In June 1998 Ms Jiménez Melgar was recruited by the municipality of Los Barrios (Spain) for a period of three months. Her contract was renewed twice, until 2 May 1999.

On 3 May 1999 Ms Jiménez Melgar signed a fourth contract, on a part-time basis and for a fixed term. Like the previous contracts, it contained date of termination. However, on 12 May 1999, Ms Jiménez Melgar received a letter from the municipality stating that the contract would terminate on 2 June 1999.

The municipality had in the meantime been informed that Ms Jiménez Melgar was pregnant. The child was born on 16 September 1999.

Ms Jiménez Melgar considered that her dismissal had been discriminatory and had breached her fundamental rights. She therefore brought proceedings in the competent court against the municipality of Los Barrios.

Case C-109/00

In June 1995 Ms Brandt-Nielsen was recruited by Tele Danmark for six months from 1 July 1995.

In August 1995 Ms Brandt-Nielsen informed Tele Danmark that she was pregnant and expected to give birth in early November. On 23 August 1995 she was dismissed with effect from 30 September, on the ground that she had not informed Tele Danmark that she was pregnant when she was recruited.

Ms Brandt-Nielsen brought proceedings against Tele Danmark in the competent court for compensation, on the ground that her dismissal was contrary to the Danish Law on Equal Treatment.

The court dismissed the action on the ground that Ms Brandt-Nielsen, who had been recruited for a period of six months, had failed to state that she was pregnant at the recruitment interview, even though she was expected to give birth during the fifth month of the contract of employment.

Ms Brandt-Nielsen appealed, and the appellate court allowed her appeal on the ground that it was not disputed that her dismissal was linked to her pregnancy.

Tele Danmark appealed to the Supreme Court. Tele Danmark considers that the prohibition under Community law of dismissing a pregnant worker does not apply to a worker, recruited on a temporary basis, who, despite knowing that she was pregnant when the contract of employment was concluded, failed to inform the employer of this, and because of her right to maternity leave was unable, for a substantial part of the term of that contract, to do the work for which she had been recruited.

The two courts put questions to the Court of Justice on the scope and interpretation of the Community provisions on the principle of equal treatment for men and women as regards employment, which impose an obligation on Member States to take the necessary measures to prohibit the dismissal of women workers during the period from the start of pregnancy to the end of maternity leave, save in exceptional cases not linked to their condition.

In the Jiménez Melgar case, the Court points out, first, that the provision in question imposes on the Member States, in particular in their capacity of employers, precise obligations which do not leave them any discretion in implementing them. If (as was the case in Spain) a Member State fails to transpose the provision within the time-limit, it confers rights on individuals which they can rely on before a national court as against the authorities of that State.

The Court then states that the prohibition of dismissing pregnant women set out in the Community provisions, which do not draw any distinction according to the length of the employment relationship, apply both to fixed-term employment contracts and to those concluded for an indefinite period.

However, the Court accepts that non-renewal of a fixed-term employment contract which has reached its normal date of termination cannot be equated with dismissal, and is not contrary as such to Community law.

In certain circumstances, however, the non-renewal of a fixed-term contract may be regarded as a refusal of employment. The Court says that the refusal to employ a woman, despite the fact that she is considered to be suited to perform the work in question, on account of her pregnancy constitutes direct discrimination on grounds of sex. It will be for the national court to ascertain whether the reason for the non-renewal of Ms Jiménez Melgar's contract was in fact her pregnancy.

In the Brandt-Nielsen case, the employer in question argues that the prohibition under Community law of dismissing a worker who is pregnant does not apply in this case. The employer submits that it was not in fact the pregnancy itself which was the determining reason for the dismissal, but the fact that Ms Brandt-Nielsen was unable to perform a substantial part of the contract; moreover, the fact that she failed to inform the employer of her condition, even though she knew that because of her pregnancy she would be unable to work for a substantial part of the contract, constituted a breach of the duty of good faith required between employees and employers, capable in itself of justifying dismissal.

The Court points out that it has already held that a refusal of employment on account of pregnancy cannot be justified by financial loss which the employer may suffer, if he recruitsa pregnant woman, during her maternity leave, or because the woman who has been recruited cannot occupy the post in question during her pregnancy.

Since the dismissal of a worker on account of her pregnancy constitutes direct discrimination on grounds of sex, whatever the nature and extent of the economic loss incurred by the employer as a result of the absence linked to pregnancy, whether the contract of employment has been concluded for a fixed term or an indefinite period has no bearing on the discriminatory character of the dismissal: in either case the employee's inability to perform her contract of employment is due to her pregnancy.

Unofficial document for media use, not binding on the Court of Justice Available in all the official languages For the full text of the judgment, please consult our Internet page www.curia.eu.int  at approximately 3 pm today For further information please contact Fionnuala Connolly: Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731