On 6 March 2014, the Court of Justice (“CoJ”) delivered its judgment on a preliminary reference case (Case C-595/12 Loredana Napoli v Ministero della Giustizia) regarding the interpretation of Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.
Recital 23 of the Directive states that, according to the case-law of the CoJ, unfavourable treatment of women related to pregnancy or maternity constitutes direct discrimination on grounds of sex. Moreover, Article 1 of the Directive states that its purpose is the implementation of the principle of equal treatment as regards access to employment (including promotion/vocational training), working conditions (including pay) and occupational social security schemes.
But let’s come to the facts of the case of Ms. Napoli: In 2009, Ms. Napoli was successful in a competition for appointment as deputy commissioner in the prison service. In December 2011, she was admitted to the training course scheduled to start in the end of December 2011. Since Ms Napoli gave birth in the beginning of that month, she was placed on compulsory maternity leave for 3 months. She was then informed that she would be excluded from the course due to the fact that she was on maternity leave and the payment of her salary would be suspended.
The Lazio Regional Administrative Court referred a preliminary question to the CoJ as to whether the Italian legislation excluding a woman on compulsory maternity leave from a vocational training which forms part of her employment and which she must attend in order to be able to be appointed to a post as a civil servant was in breach of the Directive on equal treatment of men and women.
The CoJ found that as Ms. Napoli was excluded from the vocational training course as a result of having taken maternity leave has had a negative effect on Ms. Napoli’s working conditions: her colleagues were able to attend the first course in its entirety and to be promoted before her to the higher grade while receiving the corresponding pay.
Ms. Napoli was excluded from the course and was prevented from participating in the examination. That meant that she had lost a chance of benefiting in the same way as her colleagues from an improvement in working conditions, which constituted unfavourable treatment. This automatic exclusion did not comply with the principle of proportionality in particular because the course was not organised at specified intervals.
The question arising then is how Member States could achieve substantive equality between men and women in this respect. Member States have some discretion in this respect. For instance, the competent authorities could keep their candidates fully trained by providing, if appropriate, for a female worker who returns from maternity leave, equivalent parallel remedial courses enabling her to be admitted within the prescribed period to the examination and thereby to be promoted, without delay, to a higher grade, said the CoJ. In that way, the career development of such female worker would not be hindered in relation to that of a male colleague who was successful in the competition and admitted to the initial training course.
What was very important in this case was that the CoJ stated that the provisions of the Directive on equal treatment between men and women are sufficiently clear, precise and unconditional to have direct effect. The national court applying those provisions is under a duty to give full effect to them, if necessary refusing of its own motion to apply any conflicting provision of national legislation.
The CoJ has been very consistent as to its protection of pregnant women who see themselves being discriminated against in their professional sphere. Already in 1994 in Case C-32/93 Webb it stated that a dismissal of a pregnant woman on account of her pregnancy constitutes direct discrimination on grounds of sex. Pregnancy cannot be compared with a pathological condition rendering a man similarly incapable for performing its tasks at work.