Virginie Pontin v T-Comalux SA.

• Jurisdiction: European Union
• Date: 29 October 2009
• Court: Court of Justice (European Union)

Case C-63/08

Virginie Pontin

v

T-Comalux SA

(Reference for a preliminary ruling from the tribunal du travail d’Esch-sur-Alzette)

(Social policy – Protection of pregnant workers and workers who have recently given birth or are breastfeeding – Directive 92/85/EEC – Articles 10 and 12 – Prohibition of dismissal from the beginning of pregnancy until the end of maternity leave – Judicial protection of rights enjoyed by individuals under Community law – Equal treatment for men and women − Directive 76/207/EEC − Article 2(7), third subparagraph – Less favourable treatment of a woman related to pregnancy or maternity leave – Restriction of remedies available to women dismissed during pregnancy)

Summary of the Judgment

1. Social policy – Protection of the safety and health of workers – Pregnant workers and workers who have recently given birth or are breastfeeding – Directive 92/85 – Prohibition of dismissal

(Council Directive 92/85, Arts 10 and 12)

2. Social policy – Male and female workers – Access to employment and working conditions – Equal treatment – Protection of the safety and health of workers – Pregnant workers and workers who have recently given birth or are breastfeeding – Directives 76/207 and 92/85

(Council Directives 76/207, as amended by directive 2002/73, Arts 2 and 3, and 92/85, Art. 10)

1. Articles 10 and 12 of Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding must be interpreted as not precluding legislation of a Member State which provides a specific remedy concerning the prohibition of dismissal of pregnant workers or workers who have recently given birth or are breastfeeding laid down in Article 10, exercised according to procedural rules specific to that remedy, provided however that those rules are no less favourable than those governing similar domestic actions (principle of equivalence) and are not framed in such a way as to render practically impossible the exercise of rights conferred by Community law (principle of effectiveness). A fifteen-day limitation period applicable to an action for a declaration of nullity and for reinstatement does not appear to meet that condition, but that is a matter for the referring court to determine.

(see paras 62, 69, operative part 1)

2. Article 2, in conjunction with Article 3, of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, as amended by Directive 2002/73, must be interpreted as precluding legislation of a Member State, specific to the protection provided for in Article 10 of Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding in the event of their dismissal, which denies a pregnant employee who has been dismissed during her pregnancy the option to bring an action for damages whereas such an action is available to any other employee who has been dismissed, where such a limitation on remedies constitutes less favourable treatment of a woman related to pregnancy. That would be the case, in particular, if the procedural rules relating to the only action available in the case of dismissal of such workers did not comply with the principle of effective judicial protection of an individual’s rights under Community law, a matter which it is for the referring court to determine.

(see para. 76, operative part 2)

JUDGMENT OF THE COURT (Third Chamber)

29 October 2009 (*)

(Social policy – Protection of pregnant workers and workers who have recently given birth or are breastfeeding – Directive 92/85/EEC – Articles 10 and 12 – Prohibition of dismissal from the beginning of pregnancy until the end of maternity leave – Judicial protection of rights enjoyed by individuals under Community law – Equal treatment for men and women − Directive 76/207/EEC − Article 2(7), third subparagraph – Less favourable treatment of a woman related to pregnancy or maternity leave – Restriction of remedies available to women dismissed during pregnancy)

In Case C‑63/08,

REFERENCE for a preliminary ruling under Article 234 EC from the tribunal du travail d’Esch-sur-Alzette (Luxembourg), made by decision of 14 February 2008, received at the Court on 18 February 2008, in the proceedings

Virginie Pontin

v

T-Comalux SA,

THE COURT (Third Chamber),

composed of J.N. Cunha Rodrigues, President of the Second Chamber, acting as President of the Third Chamber, P. Lindh, A. Rosas, U. Lõhmus and A. Ó Caoimh (Rapporteur), Judges,

Advocate General: V. Trstenjak,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 14 January 2009,

after considering the observations submitted on behalf of:

– Ms Pontin, by L. Dupong, avocat,

– T‑Comalux SA, by A. Kronshagen and V. Tutak, avocats,

– the Luxembourg Government, by C. Schiltz, acting as Agent,

– the Italian Government, by I. Bruni, acting as Agent, and by W. Ferrante, avvocato dello Stato,

– the Commission of the European Communities, by M. van Beek, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 31 March 2009,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Articles 10 and 12 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (10th individual directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1) and Article 2 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40), as amended by Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 (OJ 2002 L 269, p. 15), (‘Directive 76/207’).

2 The reference was made in the course of proceedings between Ms Pontin, and her former employer, T-Comalux SA (‘T-Comalux’) following Ms Pontin’s dismissal in January 2007.

Legal context

Community law

Directive 92/85

3 The ninth recital in the preamble to Directive 92/85 states that the protection of the safety and health of pregnant workers, workers who have recently given birth or workers who are breastfeeding must not result in women being treated unfavourably on the labour market nor work to the detriment of directives concerning equal treatment for men and women.

4 The purpose of that directive, as stated in Article 1(1) thereof, is to implement measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding.

5 A pregnant worker is defined in Article 2(a) of Directive 92/85 as ‘a pregnant worker who informs her employer of her condition, in accordance with national legislation and/or national practice’.

6 Article 8(1) of that directive provides that Member States are to take the necessary measures to ensure that workers within the meaning of Article 2 of the directive are entitled to a continuous period of maternity leave of a least 14 weeks allocated before and/or after confinement in accordance with national legislation and/or practice.

7 Article 10 of Directive 92/85, headed ‘Prohibition of dismissal’, reads:

‘In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognised under this Article, it shall be provided that:

1. Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8(1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;

2. if a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing;

3. Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.’

8 Article 12 of Directive 92/85 provides:

‘Member States shall introduce into their national legal systems such measures as are necessary to enable all workers who [consider] themselves wronged by failure to comply with the obligations arising from this Directive to pursue their claims by judicial process (and/or, in accordance with national laws and/or practices) by recourse to other competent authorities.’

Directive 76/207

9 As is stated in Article 1(1) of Directive 76/207, the purpose of that directive is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, vocational training and working conditions.

10 Article 2(1) of Directive 76/207 provides that that principle means that ‘there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status’.

11 The first subparagraph of Article 2(7) of that directive provides that the latter ‘shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity’. The third subparagraph of Article 2(7) states that ‘[l]ess favourable treatment of a woman related to pregnancy...