Jurisprudential Developments in Community Pregnancy and Maternity Rights: The ECJ Judgments in Cases C-438/99 Melgar and C-109/00 Brandt-Nielsen
| Published date | 01 March 2002 |
| Date | 01 March 2002 |
| DOI | 10.1177/1023263X0200900104 |
| Author | Annick Masselot |
| Subject Matter | Article |
Annick Masselot∗
9 MJ 1 (2002) 57
Jurisprudential Developments in Community Pregnancy and
Maternity Rights: the ECJ judgments in cases C-438/99
Melgar and C-109/00 Brandt-Nielsen
§ 1. Introduction
A major step was achieved in tackling the issue of equal treatment as applied to pregnant
workers and workers on maternity leave by the European Court of Justice (hereafter the
Court or the ECJ) judgments of 8 November 1990.1 In Dekker2 and Hertz3 the Court
established the crucial principle that as only women can become pregnant, refusal to employ
or dismissal of a pregnant woman due to her pregnancy or maternity amounts to direct
discrimination on the grounds of sex contrary to articles 2(3) and 5(1) of Directive
76/207/EEC on Equal Treatment between men and women4 (hereafter the Equal Treatment
Directive). To qualify a dismissal or a refusal to employ on grounds of pregnancy as direct
discrimination means that, in principle, it cannot be justified in any way, in particular by
economic considerations, except in the presence of explicit statutory exemptions.5 However,
following the Court’s decision in Webb,6 it has been argued that the ECJ conceivably
permitted (market-based) justifications for direct discrimination based on sex.7 The principle
* Annick Masselot is researcher at University of Tilb urg and assistant co-ordinator to the European
Commission’s network of legal experts on the application of Community law on equal treatment between
women and men. This paper expresses the personal opinion of the author.
1. See R. Nielsen’s note on the cases, 29 Common Market La w Review (1992), 160.
2. C-177/88 Dekker v. Stichting Vormingscentrum voor Jonge Volwassenen Plus [1990] ECR I-3941.
3. C-179/88 Handels- og Kontorfunktionærernes Forbund I Danmark (Hertz) v. Dansk Arbejdsgiverforening
[1990] ECR I-3979.
4. 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, [1976] O.J. L39/40.
5. See C-248/83 Commission v. Germany [1985] ECR 1459; C-222/84 Johnston v. Chief Constable of the RUC
[1986] ECR 1651.
6. C-32/93 Webb v. EMO Air Cargo [1994] ECR I-3567.
7. See R. Wintemute, ‘When is Pregnancy Discrimination Indirect Discrimination?’, 27 Industrial Law Journal
1 (1998), 23; see also C. Boch’s note on the Webb case, 33 Commo n Market Law Review (1996), 560.
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