Dita Danosa v LKB Līzings SIA.
Date: 2010-11-11
33. It is for the national court to ascertain the facts which have given rise to the dispute before it and to establish the consequences which they have for the judgment which it is required to deliver (see, inter alia, Case C‑435/97 WWF and Others  [1999] ECR I-5613, paragraph 32).
34. In the division of jurisdiction between the Courts of the European Union and the national courts, it is in principle for the national court to determine whether the factual conditions triggering the application of a rule of EU law are satisfied in the case pending before it, while the Court, when giving a preliminary ruling, may, where appropriate, provide clarification to guide the national court in its interpretation (see, to that effect, Case C‑424/97 Haim  [2000] ECR I‑5123, paragraph 58, and Joined Cases C‑22/08 and C‑23/08 Vatsouras and Koupatantze  [2009] ECR I‑4585, paragraph 23).
36. In these circumstances, it falls to the Court to answer the questions concerning the interpretation of EU law which have been referred for a preliminary ruling, whilst leaving to the referring court the task of establishing the specific elements of the case before it and, in particular, of determining whether the contested dismissal decision was adopted essentially because of Ms Danosa’s pregnancy.
39. It is settled case-law that the concept of ‘worker’ for the purposes of Directive 92/85 may not be interpreted differently according to each national law and must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration (see, by analogy, in the context of freedom of movement for workers and the principle of equal pay for men and women, Case 66/85 Lawrie-Blum  [1986] ECR 2121, paragraphs 16 and 17, and Case C‑256/01 Allonby  [2004] ECR I-873, paragraph 67; and, in the context of Directive 92/85, Case C‑116/06 Kiiski  [2007] ECR I‑7643, paragraph 25).
40. The sui generis  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 (see Kiiski , paragraph 26 and the case-law cited). Provided that a person meets the conditions specified in paragraph 39 above, the nature of that person’s legal relationship with the other party to the employment relationship has no bearing on the application of Directive 92/85 (see, by analogy, in the context of freedom of movement for workers, Case 344/87 Bettray  [1989] ECR 1621, paragraph 16, and Case C‑357/89 Raulin  [1992] ECR I‑1027, paragraph 10).
41. Similarly, 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 Directive 92/85 if that person’s independence is merely notional, thereby disguising an employment relationship within the meaning of that directive (see, by analogy, Allonby , paragraph 71).
46. The answer to the question whether a relationship of subordination exists within the meaning of the above definition of the concept of ‘worker’ must, in each particular case, be arrived at on the basis of all the factors and circumstances characterising the relationship between the parties.
47. The fact that Ms Danosa was a member of the Board of Directors of a capital company is not enough in itself to rule out the possibility that she was in a relationship of subordination to that company: it is necessary to consider the circumstances in which the Board Member was recruited; the nature of the duties entrusted to that person; the context in which those duties were performed; the scope of the person’s powers and the extent to which he or she was supervised within the company; and the circumstances under which the person could be removed.
49. Next, even though Ms Danosa enjoyed a margin of discretion in the performance of her duties, she had to report on her management to the supervisory board and to cooperate with that board.
50. Lastly, according to the documents placed before the Court, a member of a Board of Directors may, under Latvian law, be removed from his or her duties by a decision of the shareholders, in some circumstances following suspension from those duties by the supervisory board. The dismissal decision in Ms Danosa’s case was therefore adopted by a body which, by definition, she did not control and which was able at any time to take decisions contrary to her wishes.
51. While it cannot be ruled out that the members of a directorial body of a company, such as a Board of Directors, are not covered by the concept of ‘worker’ as defined in paragraph 39 above, in view of the specific duties entrusted to them, as well as the context in which those duties are performed and the manner in which they are performed, the fact remains that Board Members who, in return for remuneration, provide services to the company which has appointed them and of which they are an integral part, who carry out their activities under the direction or control of another body of that company and who can, at any time, be removed from their duties without such removal being subject to any restriction, satisfy prima facie the criteria for being treated as workers within the meaning of the case-law of the Court, as referred to above.
53. With a view to the implementation of that directive, the EU legislature intended to give the concept of ‘pregnant worker’ its own independent meaning in EU law, even though, in respect of one element of that definition − namely that relating to the details of the procedure for informing the employer of her condition − it refers back to national legislation and/or national practice ( Kiiski , paragraph 24).
56. In view of the foregoing considerations, the reply to the first question is that a member of a capital company’s Board of Directors, who provides services to that company and is an integral part of it, must be regarded as having the status of worker for the purposes of Directive 92/85, if that activity is carried out, for some time, under the direction or supervision of another body of that company and if, in return for those activities, the Board Member receives remuneration. It is for the national court to undertake the assessments of fact necessary to determine whether that is so in the case pending before it.
The second question
58. As regards the scope of the prohibition on dismissal laid down in Article 10 of Directive 92/85, it should first be recalled 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.
59. Before Directive 92/85 came into force, the Court had already held that, by virtue of the principle of non-discrimination and, in particular, under the provisions of Directive 76/207, protection against dismissal must be granted to women not only during maternity leave, but also throughout pregnancy. According to the Court, a dismissal occurring during those periods affects only women and therefore constitutes direct discrimination on grounds of sex (see, to that effect, Case C‑179/88 Handels- og Kontorfunktionærernes Forbund [1990] ECR I‑3979, paragraph 13; Case C‑394/96 Brown  [1998] ECR I‑4185, paragraphs 24 to 27; and Case C‑460/06 Paquay  [2007] ECR I‑8511, paragraph 29).
60. 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 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 Paquay , paragraph 30 and the case-law cited).
61. During that period, Article 10 of Directive 92/85 does not provide for any exception to, or derogation from, the prohibition on dismissing pregnant workers, save in exceptional cases not connected with their condition, provided that the employer gives substantiated grounds for the dismissal in writing (Case C‑32/93 Webb  [1994] ECR I-3567, paragraph 22; Brown , paragraph 18; Case C‑109/00 Tele Danmark  [2001] ECR I‑6993, paragraph 27; and Paquay , paragraph 31).
62. In the event that the national court were to decide that, in the case before it, Ms Danosa falls within the concept of ‘pregnant worker’ for the purposes of Directive 92/85 and that the dismissal decision at issue in the main proceedings was taken for reasons essentially connected with her pregnancy, it should be pointed out that such a decision, whilst taken in accordance with provisions of national law permitting the unrestricted dismissal of a Board Member, is incompatible with the prohibition on dismissal laid down in Article 10 of that directive.
63. On the other hand, a dismissal decision taken during the period from the beginning of pregnancy to the end of the maternity leave for reasons unconnected with Ms Danosa’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 that directive.
66. As is clear from paragraph 59 above, by virtue of the principle of non-discrimination and, in particular, under the provisions of Directive 76/207, protection against dismissal must be afforded to women not only during maternity leave, but also throughout the period of pregnancy. According to the Court, the dismissal of a worker on account of pregnancy, or essentially on account of pregnancy, can affect only women and therefore constitutes direct discrimination on grounds of sex (see Paquay , paragraph 29 and the case-law cited).
68. As the Court has already pointed out, the objective pursued by the rules of EU law governing equality between men and women is, with regard to the rights of pregnant women and women who have given birth, to protect those women before and after they give birth (see Case C‑191/03 McKenna [2005] ECR I‑7631, paragraph 42).