Judgment;Summary — ECLI:EU:C:2024:558
Date: 2024-06-27
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation C-284/23 – 1 
Case C-284/23 
Request for a preliminary ruling 
Date lodged: 
2 May 2023 
Referring court: 
Arbeitsgericht Mainz (Germany) 
Date of the decision to refer: 
24 April 2023 
Applicant: 
TC 
Defendant: 
Firma Haus Jacobus Alten- und Altenpflegeheim gGmbH 
  
… 
ARBEITSGERICHT 
MAINZ 
(Labour Court, Mainz) 
Order 
In the case of 
TC  
Applicant 
… … 
v 
EN 
REQUEST FOR A PRELIMINARY RULING OF 24. 4. 2023 – CASE C-284/23 
 
2  
Anonymised version 
Firma Haus Jacobus Alten- und Altenpflegeheim gGmbH, …, Osthofen 
Defendant 
… … 
 
The Court of Justice of the European Union is requested under Article 267 TFEU 
to give a preliminary ruling on the question whether the German national 
provisions of Paragraphs 4 and 5 of the Kündigungsschutzgesetz (Law on 
protection against dismissal; ‘the KSchG’), according to which a woman who, as a 
pregnant woman, enjoys special protection against dismissal must also 
mandatorily bring an action within the time limits laid down in those provisions in 
order to retain that protection, are compatible with 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). 
The proceedings are stayed pending the ruling from the Court of Justice of the 
European Union on this question. 
A. Subject matter and facts of the main proceedings 
The applicant was employed by the defendant as a health care assistant from 
1 August 2022 under a one-year employment contract. The defendant terminated 
that contract by letter dated 6 October 2022 with effect from 21 October 2022. 
On 9 November 2022, the applicant was found to be seven weeks pregnant. She 
informed the defendant of this fact on 10 November 2022. 
By letter dated 13 December 2022, she filed with the Arbeitsgericht (Labour 
Court) an ‘action for protection against dismissal … on the ground that she had 
been dismissed on 7 October 2022 despite being pregnant’. 
B. Applicable national law 
Paragraph 17 of the Mutterschutzgesetz (Law on the protection of working 
mothers; ‘the MuSchG’) provides: 
(1) 1An employer may not dismiss a woman  
1. during her pregnancy, 
2. until the expiry of four months following a miscarriage after the twelfth 
week of pregnancy; and 
HAUS JACOBUS 
 
3 
Anonymised version 
3. until the end of her period of protection after childbirth, but at least up until 
the expiry of four months after childbirth; if the employer is, at the time of the 
dismissal, aware of the pregnancy, the miscarriage after the twelfth week of 
pregnancy or the childbirth, or if that information is communicated to the 
employer within two weeks following receipt of the notice of dismissal. 
2Exceeding this period shall not be detrimental if the woman is not responsible for 
the delay and the notification is then made immediately. 3Sentences 1 and 2 shall 
apply analogously to preparatory measures taken by the employer with a view to 
dismissing the woman. 
(2) 1The supreme Land authority responsible for occupational health and safety 
or the body designated by it may exceptionally declare dismissal permissible in 
special cases not connected with the condition of the woman during pregnancy, 
following a miscarriage after the twelfth week of pregnancy or after childbirth. 
2The notice of dismissal must be issued in writing and must state the reason for 
dismissal. 
In addition, the Kündigungsschutzgesetz provides: 
Paragraph 4 of the KSchG: Redress before the Arbeitsgericht (Labour Court) 
1Where an employee wishes to assert a claim that his or her dismissal is socially 
unjustified or legally ineffective on other grounds, he or she must bring an action 
before the Labour Court within three weeks after receiving the written termination 
notice in order to seek a finding that the employment relationship has not been 
dissolved due to the termination. 2If Paragraph 2 applies, the action may seek a 
finding that the modified working conditions are socially unjustified or legally 
ineffective on other grounds. 3Where an employee has submitted an objection to 
the works council (Paragraph 3), he or she should include the position taken by 
the works council with the document instituting proceedings. 4To the extent to 
which the dismissal requires the approval of an authority, the time period for 
seeking redress in the Labour Court shall commence only once the employee has 
been notified of the decision of such authority. 
Paragraph 5: Admission of late actions 
(1) Where, despite making all reasonable efforts under the circumstances, an 
employee was hindered from filing an action within three weeks of receiving a 
written notice of dismissal, upon request the filing of the action shall be accepted 
retroactively. 2The same shall apply if, due to circumstances beyond her control, a 
woman did not become aware of her pregnancy until after the time period set out 
in sentence 1 of Paragraph 4 had elapsed. 
(2) 1The claim shall be submitted together with the filing of the action; where 
the claim has already been submitted it shall be referred to in the filing of the 
action. 2The claim must also describe the circumstances justifying the delayed 
submission and must contain the means by which those circumstances can be 
substantiated. 
REQUEST FOR A PRELIMINARY RULING OF 24. 4. 2023 – CASE C-284/23 
 
4  
Anonymised version 
(3) 1The claim shall be admissible only if submitted within two weeks following 
the removal of the cause of non-compliance. 2Once six months have elapsed 
following the missed deadline, the claim may no longer be filed. 
C. Need to obtain a ruling by the Court of Justice of the European Union 
In accordance with the case-law of the Bundesarbeitsgericht (Federal Labour 
Court) (judgment of 19 February 2009, 2 AZR 286/07), sentence 4 of Paragraph 4 
of the KSchG is not applicable in the case of pregnancy subsequently notified to 
the employer, such that the failure to observe the three-week period set out in 
sentence 1 of Paragraph 4 of the KSchG in accordance with Paragraph 7 of the 
KSchG leads to the effectiveness of the dismissal despite the special protection 
against dismissal under Paragraph 17 of the MuSchG, unless an application for 
subsequent admission under Paragraph 5 of the KSchG is submitted. 
The applicant did not make such an application, with the result that the action 
would simply have to be dismissed if the provisions of Paragraphs 4 and 5 of the 
KSchG in this case are not contrary to European law. 
The referring Chamber is unsure in this regard, as the Court of Justice of the 
European Union ruled in the Pontin case (C-63/08) that a pregnant woman’s 
opportunities for bringing such actions had to be effectively regulated. 
From this it was concluded in respect of German law that ‘the special procedural 
modalities, such as the juxtaposition of different deadlines, each of which leads to 
the exclusion of legal protection, declarations to different bodies (employer and 
labour court), particularly short deadlines which are further shortened by delayed 
personal knowledge, as well as non-transparent procedural regulations, such as 
sentence 4 of Paragraph 4 of the KSchG, which even experts consider to be 
misleading, make legal protection for women excessively difficult’ … (reference 
to legal literature). That critical view is also taken in the current Erfurter 
Kommentar … (reference to legal literature). 
In the context of the present case, it can be argued that the period for bringing an 
action under Paragraph 4 of the KSchG is in principle designed to provide the 
employer with legal certainty, albeit with certain exceptions, which result from 
Paragraph 5 thereof. In the same way, Paragraph 17 of the MuSchG links the 
special protection against dismissal in principle to the employer's knowledge of 
the pregnancy – also, however, with the exceptions resulting therefrom. 
If the MuSchG, which is determined by EU law, grants a pregnant woman the 
possibility, in such a case, to assert her special protection against dismissal by 
means of subsequent notification well after the expiry of the three-week period of 
Paragraph 4 of the KSchG and after the expiry of the notice period, it is not 
discernible – with regard to the principle of effective legal protection under 
European law – why she should have to comply in addition with the approach set 
out in Paragraph 5 of the KSchG. If a woman approaches her former employer 
HAUS JACOBUS 
 
5 
Anonymised version 
after the expiry of the notice period and informs him that she was pregnant at the 
time when the notice was given, this cannot be understood by the employer in any 
other way than meaning that she is asserting the invalidity of the termination of 
her employment relationship. 
As a rule under Paragraph 4 of the KSchG, the employer is uncertain as to 
whether the dismissed employee accepts the dismissal, and the employer should 
be exposed to this uncertainty only for a short period of time. When a pregnancy 
is subsequently notified, however, it already suggests that the employee does not 
accept the dismissal. The ratio legis of Paragraphs 4 and 5 of the KSchG is 
irrelevant here, which is why the subjection of these cases to the requirement of a 
subsequent admission of an action within a time limit, as required by the clear 
wording of Paragraph 5 I 2 of the KSchG (in the version in force from 2004 
onwards), appears to be questionable under European law. 
Mainz, 24 April 2023 
…