Dita Danosa v LKB Līzings SIA.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Ó Caoimh
• ECLI: ECLI:EU:C:2010:674
• Date: 11 November 2010
• Docket Number: C-232/09
• Procedure Type: Reference for a preliminary ruling

Case C-232/09

Dita Danosa

v

LKB Līzings SIA

(Reference for a preliminary ruling from the Augstākās Tiesas Senāts)

(Social policy − Directive 92/85/EEC − Measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding − Articles 2(a) and 10 − Concept of ‘pregnant worker’ − Prohibition of the dismissal of a pregnant worker during the period from the beginning of pregnancy to the end of maternity leave − Directive 76/207/EEC − Equal treatment for men and women − Member of the Board of Directors of a capital company − National legislation permitting the dismissal of a Board Member without any restrictions)

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 – Concept of ‘worker’

(Council Directive 92/85)

2. Social policy – Male and female workers – Access to employment and working conditions – Equal treatment – Directive 76/207 – Protection of the safety and health of workers – Directives 92/85 and 86/613 – Dismissal of a member of a board of directors on account of pregnancy – Not permissible

(Council Directives 76/207, Arts 2(1) and (7), and 3(1)(c), 92/85, Art. 10, and 86/613)

1. A member of a capital company’s board of directors who provides services to that company and is an integral part of it must be regarded as having the status of worker for the purposes 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, if the activity is carried out, for some time, under the direction or supervision of another body of that company and if, in return for those activities, the board member receives remuneration. It is for the national court to undertake the assessments of fact necessary to determine whether that is so in the case pending before it.

The sui generis nature of the employment relationship under national law is of no consequence whatsoever as regards the status of worker for the purposes of EU law. Provided that for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration, the nature of that person’s legal relationship with the other party to the employment relationship has no bearing on the application of Directive 92/85. Furthermore, the fact that the person was a member of the board of directors of a capital company is not enough in itself to rule out the possibility that the person concerned was in a relationship of subordination to that company. It is necessary to consider the circumstances in which the board member was recruited; the nature of the duties entrusted to that person; the context in which those duties were performed; the scope of the person’s powers and the extent to which he or she was supervised within the company and the circumstances in which the person could be removed.

(see paras 39-40, 47, 56, operative part 1)

2. 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 is to be interpreted as precluding national legislation that permits a member of a capital company’s board of directors to be removed from that post without restriction, when the person concerned is a ‘pregnant worker’ within the meaning of that directive and the decision to remove her was taken essentially on account of her pregnancy. Even if the board member concerned is not a ‘pregnant worker’ within the meaning of Directive 92/85, the fact remains that the removal, on account of pregnancy or essentially on account of pregnancy, of a member of a board of directors performing duties as an integral part of the company and providing services to it in return for remuneration can affect women only and therefore constitutes direct discrimination on grounds of sex, contrary to Articles 2(1) and (7) and 3(1)(c) 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.

The objective pursued by the rules of EU law governing equality between men and women is, with regard to the rights of pregnant women and women who have given birth, to protect those women before and after they give birth. That objective, which informs both Directive 92/85 and Directive 76/207, could not be achieved if the protection against dismissal granted to pregnant women under EU law were to depend on the formal categorisation of their employment relationship under national law or on the choice made at the time of their appointment between one type of contract and another. Whichever directive applies, it is important to ensure, for the person concerned, the protection granted under EU law to pregnant women in cases in which the legal relationship linking her to another person has been severed on account of her pregnancy.

(see paras 68-70, 74, operative part 2)

JUDGMENT OF THE COURT (Second Chamber)

11 November 2010 (*)

(Social policy − Directive 92/85/EEC − Measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding − Articles 2(a) and 10 − Concept of ‘pregnant worker’ − Prohibition on the dismissal of a pregnant worker during the period from the beginning of pregnancy to the end of maternity leave − Directive 76/207/EEC − Equal treatment for men and women − Member of the Board of Directors of a capital company − National legislation permitting the dismissal of a Board Member without any restrictions)

In Case C‑232/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Augstākās Tiesas Senāts (Latvia), made by decision of 13 May 2009, received at the Court on 25 June 2009, in the proceedings

Dita Danosa

v

LKB Līzings SIA,

THE COURT (Second Chamber),

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

Advocate General: Y. Bot,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 1 July 2010,

after considering the observations submitted on behalf of:

– Ms Danosa, by V. Liberte, zvērināta advokāte, and A. Rasa, zvērināta advokāta palīgs,

– LKB Līzings SIA, by L. Liepa, zvērināts advokāts, and by S. Kravale and M. Zalāns,

– the Latvian Government, by K. Drēviņa and Z. Rasnača, acting as Agents,

– the Greek Government, by M. Apessos, and by S. Trekli and S. Vodina, acting as Agents,

– the Hungarian Government, by R. Somssich, M. Fehér and K. Szíjjártó, acting as Agents,

– the European Commission, by A. Sauka and M. van Beek, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 2 September 2010,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation 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 reference has been made in the course of proceedings between Ms Danosa and LKB Līzings SIA (‘LKB’), a limited liability company, concerning the decision taken at the LKB general meeting of shareholders to remove Ms Danosa from her post as a member of the company’s Board of Directors.

Legal context

European Union (‘EU’) legislation

Directive 76/207/EEC

3 Article 2(1) 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’), provides that ‘the principle of equal treatment 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’.

4 Article 2(7) of Directive 76/207 provides that that directive ‘shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity’. In addition, it provides that less favourable treatment of a woman, related to pregnancy or maternity leave within the meaning of Directive 92/85, is to constitute discrimination within the meaning of Directive 76/207.

5 Under Article 3(1)(c) of Directive 76/207:

‘Application of the principle of equal treatment means that there shall be no direct or indirect discrimination on the grounds of sex in the public or private sectors, including public bodies, in relation to:

…

(c) employment and working conditions, including dismissals …’

Directive 86/613/EEC

6 Article 1 of Council Directive 86/613/EEC of 11 December 1986 on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood (OJ 1986 L 359, p. 56), provides:

‘The purpose of this Directive is to ensure, in accordance with the following provisions, application in the Member States of the principle of equal treatment as between men and women engaged in an activity in a self-employed capacity, or contributing to the pursuit of such an activity, as regards those...