19.12.2009

Official Journal of the European Union

C 312/4

(Case C-63/08) (1)

(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)

2009/C 312/05

Language of the case: French

Referring court

Parties to the main proceedings

Applicant: Virginie Pontin

Defendant: T-Comalux S.A.

Re:

Reference for a preliminary ruling — Tribunal du Travail, Esch-sur-Alzette — 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 (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) — Scope of the judicial protection of a pregnant worker who has been dismissed — Compatibility with the abovementioned directives of national legislation making a legal action brought by a pregnant worker who has been dismissed subject to short time-limits, fixed in advance, of 8 or 15 days and limiting the scope of the action to the continued employment in the undertaking, or the reinstatement there, of the worker who has been dismissed, to the exclusion of an award of damages

Operative part of the judgment

1.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 (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) 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 that 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, such as that laid down in the fourth subparagraph of Article L. 337-1(1) of the Luxembourg Labour Code, does not appear to meet that condition, but that is a matter for the referring court to determine.

2.Article 2, in conjunction with Article 3, 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, as amended by Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002, must be interpreted as precluding legislation of a Member State, such as that introduced by Article L 337-1(1) of the Luxembourg Labour Code, which is specific to the protection provided for in Article 10 of Directive 92/85 in the event of the dismissal of a pregnant worker, or of a worker who has recently given birth or is breastfeeding, and 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 do 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.

(1) OJ C 93, 12.4.2008.