CELEX: 62009CC0232
Language: en
Date: 2010-09-02
Title: Opinion of Mr Advocate General Bot delivered on 2 September 2010. # Dita Danosa v LKB Līzings SIA. # Reference for a preliminary ruling: Augstākās Tiesas Senāts - Latvia. # Social policy - Directive 92/85/EEC - Measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding - Articles 2(a) and 10 - Concept of ‘pregnant worker’ - Prohibition on the dismissal of a pregnant worker during the period from the beginning of pregnancy to the end of maternity leave - Directive 76/207/EEC - Equal treatment for men and women - Member of the Board of Directors of a capital company - National legislation permitting the dismissal of a Board Member without any restrictions. # Case C-232/09.

OPINION OF ADVOCATE GENERAL
      BOT
      delivered on 2 September 2010 1(1)
      
      Case C‑232/09
      Dita Danosa
      v
      LKB Līzings SIA
      (Reference for a preliminary ruling from the Augstākās Tiesas Senāts (Latvia))
      (Directive 92/85/EEC – Scope – Member of the Board of Directors of a capital company – Worker – Whether there is a relationship of subordination – Legislation permitting a member of a capital company’s Board of Directors to be removed from that post without restriction
         to take account of her pregnancy – Equal treatment for men and women)
      1.        Council Directive 92/85/EEC (2) lays down special measures for the protection of pregnant workers. It requires Member States, inter alia, to prohibit the
         dismissal of such workers during the period from the beginning of pregnancy up to the end of maternity leave, other than for
         reasons permitted by national law which are unrelated to pregnancy.
      
      2.        In this reference for a preliminary ruling, the Court is requested to rule on whether that provision of Directive 92/85 applies
         in a situation where a woman is a member of the Board of Directors of a capital company. It is therefore a matter of determining
         whether the woman may be regarded as a worker within the meaning of Directive 92/85.
      
      3.        The Court has already ruled on the substance of this concept. According to the case-law, the chief characteristic of a worker’s
         situation within the meaning of Directive 92/85 is – as under Article 39 EC – the performance of services, in return for remuneration,
         for and under the direction of another person. (3)
      
      4.        The present case relates more specifically to the last criterion of that definition. The Augstākās Tíesas Senāts (Latvia)
         is asking the Court whether – and, if so, to what extent – under Directive 92/85, a member of the governing body of a company
         can be regarded as performing the related duties in the role of a subordinate rather than as an independent service provider.
      
      5.        The national court is also asking whether its domestic law is compatible with Directive 92/85, inasmuch as it allows a member
         of a capital company’s Board of Directors to be dismissed without restriction and, specifically, without regard to pregnancy.
      
      6.        In this Opinion, I shall propose that the Court should rule that a woman who is a member of a capital company’s Board of Directors
         and performs directorial functions for the company in return for remuneration must be regarded as a worker within the meaning
         of Directive 92/85 where, by virtue of that appointment, she is 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 general meeting of shareholders and the
         supervisory board, and she can be removed from her post by those bodies if she loses their confidence.
      
      7.        As I shall be pointing out, it is for the national court to determine whether those conditions have been satisfied.
      
      8.        On the second question, I shall propose that the reply should be that Directive 92/85 precludes legislation of a Member State
         under which a woman worker on the board of a capital company can be removed from her post without restriction, in so far as
         that legislation permits dismissal on grounds relating to pregnancy.
      
      9.        In addition, in order to be of assistance to the national court, I shall consider the scenarios in which it may consider that
         the applicant’s situation does not come within the scope of Directive 92/85, either because the applicant has not informed
         her employer of her pregnancy in accordance with national law, or because she was not in a relationship of subordination to
         the defendant company and must be regarded as self-employed.
      
      10.      I shall further be saying that any termination by the company of its employment relationship with the applicant because of
         her pregnancy would, in any event, constitute discrimination contrary to the fundamental principle of equal treatment implemented
         by Council Directive 76/207/EEC (4) and, with regard to self-employed persons, by that directive read in conjunction with Council Directive 86/613/EEC. (5)
      
      I –  Legal framework
      A –    European Union (‘EU’) law
      1.      Directive 92/85
      11.      The ninth recital in the preamble to Directive 92/85 states that the protection of the safety and health of pregnant workers,
         workers who have recently given birth or workers who are breastfeeding should not treat women on the labour market unfavourably;
         nor should it work to the detriment of directives concerning equal treatment for men and women.
      
      12.      According to the fifteenth recital to that directive, the risk of dismissal for reasons associated with their condition may
         have harmful effects on the physical and mental state of pregnant workers, workers who have recently given birth or who are
         breastfeeding and provision should be made for such dismissal to be prohibited.
      
      13.      Article 2(a) of the directive defines a pregnant worker as ‘a pregnant worker who informs her employer of her condition, in
         accordance with national legislation and/or national practice’.
      
      14.      Article 10 of Directive 92/85 is worded as follows:
      
      ‘In order to guarantee workers [who are pregnant, have recently given birth or are breastfeeding] the exercise of their health
         and safety protection rights as recognised under this Article, it shall be provided that:
      
      (1)      Member States shall take the necessary measures to prohibit the dismissal of workers [who are pregnant, have recently given
         birth or are breastfeeding] during the period from the beginning of their pregnancy to the end of the maternity leave referred
         to in Article 8(1), save in exceptional cases not connected with their condition which are permitted under national legislation
         and/or practice and, where applicable, provided that the competent authority has given its consent;
      
      (2)      if a worker [who is pregnant, has recently given birth or is breastfeeding] is dismissed during the period referred to in
         point 1, the employer must cite duly substantiated grounds for her dismissal in writing;
      
      (3)      Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of
         dismissal which is unlawful by virtue of point 1.’
      
      2.      Directive 76/207
      15.      Article 2(1) of Directive 76/207 provides that ‘[t]he principle of equal treatment shall mean that there shall be no discrimination
         whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status’.
      
      16.      The first subparagraph of Article 2(7) of Directive 76/207 provides that that directive ‘shall be without prejudice to provisions
         concerning the protection of women, particularly as regards pregnancy and maternity’. Furthermore, the third subparagraph
         of Article 2(7) of that directive provides that less favourable treatment of a woman, related to pregnancy or maternity leave
         within the meaning of Directive 92/85, is to constitute discrimination within the meaning of Directive 76/207.
      
      17.      Article 3(1)(c) of Directive 76/207 provides as follows:
      
      ‘Application of the principle of equal treatment means that there shall be no direct or indirect discrimination on the grounds
         of sex in the public or private sectors, including public bodies, in relation to:
      
      …
      (c)      employment and working conditions, including dismissals …’
      18.      Article 3(2) of Directive 76/207 provides as follows:
      
      ‘To that end, Member States shall take the necessary measures to ensure that:
      (a)      any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished;
      (b)      any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements, internal
         rules of undertakings or rules governing the independent occupations and professions … shall be, or may be declared, null
         and void or … amended’.
      
      3.      Directive 86/613
      19.      Article 1 of Directive 86/613 provides as follows:
      
      ‘The purpose of this Directive is to ensure, in accordance with the following provisions, application in the Member States
         of the principle of equal treatment as between men and women engaged in an activity in a self-employed capacity, or contributing
         to the pursuit of such an activity, as regards those aspects not covered by Directives 76/207 … and 79/7/EEC.’ (6)
      
      20.      Self-employed workers are defined in Article 2(a) of Directive 86/613 as all persons pursuing a gainful activity for their
         own account, under the conditions laid down by national law.
      
      21.      Article 3 of Directive 86/2613 provides that, for the purposes of that directive, the principle of equal treatment implies
         the absence of all discrimination on grounds of sex, either direct or indirect, by reference in particular to marital or family
         status.
      
      22.      Under Article 4 of that directive, as regards self-employed persons, Member States are to take the measures necessary to ensure
         the elimination of all provisions which are contrary to the principle of equal treatment as defined in Directive 76/207.
      
      23.      Article 8 of Directive 86/613 provides as follows:
      
      ‘Member States shall undertake to examine whether, and under what conditions, female self-employed workers and the wives of
         self-employed workers may, during interruptions in their occupational activity owing to pregnancy or motherhood,
      
      –        have access to services supplying temporary replacements or existing national social services, or
      –        be entitled to cash benefits under a social security scheme or under any other public social protection system.’
      4.      The Charter of Fundamental rights of the European Union
      24.      Article 21 of the Charter of Fundamental Rights of the European Union prohibits any discrimination based on sex.
      
      25.      Article 23 of that Charter provides that ‘[e]quality between men and women must be ensured in all areas, including employment,
         work and pay’.
      
      B –    National law
      1.      The Labour Code
      26.      Article 3 of the Latvian Labour Code (Darba likums) (7) defines a worker as any natural person who performs a particular job pursuant to an employment contract, under the direction
         of an employer and in return for an agreed wage.
      
      27.      Article 4 of the Labour Code defines an employer as any natural or legal person, or a partnership with legal capacity, employing
         at least one worker under an employment contract.
      
      28.      Article 44(3) of the Labour Code provides as follows:
      
      ‘An employment contract shall be concluded with the members of the executive body of a capital company only if they are not
         engaged under another civil contract. If the members of the Board of Directors of a capital company are engaged under an employment
         contract, the latter shall be concluded for a fixed term.’
      
      29.      Article 109 of the Labour Code, entitled ‘Prohibitions and restrictions on dismissal’, provides as follows:
      
      ‘(1)      An employer is prohibited from terminating an employment contract with a woman while she is pregnant and in the year following
         the birth or, where applicable, during the whole of the period in which the woman is breastfeeding, unless the situations
         provided for in points 1, 2, 3, 4, 5 and 10 of Article 101(1) apply.
      
      …’
      2.      The Commercial Code 
      30.      Article 221 of the Latvian Commercial Code (Komerclikums) (8) is worded as follows:
      
      ‘(1)      The Board of Directors is the directorial body of a company, by which the company is managed and represented.
      …
      (5)      The Board of Directors is under an obligation to provide information to the shareholders’ meeting on transactions between
         the company and a shareholder, a member of the supervisory board or a member of the Board of Directors.
      
      (6)      The Board of Directors shall submit to the supervisory board, at least once in every quarter, a report on the company’s business
         and financial situation, and shall inform the supervisory board without delay of any deterioration in the financial situation
         of the company, or other essential circumstances relating to the company’s trading activities.
      
      …
      (8)      The members of the Board of Directors shall be entitled to remuneration commensurate with their responsibilities and the company’s
         state of finances. The amount of the remuneration shall be determined by a decision of the supervisory board or, if no supervisory
         board has been established, by decision of the general meeting of shareholders.’
      
      31.      Article 224 of the Commercial Code entitled ‘Appointment and removal of Board Members’, provides as follows:
      
      ‘(1)      The members of the Board of Directors shall be appointed and removed by resolution of the general meeting of shareholders.
         It shall notify the commercial registry of the termination of the mandate of the members of the Board of Directors, the amendment
         of their rights of representation or the election of new members. A certified copy of the extract of the minutes of the general
         meeting at which the resolution concerned was passed shall be attached to that notification.
      
      …
      (3)      The members of the Board of Directors shall be elected for a period of three years, unless the articles of association set
         a shorter period.
      
      (4)      The members of the Board of Directors may be removed by resolution of the shareholders. If the company has a supervisory board,
         that body may suspend the mandate of the members of the Board of Directors pending a general meeting, for a maximum period
         of two months.
      
      …
      (6)      The articles of association may provide that members of the Board of Directors can be removed only if there are serious grounds.
         Such grounds shall include misuse of powers, failure to fulfil obligations, unfitness to manage the company, the prejudicing
         of the company’s interests and loss of confidence.’
      
      II –  The dispute in the main proceedings and the questions referred for a preliminary ruling
      32.      By decision of 21 December 2006, relating to the establishment of LKB Līzings SIA, (9) a limited liability company, Latvijas Krājbanka AS – a public limited company – appointed Ms Danosa (10) as sole member of LKB’s Board of Directors.
      
      33.      By decision of 11 January 2007, LKB’s supervisory board set the remuneration of the members of the company’s Board of Directors,
         together with other related conditions, and entrusted the chairman of the supervisory board with concluding the agreements
         necessary to ensure implementation of that decision.
      
      34.      According to the order for reference, no civil contract governing the performance of the duties attaching to membership of
         the Board of Directors was concluded. LKB challenges that assertion and maintains that a contract of agency had been concluded
         with the applicant. The applicant would have liked to have had an employment contract, but LKB preferred agency as the basis
         on which to entrust her with the tasks of a Board Member.
      
      35.      The general meeting of shareholders of LKB decided on 23 July 2007 to remove the applicant from her post as member of the
         Board of Directors. On 24 June 2007, she was sent a certified copy of the minutes of that general meeting.
      
      36.      Taking the view that she had been unlawfully dismissed from her position, the applicant brought an action against LKB before
         the Rīgas Centra rajona tiesa (Riga Central District Court) on 31 August 2007.
      
      37.      The applicant submitted before that court that, after her appointment, she had correctly discharged her professional duties
         as provided for in LKB’s articles of association and the rules governing its Board of Directors. She also argued that, since
         she had received remuneration for her work and been granted the right to take holidays, it was reasonable to assume the existence
         of an employment relationship based on an unwritten contract of employment between the two parties. Given that she had been
         11 weeks pregnant at the time, her dismissal was in breach of Article 109 of the Labour Code, under which the dismissal of
         pregnant workers is prohibited.
      
      38.      According to the applicant, Article 224(4) of the Commercial Code, under which the general meeting of shareholders may remove
         a member of the Board of Directors from that post at any time, conflicts with Article 109(1) of the Labour Code, which grants
         certain welfare guarantees to pregnant women. In considering the conflict, priority should be given to Article 109 of the
         Labour Code, which prohibits termination of the contract of employment of a pregnant woman.
      
      39.      The applicant’s action was dismissed both at first instance and on appeal. She therefore appealed to the referring court on
         a point of law.
      
      40.      Before that court, the applicant argued that she should be regarded as a worker for the purposes of EU law, regardless of
         whether she is regarded as such under Latvian law. Also, in light of the prohibition on dismissal set out in Article 10 of
         Directive 92/85 and the main interest which that provision seeks to protect, the Member State should – in all types of legal
         relationships where the legal characteristics of an employment relationship can be identified – endeavour to ensure by all
         means, including judicial remedies, that pregnant workers enjoy the legal and social guarantees laid down for their benefit.
      
      41.      LKB, on the other hand, argued that members of a capital company’s Board of Directors do not perform services under the direction
         of another person and cannot therefore be treated as workers for the purposes of EU law. It is entirely justifiable that different
         levels of protection be provided for workers, on the one hand, and members of a capital company’s Board of Directors, on the
         other, in view of the confidence element attaching to Board membership. EU law makes an express distinction between persons
         who carry out their tasks under the direction of an employer and those who have power to direct, and are fundamentally representatives
         of the employer rather than subordinates.
      
      42.      According to the national court, both the case-law of the Court on the concept of ‘worker’ and the objective pursued by Directive
         92/85 of protecting pregnant women against dismissal support the inference that, where a member of a company’s Board of Directors
         comes within the scope of that concept, Article 10 of Directive 92/85 applies to that person, notwithstanding the fact that
         Article 224(4) of the Commercial Code places no restriction on dismissal, whether or not the Board Member holds a contract
         of employment.
      
      43.      According to the referring court, both Directive 76/207 and Directive 92/85 prohibit termination of the employment relationship
         in the case of a pregnant woman.
      
      44.      On the view that the dispute before it raises an issue concerning the interpretation of EU law, the Augstākās Tiesas Senāts
         decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:
      
      ‘(1)      Are the members of the directorial body of a capital company to be regarded as being covered by the concept of worker laid
         down in [EU] law?
      
      (2)      Is Article 224(4) of the Latvian Commercial Code, under which a member of the Board of Directors of a capital company may
         be dismissed without any restriction, no account being taken specifically of the fact that she is pregnant, incompatible with
         Article 10 of Directive 92/85 … and the case-law of the Court of Justice?’
      
      III –  Analysis
      45.      By its questions, the national court seeks to ascertain, first of all, whether the applicant may be regarded as a worker within
         the meaning of Directive 92/85, and then, if appropriate, the scope of the protection against dismissal afforded by Article
         10 of that directive.
      
      46.      As a preliminary point, it is important to remember that, by virtue of Article 2 of Directive 92/85, the protection afforded
         by that directive, in particular the protection against dismissal provided for in Article 10, applies to pregnant workers
         who have informed their employer of their pregnancy in accordance with the legislation or practice current in the Member State.
      
      47.      In the present case, the national court does not provide any information as to whether – and, if so, in what way – Latvian
         law makes that protection dependent on fulfilment of the condition that the person concerned must have given her employer
         prior notice of her pregnancy. LKB maintains that the applicant did not inform it of her condition until several days after
         the supervisory board had dismissed her from her duties as member of the Board of Directors.
      
      48.      Whether that fact can deprive the applicant of the special protection afforded under Directive 92/85 depends on the interpretation
         of national law and an assessment of the facts, such as the manifest nature of the pregnancy, which are matters for the referring
         court.
      
      49.      In any event, no degree of uncertainty on that point can call into question the presumption that the reference is relevant
         to the outcome to the main proceedings, a presumption from which, in accordance with the case-law, (11) the order for reference must benefit and which is not contested in the present case.
      
      50.      In considering the questions referred, I shall therefore take as my starting point the premiss that the requirement that the
         employer be informed in accordance with the rules in force under national law is satisfied.
      
      A –    The first question
      51.      By its first question, the national court seeks to ascertain whether a member of a Board of Directors such as the applicant,
         who was pregnant when the general meeting of LKB’s shareholders decided to remove her from her post, is entitled to the protection
         against dismissal provided for under Article 10 of Directive 92/85.
      
      52.      The question to be addressed, therefore, is whether and, if so, to what extent a member of a capital company’s Board of Directors
         may be regarded as a worker within the meaning of Directive 92/85.
      
      53.      As the national court rightly stated, the concept of ‘worker’ within the meaning of Council Directive 92/85 was defined in
         Kiiski, by transposing to that directive the definition laid down by the Court in the context of its interpretation of Article 39
         EC. According to that definition, the concept of ‘worker’ within the meaning of Directive 92/85 must therefore be attributed
         a uniform content within the European Union and its essential characteristic is that three conditions must be met: the performance
         of services, in return for remuneration, for and under the direction of another person. (12)
      
      54.      The national court explains that only the last of those conditions is a matter of dispute between the parties. According to
         the information provided by that court, the applicant maintains, and her claim is not gainsaid, that she performed the duties
         of sole member of the Board of Directors, which were assigned to her under the articles of association of the company and
         the Board’s rules of procedure, a situation which may be entirely consistent with the exercise of an activity which has a
         specific economic value and which is effective and genuine within the meaning of the case-law. (13)
      
      55.      It is also common ground that the applicant received remuneration; how that is described by the parties to the employment
         relationship and the detailed arrangements governing it are of no consequence to categorisation as a worker. (14)
      
      56.      Accordingly, the question to be examined is whether the remunerated services supplied to LKB were provided under its direction.
         I therefore propose to construe the first question to the effect that the referring court is essentially asking whether –
         and, if so, to what extent – a woman who is a member of a capital company’s Board of Directors and who performs her directorial
         duties in return for remuneration is providing her services in the context of a relationship of subordination and, as a consequence,
         can be regarded as a worker within the meaning of Directive 92/85.
      
      57.      In other words, the issue is whether the applicant must be regarded, for the purposes of Directive 92/85, as a paid worker
         covered by the protection provided for under that directive or as an independent provider of services coming under Directive
         86/613. At present, there is no special regime for company directors under EU social security law for the purposes of the
         implementation of the principle of equal treatment as between men and women, or, more specifically, of protection in the case
         of pregnancy. The applicant’s situation must therefore be assessed in the context of those two alternatives and subsumed under
         one or other of those categories.
      
      58.      LKB argues, as do the Greek and Latvian Governments, that members of a capital company’s Board of Directors are not to be
         regarded as workers within the meaning of EU law and that, in consequence, Directive 92/85 does not apply to them.
      
      59.      LKB argues that no contract of employment was ever concluded between it and the applicant, and that in law there was no employment
         relationship between them. The applicant performed her obligations as a Board Member autonomously, under an agency agreement,
         and – unlike heads of divisions or departments, who are under the authority of a superior or the Board of Directors, whose
         guidelines and instructions they must observe – did not receive instructions from anybody. Furthermore, the applicant herself
         drew up the rules of procedure of the Board of Directors.
      
      60.      In the same vein, the Greek Government maintains that a Board Member like the applicant, who moreover was the sole director,
         did not provide her services under the direction of another person, but, on the contrary, was the person under whose direction
         the employees of the company performed their tasks.
      
      61.      The Latvian Government also argues that, even if Board Members perform their duties for a specified period and act in the
         interests of the company, their activities are not subordinate in nature but independent. The Board of Directors is the executive
         body of the company, which it directs and represents. It does not perform services under the direction of another person,
         nor does it have to obey instructions from another person. The activities of the Board of Directors should be regarded as
         the practical expression of the confidence placed in it by the company’s shareholders.
      
      62.      Similarly, it is not mandatory for a capital company to have a supervisory board. Nor does such a board have any right which
         could give rise to a duty of subordination on the part of the Board of Directors. The supervisory board has no legal means
         available to it which could enable it to have any real influence on the day-to-day activities of the Board of Directors.
      
      63.      Lastly, the Latvian Government stresses that the relationship between the shareholders of a capital company and the members
         of the company’s Board of Directors is based on trust, which means that it must be possible to terminate the working relationship
         with those members if ever there is a loss of confidence.
      
      64.      I do not agree with the interveners’ analyses. In common with the applicant and the Hungarian Government, I believe that a
         member of a capital company’s Board of Directors who is in the applicant’s situation can be regarded as carrying out her duties
         in the context of a relationship of subordination and, accordingly, can be treated as a worker within the meaning of Directive
         92/85. My position is based on the following grounds, which relate, on the one hand, to the characteristics of the working
         relationship between the parties and, on the other, to the objective pursued by Article 10 of Directive 92/85.
      
      1.      The characteristics of the working relationship between the parties
      65.      According to the case-law, the concept of ‘worker’ in EU law and, in particular, within the meaning of Council Directive 92/85,
         must be determined in the light of the objective criteria of the working relationship, account being taken of the rights and
         obligations of the persons concerned. (15)
      
      66.      Recognition of the status of worker cannot therefore depend on how the parties concerned describe the working relationship
         or on whether a contract of employment has been entered into. As the Court stated in Kiiski, the sui generis legal nature of the employment relationship under national law is of no consequence as regards whether or not a person is
         a worker for the purposes of EU law. (16) Similarly, the Court has held that formal categorisation as a self-employed person under national law does not exclude the
         possibility that a person may have to be treated as a worker for the purposes of EU law if that person’s independence is only
         notional. (17)
      
      67.      In the present case, therefore, the fact that the parties did not enter into a contract of employment and concluded a contract
         of agency cannot determine the categorisation of their working relationship and whether the applicant was employed or self-employed
         for the purposes of Directive 92/85.
      
      68.      According to the case-law, that categorisation depends in every case on an assessment of all the elements which characterise
         the working relationship between the parties. (18) It is also settled case-law that the concept of ‘worker’ under EU law must not be interpreted restrictively. (19) In addition, it is recognised that there is no single definition of that concept and that, depending upon the circumstances,
         it can vary according to the area in which the definition is to be applied. (20)
      
      69.      As regards more specifically the existence of a relationship of subordination, the Court has not yet to my knowledge had occasion
         to specify the nature and level of supervision that would be sufficient for there to be such a relationship.
      
      70.      The Court ruled on the situation of company directors in Asscher, (21) in which it held that the director of a corporation of which he is the sole shareholder does not carry on his activity in
         the context of a relationship of subordination, and so is not to be treated as a worker within the meaning of Article 39 EC. (22) In his Opinion in the case which gave rise to that judgment, Advocate General Léger justified that position on the ground
         that such a director is not under the direction of any other person or of any company body that he does not himself control. (23)
      
      71.      The Court went on to state that that approach was not automatically transposable to the spouse of such a director, because
         the personal and property relations between spouses which result from marriage do not rule out the existence, in the context
         of the organisation of an undertaking, of a relationship of subordination characteristic of an employment relationship. (24)
      
      72.      The Court has also ruled that the fact that workers employed by dock-work companies responsible for unloading goods are shareholders
         in those companies does not preclude them from being in a relationship of subordination to the company. (25)
      
      73.      The foregoing observations allow the following inferences to be drawn.
      
      74.      First, performance of the duties of company director does not in itself preclude the existence of a relationship of subordination.
         In Asscher, as I understand it, the finding that there was no relationship of subordination in the case of the director of the company
         in question was not attributable to the nature of his duties, but to the fact that he was the sole shareholder of the company,
         so that, in his capacity as director, he was answerable for company management only to himself. The status of director cannot
         therefore in itself exclude the possibility that the person concerned may, owing to the way in which the undertaking is organised,
         be subject to its authority.
      
      75.      Secondly, in order to assess whether such a director is in a relationship of subordination, it is necessary to take into account
         all the elements which characterise that person’s working relationship with the company and to have regard, in the course
         of that assessment, to the nature of his duties. A finding of such a relationship must therefore reflect the fact that those
         duties entail by their nature the exercise of very broad powers and that the person concerned has no hierarchical superior
         among the salaried staff.
      
      76.      In the context of that assessment, particular importance should therefore be attached, I believe, to the conditions in accordance
         with which the director in question was appointed, the degree of supervision to which that person was subject and the circumstances
         in which the person could be removed from that post.
      
      77.      On examining those criteria in the present case, I note, as regards the conditions in accordance with which the applicant
         was appointed, that she was appointed as a member of LKB’s Board of Directors for a fixed period of three years and that she
         was made responsible for managing the company’s assets, directing the company and representing it in all its transactions
         with third parties. It is also clear from information provided by the national court and by the Latvian Government that she
         was an integral part of LKB.
      
      78.      In that sense, the applicant’s situation was thus clearly distinct from that of an agent, such as a lawyer or accountant,
         who receives a mandate from a company to perform a specific task, but remains a third party in relation to that company.
      
      79.      As regards, next, the degree of supervision to which the applicant was subject, it can be gleaned from the order for reference
         and from the observations of the parties that she had to account for her management to the supervisory board and cooperate
         with that board. It is also undisputed that, in the performance of her duties, the applicant periodically drew up reports
         and information memoranda for the attention of the supervisory board.
      
      80.      As regards, lastly, the power of dismissal, the file shows that members of the Board of Directors could be removed from their
         posts by decision of the shareholders, in some circumstances after being suspended from their duties by the supervisory board.
         It also appears that such removal could be based simply on loss of confidence.
      
      81.      As the Latvian Government points out, it is certainly not apparent from this information that the supervisory board or the
         shareholders were in a position to give instructions on a day-to-day basis to Members of the Board of Directors.
      
      82.      For all that, I find it difficult to accept that, in those circumstances, the Board Members were carrying out their duties
         completely independently. In fact, since they were accountable for their actions to a body which they did not themselves control,
         and could be removed from their posts on grounds of loss of confidence alone, which could arise as a result of the shareholders
         simply disagreeing with the way the company was being managed, they were under a de facto obligation to take management decisions in accordance with the expectations of the supervisory board and the shareholders.
      
      83.      In law and in fact, the situation of the Board Members was thus closer to that of an employee than that of a self-employed
         person, since they were liable to have their working relationship with the company terminated if the company, through its
         shareholders, disagreed with decisions taken by them in the performance of their duties.
      
      84.      It follows, to my mind, from consideration of the elements characterising the working relationship of a member of a capital
         company’s Board of Directors, where this is along the lines of the relationship between the applicant and LKB, and subject
         to verification by the national court, that the applicant is a ‘worker’. (26)
      
      85.      That analysis is consistent with the objective pursued by Article 10 of Directive 92/85.
      
      2.      The objective pursued by Article 10 of Directive 92/85
      86.      Given the objective pursued by Article 10 of Directive 92/85, that provision logically applies to the working relationship
         at issue. In addition, contrary to the suggestions made by the Latvian Government and LKB in their written observations, the
         application of Directive 92/85 to such an employment relationship would not necessarily have the effect of removing the right
         of the shareholders of a company to terminate the directors’ contract on the basis of loss of confidence.
      
      87.      On the first point, it appears from the eighth and fifteenth recitals to Directive 92/85, as well as from the case-law, that
         pregnant workers must be protected against the risk of dismissal based on their condition, because such dismissal could have
         harmful effects on their physical and mental state and it is important to prevent them from being prompted voluntarily to
         terminate the pregnancy in order not to lose their jobs. (27)
      
      88.      When I look at the situation of a company director such as the applicant, it seems to me that the decisive factor is that
         her working relationship, by virtue of which she is an integral part of the company, can be terminated following a decision
         taken by a body which, by definition, she does not control and which is thus imposing upon her its wish to terminate the relationship.
      
      89.      To my mind, that situation corresponds exactly to the context in which Article 10 of Directive 92/85 is intended to apply,
         since there is indeed a risk in this case that a woman’s working relationship with the company of which she is an integral
         part might be terminated as a result of her pregnancy. A woman company director who can be removed from her post at any time
         against her will could also be prompted to have an abortion, just like any other employee in a subordinate post, if there
         was a chance she might think that her pregnancy could cause her to lose her job.
      
      90.      In addition, the Court – as I interpret its case-law – is committed to ensuring the effectiveness of Article 10 of Directive
         92/85. Thus, it has held, inter alia, that that provision prohibits not only notification of dismissal based on pregnancy
         throughout the pregnancy and maternity leave; it also prohibits the taking of steps in preparation for dismissing a person
         on the grounds of pregnancy and/or the birth of a child. (28)
      
      91.      According to the Court, in the context of the application of Article 10 of Directive 92/85, the Member States cannot amend
         the scope of the concept of ‘dismissal’, thereby negating the extent of the protection which that provision offers and compromising
         its effectiveness. (29)
      
      92.      In the same way, the Court ruled in Kiiski that a woman worker who is on parental leave remains, during that period, a worker as defined by EU law, which means that
         she can interrupt her parental leave in order to take maternity leave under Directive 92/85. The Court thus considered that
         the working relationship between employee and employer during parental leave is maintained, even though the worker is no longer
         working and the relationship of subordination is therefore suspended. (30)
      
      93.      It seems to me that the application of Directive 92/85 to the working relationship in the main proceedings accords with the
         case-law.
      
      94.      Lastly, the second point of my argument is that such an interpretation of the scope of Directive 92/85 does not require the
         Member States to remove the right of a company’s shareholders to remove directors of the company from their posts at any time,
         if they lose confidence in them.
      
      95.      As we shall see again when examining the second question, Article 10 of Directive 92/85 does not require the Member States
         to impose an absolute ban on dismissing a woman during pregnancy and up to the end of her maternity leave. It requires them
         to take the necessary measures to ensure that such a dismissal is not based on the pregnancy or on the birth of a child and
         that it can occur only in the circumstances permitted by national legislation and practices.
      
      96.      Article 10 of Directive 92/85 was not intended, therefore, to call into question the laws of the Member States or of the European
         Union governing the rights and obligations of company directors, or the circumstances in which they can be removed from their
         posts. (31) It seeks to require Member States to provide for measures intended to secure effective application of the principle of equal
         treatment as between men and women, by virtue of which dismissing a woman because she is pregnant constitutes direct discrimination
         on grounds of sex. (32)
      
      97.      Under Article 10(1) of Directive 92/85, a Member State may therefore provide that shareholders in a company who consider they
         must withdraw confidence in their director are entitled to terminate the working relationship even if the director is pregnant.
         However, the Member State must, pursuant to Article 10(2) of the directive, provide that the shareholders are to state the
         reason for the dismissal in writing. Under Article 10(3) of the directive, the Member State must also implement measures to
         enable a director who has been removed from her post to seek confirmation, where appropriate by means of a review by the courts,
         that the real reason for dismissal was not her pregnancy. Under Article 4 of Council Directive 97/80/EC, (33) Member States are also to take such measures as are necessary to ensure that, where persons who consider themselves wronged
         because the principle of equal treatment has not been applied to them establish, before a court or other competent authority,
         facts from which it may be presumed that there has been direct or indirect discrimination, it is for the other party to prove
         that there has been no breach of the principle of equal treatment. (34)
      
      98.      The objection raised by LKB and the Latvian Government to the effect that the application of Article 10 of Directive 92/85
         to company directors constitutes an unwarranted interference with shareholders’ rights is, in my opinion, groundless.
      
      99.      In 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).