Opinion of Advocate General Tesauro delivered on 1 June 1994

1 Original language: Italian.

2 OJ 1976 L 39, p. 40.

3 OJ 1992 L 348, p. 1.

4 Judgment ¡n Case C-106/89 Marleasing [1990] ECR 1-4135, at paragraph 8.

5 Case C-177/8S Dekker [1990] ECR 1-3941.

6 Case C-179/88 Handels- og Kontorfunktionærernes Forbund i Danmark, Hertz [1990] ECR 1-3979.

7 See the judgment in Hertz, cited above, at paragraph 13.

8 From this perspective, Article 10 of Directive 92/85/EEC, cited above, which prohibits the dismissal of female workers during the period from the beginning of their pregnancy to the end of maternity leave, save in exceptional cases not connected with their condition, merely confirms the interpretation of Article 5(1) set out here.

9 Case C-421/92 Habermann-Beltermann [1994] ECR 1-1657.

10 In the present case, moreover, it seems that the employer would not have to shoulder special financial burdens since the relevant national legislation makes entitlement to allowances during maternity leave subject to a series of conditions which Mrs Webb did not satisfy. In any event, however, it scarcely needs reiterating that, as expressly stated by the Court in Dekker, discrimination cannot be justified by the financial loss which an employer who appointed a pregnant woman would suffer for the duration of her pregnancy (paragraph 12).

11 In my view, moreover, whether or not the parties are aware of the pregnancy at the time they enter into an employment relationship is, for the purposes of a valid employment relationship and — a fortioń — of a possible dismissal, actually irrelevant save in exceptional cases to be assessed individually (see point 12 of my Opinion in Habermann-Beltermann, cited above).

12 See Case C-179/88, cited above, in particular paragraphs 14 to 17.

13 That judgment may certainly not be construed as meaning that tne Court has recognized as permissible (or even justifiable) the dismissal of a woman who is absent from work for a reason (illness) connected with pregnancy. Closer examination reveals that the Court's decision turned on the fact that Mrs Hertz's illness began after her return to work at the end of her maternity leave. The implication is that an illness connected with pregnancy is covered by the directive, thus rendering dismissal unlawful, to the extent that such illness occurred during maternity leave, that is to say, during a period denned by the Member States for the purposes of the derogation referred to in Article 2(3) of the directive.

14 Although Directive 92/85/EEC, which is due to enter into force on 19 October 1994, imposes on Member States a series of unconditional obligations with regard to the treatment of female employees during maternity leave, it still leaves them the option of making pay and the grant of certain allowances subject to the requirement of previous employment for a given period not in excess of 12 months, immediately prior to the anticipated date of the employee's confinement (Article 11).