Case C-63/08: Reference for a preliminary ruling from the Tribunal du Travail d'Esch-sur-Alzette, Grand Duchy of Luxembourg lodged on 18 February 2008 — Virginie Pontin v T-Comalux S.A.
Date: 2008-02-18
Institutions: Court of Justice
Subjects: female work, gender equality, interpretation of the law, job security, motherhood, occupational safety, working conditions

12.4.2008

EN

Official Journal of the European Union

C 92/21

4. The Court of Justice considers that the criterion of being
‘directly and specifically connected’ does not cover the exer-
cise of ancillary and preparatory duties in relation to those of
the public authority, which takes the final decision. In addi-
tion, the Court of Justice, examining the regime of firms
supplying private security, has held that in order for them to
be directly and specifically connected to the exercise of offi-
cial authority, those involved had to have been given ‘powers
of constraint’ (3), which is not the case in this instance.

5. As is clear from an examination of the case-law of the Court
of Justice, the exercise of official authority should not be
confused with an activity which is merely carried out on
behalf of the public interest. The mere fact that an individual
or an undertaking is to some degree bound to act on behalf
of the public interest is not sufficient to characterise that
function as the exercise of official authority.

6. According to the Commission, Directive 89/48 applies to the
profession of notary in so far as it
is a profession the
required qualifications for which are laid down by legislation,
and its application cannot be circumvented by citing the
assigning of sovereign rights to notaries for the following
reasons:

(a) such assignment does not constitute a direct and specific
connection with the exercise of official authority which
would justify imposition of
the nationality condition;
and

(b) even supposing that notaries could be regarded as proper
civil servants, which they are not, there is no relationship
of dependency and salary as public servants and indeed
they would not be exempted from the application of that
directive, since that directive applies also, in principle, to
the public service.

(1) OJ L 19 of 24.1.1989, p. 16.
(2) Case C-114/97 Commission v Spain [1998] ECR I-6717, paragrap 35.
(3) Ibid., paragraph 37.

Parties to the main proceedings

Applicant: Virginie Pontin

Defendant: T-Comalux S.A.

Question referred

1. Are Articles 10 and 12 of Directive 92/85/EEC of
19 October 1992 on the introduction of measures to encou-
rage improvements in the safety and health at work of preg-
nant 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 (1)) to be
interpreted as not precluding the national
legislature from
making a legal action brought by a pregnant employee who
has been dismissed during her pregnancy subject to time-
limits fixed in advance, such as the eight-day period laid
down in the second subparagraph of Article [L.] 337(1) of
the [Luxembourg] Code du Travail or the fifteen-day period
laid down in the fourth subparagraph of that provision?

2. If the answer to the first question is in the affirmative, are
the eight- and fifteen-day periods to be regarded as being too
short to allow a pregnant employee who has been dismissed
during her pregnancy to take legal proceedings to safeguard
her rights?

3. Is Article 2 of Council Directive 76/207/EEC of 9 February
1976 on the implementation of the principle of equal treat-
ment for men and women as regards access to employment,
vocational
training and promotion, and working condi-
tions (2), to be interpreted as not precluding the national
legislature from denying a pregnant employee who has been
dismissed during her pregnancy the right to bring an action
for damages for wrongful dismissal, which is reserved, under
Articles L. 124-11(1) and (2) of the Code du Travail, to other
employees who have been dismissed?

(1) OJ 1992 L 348, p. 1.
(2) OJ 1976 L 39, p. 40.

Reference for a preliminary ruling from the Tribunal du
Travail d'Esch-sur-Alzette, Grand Duchy of Luxembourg
lodged on 18 February 2008 — Virginie Pontin v
T-Comalux S.A.

Action brought on 19 February 2008 — Commission of
the European Communities v Republic of Estonia

(Case C-63/08)

(2008/C 92/39)

Language of the case: French

(Case C-68/08)

(2008/C 92/40)

Language of the case: Estonian

Parties

Referring court

Applicant: Commission of the European Communities (repre-
sented by: E. Randvere and K. Simonsson, acting as Agents)

Tribunal du travail d'Esch-sur-Alzette

Defendant: Republic of Estonia