Opinion of the Advocate General — ECLI:EU:C:2005:29
Date: 2005-01-18
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Action for failure to fulfil obligations - successful
Origin: Luxembourg

Summary of the Judgment 1. Actions for failure to fulfil obligations – Period allowed to the Member State in the reasoned opinion – Default subsequently remedied – Interest in pursuing the action (Art. 226 EC) 2. Actions for failure to fulfil obligations – Pre-litigation procedure – Matters put forward in the reply to the reasoned opinion – Not taken into account in the application – No infringement of the right to a fair hearing (Art. 226 EC) 3. Actions for failure to fulfil obligations – Examination of the merits by the Court – Absence of adverse effects of alleged failure – Irrelevant (Art. 226 EC) 4. Social policy – Male and female workers – Access to employment and working conditions – Equal treatment – Directive implementing the framework agreement on parental leave – Interruption of parental leave by another period of leave guaranteed by Community law – Consequent reduction in the period of parental leave – Not permissible (Directive 96/34, Annex, Clause 2(1)) 5. Social policy – Male and female workers – Access to employment and working conditions – Equal treatment – Directive implementing the framework agreement on parental leave – Scope ratione personae – Addition by the Member State of conditions not provided for by the directive – Not permissible (Directive 96/34, Annex, Clause 2(1)) 1. The Commission still has an interest in bringing an action under Article 226 EC even when the alleged infringement has been remedied after the expiry of the period prescribed in the reasoned opinion. (see paras 18-19) 2. A Member State cannot rely on the failure of the Commission to take account of its reply to the reasoned opinion, or on the late transmission of that reply to the General Secretariat of the Commission, in order to justify the plea of inadmissibility which it puts forward against an action. Even assuming that the contentious procedure was opened by a Commission application which took no account of any new matters of fact or law put forward by the Member State concerned in its reply to the reasoned opinion, that State’s right to a fair hearing is not infringed. (see para. 21) 3. The failure to comply with an obligation imposed by a rule of Community law is itself sufficient to constitute a breach, and the fact that such a failure had no adverse effects is irrelevant. Such a situation has no effect on the existence of the alleged failure to fulfil obligations, but merely on its extent. (see para. 35) 4. Clause 2(1) of the framework agreement on parental leave, which is set out in the Annex to Directive 96/34 on the framework agreement concluded by UNICE, CEEP and the ETUC, grants men and women workers an individual right to parental leave of at least three months. That period of leave may not be reduced when it is interrupted by another period of leave which pursues a purpose different from that of parental leave, such as maternity leave. A period of leave guaranteed by Community law cannot affect the right to take another period of leave guaranteed by that law. Thus, a Member State fails to fulfil its obligations under that directive where it provides that the right to maternity leave or adoption leave arising during parental leave replaces the latter which must then come to an end, without its being possible for the parent to defer the portion of the parental leave which he or she was unable to take. (see paras 31, 33, 52, operative part 1) 5. The right to parental leave is granted by Directive 96/34 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC to all parents having a child below a certain age limit. Since that directive provides that entitlement to parental leave is available during a certain period, until the child has reached the age set by the Member State concerned, the fact that the child was born before or after the time-limit laid down for the transposition of that directive is not relevant in this regard. By limiting the grant of the right to parental leave to parents of children born after the date of transposition of that directive or in respect of whom adoption proceedings were initiated after that date, a Member State adds a condition to the right to parental leave which is not authorised by that directive and therefore fails to fulfil its obligations under that directive. (see paras 47-48, 52, operative part 1)