Nadine Paquay v Société d’architectes Hoet + Minne SPRL.
Date: 2007-10-11
27. In that regard, it is necessary to recall that the objective of Directive 92/85 is to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding.
28. In that area, the Court has also pointed out that the objective pursued by the Community law rules governing equality as between men and women in regard to the rights of pregnant women and women who have given birth, is to protect female workers before and after they have given birth (Case C-191/03 McKenna [2005] ECR I-7631, paragraph 42).
29. Before Directive 92/85 came into force, the Court had already held that, under the principle of non-discrimination and, particularly, Articles 2(1) and 5(1) of Directive 76/207, protection against dismissal should be granted to women not only during maternity leave, but also throughout the period of the pregnancy. According to the Court, a dismissal occurring during those periods affects only women and therefore constitutes direct discrimination on the grounds of sex (see, to that effect, Case C-179/88 Handels- og Kontorfunktionærernes Forbund [1990] ECR I-3979, paragraph 15; Case C-394/96 Brown [1998] ECR I-4185, paragraphs 24 to 27; and McKenna , paragraph 47).
30. It is precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women 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 Community legislature subsequently laid down special protection for women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave (Case C-32/93 Webb [1994] ECR I-3567, paragraph 21; Brown , paragraph 18; C-109/00 Tele Danmark [2001] ECR I-6993, paragraph 26; and McKenna , paragraph 48).
31. It is necessary to point out that during that period, Article 10 of Directive 92/85 does not provide for any exception to, or derogation from, the prohibition of dismissing pregnant workers, save in exceptional cases not connected with their condition where the employer justifies the dismissal in writing ( Webb , paragraph 22; Brown , paragraph 18; and Tele Danmark , paragraph 27).
33. Having regard to the objectives pursued by Directive 92/85 and, more specifically, to those pursued by its Article 10, it is necessary to point out that the prohibition on the dismissal of pregnant women and women who have recently given birth or are breastfeeding during the period of protection is not limited to the notification of that decision to dismiss. The protection granted by that provision to those workers excludes 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.
43. As regards the second part of the second question it is necessary to recall that, under Article 6 of Directive 76/207, the Member States are bound to take the necessary measures to enable all persons who consider themselves wronged by discrimination, such as that in the present case, contrary to Articles 2(1) and 5(1) of that directive, to pursue their claims by judicial process. Such obligation implies that the measures in question should be sufficiently effective to achieve the objective of the directive and should be capable of being effectively relied upon by the persons concerned before national courts (Case C-271/91 Marshall [1993] ECR I-4367, paragraph 22).
44. That Article 6 does not prescribe a specific measure to be taken in the event of a breach of the prohibition of discrimination, but leaves Member States free to choose between the different solutions suitable for achieving the objective of the directive, depending on the different situations which may arise (Case 14/83 von Colson and Kamann [1984] ECR 1891, paragraph 18, and Marshall , paragraph 23).
45. However, the objective is to arrive at real equality of opportunity and cannot therefore be attained in the absence of measures appropriate to restore such equality when it has not been observed. Those measures must guarantee real and effective judicial protection and have a real deterrent effect on the employer ( Marshall , paragraph 24).
46. Such requirements necessarily entail that the particular circumstances of each breach of the principle of equal treatment should be taken into account. Where financial compensation is the measure adopted in order to achieve the objective previously indicated, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules ( Marshall , paragraphs 25 and 26).
47. It is necessary to recall that, in accordance with Article 12 of Directive 92/85, Member States are also bound to take the necessary measures to enable all workers who consider themselves wronged by failure to comply with the obligations arising from that directive, including those arising from its Article 10, to pursue their claims by judicial process. Article 10(3) of Directive 92/85 specifically states that Member States shall take the necessary measures to protect pregnant workers or those who have recently given birth or are breastfeeding from the consequences of dismissal which is unlawful by virtue of paragraph 1 of that provision.
52. Moreover, as the Court has already stated, in choosing the appropriate solution for guaranteeing that the objective of Directive 76/207 is attained, the Member States must ensure that infringements of Community law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of domestic law of a similar nature and importance (Case 68/88 Commission v Greece [1989] ECR 2965, paragraph 24, and Case C-180/95 Draehmpaehl [1997] ECR I-2195, paragraph 29). That reasoning applies mutatis mutandis  to infringements of Community law of a similar nature and importance.