Court of Justice of the European Communities (including Court of First Instance Decisions)

The Community legislation

'Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work.

For the purpose of this Article, "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer.

Equal pay without discrimination based on sex means:

(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;

(b) that pay for work at time rates shall be the same for the same job.'

'The principle of equal pay for men and women outlined in Article 119 of the Treaty, hereinafter called "principle of equal pay", means, for the same work or for

work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration.

In particular, where a job classification system is used for determining pay, it must be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex.'

'For the purposes of the following provisions, 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.'

'shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.'

'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.'

'Assessment and information

1. 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 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, either directly or by way of the protective and preventive services referred to in Article 7 of Directive 89/391/EEC, in order to:

- assess any risks to the safety or health and any possible effect on the pregnancy or breastfeeding of workers within the meaning of Article 2,

- decide what measures should be taken.

2. Without prejudice to Article 10 of Directive 89/391/EEC, workers within the meaning of Article 2 and workers likely to be in one of the situations referred to in Article 2 in the undertaking and/or establishment concerned and/or their representatives shall be informed of the results of the assessment referred to in paragraph 1 and of all measures to be taken concerning health and safety at work.'

'Action further to the results of the assessment

1. Without prejudice to Article 6 of Directive 89/391/EEC, if the results of the assessment referred to in Article 4(1) reveal a risk to the safety or health or an effect on the pregnancy or breastfeeding of a worker within the meaning of Article 2, the employer shall 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.

2. If the adjustment of her working conditions and/or working hours is not technically and/or objectively feasible, or cannot reasonably be required on duly substantiated grounds, the employer shall take the necessary measures to move the worker concerned to another job.

3. 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 shall 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.

4. The provisions of this Article shall apply mutatis mutandis to the case where a worker pursuing an activity which is forbidden pursuant to Article 6 becomes pregnant or starts breastfeeding and informs her employer thereof.'

'Employment rights

In order to guarantee workers within the meaning of Article 2 the exercise of their health and safety protection rights as recognised in this Article, it shall be provided that:

1. in the cases referred to in Articles 5, 6 and 7, the employment rights relating to the employment contract, including the maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2, must be ensured in accordance with national legislation and/or national practice;

2. in the case referred to in Article 8, the following must be ensured:

(a) the rights connected with the employment contract of workers within the meaning of Article 2, other than those referred to in point (b) below;

(b) maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2;

3. the allowance referred to in point 2(b) shall be deemed adequate if it guarantees income at least equivalent to that which the worker concerned would receive in the event of a break in her activities on grounds connected with her state of health, subject to any ceiling laid down under national legislation.'

The national legislation

'If an employee is unable to carry out his or her work by reason of illness, the resultant absence from work shall be regarded as due to a legitimate impediment unless, in the course of the employment relationship, he or she contracted that illness intentionally or through gross negligence, or, on entering the post, fraudulently failed to disclose that he or she was suffering from the illness in question.'

'1. In order for the employer to organise work arrangements, an employee shall, no later than three months before the expected date of confinement, inform her employer of when she expects to begin her maternity leave.

2. Where an employee is pregnant, her employer is required to pay half her salary for a maximum of five months over the period from the date on which the incapacity for work arises, such period beginning not earlier than three months before the confinement and ending not later than three

months after the confinement. A similar obligation exists where the employer considers it impossible to provide work for the employee, even though she is not unfit for work. If the employment is terminated, the employer shall provide full pay until expiry of the period of notice to which the employee is entitled.'

The main proceedings

'Is it contrary to Community law, including Article 119 of the EC Treaty and Directives 75/117/EEC, 76/207/EEC and 92/85/EEC, for national legislation to exempt employers from paying salaries to pregnant employees in cases where:

1. the absence is attributable to the fact that the pregnancy substantially aggravates an illness that is otherwise unconnected with the pregnancy;

2. the absence is attributable to an illness caused by the pregnancy;

3. the absence is attributable to the fact that there is a pathological development in the pregnancy and that continued work would create a risk for the health of the woman or her unborn child;

4. the absence is attributable to routine pregnancy-related inconveniences that occur in any normal pregnancy and, moreover, do not result in incapacity for work;

5. the absence results from medical recommendation intended to protect the unborn child but which is not based on an actual pathological condition or on any special risks for the unborn child;

6. the absence is attributable to the fact that the employer, on the basis of the pregnancy alone, considers that he cannot provide work for the pregnant employee, despite the fact that the employee is not unfit for work,

and in situations 1 to 3 and 6 the State guarantees that the pregnant employee will receive the same rate of benefit as she would receive if on sick leave, whereas in situations 4 and 5 no State benefit is received, and the employer, moreover, is required under national legislation to provide full pay during illness?'

The first, second and third situations

judgment in the action (Case 5/77 Tedeschi v Denkavit [1977] ECR 1555, paragraphs 17 and 18).

may claim in the event of pregnancy. They state moreover that any discrimination which might exist would be justified by the fact that the Danish legislation reflects a sharing of the risks and economic costs connected with pregnancy between the pregnant worker, the employer and society as a whole, which represents inter alia a balance between the concern to facilitate the access of women to the workplace and the need to ensure their protection in the event of pregnancy.

The fourth and fifth situations

The sixth situation

Costs