Paquay v Société d’architectes Hoet + Minne SPRL: Case C-460/06

ECJ: A Rosas, U Lohmus, JN Cunha Rodrigues, AO Caoimh and P Lindh: 11 October 2007

After the claimant's employers became aware that she was pregnant, they placed newspaper advertisements, for the post she occupied, before the end of the period during which, in accordance with article 10(1) of Council Directive 92/85/EEC on pregnant workers, the dismissal of pregnant workers was prohibited. After the protection period had expired, the employers gave the claimant notice of dismissal to take effect at a date six months later. In proceedings brought by the claimant, the court found that, at the time of the placing of the advertisements, the employers had intended to replace the claimant permanently, and that the dismissal had been not unrelated to the pregnancy or the birth of a child.

The court referred to the Court of Justice of the European Communities for a preliminary ruling the questions (1) whether article 10(1) only prohibited issuing a notice of dismissal during the protection period or whether it also forbade taking a decision to dismiss and attempting to find a permanent replacement during that period, and (2) whether a dismissal that was notified after that period but was related to pregnancy and/or childbirth was contrary to the non-discrimination principle in article 2(1) or 5(1) of the Equal Treatment Directive 76/207/EEC, and if so, what sanctions were to be applied.

The Court of Justice held:
Article 10 of Directive 92/85 prohibited not only the notification of a decision to dismiss on the grounds of pregnancy and/or 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 before the end of that period. A decision to dismiss a female worker during her pregnancy or maternity leave on the grounds of pregnancy and/or the birth of a child infringed articles 2(1) and 5(1) of Directive 76/207 irrespective of the moment when the decision was notified, and even if it was notified after the expiry of the period of protection set down in article 10 of Directive 92/85. The sanction for such infringement provided for in national law had to be at least equivalent to that laid down in national law implementing articles 10 and 12 of Directive 92/85.

Appearances: L van den Broeck, agent, for the Belgian Government; W Ferrante and IM Braguglia for the Italian Government; M van Beek, agent, for the Commission.