Luxemburg, 05/12/2007 (Agence Europe) - A woman is not considered pregnant unless she is actually carrying a baby, states Advocate General Dámaso Ruiz-Colomer in conclusions returned on 27 November (case C-506/06). The reason that this question was raised at all relates to the case of a woman who was dismissed after the in vitro fertilisation of one of her eggs, but before the embryo had been implanted. On the basis of several scientific definitions of “pregnancy”, the advocate general came to the conclusion that this woman cannot be considered pregnant by her employer until the moment of “embedding”, meaning that the cells of the future baby have been successfully implanted in the wall of the uterus.
On 8 March 2005, Sabine Mayr presented a request for five days of sick leave to the company Bäckerei und Konditorei Gerhard Flöckner, where she had been working as a waitress for two months. She had been undergoing hormone treatment for a month and a half, and the sick leave was planned for two embryos to be transferred into her womb. Eggs taken from Ms Mayr had been fertilised in vitro on 8 March, but her employer, who was then unaware of the circumstances, terminated her contract of employment by telephone two days later, on 10 March. In a letter sent on the same day, Ms Mayr apprised her employer of the situation, and informed him of the implantation scheduled for 13 March. She then put in a claim for remuneration which, under Austrian law, pregnant workers can claim (article 10, paragraph 1 of the “Mutterschutzgesetz”, or Maternity Protection Act).
The company turned down this request, on the grounds that she was not yet pregnant when notified of her dismissal. The case then went to the Court of the Land of Salzburg, which sided with Ms Mayr, then to an appeal before the High Court of the Land, which upheld the position of her employer. The Austrian Supreme Court, to which the case was then brought, asked the European Court of Justice whether Ms Mayr was, from a legal point of view, pregnant on 10 March 2008. If she was, then her rights are protected under Austrian law, backed up by the European directive 92/85/EEC on the protection of the health and safety of pregnant, recently delivered or breast-feeding employees. Article 10 of this directive makes it illegal to dismiss women during this state “during the period from the beginning of their pregnancy to the end of their maternity leave”.
The advocate general took the view that firstly, Austrian case law, quoted by the higher court of Salzburg, does not apply as it deals with natural pregnancies. Although in these cases, pregnancy can be considered to have started as of the moment of fertilisation - it may be difficult to consider this moment as the start of a pregnancy if it took place outside of the body. There are several reasons to justify this conclusion. Amongst other things, the mother could, by virtue of Austrian law, have the embryo frozen in order to delay the implantation for up to 10 years; there is also the possibility for the biological mother to have the embryo implanted into a surrogate mother (even though this practice is not allowed in all member states). In neither of these two situations would it be reasonable to insist that the employer be bound by obligations due to pregnant women.
If the Court goes along with these conclusions (as is usually the case), it will, therefore, confirm that the actions of Bäckerei und Konditorei Gerhard Flöckner infringed neither Austrian nor European legislation on the treatment of pregnant women. However, the advocate general stated that in his opinion, the question of whether the actions were in line with Directive 76/207/EEC on equality between men and women in the workplace deserves closer examination by the court which referred the case. If Bäckerei sustains that it was not aware of the reason for Ms Mayr's sick leave, it had certainly been possible for them to find out. By virtue of this directive, it is incumbent upon the employer to demonstrate that Ms Mayr's dismissal was in no way related to the fact that she is a woman. (C.D.)