# C_2009006EN.01001301.xml

| 10.1.2009 | EN | Official Journal of the European Union | C 6/13 |
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10.1.2009

EN

Official Journal of the European Union

C 6/13

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Reference for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco (Spain) lodged on 16 October 2008 — Emilia Flores Fanega v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) and Bolumburu S.A.

(Case C-452/08)

(2009/C 6/21)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco

Parties to the main proceedings

Applicant: Emilia Flores Fanega

Applicant:

Defendant: Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) and Bolumburu S.A.

Defendant:

Questions referred

| 1. | Is Clause 2(6) of Annex 1 to Council Directive 96/34/EC (1) of 3 June 1996 to be interpreted as meaning that observance of rights in the process of being acquired extends to a pension for life on the ground of a person's total and permanent incapacity to perform her usual work, arising during the period of a year's parental leave taken in the form of a reduction in the working day and pay, as a result of an occupational disease contracted in carrying out the work she was employed to perform for the undertaking that gave the parental leave and revealing itself during that leave period, having regard to the fact that Social Security covers that benefit in subrogation to the obligations of the undertaking, by reason of the relationship of compulsory insurance against the risks of accidents at work and occupational diseases? |
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1.

Is Clause 2(6) of Annex 1 to Council Directive 96/34/EC (1) of 3 June 1996 to be interpreted as meaning that observance of rights in the process of being acquired extends to a pension for life on the ground of a person's total and permanent incapacity to perform her usual work, arising during the period of a year's parental leave taken in the form of a reduction in the working day and pay, as a result of an occupational disease contracted in carrying out the work she was employed to perform for the undertaking that gave the parental leave and revealing itself during that leave period, having regard to the fact that Social Security covers that benefit in subrogation to the obligations of the undertaking, by reason of the relationship of compulsory insurance against the risks of accidents at work and occupational diseases?

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| 2. | If the reply to the first question is affirmative, is that provision to be interpreted as meaning that the guarantee of protection which it provides is infringed by a provision of domestic law that, with the object of fixing the amount of pension for total permanent invalidity on account of occupational disease, takes into consideration the pay received by the worker concerned and the contributions actually made on the basis of that pay in the 12 months before the operative event, during the greater part of which the worker made use of that leave with a reduction in her working day, pay and contributions, but does not provide any correcting factor making it possible to ensure that the object of that provision of Community law is achieved? |
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2.

If the reply to the first question is affirmative, is that provision to be interpreted as meaning that the guarantee of protection which it provides is infringed by a provision of domestic law that, with the object of fixing the amount of pension for total permanent invalidity on account of occupational disease, takes into consideration the pay received by the worker concerned and the contributions actually made on the basis of that pay in the 12 months before the operative event, during the greater part of which the worker made use of that leave with a reduction in her working day, pay and contributions, but does not provide any correcting factor making it possible to ensure that the object of that provision of Community law is achieved?

| 3. | At all events, and whatever the tenor of the answer to the foregoing questions, are Clauses 2(8) and 4(2) of Annex I to that directive to be interpreted as meaning that the obligations and measures that they prescribe are incompatible with the application of a rule of calculation such as that described? |
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3.

At all events, and whatever the tenor of the answer to the foregoing questions, are Clauses 2(8) and 4(2) of Annex I to that directive to be interpreted as meaning that the obligations and measures that they prescribe are incompatible with the application of a rule of calculation such as that described?

| 4. | Irrespective of the replies to the foregoing questions, is Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, in conjunction with Article 5 thereof, to be interpreted as meaning that it is contrary to the principle of equal treatment to apply a calculation formula such as that referred to, given that, according to the statistics, female workers form the overwhelming majority of workers availing themselves of the form of parental leave described? |
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4.

Irrespective of the replies to the foregoing questions, is Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, in conjunction with Article 5 thereof, to be interpreted as meaning that it is contrary to the principle of equal treatment to apply a calculation formula such as that referred to, given that, according to the statistics, female workers form the overwhelming majority of workers availing themselves of the form of parental leave described?

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(1)  Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, (OJ L 145, 19.6.1996, p. 4).

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