Opinion of the Advocate General — ECLI:EU:C:2017:691
Date: 2017-09-14
Language of the case: Spanish
Subject matter: Approximation of laws;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (Third Chamber), 22 February 2018 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 — Prohibition of dismissal — National legislation allowing a pregnant worker to be dismissed in the context of a collective redundancy — Lawfulness (Council Directives 92/85, Art. 10 and 98/59, Art. 1(1)(a)) 2. 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 — Prohibition of dismissal — National legislation allowing a pregnant worker to be dismissed in the context of a collective redundancy — Lawfulness — Condition — Obligation to cite the objective criteria chosen to identify the workers to be made redundant (Council Directive 92/85, Art. 10(2)) 3. 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 — Prohibition of dismissal — Scope — National legislation not prohibiting the dismissal of a worker who is pregnant, has recently given birth or is breastfeeding as a preventative measure but providing, by way of reparation, only for that dismissal to be declared void when unlawful — Not lawful (Council Directive 92/85, Art. 10) 4. 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 — Prohibition of dismissal — National legislation not providing, in the context of a collective redundancy, for pregnant workers and workers who have recently given birth or are breastfeeding to be afforded, prior to that dismissal, priority status for retention and redeployment — Lawfulness — Right of Member States to provide for a higher level of protection for such workers (Council Directive 92/85, Art. 10(1)) 1. Article 10(1) 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 national legislation which permits the dismissal of a pregnant worker because of a collective redundancy within the meaning of Article 1(1)(a) of Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies. Thus, when the dismissal decision is taken for reasons essentially connected with the worker’s pregnancy, it is incompatible with the prohibition on dismissal laid down in Article 10 of that directive (see, to that effect, judgment of 11 November 2010, Danosa, C‑232/09, EU:C:2010:674, paragraph 62). By contrast, a dismissal decision taken during the period from the beginning of pregnancy to the end of the maternity leave for reasons unconnected with the worker’s pregnancy would not be contrary to Article 10 of Directive 92/85, provided, however, that the employer gives substantiated grounds for dismissal in writing and that the dismissal of the person concerned is permitted under the relevant national legislation and/or practice, in accordance with Article 10(1) and (2) of Directive 92/85 (see, to that effect, judgment of 11 November 2010, Danosa, C‑232/09, EU:C:2010:674, paragraph 63). It follows that a reason or reasons, not related to the individual workers concerned, for making the collective redundancies within the meaning of Article 1(1) of Directive 98/59 fall within the exceptional cases not related to the condition of pregnant workers within the meaning of Article 10(1) of Directive 92/85. (see paras 47-50, operative part 1) 2. Article 10(2) of Directive 92/85 must be interpreted as not precluding national legislation which allows an employer to dismiss a pregnant worker in the context of a collective redundancy without giving any grounds other than those justifying the collective dismissal, provided that the objective criteria chosen to identify the workers to be made redundant are cited. (see para. 55, operative part 2) 3. Article 10(1) of Directive 92/85 must be interpreted as precluding national legislation which does not prohibit, in principle, the dismissal of a worker who is pregnant, has recently given birth or is breastfeeding as a preventative measure, but which provides, by way of reparation, only for that dismissal to be declared void when it is unlawful. Article 10 of Directive 92/85 thus makes an express distinction between protection against dismissal itself, as a preventative measure, and protection, by way of compensation, from the consequences of dismissal. Therefore, proper implementation of that article requires Member States to establish such double protection. It is in view of the harmful effects which the risk of dismissal may have on the physical and mental state of workers who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity leave (see judgments of 14 July 1994, Webb, C‑32/93, EU:C:1994:300, paragraph 21, and of 11 November 2010, Danosa, C‑232/09, EU:C:2010:674, paragraph 60). Having regard to the objectives pursued by Directive 92/85 and, more specifically, to those pursued by Article 10 of that directive, the protection granted by that provision to workers who are pregnant and who have recently given birth or who are breastfeeding precludes both the taking of a decision to dismiss as well as the steps of preparing for the dismissal, such as searching for and finding a permanent replacement for the relevant employee on the grounds of the pregnancy and/or the birth of a child (see, to that effect, judgment of 11 October 2007, Paquay, C‑460/06, EU:C:2007:601, paragraph 33). In view of the risk to the physical and mental state of pregnant workers, workers who have recently given birth or who are breastfeeding, protection by way of reparation, even if it leads to the reintegration of the worker dismissed and the payment of wages not received because of dismissal, cannot replace protection by way of prevention. (see paras 59, 62-64, 66, operative part 3) 4. Article 10(1) of Directive 92/85 must be interpreted as not precluding national legislation which, in the context of a collective redundancy within the meaning of Directive 98/59, makes no provision for pregnant workers and workers who have recently given birth or who are breastfeeding to be afforded, prior to that dismissal, priority status in relation to being either retained or redeployed, but as not excluding the right of Member States to provide for a higher level of protection for such workers. (see para. 74, operative part 4)