Court of Justice of the European Communities

Published March 12, 2008

Mayr v Backerei und Konditorei Gerhard Flockner OHG Case C-506/06

The dismissal of a female employee when her ova had been fertilised in an in vitro procedure but had not yet been transferred into her uterus was not prohibited by the Community directive on the safety and health of pregnant workers, but was prohibited by the equal treatment directive it if was established that the dismissal was based on the fact that she had undergone in vitro fertilisation.

The Grand Chamber of the Court of Justice of the European Communities so held on February 26, 2008, on a reference under article 234 EC for a preliminary ruling by the Oberster Gerichtshof, Austria.

In its judgment, the European Court ruled: Directive 92/85/EEC of October 19, 1992 (OJ 1992 L348/1) and, in particular, the prohibition of dismissal of pregnant workers in article 10(1), were to be interpreted as not extending to a female worker who was undergoing in vitro fertilisation treatment where, on the date she was given notice of her dismissal, her ova had already been fertilised by her partner’s sperm cells, so that in vitro fertilised ova existed, but they had not yet been transferred into her uterus. However, articles 2(1) and 5(1) of Directive 76/207 of February 9, 1976 (OJ 1976 L39/40) precluded the dismissal of a female worker who was at an advanced stage of in vitro fertilisation treatment, that was, between the follicular puncture and the immediate transfer of the in vitro fertilised ova into her uterus, in as much as it was established that the dismissal was essentially based on the fact that the woman had undergone such treatment.

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