Virginie Pontin v T-Comalux SA.
Date: 2009-10-29
38. It should also be noted that the Court must take account, under the division of jurisdiction between the Community judicature and the national courts, of the factual and legislative context in which the questions put to it are set, as described in the order for reference (see, in particular, Case C‑330/07 Jobra  [2008] ECR I‑0000, paragraph 17, and case-law cited). Therefore, irrespective of the criticism expressed by the Luxembourg Government in regard to the interpretation of national law adopted by the national court, this reference for a preliminary ruling must be considered in the light of that court’s interpretation of that law (see, by analogy, Case C‑346/05 Chateignier  [2006] ECR I‑10951, paragraph 22, and Joined Cases C‑378/07 to C-380/07 Angelidaki and Others  [2009] ECR I-0000, paragraph 51). The Court’s answer to the first two questions must therefore be based on the premiss that an employee dismissed during her pregnancy has no remedy under Luxembourg law apart from an action for nullity and reinstatement.
40. In accordance with Article 12 of Directive 92/85, Member States are also required to introduce into their national legal systems such measures as are necessary to enable all workers who consider themselves wronged by failure to comply with the obligations arising from that directive, including those arising from Article 10 of the directive, to pursue their claims by judicial process. Article 10(3) of that directive specifically states that Member States must 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 article (see Case C‑460/06 Paquay  [2007] ECR I‑8511, paragraph 47).
43. As regards the principle of effective judicial protection of an individual’s rights under Community law, it is settled case-law that the detailed procedural rules governing actions for safeguarding an individual’s rights under Community law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see, in particular, Case C‑268/06 Impact  [2008] ECR I‑2483, paragraph 46, and case-law cited).
44. Those requirements of equivalence and effectiveness embody the general obligation on the Member States to ensure judicial protection of an individual’s rights under Community law. They apply both as regards the designation of the courts and tribunals having jurisdiction to hear and determine actions based on Community law and as regards the definition of detailed procedural rules (see Impact , paragraphs 47 and 48).
45. The principle of equivalence requires that the national rule at issue be applied without distinction, whether the infringement alleged is of Community law or national law, where the purpose and cause of action are similar (Case C-326/96 Levez  [1998] ECR I-7835, paragraph 41). However, that principle is not to be interpreted as requiring Member States to extend their most favourable rules to all actions brought in the field of employment law (see Levez , paragraph 42). In order to establish whether the principle of equivalence has been complied with, it is for the national court, which alone has direct knowledge of the procedural rules governing actions in the field of domestic law, to determine whether the procedural rules intended to ensure that the rights derived by individuals from Community law are safeguarded under domestic law comply with that principle and to consider both the purpose and the essential characteristics of allegedly similar domestic actions (see Levez , paragraphs 39 and 43, and Case C‑78/98 Preston and Others  [2000] ECR I‑3201, paragraph 49). For that purpose, the national court must consider whether the actions concerned are similar as regards their purpose, cause of action and essential characteristics (see, to that effect, Preston and Others , paragraph 57).
46. It is apparent from case-law that in order to decide whether procedural rules are equivalent the national court must establish objectively, in the abstract, whether the rules at issue are similar taking into account the role played by those rules in the procedure as a whole, the conduct of that procedure and any special features of those rules (see, to that effect, Preston and Others , paragraphs 61 to 63).
47. As regards the principle of effectiveness, it is apparent from the Court’s case-law that cases which raise the question whether a national procedural provision renders the exercise of an individual’s rights under the Community legal order practically impossible or excessively difficult must similarly be analysed by reference to the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national instances. In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (see Case C‑426/05 Tele2 Telecommunication [2008] ECR I‑685, paragraph 55, and case-law cited).
48. The Court has thus recognised that it is compatible with Community law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty, since such time-limits are not liable to render practically impossible or excessively difficult the exercise of rights conferred by Community law (see Case C‑255/00 Grundig Italiana  [2002] ECR I‑8003, paragraph 34, and Case C‑2/06 Kempter  [2008] ECR I‑411, paragraph 58, and case-law cited). As regards limitation periods, the Court has also held that, in respect of national legislation which comes within the scope of Community law, it is for the Member States to establish those periods in the light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration (see, to that effect, Case C‑349/07 Sopropé  [2008] ECR I-0000, paragraph 40).
49. Lastly, as is apparent from settled case-law, it is not for the Court to rule on the interpretation of national law, that being exclusively for the national court, which must, in the present case, determine whether the requirements of equivalence and effectiveness are met by the provisions of the relevant national legislation (see Angelidaki and Others , paragraph 163). However, the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its interpretation (see Case C‑53/04 Marrosu and Sardino  [2006] ECR I‑7213, paragraph 54; Case C‑180/04 Vassallo  [2006] ECR I‑7251, paragraph 39; and the order of 12 June 2008 in Case C‑364/07 Vassilakis and Others , paragraph 143).
53. However, since Member States are responsible for ensuring that rights which individuals derive from Community law are effectively protected in each case (see, in particular, Impact , paragraph 45, and case-law cited), the rules governing such proceedings must comply with the requirements laid down in the case-law cited in paragraphs 39 to 48 above.
75. If the referring court were thus to find there had been such an infringement of the principle of equal treatment, within the meaning of Article 3(1) of Directive 76/207, it would have to interpret the domestic jurisdictional rules in such a way that, wherever possible, they contribute to the attainment of the objective of ensuring effective judicial protection of a pregnant woman’s rights under Community law (see, by analogy, Case 222/84 Johnston  [1986] ECR 1651, paragraph 17; Case C‑185/97 Coote  [1998] ECR I‑5199, paragraph 18; and Impact , paragraph 54).