Nadine Paquay v Société d’architectes Hoet + Minne SPRL.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Ó Caoimh
• ECLI: ECLI:EU:C:2007:601
• Docket Number: C-460/06
• Date: 11 October 2007
• Procedure Type: Reference for a preliminary ruling

Case C-460/06

Nadine Paquay

v

Société d’architectes Hoet + Minne SPRL

(Reference for a preliminary ruling from the

Tribunal du travail de Bruxelles)

(Social policy − Protection of pregnant women − Directive 92/85/EEC − Article 10 − Prohibition on dismissal from the beginning of pregnancy to the end of maternity leave − Period of protection – Decision to dismiss a female worker during that period of protection − Notification and implementation of the decision to dismiss after the expiry of that period − Equal treatment for male and female workers − Directive 76/207/EEC − Articles 2(1), 5(1) and 6 − Direct discrimination on grounds of sex − Sanctions)

Judgment of the Court (Third Chamber), 11 October 2007

Summary of the Judgment

1. Social policy – Protection of the safety and health of workers – Pregnant, nursing or breastfeeding workers – Directive 92/85 – Prohibition of dismissal – Scope

(Council Directive 92/85, Art. 10)

2. Social policy – Male and female workers – Access to employment and working conditions – Equal treatment – Discriminatory dismissal

(Council Directives 76/207, Arts 2(1), 5(1) and 6, and 92/85, Arts 10 and 12)

1. 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 must be interpreted as prohibiting not only the notification of a decision to dismiss on the grounds of pregnancy and/or of the birth of a child during the period of protection set down in paragraph 1 of that article but also the taking of preparatory steps for such a decision, such as searching for and finding a permanent replacement for the relevant employee, before the end of that period.

(see paras 33, 38, operative part 1)

2. A decision to dismiss on the grounds of pregnancy and/or child birth is contrary to Articles 2(1) and 5(1) 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 irrespective of the moment when that decision to dismiss is notified and even if it is notified after the end of the period of protection set down 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. Since such a decision to dismiss is contrary to both Article 10 of Directive 92/85 and Articles 2(1) and 5(1) of Directive 76/207, the measure chosen by a Member State under Article 6 of that latter directive to sanction the infringement of those provisions must be at least equivalent to the sanction set down in national law implementing Articles 10 and 12 of Directive 92/85.

(see paras 42, 54, operative part 2)

JUDGMENT OF THE COURT (Third Chamber)

11 October 2007 (*)

(Social policy − Protection of pregnant women − Directive 92/85/EEC − Article 10 − Prohibition on dismissal from the beginning of pregnancy to the end of maternity leave − Period of protection – Decision to dismiss a female worker during that period of protection − Notification and implementation of the decision to dismiss after the expiry of that period − Equal treatment for male and female workers − Directive 76/207/EEC − Articles 2(1), 5(1), and 6 − Direct discrimination on grounds of sex − Sanctions)

In Case C‑460/06,

REFERENCE for a preliminary ruling under Article 234 EC by the tribunal du travail de Brussels (Belgium), made by decision of 6 November 2006, received at the Court on 17 November 2006, in the proceedings

Nadine Paquay

v

Société d’architectes Hoet + Minne SPRL,

THE COURT (Third Chamber),

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

Advocate General: Y. Bot,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Belgian Government, by L. Van den Broeck, acting as Agent,

– the Italian Government, by I.M. Braguglia, acting as Agent, assisted by W. Ferrante, avvocato dello Stato,

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

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 2(1), 5(1) and 6 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) and of Article 10 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 (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1).

2 The request was made in the course of proceedings between Mrs Paquay (‘the applicant’) and the Société d’architectes Hoet + Minne SPRL (‘the defendant’) concerning the dismissal of the applicant.

Legal context

Community legislation

Directive 76/207

3 As is clear from Article 1, the purpose of Directive 76/207 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.

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

5 Article 2(3) of that directive states that the directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.

6 In the wording of Article 5(1) of Directive 76/207, application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex.

7 In accordance with Article 6 of that directive Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3, 4 and 5 of that directive to pursue their claims by judicial process after possible recourse to other competent authorities.

Directive 92/85

8 It is apparent from the ninth recital of Directive 92/85 that the protection of the safety and health of pregnant workers, workers who have recently given birth or workers who are breastfeeding should not work to the detriment of women in the labour market or undermine directives concerning equal treatment for men and women

9 According to the 15^th recital of that directive the risk of dismissal for reasons associated with their condition may have harmful effects on the physical and mental state of pregnant workers, workers who have recently given birth or who are breastfeeding and provision should be made for such dismissal to be prohibited.

10 Article 10 of Directive 92/85 states as follows:

‘In order to guarantee workers, [pregnant workers, those who have recently given birth and those who are breastfeeding] 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.’

11 Under Article 12 of Directive 92/85, Member States are to introduce into their national legal systems such measures as are necessary to enable all workers who...