# C_2014339EN.01001102.xml

| 29.9.2014 | EN | Official Journal of the European Union | C 339/11 |
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29.9.2014

EN

Official Journal of the European Union

C 339/11

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Request for a preliminary ruling from the Juzgado de lo Social No 33 de Barcelona (Spain) lodged on 22 July 2014 — Estrella Rodríguez Sanchez v Consum Sociedad Cooperativa Valenciana

(Case C-351/14)

2014/C 339/13

Language of the case: Spanish

Referring court

Referring court

Juzgado de lo Social No 33 de Barcelona

Parties to the main proceedings

Parties to the main proceedings

Applicant: Estrella Rodríguez Sanchez

Applicant:

Defendant: Consum Sociedad Cooperativa Valenciana

Defendant:

Questions referred

Questions referred

| 1. | Does the relationship of worker member in a cooperative (cooperativa de trabajo asociado) such as that regulated in Article 80 of (Spanish) Law 27/99 on Cooperatives and Article 89 of Law 8/2003 on Cooperatives of the Autonomous Community of Valencia — a relationship which, although characterised by the national legislation and case-law as ‘associative’ (one of membership), could be considered to amount to an ‘employment contract’ under Community law — come within the scope of Directive 2010/18 (1) relating to the ‘revised Framework Agreement on parental leave’ as defined in Clause 1(2) of [the Agreement]?
  If that first question is answered in the negative, a second, subsidiary question arises. |
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1.

Does the relationship of worker member in a cooperative (cooperativa de trabajo asociado) such as that regulated in Article 80 of (Spanish) Law 27/99 on Cooperatives and Article 89 of Law 8/2003 on Cooperatives of the Autonomous Community of Valencia — a relationship which, although characterised by the national legislation and case-law as ‘associative’ (one of membership), could be considered to amount to an ‘employment contract’ under Community law — come within the scope of Directive 2010/18 (1) relating to the ‘revised Framework Agreement on parental leave’ as defined in Clause 1(2) of [the Agreement]?

cooperativa de trabajo asociado

1

If that first question is answered in the negative, a second, subsidiary question arises.

| 2. | Must Clause 8(2) of the ‘revised Framework Agreement on Parental Leave’ (Directive 2010/18), and, more specifically, the provision in accordance with which ‘[i]mplementation of the provisions of this agreement shall not constitute valid grounds for reducing the general level of protection afforded to workers in the field covered by this agreement’, be interpreted as meaning that, should a Member State fail to implement Directive 2010/18 expressly, the scope of the protection which that State itself defined in transposing the earlier Directive 96/34 (2) may not be reduced?
  Only if the answer to either of those two questions is in the affirmative, Directive 2010/18 being considered applicable to an ‘associative-work’ relationship such as that of the applicant, will the other questions which follow be justified, for the reasons set out below. |
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2.

Must Clause 8(2) of the ‘revised Framework Agreement on Parental Leave’ (Directive 2010/18), and, more specifically, the provision in accordance with which ‘[i]mplementation of the provisions of this agreement shall not constitute valid grounds for reducing the general level of protection afforded to workers in the field covered by this agreement’, be interpreted as meaning that, should a Member State fail to implement Directive 2010/18 expressly, the scope of the protection which that State itself defined in transposing the earlier Directive 96/34 (2) may not be reduced?

2

Only if the answer to either of those two questions is in the affirmative, Directive 2010/18 being considered applicable to an ‘associative-work’ relationship such as that of the applicant, will the other questions which follow be justified, for the reasons set out below.

| 3. | Must Clause 6 of the new ‘revised Framework Agreement on Parental Leave’, incorporated in Directive 2010/18, be interpreted as meaning that the national implementing provision or agreement must incorporate and make explicit the obligations of employers to ‘consider’ and ‘respond to’ the requests of its workers for ‘changes to ... working hours and/or patterns’, when returning from parental leave, taking into account both employers’ and workers’ needs, and that the implementing mandate cannot be understood to be have been complied with by means of national rules — legislative or those of cooperatives — which make the effectiveness of such a right conditional solely upon the mere discretion of the employer as to whether or not to grant such requests? |
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3.

Must Clause 6 of the new ‘revised Framework Agreement on Parental Leave’, incorporated in Directive 2010/18, be interpreted as meaning that the national implementing provision or agreement must incorporate and make explicit the obligations of employers to ‘consider’ and ‘respond to’ the requests of its workers for ‘changes to ... working hours and/or patterns’, when returning from parental leave, taking into account both employers’ and workers’ needs, and that the implementing mandate cannot be understood to be have been complied with by means of national rules — legislative or those of cooperatives — which make the effectiveness of such a right conditional solely upon the mere discretion of the employer as to whether or not to grant such requests?

| 4. | Must it be found that Clause 6 [of the] ‘Revised Framework Agreement on Parental Leave’ — in the light of Article 3 of Directive [2010/18] and the ‘Final provisions’ in Clause 8 of the Agreement — has, where there has been a failure to transpose, ‘horizontal direct effect’ as a result of being a minimum Community standard? |
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4.

Must it be found that Clause 6 [of the] ‘Revised Framework Agreement on Parental Leave’ — in the light of Article 3 of Directive [2010/18] and the ‘Final provisions’ in Clause 8 of the Agreement — has, where there has been a failure to transpose, ‘horizontal direct effect’ as a result of being a minimum Community standard?

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(1)  Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC.

1

OJ 2010 L 68, p. 13.

(2)  Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC.

2

OJ 1996 L 145, p. 4.

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