Jessica Porras Guisado v Bankia SA and Others.
Date: 2018-02-22
31


In that regard, it should be borne in mind, first, that in the context of Article 267 TFEU the Court has no jurisdiction to rule either on the interpretation of provisions of national laws or national regulations or on their conformity with EU law and, second, that it is not for the Court to determine whether the decision whereby a matter is brought before it was taken in accordance with the rules of national law governing the organisation of the courts and their procedure (judgment of 7 July 2016, Genentech, C‑567/14, EU:C:2016:526, paragraph 22 and the case-law cited).
34


In that regard, it must be borne in mind that, in the context of the instrument of cooperation between the Court of Justice and national courts that is established by Article 267 TFEU, questions concerning EU law enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court for a preliminary ruling, under Article 267 TFEU, only where, for instance, the requirements concerning the content of a request for a preliminary ruling, set out in Article 94 of the Rules of Procedure of the Court of Justice, are not satisfied or where it is quite obvious that the interpretation of a provision of EU law, or the assessment of its validity, which is sought by the national court, bears no relation to the actual facts of the main action or to its purpose or where the problem is hypothetical (judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 50 and the case-law cited).
42


Article 1(1)(a) of Directive 98/59 states that ‘collective redundancies’ refers to dismissals effected by an employer for one or more reasons not related to the individual workers concerned, provided that certain conditions concerning numbers and periods of time are satisfied (see judgment of 10 December 2009, Rodríguez Mayor and Others, C‑323/08, EU:C:2009:770, paragraph 35).
46


It is precisely 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, save in exceptional cases not connected with their condition, provided that the employer gives substantiated grounds for the dismissal in writing (see, to that effect, judgment of 11 November 2010, Danosa, C‑232/09, EU:C:2010:674, paragraphs 60 and 61).
47


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).
48


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).
57


As a preliminary remark, it should be noted that it follows from Article 288 TFEU that Member States are required, when transposing a directive, to ensure that it is fully effective, but they retain a broad discretion as to the choice of ways and means of ensuring that the directive is implemented. That freedom of choice does not affect the obligation imposed on all Member States to which the directive is addressed to adopt all the measures necessary to ensure that the directive concerned is fully effective in accordance with the objective which it seeks to attain (judgments of 6 October 2010, Base and Others, C‑389/08, EU:C:2010:584, paragraphs 24 and 25, and of 19 October 2016, Ormaetxea Garai and Lorenzo Almendros, C‑424/15, EU:C:2016:780, paragraph 29).
62


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).
63


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).
73


Nevertheless, that directive, which only contains minimum requirements, in no way prevents Member States from providing higher protection for pregnant workers, workers who have recently given birth and workers who are breastfeeding (see, to that effect, judgment of 4 October 2001, Jiménez Melgar, C‑438/99, EU:C:2001:509, paragraph 37).