From Lëtzebuerg to Luxembourg: EU Law, Non-Discrimination and Pregnancy

Abstract

[Virginie Pontin v. T-Comalux SA, ECJ (Third Chamber), Judgment of 29 October 2009, C-63/08] In autumn 2009 the ECJ made another step forward in fostering gender equality through the instrumental framework of the EU law. The case triggers the right of pregnant women to protection against employers, who use inadequately constructed procedural norms to disguise an illegal dismissal. The Court holds that where the only remedy available under national legislation to a worker dismissed during pregnancy does not provide reasonable time bars on claims for wrongful dismissal, that legislation introduces less favorable treatment linked to pregnancy and constitutes discrimination against female employees. The Court held that a 15 days limit to bring proceedings was insufficient in terms of the principle of effective judicial protection of an individual’s rights under EU law. A pregnant woman should equally enjoy other remedies beyond an action for nullity and reinstatement, such as an action for damages, in case the analogous recourses are available for other categories of dismissed workers. The Court therefore clarified an essential element for the implementation of the Pregnant Workers’ Directive in the Member States.