Opinion of the Advocate General — ECLI:EU:C:2010:486
Date: 2010-09-02
Language of the case: Latvian
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Latvia

summary, a woman member of a capital company’s Board of Directors, such as the applicant, must be regarded as a worker if the following three conditions are met: (i) by virtue of the conditions in accordance with which she was appointed, she formed an integral part of the company; (ii) she performed her duties under the control of bodies such as the shareholders’ meeting or the supervisory board, which she did not control or over which she was unable to exercise a decisive influence; and (iii) she could be removed from her post by one or other of those bodies on the sole ground that they had lost confidence in her. 100. According to the case-law, it is for the national court to verify whether those conditions are met. (35) 101. In the light of those considerations, I therefore propose that the reply to the first question should be that a woman member of a capital company’s Board of Directors who performs directorial duties in return for remuneration can be regarded as a worker within the meaning of Directive 92/85 and, accordingly, benefit from the protection against dismissal laid down in Article 10 of that directive, where, by virtue of her appointment, she forms an integral part of the company, she carries out her duties under the supervision of company bodies which she does not herself control, such as the shareholders’ meeting and the supervisory board, and she can be removed from her post by those bodies on the sole ground that they have lost confidence in her. B – The second question 102. By its second question, the national court is essentially asking whether Article 10 of Directive 92/85 must be interpreted as precluding national legislation under which a member of a capital company’s Board of Directors can be removed from that post without any restriction, particularly with regard to pregnancy. 103. I have already gone some way to answering that question. 104. As we have seen, Article 10 of Directive 92/85 requires the Member States to adopt the necessary provisions to prohibit the dismissal of a woman worker on grounds relating to her pregnancy. It does not, however, prohibit terminating the working relationship during the period of protection laid down in Article 10 for women workers if termination is based on other grounds, provided for under national legislation or in accordance with national practices. 105. I agree with the governments which have intervened in the present proceedings that Article 10 of Directive 92/85 does not preclude a Member State from establishing a regime which differentiates between, on the one hand, company directors and, on the other hand, other workers who do not have the same powers or responsibilities and who, accordingly, are not in a comparable position. Nevertheless, that Member State must ensure in all cases that dismissal on grounds relating to pregnancy is prohibited. 106. In the light of those considerations, a provision of national legislation such as Article 224(4) of the Commercial Code, which places no restriction on the right of shareholders to remove members of the Board of Directors from their posts, is contrary to EU law only in so far as it permits such removal on grounds relating to pregnancy. 107. The mere fact that Article 224(4) of the Commercial Code provides a lower level of protection than the national rules applicable to other workers is not in itself contrary to Article 10 of Directive 92/85. Provided, of course, that it applies to women workers who are in different situations, (36) it is possible for that difference in treatment to be consistent with the margin of discretion that Article 10(1) of the directive expressly leaves to the Member States. 108. I propose, therefore, that the reply to the second question should be that Article 10 of Directive 92/85 precludes national legislation under which a member of a capital company’s Board of Directors may be removed from that post without restriction in so far as that legislation permits dismissal on grounds relating to pregnancy. 109. Specifically, it will be for the national court to verify that the ground or grounds for dismissing the applicant are not related to pregnancy. If, however, the national court finds that they are, Article 224(4) of the Commercial Code would not provide a lawful basis for that dismissal. 110. Admittedly, as LKB pointed out, Article 10 of Directive 92/85 cannot be applied directly in a dispute between individuals although it could in a dispute with a public-sector employer. (37) However, it is important to remember that the national court must interpret its domestic law so far as is possible in conformity with EU law so as to achieve the result envisaged by the latter and, if such an interpretation is not possible, it must disapply the provision of national law that is contrary to EU law if it has the power to do so under its procedural rules. (38) 111. It is also important to add that, in accordance with Kücükdeveci, (39) in so far as Article 10 of Directive 92/85 merely implements the fundamental principle of equal treatment between men and women by prohibiting the dismissal of a pregnant woman on grounds of pregnancy, a national court which cannot find in national procedural law a sufficient basis for disapplying the provision of national law justifying such dismissal, derives that power from the primacy of the fundamental principle. (40) C – Additional observations 112. In so far as the application of Directive 92/85 in the main proceedings is conditional upon the national court’s testing of the facts against the criteria to be set out by the Court in the forthcoming judgment and application of the directive is therefore contingent at this stage, it may be appropriate, in order to be of assistance to the national court, to take a position on the possible consequences, for the outcome of the case, of Directives 76/207 and 86/613. (41) 113. Article 2(1) of Directive 76/207, let it be remembered, provides that the principle of equal treatment means that there is to be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status. Under Article 5(1) of the directive, application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women are to be guaranteed the same conditions without discrimination on grounds of sex. 114. As I have said, it is settled case-law that the dismissal of a woman worker because of pregnancy constitutes direct discrimination on grounds of sex, contrary to Article 5(1) of Directive 76/207. (42) 115. If the national court finds that, despite being a worker within the meaning of Directive 92/85, the applicant does not come within the scope of the directive because she did not inform the LKB of her pregnancy in accordance with national law, the fact remains that her situation would be covered by Directive 76/207 and that termination of her contract, if based on her pregnancy, would have to be regarded as unlawful and penalised. 116. In that connection, it should be observed that the Member States are under an obligation, pursuant to Article 6 of Directive 76/207 and in accordance with the case-law, to introduce into the national legal order the measures necessary to ensure that victims of discrimination within the meaning of the directive are afforded real and effective judicial protection and can make good their loss. (43) 117. If, on the other hand, the national court finds that the applicant was carrying out her activities as a self-employed person, her situation would be covered by Directive 86/613, which, under Article 2 thereof, applies to any person pursuing a gainful activity for their own account, under the conditions laid down by national law. 118. Article 4 of Directive 86/613 expressly refers to the principle of equal treatment as defined by Directive 76/207, Article 3 of which – it should be recalled – prohibits any discrimination on grounds of sex. In addition, Directive 76/207 requires the Member States to take the necessary measures to ensure that any provisions contrary to the principle of equal treatment which are included in rules governing the independent occupations and professions are to be, or may be, declared null and void. The determination of the extent of the protection conferred by EU law on a self-employed worker calls, therefore, for the interpretation of Directive 76/207 in conjunction with Directive 86/613. (44) 119. The grounds on which the Court and the EU legislature have laid down that the dismissal of a woman employee because of pregnancy constitutes direct discrimination on grounds of sex such as to justify special measures of protection for her can be transposed to the situation where a self-employed person’s contract is terminated for the same reason. 120. In fact, unilateral termination by the principal of an agency agreement before the expiry date initially foreseen by the parties and on grounds of the pregnancy of the agent can affect only women and thus constitutes discrimination on grounds of sex. Moreover, the potential physical and mental risk to the pregnant woman posed by the termination of such an agreement is no less than that posed by termination of an employment relationship. In both cases, the danger arises from her fear that she might lose her livelihood. 121. Lastly, any inconvenience to the principal arising from the agent’s indisposition as a result of pregnancy and childbirth is no different from that which is relied on by employers to justify termination of a contract of employment and which the Court has systematically rejected owing to the importance of the principles enshrined in Directive 76/207. 122. Thus, in paragraph 26 of Webb, (45) the Court ruled that, although the availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract, the protection afforded by EU law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during her maternity leave is essential to the proper functioning of the undertaking in which she is employed. In the Court’s view, any contrary interpretation would render the provisions of Directive 76/207 ineffective. 123. The Court stated in Tele Danmark that that analysis was transposable to the situation where the contract of employment was concluded for a fixed term. (46) 124. It is true that Directive 86/613 does not contain the range of rights guaranteed by Directive 92/85, such as the right to organisation of work, to maternity leave and maintenance of rights under the employment contract during pregnancy and maternity leave. None the less, the effectiveness of the prohibition of discrimination on grounds of sex would be compromised if a principal were entitled in law unilaterally to terminate an agency agreement before the agreed term on grounds of pregnancy. 125. In the event of the agent’s incapacity owing to pregnancy, and for the period of that incapacity, a current contract of agency can, in my view, be suspended but not terminated. 126. That interpretation would satisfy the EU legislature’s desire to align the situation of self-employed women as closely as possible with that of employed women. Thus, Directive 86/613, as an initial step, invited Member States to consider whether – and, if so, in what circumstances – self-employed women may, for the time during which their work is interrupted owing to pregnancy and motherhood, have access to replacement services enabling them to break off their professional activity or to receive benefits in cash. 127. The draft proposal for a directive to replace Directive 86/613 provides that women working on a self-employed basis must be afforded paid maternity leave in circumstances which confer comparable protection to that enjoyed by employed women. (47) 128. In the light of those considerations, I am of the view that, if based on her pregnancy, the termination by LKB of its employment relationship with the applicant would in any event constitute discrimination contrary to the fundamental principle of equal treatment implemented by Directive 76/207 and, with regard to self-employed women, by Directive 76/207 read in conjunction with Directive 86/613. D – Limitation of the temporal effects of the judgment to be delivered 129. The Latvian Government asks the Court to limit the effects in time of the judgment to be delivered if it declares Article 224(4) of the Latvian Commercial Code to be contrary to EU law. The Latvian Government bases its request on the fact that, under that provision, Latvian capital companies have dismissed members of their governing bodies where they have lost confidence in those people, without taking pregnancy into account. 130. In so far as I regard such dismissals as not being contrary to Article 10 of Directive 92/85 where they are not based on pregnancy, that request must, if the Court shares my view, be regarded as void. IV – Conclusion 131. In the light of all of the foregoing considerations, I propose that the answer to the questions referred by the Augstākās Tiesas Senāts should be as follows: (1) A woman member of a capital company’s Board of Directors who performs directorial duties in return for remuneration may be regarded as a worker within the meaning 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 and, accordingly, enjoy the protection against dismissal set out in Article 10 of that directive, where, by virtue of her appointment, she forms an integral part of the company, she performs her duties under the supervision of company bodies which she does not herself control, such as the shareholders’ meeting and the supervisory board, and she can be removed from her post by those bodies on the sole ground that they have lost confidence in her. (2) Article 10 of Directive 92/85 precludes national legislation under which a member of a capital company’s Board of Directors can be removed from that post without restriction, in so far as that legislation permits dismissal on grounds relating to pregnancy. 1 – Original language: French. 2 – 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). 3 – Case C-116/06 Kiiski [2007] ECR I‑7643, paragraph 25. 4 – 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’). 5 – 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). 6 – Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24). 7 – Latvijas Vēstnesis, 2001, No 105; ‘the Labour Code’. 8 – Latvijas Vēstnesis, 2000, No 158/160; ‘the Commercial Code’. 9 – ‘LKB’. 10 – ‘The applicant’. 11 – See, inter alia, Case C-438/00 Jiménez Melgar [2001] ECR I-6915, paragraph 28 and the case-law cited. 12 – Kiiski, paragraph 25. 13 – Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraphs 20 and 21. 14 – See, to that effect, Case C-3/87 Agegate [1989] ECR 4459, paragraph 36. 15 – Lawrie-Blum, paragraph 17, and Kiiski, paragraph 25. See also Case C-94/07 Raccanelli [2008] ECR I‑5939, paragraph 36. 16 – Kiiski, paragraph 26 and the case-law cited. 17 – Case C‑256/01 Allonby [2004] ECR I‑873, paragraph 79. 18 – Agegate, paragraph 36, and Case C-14/09 Genc [2010] ECR I-0000, paragraphs 26 and 27. 19 – Genc, paragraph 19 and case-law cited. 20 – Case C‑85/96 Martínez Sala [1998] ECR I‑2691, paragraph 31. 21 – Case C-107/94 Asscher [1996] ECR I‑3089. 22 – Paragraph 26. 23 – Point 29 of the Opinion. 24 – Case C‑337/ 97 Meeusen [1999] ECR I‑3289, paragraph 15. 25 – Case C‑179/90 Merci convenzionali porto di Genova [1991] ECR I‑5889, paragraph 13. 26 – See also, to that effect, Case C‑350/96 Clean Car Autoservice [1998] ECR I‑2521, paragraph 30. 27 – See, inter alia, Case C‑460/06 Paquay [2007] ECR I‑8511, paragraph 30 and the case-law cited. 28 – Ibid, paragraph 33. 29 – Ibid, paragraph 32. 30 – Kiiski, paragraphs 31 and 32. 31 – See, with regard to the members of the body responsible for managing a European company, Article 39 of Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE) (OJ 2001 L 194, p. 1). 32 – Paquay, paragraph 29 and the case-law cited. 33 – Council Directive of 15 December 1997 on the burden of proof in cases of discrimination based on sex (OJ 1998 L 14, p. 6). 34 – This might be so, for example, if the manager of a company in whom the shareholders periodically expressed confidence were to be dismissed from her position upon announcing that she was pregnant. 35 – Raccanelli, paragraph 37. 36 – It should be noted that the Member States must, when implementing EU law, comply with fundamental principles such as the principle of non-discrimination (Case 5/88 Wachauf [1989] ECR 2609, paragraph 19, and Case C‑303/05 Advocaten voor de Wereld [2007] ECR I‑3633, paragraph 45 and the case-law cited). 37 – The Court held in Jiménez Melgar that Article 10 of Directive 92/85 was directly applicable (paragraph 34). 38 – Joined Cases C-397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑8835, paragraph 116. 39 – Case C-555/07 [2010] ECR I-0000. 40 – Paragraph 56. 41 – The parties who intervened at the hearing were asked by the Court to make submissions on the relevance of those directives to the present case. 42 – Case C‑109/00 Tele Danmark [2001] ECR I‑6993, paragraph 25 and the case-law cited. 43 – Paquay, paragraphs 43 to 46. 44 – Case C‑226/98 Jørgensen [2000] ECR I‑2447, paragraph 26. 45 – Case C‑32/93 [1994] ECR I‑3567. 46 – Tele Danmark, paragraph 30. 47 – See the Proposal for a Directive of the European Parliament and of the Council on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Directive 86/613/EEC (COM(2008) 636 final).