical certificate on 9 March 2015. ( 36 ) There is no indication that either her employer or Mutua Umivale carried out an individual assessment of her individual circumstances. Piecing together the material available from the submissions of the INSS and the Spanish Government, the referring court’s description in its order for reference and the documents on that court’s case file, the current national practice appears to be that where a designated job profile is not recognised by the Spanish Paediatric Association’s handbook as entailing a risk to breastfeeding, the worker’s request for a medical certificate will be rejected automatically. ( 37 )

53.

I am clear that such an approach is contrary to Directive 92/85. The EU legislature has decided that night work poses a risk. The medical certificate is meant to trigger an assessment of the circumstances of the individual worker in any particular case. The system described to the Court is plainly at variance with the legislature’s aims.

54.

I am not suggesting that there was improper conduct in the case at issue. However, a procedure whereby the insurer responsible for paying the allowance sought by the worker also acts as a gatekeeper, by deciding whether that worker is able to obtain the medical certificate required under Article 7 of Directive 92/85 is inherently flawed. The insurer is in a position where it has a clear conflict of interest.

55.

If Ms González Castro meets the requirements of Article 7(1) she will be protected under Directive 92/85 and there is no need to consider Articles 4 and 5 (see Questions 2 to 4), since where Article 7 applies it is unnecessary to rely upon the general risk assessment under Article 4 of Directive 92/85. ( 38 ) As matters stand, it is unclear whether Articles 4 and 5 remain relevant to the dispute in the main proceedings. ( 39 )

56.

I therefore conclude that a worker who does shift work and performs some of her duties at night is capable of falling within the scope of Article 7(1) of Directive 92/85, subject to her submitting a medical certificate stating that it is necessary to take measures to avoid a risk to her safety or health in accordance with Article 7(2) of that directive. It is for the referring court to verify, taking account of all the circumstances of the case whether the claimant provided, or was placed in a position where she could provide, such a certificate.

57.

Under Article 19(1) of Directive 2006/54, Member States are to take the necessary measures in accordance with their respective judicial systems to ensure that, when a person considers themselves wronged because the principle of equal treatment has been breached establishes facts from which it may be presumed that there has been direct or indirect discrimination, the burden of proof shifts to the respondent to prove that that principle has not been infringed. ( 40 ) By Questions 2, 3 and 4 the referring court essentially seeks guidance on how that provision should be read together with Article 5 of Directive 92/85. Those questions are particularly relevant if Ms González Castro does not meet the conditions laid down in Article 7 of Directive 92/85 for leave from work and payment of an allowance pursuant to Article 11, as there is no possibility of transferring her to daytime work only. ( 41 )

58.

The referring court has based Questions 2, 3 and 4 on the premiss that a correctly conducted assessment under Article 4(1) of Directive 92/85 would have revealed a risk to the breastfeeding worker and that it is therefore necessary to consider what action should have been taken to protect her safety and health under Article 5. Yet, there is no information in the order for reference (or the accompanying national case file) which states that any assessment was conducted in accordance with Article 4(1) and (2) of Directive 92/85. At the hearing, the Spanish Government informed the Court that Article 26 LPRL is the main provision which implements Articles 4 and 7 of Directive 92/85, but that the national legislation does not make a clear distinction between those two articles of that directive. It is not entirely clear whether Article 4 or Article 7 (or even both) forms the basis for Ms González Castro’s request for an allowance. That is a question which it is ultimately for the referring court to verify.

59.

Do Ms González Castro’s circumstances fall within the scope of Article 4 of Directive 92/85?

60.

That provision applies to a worker who is breastfeeding ‘for all activities liable to involve a specific risk of exposure to the agents, processes or working conditions of which a non-exhaustive list is given in Annex I’. The fact that Ms González Castro was not employed in underground mining work (the sole category of work listed under ‘Working conditions’ in the non-exhaustive table at Annex I) does not mean that a job such as hers is necessarily excluded from the scope of Directive 92/85. The risk assessment which is carried out pursuant to Article 4(1) is conducted on the basis of the Guidelines which cover, inter alia, ‘mental and physical fatigue and other types of physical and mental stress connected with the work done by workers within the meaning of Article 2’ of that directive. ( 42 ) Shift work and night work are two situations which are identified in the Guidelines. ( 43 ) Thus, the express wording of the second subparagraph of Article 3(1) read together with Article 4(1) of Directive 92/85 confirm that a job such as that held by Ms González Castro is indeed within the scope of the latter provision.

61.

Article 4 is the general provision which sets out the action to be taken in relation to all activities liable to involve a specific risk to workers within the meaning of Article 2 of Directive 92/85. Article 7, on the other hand, is a specific provision which applies in cases of night work, which the legislature has singled out as liable to present a particular risk to pregnant workers or those who have recently given birth or are breastfeeding.

62.

It is the employer who is required to conduct the risk assessment, rather than for the worker concerned to request expressly protection under Directive 92/85. That is entirely consistent with the framework established by Directive 89/391, which places a duty on employers to take preventive action to ensure the safety and health of workers for all aspects related to work. ( 44 )

63.

In brief, Directive 92/85 introduced a requirement to evaluate and communicate risks. Where the results of the risk assessment carried out pursuant to Article 4(1) of that directive reveal a risk to safety or health and a potential effect on the pregnancy or breastfeeding of a worker, Article 5(1) and (2) provide that the employer is required temporarily to adjust the working conditions and/or the worker’s working hours. ( 45 ) If that is impossible in the circumstances, the worker concerned must be moved to another job. It is only when such a move is not feasible that Article 5(3) provides that the worker is to be granted leave, in accordance with national legislation and/or national practice, for the whole of the period necessary to protect her safety or health. ( 46 ) Thus, Article 5 is only triggered if the results of the assessment in Article 4 of Directive 92/85 reveal a risk to the safety or health or an effect, here on the breastfeeding worker concerned.

64.

Although the referring court does not mention Article 4 of Directive 92/85 expressly in its questions, that does not prevent this Court from providing the referring court with all the necessary elements of interpretation of EU law, including other provisions of that directive (here, in particular Article 4) that may be of assistance. ( 47 )

65.

Accordingly, I understand Questions 2, 3 and 4 to be asking for guidance on the interpretation of Article 19 of Directive 2006/54 concerning the incidence of the burden of proof and Article 4 of Directive 92/85. I shall consider Questions 2 and 3 together before examining Question 4.

66.

Do the rules which shift the burden of proof to the employer (or competent authority) under Article 19(1) of Directive 2006/54 apply where a worker within the meaning of Article 2(c) of Directive 92/85 challenges a risk assessment made under Article 4(1) of that directive (or where Article 7 is at issue) (Question 2)? Moreover, what is meant by ‘facts from which it may be presumed that there has been direct or indirect discrimination’ in Article 19(1) of Directive 2006/54. The referring court asks in particular whether the following facts demonstrate direct or indirect discrimination for the purposes of that provision: (i) that the worker does shift work sometimes alone at night; (ii) that the work entails the surveillance of a building and if necessary dealing with emergencies; and (iii) that there is no evidence that workplace has suitable facilities for breastfeeding or expressing breast milk (Question 3).

67.

As regards the risk assessment under Article 4, the employer is required to make that assessment in accordance with the Guidelines. ( 48 ) It is for the employer to identify: (i) hazards, which include mental and physical fatigue as well as other physical and mental burdens; and (ii) the category of worker, here a breastfeeding mother; and to arrange for the qualitative and quantitative risk assessment which is to be carried out by a competent person. The Guidelines make it clear that a risk assessment, should take due account of medical advice and the concerns of the individual woman. ( 49 )

68.

The Guidelines state the following in relation to the risk assessment for ‘Mental and physical fatigue and working hours’: ‘Long working hours, shift work and night work can have a significant effect on the health of new and expectant mothers, and on breastfeeding. Not all women are affected in the same way, and the associated risks vary with the type of work undertaken, working conditions and the individual concerned … both mental and physical fatigue increases during pregnancy and in the postnatal period due to the various physiological and other changes taking place. Because they suffer from increasing tiredness, some pregnant and breastfeeding women may not be able to work irregular or late shifts or night work, or overtime. Working time arrangements … may affect the health of the pregnant woman and her unborn child, her recovery after childbirth, or her ability to breastfeed, and may increase the risks of stress and stress related ill health.’ ( 50 )

69.

The referring court explains that Ms González Castro’s claim was dismissed at first instance on the grounds that ‘shift work or night work does not represent a risk during breastfeeding, according to judgments of the Tribunal Supremo (Supreme Court) and the Spanish Paediatric Association’s handbook, and that the fact that the worker has to “do rounds, answer alarm calls to potential emergencies (criminal behaviour, fire) and, in short, remain vigilant in case of any incident (and perform such duties alone in certain cases)” does not “involve any risk to breastfeeding or make it impossible to breastfeed since milk can be expressed outside of working hours”’.

70.

That statement suggests that the competent authority considered the general profile of Ms González Castro’s job by reference to general guidance, but did not examine her individual circumstances as required by a combined reading of Articles 3(2) and 4 of Directive 92/85.

71.

Under Article 19(1) of Directive 2006/54, Member States are to take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it must be for the respondent to prove that there has been no breach of the principle of equal treatment. Article 19(4)(a) of Directive 2006/54 states, inter alia, that the rules reversing the burden of proof in Article 19(1) also apply to situations covered by Directive 92/85 in so far as discrimination on grounds of sex is concerned. ( 51 ) Failure to conduct a proper risk assessment under Article 4 of Directive 92/85 amounts to less favourable treatment of a woman related to pregnancy or maternity leave for the purposes of that directive, in accordance with Article 2(2)(c) of Directive 2006/54: it therefore constitutes discrimination within the meaning of that act. ( 52 )

72.

The concept of indirect discrimination as defined in Article 2(1)(b) of Directive 2006/54 cannot be relevant to workers who come within the scope of Article 2 of Directive 92/85. Provisions, criteria or practices that lead to less favourable treatment of a woman relating to pregnancy or maternity leave cannot by definition be ‘apparently neutral’, because those provisions have ramifications only for the specific categories of workers defined in Article 2 of Directive 92/85. ( 53 ) Thus, where a worker relies on Directive 92/85 the issue is whether there are facts from which direct discrimination may be presumed for the purposes of Article 19(1) of Directive 2006/54. ( 54 )

73.

Article 19(4)(a) of Directive 2006/54 states, inter alia, that the rules reversing the burden of proof in Article 19(1) also apply to situations covered by Directive 92/85 in so far as discrimination on grounds of sex is concerned. Any less favourable treatment of a female worker because she is a breastfeeding mother must be regarded as falling within the scope of Article 2(2)(c) of Directive 2006/54 and therefore constitutes direct discrimination on grounds of sex. ( 55 ) As a consequence, the rules in Article 19(1) of Directive 2006/54 are potentially applicable.

74.

The Court has repeatedly held that, by reserving to Member States the right to retain or introduce provisions intended to protect women in connection with pregnancy and maternity, Article 2(2)(c) of Directive 2006/54 recognises the legitimacy, in terms of the principle of equal treatment of the sexes, 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 childbirth. Furthermore, pursuant to Article 14 of Directive 2006/54, any discrimination against a woman in such circumstances is covered by the prohibition provided for by that directive, in so far as it is related to the employment and working conditions of the worker in question within the meaning of Article 14(1)(c) of that directive. ( 56 )

75.

Do the facts identified by the referring court give rise to discrimination for the purposes of Article 19(1) of Directive 2006/54?

76.

If the employer fails to conduct an assessment under Article 4(1) where the worker concerned falls within Article 2(c) of Directive 92/85, that failure constitutes ‘facts from which it may be presumed that there has been direct … discrimination’ within the meaning of Article 19(1) of Directive 2006/54. The factors mentioned by the referring court in its order for reference (shift work, the duties expected of a security guard, lack of facilities at work to breastfeed) would be relevant to any assessment. However, it is not the presence of those factors that should give rise to the employer’s evaluation. ( 57 ) The need to conduct the evaluation stems from the woman’s condition, here as a breastfeeding worker, and from the employer’s obligations under Article 4 of Directive 92/85.

77.

However, where the worker concerned considers herself wronged and is able to demonstrate that the assessment conducted did not include an evaluation of her individual circumstances, such a situation would likewise lead to a presumption of direct discrimination for the purposes of Article 19(1) of Directive 2006/54. That seems to me to be the case where the employer or the competent authorities apply a policy or a general rule to the effect that shift work or night work does not represent an intrinsic risk to breastfeeding, without examining the particular situation of the individual worker concerned and her child. Such an approach effectively undermines the aims of both Directive 92/85 and Directive 2006/54. A process of that type places the worker in a position where she has to challenge and, if appropriate, rebut a presumption that her job does not place her at risk. That contrasts starkly with the fact that both directives recognise that workers that come within Article 2 of Directive 92/85 are a particularly vulnerable group. ( 58 ) Thus, a process of evaluation which requires the worker concerned to rebut a general presumption that she is not at risk because her job profile is not considered to entail risks for breastfeeding mothers constitutes less favourable treatment of a woman for the purposes of Article 2(2)(c) of Directive 2006/54 read together with Article 19(1) and (4)(a) of that directive.

78.

It is for the referring court to verify whether that is indeed the effect of the national rules at issue; whether any assessment under Article 4(1) of Directive 92/85 was carried out; and in so far as there was such an assessment in Ms González Castro’s case, whether it conformed to the Guidelines.

79.

Where a worker within the meaning of Article 2(c) of Directive 92/85 considers herself wronged, because the principle of equal treatment has not been applied to her, and demonstrates that her employer has not carried out an assessment under Article 4(1) of that directive to evaluate risks to her safety and health, or that any such assessment was not conducted in accordance with the Guidelines referred to in Article 3 of Directive 92/85, those circumstances create a presumption of direct discrimination within the meaning of Article 19(1) of Directive 2006/54. It is for the national court to verify whether the practical application of the national system at issue operates in a manner which is inconsistent with the rule in that provision which shifts the burden of proof to the respondent.

80.

The referring court seeks to ascertain by Question 4 whether the employer bears the burden of proof if he disputes the worker’s claim that she is entitled to leave and payment of an allowance pursuant to Articles 5(3) and 11 of Directive 92/85. That court states that that question arises only if the Court answers ‘yes’ to Question 3.

81.

On the basis of my analysis thus far, that question becomes relevant only if the referring court were to find (i) that the competent authorities conducted an assessment in accordance with Article 4(1) of Directive 92/85 which reveals a risk to the safety or health of Ms González Castro, (ii) that her working conditions could not be temporarily adjusted (Article 5(1)) and (iii) that she could not be moved to another job (Article 5(2)). Whilst the description of the facts in the order for reference does not reflect that premiss, it remains the case that Ms González Castro’s claim to be entitled to leave and payment of an allowance lies behind the national proceedings. An answer to Question 4 may therefore assist the referring court in determining the national proceedings.

82.

It is the employer that has the general overview of working conditions and requirements for its employees and that is best placed to evaluate what measures are suitable for dealing with any risks that are identified. Thus, in so far as the assessment of further action pursuant to Article 5 of Directive 92/85 is part of the main proceedings, the burden of proof under Article 19(1) of Directive 2006/54 remains with the employer. ( 59 ) The contrary view would eviscerate the protection afforded under Directive 92/85. ( 60 ) I add that this seems to me pre-eminently to be a situation where discussion between employer and employee is called for as to what adjustments are required.

83.

Therefore, in so far as the assessment of further action pursuant to Article 5 of Directive 92/85 is part of the main proceedings, the burden of proof under Article 19(1) of Directive 2006/54 remains with the respondent.

84.

In the light of all the foregoing considerations, I am of the opinion that the Court should answer the questions posed by the Tribunal Superior de Justicia de Galicia (Spain) as follows: