Opinion of Advocate General Tesauro

Mr President,

Members of the Court,

1. The questions referred to this Court for a preliminary ruling by the Arbeitsgericht (Labour Court), Regensburg, concern the interpretation of certain provisions 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 (hereinafter referred to as the directive).

2. A brief summary of the relevant provisions of Community and national law is necessary for an understanding of the question.

3. I now turn to the facts of the case. On 23 March 1992 Mrs Habermann, a nurse qualified in the care of the elderly, was engaged by the Arbeiterwohlfahrt, Bezirksverband Niederbayern/Oberpfalz (Regional Federation of the employees' social security organization, hereinafter referred to as the Arbeiterwohlfahrt) as a night attendant in a home for- the elderly. The relevant employment contract, under which Mrs Habermann was to perform nighttime duties only, took effect from 1 April. From a medical certificate dated 29 May 1992 it was apparent that Mrs Habermann, who had stopped work on 29 April because of illness, was pregnant. According to the findings of the national court, her pregnancy had begun on 11 March 1992, that is to say 12 days before the employment contract was signed.

4. It is apparent from the order for reference that in German theory and case-law there is agreement in considering that, in the absence of exemption, the contravention of the prohibition of nighttime work renders the contract void in accordance with Paragraph 134 of the German Civil Code. It is also apparent from that order that the abovementioned letter of 4 June 1992 could also be interpreted as terminating the contract, given that, under Paragraph 119(2) of the German Civil Code, the contract may be challenged by the employer, with the result that it is terminated on account of the mistake as to the existence of pregnancy at the time when it was concluded, being a mistake concerning an essential personal characteristic.

5. Those questions are as follows:

6. That said, it is necessary to deal first of all with a matter of principle raised by the Arbeiterwohlfahrt, which points out that the outcome of the main dispute cannot be made to depend on Directive 76/207/EEC, given that it is a dispute between two private individuals and that the Court has until now held that directives do not have direct horizontal effect.

7. I now turn to the substance. The national court points out that to consider a contract of employment concluded with a pregnant employee invalid on the ground that for the duration of the pregnancy she cannot perform the work contractually required of her, could deny women access to certain occupations by reason of their sex, since pregnancy existing (although not established) at the time the contract was concluded would render it invalid. Women would, therefore, be denied access to certain jobs because of pregnancy, even though they were only temporarily unable to perform the work.

8. It is quite true that, beyond the formal legal distinction, both situations would in fact cause the woman concerned to lose her employment. I consider it necessary, however, to consider the question with regard to both possibilities, as requested by the national court.

9. It is true that the case in point differs from the Dekker case, at least at first sight, in that the refusal of employment is not a direct and immediate result of the pregnancy but rather of the prohibition on nighttime work for pregnant women, which is imposed on account of pregnancy. Noncompliance with the prohibition on nighttime work would therefore lead to a fundamental defect in the employment relationship.

10. At this point it should be stated that, with respect to Article 2(3) of the directive, the legality of the German legislation prohibiting nighttime work for pregnant women is beyond dispute. That legislation accords special protection to female workers in such circumstances and is clearly covered by the derogations provided for in the directive.

11. In that connection, I note first of all that, as pointed out by the Court, it is a woman's specific condition in the period before and immediately after childbirth that is the subject of special protection and may therefore lay her open to unequal treatment. On closer inspection then, the provisions adopted in implementation of Article 2(3) of the directive cannot properly be called derogations from the principle of equality, in that they seek rather to ensure that that principle operates in substance, by permitting such inequalities as are necessary in order to achieve equality. In short, different treatment is allowed or imposed, in favour of and to protect female workers, in order to arrive at material and not formal equality, since that would constitute a denial of equality.

12. The foregoing considerations lead me to the conclusion that the prohibition on nighttime work, while in itself lawful, may be applied not in such a way as to jeopardize the validity of a contract for nighttime work entered into by a pregnant woman, but only so as to bar her from actually carrying out such work. In other words, temporary inability to perform nighttime work, as a result of the special protection granted to pregnant women, may not be relied on to justify a refusal to engage a woman and may not have the effect of preventing the valid formation of an employment relationship.

13. With regard to the possibility of the contract being terminated, reference must also be made to Article 5(1) of the directive, according to which there must not be any discrimination on grounds of sex with regard to the conditions governing dismissal. In that connection, the Court stated in the Hertz case that the dismissal of a female worker on account of pregnancy constitutes direct discrimination on grounds of sex, as is a refusal to appoint a pregnant woman. Dismissal by reason of the worker's pregnancy has, therefore, been treated by the Court as direct discrimination on grounds of sex and thus as incompatible with the directive.

14. 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, is also important in this connection. It provides that pregnant women carrying out nighttime work are to be given the right to be transferred to daytime work or allowed a period of leave (Article 7), without the loss of employment in any circumstances (Article 10).

15. It has also been argued during the proceedings that a declaration that a contract is invalid or a dismissal should not, in a case such as this, be regarded as direct discrimination on grounds of sex, in that the operative factor (statutory prohibition on a certain kind of employment) would lead to the same results if a male worker were in the same situation.

16. It is scarcely necessary to point out, moreover, that in order to justify discrimination which has been established, the financial loss suffered by an employer in employing a person who is on leave throughout her pregnancy may not be put forward either, while it must be acknowledged that to maintain the employment relationship, in a situation like the one in point, produces increased financial burdens which may be especially heavy for small businesses.

17. Finally, the argument of the Arbeiterwohlfahrt, according to which the solution adopted here could lead to abuse by women, does not seem to me to have the least relevance either. It is self-evident that there is no question of abuse if it is recognized that pregnant women do not lose the right to be engaged and to keep their jobs, solely because they are pregnant.

18. In the light of the foregoing considerations, therefore, I propose that the Court reply to the questions submitted by the Arbeitsgericht Regensburg as follows:

1 Original language: Italian.

2 OJ 1976 L 39, p. 40.

3 Judgment in Case 111/75 Mazzalai [1976] ECR 657, paragraph 10/11.

4 Judgment in Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8.

5 Judgment in Case C-177/88 Dekker [1990] ECR I-3941, paragraph 12.

6 Judgment in Case 184/83 Hofmann [1984] ECR 3047, paragraph 25.

7 That national law, moreover, lays down a prohibition on assigning to pregnant women nighttime work and not on engaging such women.

8 Judgment in Case C-179/88 Handels-og Kontorfunktionaer- emes fortuna [1990] ECR 3979, paragraph 13.

9 In that connection, it might be helpful to bear in mind that, referring to the Hertz judgment, the Bundesarbeitsgericht considered, thereby reversing its earlier decisions, that an employer may not have a contract of employment entered into with a pregnant woman terminated on the basis of Paragraph 119(2) of the Civil Code, that is by claiming to have been intentionally misled as to the existence of the pregnancy (judgment of 15 October 1992, 2 AZR 227/92).

10 OJ 1992 L 348, p. 1.

11 Judgment cited above at footnote 7, especially paragraphs 14-17.

12 Judgment cited at footnote 4, paragraph 12.