Opinion of the Advocate General — ECLI:EU:C:2009:306
Date: 2009-05-14
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 1. Social policy – Male and female workers – Access to employment and working conditions – Equal treatment – Directive implementing the framework agreement on parental leave (Council Directive 96/34, as amended by Directive 97/75, Annex, clause 2, point 6) 2. Social policy – Male and female workers – Access to employment and working conditions – Equal treatment – Directive implementing the framework agreement on parental leave (Council Directive 96/34, as amended by Directive 97/75, Annex, Clause 2, points 6 and 7) 1. It is clear from the objectives of the framework agreement on parental leave, which is annexed to Directive 96/34 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, as amended by Directive 97/75, that the concept of ‘[r]ights acquired or in the process of being acquired’ within the meaning of Clause 2.6 of the framework agreement covers all the rights and benefits, whether in cash or in kind, derived directly or indirectly from the employment relationship, which the worker is entitled to claim from the employer at the date on which parental leave starts. Such rights and benefits include all those relating to employment conditions, such as the right of a full-time worker on part-time parental leave to a period of notice in the event of the employer’s unilateral termination of a contract of indefinite duration, the length of which depends on the worker’s length of service in the company and the aim of which is to facilitate the search for a new job. (see paras 43-44) 2. Clause 2.6 and 2.7 of the framework agreement on parental leave, which is annexed to Directive 96/34 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, as amended by Directive 97/75, must be interpreted as precluding, where an employer unilaterally terminates a worker’s full-time employment contract of indefinite duration, without urgent cause or without observing the statutory period of notice, while the worker is on part-time parental leave, the compensation to be paid to the worker from being determined on the basis of the reduced salary being received when the dismissal takes place. In that regard, although Clause 2.7 of the framework agreement on parental leave refers to the Member States and/or to management and labour for the determination of the status of the employment contract or employment relationship during the period of parental leave, including the extent to which the worker may, during that period, continue to acquire rights vis-à-vis the employer, and on the basis of the purpose and structure of the framework agreement, that reference is to be understood without prejudice to Clause 2.6, which states that ‘[r]ights acquired or in the process of being acquired by the worker on the date on which parental leave starts shall be maintained as they stand until the end of parental leave’. That body of rights and benefits would be compromised if, where the statutory period of notice was not observed in the event of dismissal during part-time parental leave, a worker employed on a full-time basis lost the right to have the compensation for dismissal due to him determined on the basis of the salary relating to his employment contract. (see paras 45-46, 56, operative part)