JUDGMENT OF THE COURT (Sixth Chamber)

30 April 1998 (1)

(Equal treatment for men and women — Directive 76/207/EEC — Maternity leave— Right to an assessment of performance)

In Case C-136/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the FrenchCour de Cassation for a preliminary ruling in the proceedings pending before thatcourt between

Caisse Nationale d'Assurance Vieillesse des Travailleurs Salariés (CNAVTS)

and

Évelyne Thibault

on the interpretation of Council Directive 76/207/EEC of 9 February 1976 on theimplementation of the principle of equal treatment for men and women as regardsaccess to employment, vocational training and promotion, and working conditions(OJ 1976 L 39, p. 40),

THE COURT (Sixth Chamber),

composed of: H. Ragnemalm, President of the Chamber, R. Schintgen,G.F. Mancini, J.L. Murray (Rapporteur) and G. Hirsch, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

—    the French Government, by Catherine de Salins, Deputy Director in theLegal Affairs Department of the Ministry of Foreign Affairs, and Anne deBourgoing, Chargé de Mission in that department, acting as Agents,

—    the United Kingdom Government, by John E. Collins, Assistant TreasurySolicitor, acting as Agent,

—    the Commission of the European Communities, by Marie Wolfcarius, of itsLegal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of the French Government, represented byAnne de Bourgoing, the United Kingdom Government, represented by JohnE. Collins and David Pannick QC, and the Commission, represented by MarieWolfcarius, at the hearing on 5 December 1996,

after hearing the Opinion of the Advocate General at the sitting on 9 January 1997,

gives the following

Judgment

1.

    By order of 28 March 1995, received at the Court on 28 April 1995, the FrenchCour de Cassation (Court of Cassation) referred to the Court for a preliminaryruling under Article 177 of the EC Treaty a question on the interpretation ofCouncil Directive 76/207/EEC of 9 February 1976 on the implementation of theprinciple of equal treatment for men and women as regards access to employment,vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40,hereinafter 'the Directive‘).

2.

    That question was raised in proceedings between the Caisse Nationale d'AssuranceVieillesse des Travailleurs Salariés (CNAVTS) (National Old-Age Insurance Fundfor Employees) and Mrs Thibault concerning the refusal by the CNAVTS toundertake an assessment of Mrs Thibault's performance for 1983.

3.

    Article 1(1) of the Directive states that its purpose is to put into effect in theMember States the principle of equal treatment for men and women as regardsaccess to employment, including promotion, and to vocational training and asregards working conditions. That principle is known as 'the principle of equaltreatment‘. Article 2(1) of the Directive defines that principle as meaning thatthere is to be no discrimination whatsoever on grounds of sex either directly orindirectly by reference in particular to marital or family status. Article 2(3)provides that the Directive is to be without prejudice to provisions concerning theprotection of women, particularly as regards pregnancy and maternity.

4.

    According to Article 2(4), the Directive is to be without prejudice to measures topromote equal opportunity for men and women, in particular by removing existinginequalities which affect women's opportunities in the areas referred to in Article1(1).

5.

    Article 5(1) of Directive 76/207 provides that: 'Application of the principle of equaltreatment with regard to working conditions, including the conditions governingdismissal, means that men and women shall be guaranteed the same conditionswithout discrimination on grounds of sex.‘

6.

    Under Article L 123-1(c) of the French Code du Travail (Labour Code):

'Subject to the special provisions of this code and save where the sex of the workeris an essential condition for the performance of the duties attached to a post or anoccupation:

...

(c)    no measure may be adopted on grounds of sex, particularly in regard toremuneration, training, assignment, qualification, classification, promotion ortransfer.‘

7.

    In France, under Article 45 of the Convention Collective Nationale du Travail duPersonnel des Organismes de Sécurité Sociale (collective national labour agreementfor the staff of social security institutions, hereinafter 'the collective agreement‘),pregnant employees who have completed a minimum period of work with aninstitution are entitled to 16 weeks' maternity leave on full pay, and that periodmay be extended to 28 weeks. Under Article 46 of the collective agreement, anemployee may, on the expiry of her maternity leave, claim 'leave of three monthson half pay or leave of one-and-a-half months on full pay‘.

8.

    Under Article L 122-26-2 of the Code du Travail 'the period of maternity leave isto be treated as a period of actual work for the purpose of determining a worker'srights by virtue of length of service.‘

9.

    Article 3 of the supplement of 13 November 1975 to the collective agreementprovides that account must be taken as 'professional experience‘ for the purposeof classifying posts not only of actual attendance at work but also of certainabsences such as annual leave, movable holidays and special leave, short-termleave, time spent as a trade-union official and various other absences not exceedingfive working days in each six-month period. Article 3bis, added to the collectiveagreement by a supplement of 15 December 1983, provides that maternity leavemust be taken into account as 'professional experience‘ on the same basis as theabsences listed in Article 3.

10.

    Articles 29 to 31 of the collective agreement lay down the procedure for careeradvancement of employees, which may amount to a maximum of 40% of theirsalary. Thus, under Article 29 of the collective agreement, upon the expiry of thesecond year after their entry into service employees are granted yearly, by way ofadvancement based solely on length of service, a supplement of 2% of their salary. After the third year and subject to a maximum of 24%, advancement under thecollective agreement may rise from 2% to 4%, the additional 2% being based onthe assessment made each year by the employee's superiors of their work andconduct. Between 24% and 40%, advancement under the collective agreement isachieved at the rate of 2% per year.

11.

    Chapter XIII of the CNAVTS standard service regulations amplifies Articles 29 to31 of the collective agreement. As regards the discretionary advancement of 2%,it provides that any employee who has been present at work for at least six monthsof the year must be the subject of an assessment of performance by his superiors.

12.

    Mrs Thibault was recruited by the CNAVTS in 1973 as an agent technique (skilledclerical worker) and was promoted to rédacteur juridique (official responsible forlegal drafting) in 1983. In that year, Mrs Thibault was absent on account ofsickness from 4 to 13 February, from 3 to 16 March and from 16 May to 12 June. She then took maternity leave from 13 June to 1 October 1983, under Article 45of the collective agreement, followed by maternity leave on half pay from 3October to 16 November 1983 under Article 46 of the collective agreement.

13.

    On the basis of Chapter XIII of the standard service regulations, the CNAVTSrefused to carry out an assessment of performance for Mrs Thibault for 1983. Inits view, because of her absences, Mrs Thibault did not meet the conditions laiddown by that provision, namely six months' presence at work.

14.

    It is clear from the documents before the Court that, in 1983, Mrs Thibault was atwork for a period of about five months. If she had not taken maternity leavebetween 13 June and 1 October 1983, she could have relied on the six months'attendance necessary for an assessment of performance under Chapter XIII.

15.

    Mrs Thibault then brought the matter before the Conseil de Prud'hommes (LabourTribunal), Paris, claiming that the failure to assess her performance, because of her

absence on maternity leave, constituted discrimination and that she had as a resultlost an opportunity for promotion. By judgment of 17 December 1985, MrsThibault's claim was upheld and her employer was ordered to compensate her forthe loss she had suffered. The CNAVTS appealed against that decision.

16.

    On 9 February 1989 the Cour de Cassation set that judgment aside on the groundthat Article 31 of the collective agreement does not provide for inclusion as of righton the list of CNAVTS employees eligible for advancement and referred the caseto the Conseil de Prud'hommes, Melun.

17.

    By judgment of 24 January 1990, the Conseil de Prud'hommes, Melun, held thatthe fact that Mrs Thibault's performance had not been assessed deprived her of anopportunity for promotion. It considered that her absence on account of maternityleave should have been treated as actual attendance at work and that failure totake account of that absence constituted discrimination prohibited by ArticleL 123-1(c) of the Code du Travail. The Conseil de Prud'hommes accordingly heldthat Mrs Thibault should have had her performance assessed for 1983 and that shehad missed an opportunity for promotion. The CNAVTS was therefore orderedto award her back-pay for 1984.

18.

    The CNAVTS appealed against that judgment, contending that Article 31 of thecollective agreement does not provide for automatic inclusion on the list for'advancement on merit‘ of employees who meet the conditions laid down, that theperiod of 'professional experience‘ prescribed by the collective agreement shouldbe severed from the period of actual attendance at work to be taken into accountin order for an employee to be eligible for an assessment of performance and thatfailure to assess Mrs Thibault's performance was not based on grounds of sex, theprinciple of equality at work being applicable only to rights potentially available toemployees of both sexes, in accordance with Article L 123-1(c) of the Code duTravail.

19.

    Since Article L 123-1(c) of the Code du Travail transposes the Directive intoFrench law, the Cour de Cassation decided to stay proceedings pending apreliminary ruling from the Court of Justice as to

'whether Articles 1(1), 2(1), 5(1) and, if relevant, 2(4) of Council Directive76/207/EEC of 9 February 1976 must be interpreted as meaning that a woman maynot be deprived of the right to an assessment of performance, and consequently tothe possibility of an advancement in career, on the ground that she was absentfrom work by reason of maternity leave.‘

20.

    According to the French Government, the discrimination suffered by Mrs Thibaultderives not from the national legislation but from the interpretation thereof by theCNAVTS. It considers that Article 3 of the supplement to the collective agreementof 13 November 1975 and Article 3bis of the supplement of 15 December 1983,

although concerned with classification of the posts of staff of social securityinstitutions and not the arrangements for assessment of performance referred toin Article 31 of the collective agreement, incontestably reflect the concern of thesocial partners not to discriminate against women on maternity leave.

21.

    On this point it should be recalled that, in accordance with the allocation offunctions between the Court of Justice and the national courts which underliesArticle 177 of the EEC Treaty, it is for the national court to establish the factsgiving rise to the dispute, to interpret national legal provisions and to rule on theirapplication to the particular case (see, to that effect, Case 139/85 Kempf vStaatssecretaris van Justitie [1986] ECR 1741, paragraph 12, and Case 296/84 Sinatrav Fonds National de Retraite des Ouvriers Mineurs [1986] ECR 1047, paragraph 11).

22.

    However, as the French Government has stated, it is for the national court, withinthe limits of its discretion under national law, to interpret and apply the lawadopted to implement a directive in accordance with the requirements ofCommunity law (see Case 14/83 Von Colson and Kamann v LandNordrhein-Westfalen [1984] ECR 1891, paragraph 28).

23.

    Nevertheless, it must be emphasised that the national court has asked the Courtof Justice to interpret specific provisions of Community law in circumstances suchas those of the case before it. Accordingly, the observations of the FrenchGovernment regarding Article 3 of the supplement of 13 November 1975 andArticle 3bis of the supplement of 15 December 1983 are irrelevant.

24.

    It must be borne in mind that the directive allows national provisions whichguarantee women specific rights on account of pregnancy and maternity, such asmaternity leave (see Case C-179/88 Handels- og Kontorfunktionaerernes Forbund[1990] ECR I-3979, paragraph 15).

25.

    Furthermore, by reserving to Member States the right to retain or introduceprovisions which are intended to protect women in connection with 'pregnancy andmaternity‘, Article 2(3) of the Directive recognises the legitimacy, in terms of theprinciple of equal treatment, first, of protecting a woman's biological conditionduring and after pregnancy and, second, of protecting the special relationshipbetween a woman and her child over the period which follows pregnancy andchildbirth (see, in particular, Case 184/83 Hofmann v Barmer Ersatzkasse [1984]ECR 3047, paragraph 25, Case C-421/92 Habermann-Beltermann [1994] ECRI-1657, paragraph 21, and Case C-32/93 Webb v EMO Air Cargo [1994] ECR I-3567,paragraph 20).

26.

    The conferral of such rights, recognised by the Directive, is intended to ensureimplementation of the principle of equal treatment for men and women regardingboth access to employment (Article 3(1)) and working conditions (Article 5(1)). Therefore, the exercise of the rights conferred on women under Article 2(3) cannotbe the subject of unfavourable treatment regarding their access to employment or

their working conditions. In that light, the result pursued by the Directive issubstantive, not formal, equality.

27.

    The right of any employee to have their performance assessed each year and,consequently, to qualify for promotion, forms an integral part of the conditions oftheir contract of employment within the meaning of Article 5(1) of the Directive.

28.

    It is therefore in the light of Article 5(1) of the Directive, in conjunction withArticle 2(3), that rules such as those at issue in this case must be examined todetermine whether they guarantee men and women the same conditions withoutdiscrimination on grounds of sex.

29.

    The principle of non-discrimination requires that a woman who continues to bebound to her employer by her contract of employment during maternity leaveshould not be deprived of the benefit of working conditions which apply to bothmen and women and are the result of that employment relationship. Incircumstances such as those of this case, to deny a female employee the right tohave her performance assessed annually would discriminate against her merely inher capacity as a worker because, if she had not been pregnant and had not takenthe maternity leave to which she was entitled, she would have been assessed for theyear in question and could therefore have qualified for promotion.

30.

    It is true, as the United Kingdom Government was right to point out, that theCourt has recognised that the Member States have a discretion as to the socialmeasures they adopt in order to guarantee, within the framework laid down by thedirective, protection of women in connection with pregnancy and maternity and asto the nature of the protection measures and the detailed arrangements for theirimplementation (see inter alia Hofmann, cited above, paragraph 27).

31.

    Nevertheless, such discretion, which must be exercised within the bounds of theDirective, cannot serve as a basis for unfavourable treatment of a woman regardingher working conditions.

32.

    It must therefore be held that a woman who is accorded unfavourable treatmentregarding her working conditions, in that she is deprived of the right to an annualassessment of her performance and, therefore, of the opportunity of qualifying forpromotion as a result of absence on account of maternity leave, is discriminatedagainst on grounds of her pregnancy and her maternity leave. Such conductconstitutes discrimination based directly on grounds of sex within the meaning ofthe Directive.

33.

    The answer to the question must therefore be that Articles 2(3) and 5(1) of theDirective preclude national rules which deprive a woman of the right to anassessment of her performance and, consequently, to the possibility of qualifying

for promotion because she was absent from the undertaking on account ofmaternity leave.

Costs

34.

    The costs incurred by the French and United Kingdom Governments and by theCommission, which have submitted observations to the Court, are not recoverable.Since these proceedings are, for the parties to the main proceedings, a step in theproceedings pending before the national court, the decision on costs is a matter forthat court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the question referred to it by the French Cour de Cassation byjudgment of 28 March 1995, hereby rules:

Articles 2(3) and 5(1) of Council Directive 76/207/EEC of 9 February 1976 on theimplementation of the principle of equal treatment for men and women as regardsaccess to employment, vocational training and promotion, and working conditionspreclude national rules which deprive a woman of the right to an assessment of herperformance and, consequently, to the possibility of qualifying for promotionbecause she was absent from the undertaking on account of maternity leave.

RagnemalmSchintgen Mancini Murray Hirsch

Delivered in open court in Luxembourg on 30 April 1998.

R. Grass

H. Ragnemalm

Registrar

President of the Sixth Chamber

1: Language of the case: French.