The Court of Justice gave its judgment in the preliminary reference Case C-507/12 Jessy Saint Prix v Secretary of State for Work and Pensionson 19 June 2014.

This case concerned a French teacher, resident in the UK and undertaking agency work during pregnancy.  She stopped working 11 weeks before the expected date for the birth, and resumed work three months after the birth.  She made a claim for Income Support (a form of social security benefit) for this period.  The UK Government refused her claim, as under UK law Income Support is not granted to “persons from abroad”.  Ms Saint Prix sought to challenge the Government’s decision before the UK courts, arguing that the UK legislation is contrary to EU law, and specifically to its obligations under Directive 2004/38/EC (the Citizenship Directive).

Against this background, the UK Supreme Court referred two preliminary questions to the European Court of Justice relating to the interpretation of the notion of “worker” in Article 7 of Directive 2004/38/EC and, in particular, whether the notion of “worker” extends to a woman who gives up work due to the physical constraints of the late stage of pregnancy.

The Court of Justice (“CoJ”) decided the case on the basis of Article 45 TFEU. It concluded that that a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retains the status of “worker” within the meaning of that article, provided that she returns to work or finds another job within a reasonable period after the birth of her child (see, by analogy, Cases C-483/01 and C-493/01 Orfanopoulos and Oliveri, para. 50).

In its reasoning, the CoJ recalls that it has consistently held pregnancy must be clearly distinguished from illness, in that pregnancy is not in any way comparable with a pathological condition. It follows that a woman in the situation of Ms Saint Prix, who temporarily gives up work because of the late stages of her pregnancy and the aftermath of childbirth, cannot be regarded as a person temporarily unable to work as the result of an illness, in accordance with Article 7(3)(a) of Directive 2004/38.

However, the CoJ continues, it does not follow from either Article 7 of Directive 2004/38 that, in such circumstances, a citizen of the Union who does not fulfil the conditions laid down in that article is, therefore, systematically deprived of the status of ‘worker’, within the meaning of Article 45 TFEU. The codification, sought by this Directive, of the instruments of EU law existing prior to it, which expressly seeks to facilitate the exercise of the rights of Union citizens to move and reside freely within the territory of the Member States, cannot, by itself, limit the scope of the concept of worker within the meaning of the FEU Treaty. Furthermore, the CoJ restates, the concept of ‘worker’, within the meaning of Article 45 TFEU must be interpreted broadly (see Case C-46/12 N. para. 39).

In the context of Article 45 TFEU, a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration must be considered to be a worker. Once the employment relationship has ended, the person concerned, as a rule, loses the status of worker, although that status may produce certain effects after the relationship has ended, and a person who is genuinely seeking work must also be classified as a worker (see Case C-379/11 Caves Krier Frères, para. 26).

Thus, the classification as a worker under Article 45 TFEU, and the rights deriving from such status, do not necessarily depend on the actual or continuing existence of an employment relationship. Also Article 7(3) of Directive 2004/38 does not list exhaustively the circumstances in which a migrant worker who is no longer in an employment relationship may nevertheless continue to benefit from that status. In this sense, the fact that constraints due to pregnancy require a woman to give up work during the period needed for recovery does not, in principle, deprive her of the status of ‘worker’ within the meaning Article 45 TFEU, the CoJ continues. The fact that she was not actually available on the employment market of the host Member State for a few months does not mean that she has ceased to belong to that market during that period, provided she returns to work or finds another job within a reasonable period after confinement. It is for the national court to determine whether the period that has elapsed between childbirth and starting work again may be regarded as reasonable taking into account all the specific circumstances of the case and the applicable national rules on the duration of maternity leave.

The CoJ also draws an interesting analogy: Article 16(3) of Directive 2004/38 provides, for the purpose of calculating the continuous period of five years of residence in the host Member State allowing Union citizens to acquire the right of permanent residence in that territory, that the continuity of that residence is not affected, inter alia, by an absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth. If an absence for an important event such as pregnancy or childbirth does not affect the continuity of the five years of residence in the host Member State required for the granting of that right of residence, the physical constraints of the late stages of pregnancy and the immediate aftermath of childbirth, which require a woman to give up work temporarily, cannot, a fortiori, result in that woman losing her status as a worker.

Disclaimer: Xavier and I represented the EFTA Surveillance Authority in this case.