Opinion of the Advocate General — ECLI:EU:C:2013:89
Date: 2013-02-21
Language of the case: Finnish
Subject matter: Approximation of laws;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Finland

Summary — Judgment of the Court (Third Chamber), 13 February 2014 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of the relevant elements of EU law — Reformulation of the questions (Art. 267 TFEU) 2. Social policy — Male and female workers — Framework agreement on parental leave concluded by UNICE, CEEP and the ETUC — Directive 96/34 — Protection of the safety and health of workers — Pregnant workers and workers who have recently given birth or are breastfeeding — Directive 92/85 — Interruption of a period of unpaid parental leave by maternity leave within the meaning of Directive 92/85 — Collective agreement providing for the maintenance of payment during maternity leave subject to conditions — Maternity leave not preceded by a minimum period of resumption of work — Refusal to pay a salary during the maternity leave — Undermining the effectiveness of Directive 96/34 — Unlawful (Council Directive 92/85, Art. 11(2) and (3), and 96/34) 1. See the text of the decision. (see paras 32, 33) 2. Directive 96/34 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC must be interpreted as precluding a provision of national law, provided for in a collective agreement, pursuant to which a pregnant worker who interrupts a period of unpaid parental leave within the meaning of that directive to take, with immediate effect, a maternity leave within the meaning of Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding does not benefit from the maintenance of the remuneration to which she would have been entitled had that period of maternity leave been preceded by a minimum period of resumption of work. Firstly, although Article 11(2) and (3) of Directive 92/85 does not entail an obligation to maintain in full the remuneration during the maternity leave, that directive does not in any way prevent the Member States or, where appropriate, management and labour from providing that a pregnant worker should continue to receive all the pay components to which she was entitled before her pregnancy and maternity leave. The methods of application of a system relating to the remuneration due to a worker during a period of maternity leave must be compatible with the provisions of EU law, including those relating to parental leave. Secondly, the choice of a worker to exercise her right to parental leave should not affect the conditions on which she may exercise her right to take a different form of leave, in this case maternity leave. A condition relating to a minimum period of resumption of work undermines the effectiveness of Directive 96/34, since it has the effect of dissuading a worker from deciding to exercise her right to parental leave, having regard to the effect which that decision could have on a period of maternity leave which interrupts that parental leave, such as the loss of part of her remuneration. (see paras 36, 37, 47, 48, 51, 52, operative part)