María Auxiliadora Arjona Camacho v Securitas Seguridad España, SA.
Date: 2015-12-17
28. As follows from recital 18 in the preamble to Directive 2002/73, that directive amended Article 6 of Directive 76/207 in order to take account of the case-law of the Court and, in particular, of the judgments in Marshall (C‑271/91, EU:C:1993:335) and in Draehmpaehl (C‑180/95, EU:C:1997:208).
29. In that regard, it is necessary to recall that, in the context of interpreting Article 6 of Directive 76/207, which was repealed and replaced by Directive 2006/54, the Court has stated that the Member States are obliged to take the necessary measures to enable all persons who consider themselves wronged by discrimination, contrary to that directive, to pursue their claims by judicial process. Such an obligation implies that the measures in question should be sufficiently effective to achieve the objective pursued by the directive and should be capable of being effectively relied upon by the persons concerned before national courts (see judgments in Marshall , C‑271/91, EU:C:1993:335, paragraph 22, and Paquay , C‑460/06, EU:C:2007:601, paragraph 43).
30. According to the Court’s case-law, Article 6 of Directive 76/207 does not prescribe a specific measure to be taken by Member States in the event of a breach of the prohibition of discrimination, but leaves them free to choose between the different solutions suitable for achieving the objective of the directive, depending on the different situations which may arise (see judgments in von Colson and Kamann , 14/83, EU:C:1984:153, paragraph 18; Marshall , C‑271/91, EU:C:1993:335, paragraph 23; and Paquay , C‑460/06, EU:C:2007:601, paragraph 44).
31. However, the measures appropriate to restore genuine equality of opportunity must guarantee real and effective judicial protection and have a genuine deterrent effect on the employer (see judgments in von Colson and Kamann , 14/83, EU:C:1984:153, paragraphs 23 and 24; Draehmpaehl , C‑180/95, EU:C:1997:208, paragraph 25; and Paquay , C‑460/06, EU:C:2007:601, paragraph 45).
32. Such requirements necessarily entail that the particular circumstances of each breach of the principle of equal treatment should be taken into account. In the event of discriminatory dismissal, a situation of equality could not be restored without either reinstating the victim of discrimination or, in the alternative, granting financial compensation for the loss and damage sustained (judgment in Marshall , C‑271/91, EU:C:1993:335, paragraph 25).
33. Finally, according to the Court’s case-law, where financial compensation is the measure adopted in order to achieve the objective of restoring genuine equality of opportunity, 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 (see judgments in Marshall , C‑271/91, EU:C:1993:335, paragraph 26, and Paquay , C‑460/06, EU:C:2007:601, paragraph 46).
35. That finding is supported by the alternative nature, in the case of discriminatory dismissal, of the compensation for loss and damage granted in punitive form, as indicated in paragraph 32 of the present judgment.
37. Therefore, it is appropriate to hold that, like Article 6 of Directive 76/207, and in order for the loss and damage sustained as a result of discrimination on grounds of sex to be the subject of genuine and effective compensation or reparation in a way which is dissuasive and proportionate, Article 18 of Directive 2006/54 requires Member States which choose the financial form of compensation to introduce in their national legal systems, in accordance with detailed arrangements which they determine, measures providing for payment to the person injured of compensation which covers in full the loss and damage sustained, but does not provide for the payment of punitive damages.
44. It should be added that, on the assumption that a Member State decides to adopt measures allowing the award of punitive damages to the person who has suffered discrimination, it is for the national legal system of each Member State to set the criteria for determining the extent of the penalty, provided that the principles of equivalence and effectiveness are respected (see, by analogy, judgments in Manfredi and Others , C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 92; Donau Chemie and Others , C‑536/11, EU:C:2013:366, paragraphs 25 to 27; and Hirmann , C‑174/12, EU:C:2013:856, paragraph 40).