Opinion of the Advocate General — ECLI:EU:C:2018:195
Date: 2018-03-20
Language of the case: Romanian
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary — Judgment of the Court (Grand Chamber), 4 October 2018 Social policy — Protection of the safety and health of workers — Organisation of working time — Right to paid annual leave — National legislation which, for the purpose of determining that right, does not treat the amount of time spent by a worker on parental leave during a reference period as a period of actual work — Lawfulness (European Parliament and Council Directive 2003/88, Art. 7; Council Directive 2010/18, Annex, Clause 5, point 3) Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time is to be interpreted as not precluding a provision of national law, such as the provision at issue in the main proceedings, which, for the purpose of determining a worker’s entitlement to paid annual leave, as guaranteed by that article for a worker in respect of a given reference period, does not treat the amount of time spent by that worker on parental leave during that reference period as a period of actual work. It should be noted, first of all, that incapacity for work owing to sickness is, as a rule, not foreseeable (judgment 20 January 2009, Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 51) and beyond the worker’s control (see, to that effect, judgment of 29 November 2017, King, C‑214/16, EU:C:2017:914, paragraph 49). On the other hand, where a worker takes parental leave, that is not unforeseeable and, in most cases, is a reflection of the worker’s wish to take care of his or her child (see, to that effect, judgment of 20 September 2007, Kiiski, C‑116/06, EU:C:2007:536, paragraph 35). Next, inasmuch as a worker on parental leave is not subject to physical or psychological constraints caused by an illness, he is in a situation different from that resulting from an inability to work due to his state of health (see, by analogy, judgment of 8 November 2012, Heimann and Toltschin, C‑229/11 and C‑230/11, EU:C:2012:693, paragraph 29). The situation of a worker on parental leave is equally different to that of a worker who has exercised her right to maternity leave. Maternity leave is intended, first, to protect a woman’s biological condition during and after pregnancy and, second, to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by ensuring that the relationship is not disturbed by the need to perform multiple tasks which would result if the woman continued to work at the same time (see, to that effect, judgments of 18 March 2004, Merino Gómez, C‑342/01, EU:C:2004:160, paragraph 32, and of 20 September 2007, Kiiski, C‑116/06, EU:C:2007:536, paragraph 46). Lastly, while, admittedly, a worker on parental leave remains, during that period, a worker for the purposes of EU law (judgment 20 September 2007, Kiiski, C‑116/06, EU:C:2007:536, paragraph 32), the fact nonetheless remains that where, as in the present case, such a worker’s employment relationship is suspended pursuant to national law, as permitted by Clause 5(3) of the Framework Agreement on parental leave, the reciprocal obligations of the employer and the worker as regards work and salary are correspondingly suspended temporarily, in particular the obligation on the latter to perform the duties required of him or her in connection with that relationship (see, by analogy, judgment of 8 November 2012, Heimann and Toltschin, C‑229/11 and C‑230/11, EU:C:2012:693, paragraph 28). (see paras 32-35, 38, operative part)