Judgment;Summary — ECLI:EU:C:2019:379
Date: 2019-05-08
Language of the case: French
Court formation: First Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: France

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Translation C-486/18 — 1 
Case C-486/18 
Request for a preliminary ruling 
Date lodged:  
23 July 2018 
Referring court:  
Cour de cassation (France) 
Date of the decision to refer:  
11 July 2018 
Applicant:  
RE 
Defendant:  
Praxair MRC 
  
(…) 
THE FRENCH REPUBLIC 
IN THE NAME OF THE FRENCH PEOPLE 
THE COUR DE CASSATION, CHAMBRE SOCIALE (THE CHAMBER FOR 
SOCIAL MATTERS OF THE COURT OF CASSATION) has given the 
following judgment: 
Ruling on the appeal brought by RE (…) against the judgment delivered on 
14 October 2016 by the cour d’Appel, Toulouse (Court of Appeal, Toulouse) (…) 
in proceedings between RE and Praxair MRC, (…) 
defendant in cassation; 
(…) 
EN 
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On the third plea, having notified the parties in accordance with Article 1015 of 
the Code of Civil Procedure: 
Having regard to Article 267 of the Treaty on the Functioning of the European 
Union; 
1. On 22nd December 1999, RE commenced employment as a sales assistant 
with Material Research, now Praxair MRC, under a full-time, fixed-term contract. 
By addendum of 21 July 2000, her employment contract became a contract of 
indefinite duration with effect from 1 August 2000. She was ultimately 
responsible for the CSD (‘customer service department’). After her first period of 
maternity leave from 4 February 2001 to 19 August 2001, followed by a period of 
child-care leave from 6 September 2001 to 6 September 2003, she took a second 
period of maternity leave from 6 November 2007 to 6 June 2008, followed by a 
period of child-care leave from 1 August 2008, which was supposed to end on 
29 January 2011 in the form of her working hours being reduced by one fifth. On 
6 December 2010 she was made redundant as part of a collective redundancy and 
accepted redeployment leave of nine months. She relinquished the right to a 
reduction in her working hours with effect from 1 January 2011 and left the 
company on 7 September 2011. On 20 September 2011 she brought proceedings 
before the conseil de prud’hommes (Labour Tribunal) contesting her dismissal 
and making several claims, in particular, for the payment of EUR 941,15 in 
respect of outstanding redundancy pay and EUR 1 423,79 euros for outstanding 
redeployment allowance. Both claims were dismissed by decision of the conseil 
de prud’hommes, Toulouse (Labour Tribunal, Toulouse) of 12 September 2013.  
2. By judgment of 14 October 2016, the cour d’appel (Court of Appeal, 
Toulouse) upheld the dismissal of the claims, adopting the reasons given by the 
court of first instance. It stated, as regards the outstanding amount of redundancy 
pay, that RE maintains that, in accordance with EU case law, where an employee 
on part-time parental leave is dismissed, the redundancy payment due to that 
person is not to be calculated on a part-time basis, which is what Praxair MRC in 
fact did when making that payment to her, which is thus inadequate, and the 
company is obliged to pay her an additional amount of EUR 941,15 in this 
respect. However, according to the cour d’appel (Court of Appeal), article 
L. 3123-13 of the code du travail (Labour Code) provides that ‘the compensation 
payment for dismissal and the retirement benefit payable to an employee who has 
worked on both a full-time and part-time basis for the same undertaking shall be 
calculated in proportion to the periods of each of those types of employment 
completed since the employee joined the undertaking’. Under French law there are 
no other statutory provisions or case-law of the Cour de cassation (Court of 
Cassation) which establish any rules that are different to those set out in that 
article. Accordingly, it applies to the calculation of the redundancy payment 
granted to RE, whose claim will therefore be unsuccessful. As regards the claim 
for outstanding redeployment allowance, the cour d’appel (Court of Appeal) 
stated, adopting the same grounds as the court of first instance, that the employee 
also takes issue with Praxair MRC for not using her ordinary full-time pay, as 
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provided for in her employment contract, as the basis for the calculation of the 
redeployment allowance paid to her in September 2011 and claims, in this regard, 
an additional amount of 1423,79 euros, and that she also relies on the same 
European case-law raised regarding the redundancy payment but, according to the 
cour d’appel, there are no other French statutory provisions or case-law laying 
down rules authorising such a calculation and that this claim must also be 
dismissed. 
3. On 14 December 2016, RE appealed against this decision on a point of law. 
She challenged the decision rejecting her claim for outstanding redundancy pay 
and outstanding redeployment allowance for the period 7 March 2011 to 
7 September 2011, on the following grounds: 
1° In accordance with Clause 2.6 of the framework agreement on parental leave, 
concluded on 14 December 1995 and implemented by Council Directive 96/34/EC 
of 3 June 1996, the redundancy payment due to an employee who is on part-time 
parental leave must be determined on the basis of his full-time employment 
contract. In holding that RE’s claim for outstanding redundancy payment had to 
be rejected because, under French law, there are no statutory provisions, other 
than Article L. 3123-13 of the Labour Code, nor any case-law of the Cour de 
cassation (Court of Cassation) which establishes rules different to those laid down 
in that article, the cour d’appel (Court of Appeal) had infringed Clause 2.6 of the 
framework agreement on parental leave concluded on 14 December 1995 and 
implemented by Council Directive 96/34/EC of 3 June 1996. 
2° Similarly, that by holding that RE’s claim for outstanding redeployment 
allowance must be dismissed because there are no statutory provisions or case-
law in French law laying down rules authorising the calculation of redeployment 
allowance on the basis of the full-time employment provided for in the contract of 
an employee who is on part-time parental leave at the time of his dismissal, the 
cour d’appel (Court of Appeal) had infringed Clause 2[.6] of the framework 
agreement on parental leave concluded on 14 December 1995 and implemented 
by Council Directive 96/34/EC of 3 June 1996. 
4. Council Directive 96/34/EC of 3 June 1996 on the framework agreement on 
parental leave concluded by UNICE, CEEP and the ETUC, which applies to the 
present proceedings, had to be transposed by Member States by 6 June 1998. It 
was repealed with effect from 8 March 2012 by Council Directive 2010/18/EU of 
8 March 2010 implementing the revised framework agreement on parental leave 
concluded by BUSINESSEUROPE, UEAPME, CEEP and the ETUC, which 
entered into force on 7 April 2010 and in respect of which the date for 
transposition expired on 8 March 2012. 
5. Clauses 2.4, 2.5, 2.6 and 2.7 of the framework agreement on parental leave 
provide as follows:  
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‘4. In order to ensure that workers can exercise their right to parental leave, 
Member States and/or management and labour shall take the necessary measures 
to protect workers against dismissal on the grounds of an application for, or the 
taking of, parental leave in accordance with national law, collective agreements 
or practices. 
5. At the end of parental leave, workers shall have the right to return to the 
same job or, if that is not possible, to an equivalent or similar job consistent with 
their employment contract or employment relationship. 
6. Rights 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. At the end of parental leave, these rights, including any changes 
arising from national law, collective agreements or practice, shall apply. 
7. Member States and/or management and labour shall define the status of the 
employment contract or employment relationship for the period of parental leave.’ 
6. The Court of Justice of the European Union has ruled (judgment of 
22 October 2009, Meerts, Case C-116/08) that Clause 2.6 and 2.7 of the 
framework agreement on parental leave concluded on 14 December 1995, which 
is annexed to Council Directive 96/34/EC of 3 June 1996 on the framework 
agreement on parental leave concluded by UNICE, CEEP and the ETUC, as 
amended by Council Directive 97/75/EC of 15 December 1997, must be 
interpreted as precluding, where an employer unilaterally terminates a worker’s 
full-time employment contract of indefinite duration, without compelling reason 
or without observing the statutory period of notice, whilst 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. The Court of Justice pointed out in the grounds of that decision that it 
is clear from the objectives of the framework agreement on parental leave, that the 
concept of ‘rights 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 undertaking and the aim of which 
is to facilitate the search for a new job (paragraphs 43 and 44). 
7. Moreover, the Court of Justice has ruled, in relation to a fixed-sum 
‘protective’ award, equal to six months’ salary, to an employee whose 
employment contract was unilaterally terminated by the employer without 
compelling or sufficient reason (judgment of 27 February 2014, Lyreco Belgium, 
Case C-588/12), that on a proper construction of Clause 2.4 of the framework 
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agreement on parental leave concluded on 14 December 1995, which is set out in 
the Annex to Council Directive 96/34/EC of 3 June 1996 on the framework 
agreement concluded by UNICE, CEEP and the ETUC, as amended by Council 
Directive 97/75/EC of 15 December 1997, read in the light both of the objectives 
of that framework agreement and of Clause 2.6 thereof, it is contrary to that 
provision for the fixed-sum protective award payable to a worker on part-time 
parental leave, where the employer unilaterally and without compelling or 
sufficient reason terminates that worker’s full-time contract of indefinite duration, 
to be determined on the basis of the reduced salary earned by that worker at the 
date of the dismissal. The Court pointed out in the grounds for that decision that, 
when a worker employed under a full-time contract of indefinite duration has 
unlawfully been dismissed, as in the main proceedings, during part-time parental 
leave, a fixed-term protective award, such as that provided for by the Belgian 
legislation, must, in order to satisfy the requirements of the framework agreement, 
be determined on the basis of the full-time salary of that worker (paragraph 47). 
8. According to EUR-Lex, no transposing legislation for Council Directive 
96/34/EC of 3 June 1996 has been communicated by France. Nevertheless, as 
regards compensation for dismissal, Article L. 1234-9 of the Labour Code, in the 
version resulting from Law No 2008-596, provides: 
‘An employee with an employment contract of indefinite duration who is dismissed 
after a year’s continuous service with the same employer, shall be entitled, except 
in the case of serious misconduct, to compensation for dismissal. 
The method for calculating that compensation shall be based on the gross 
earnings of the employee prior to the termination of the employment contract.’ 
Article R. 1234-4 of the Labour Code, in the version resulting from Decree 
No 2008-244, is also relevant. It provides:  
‘The salary to be used for calculating compensation dismissal shall be whichever 
of the following is the more beneficial to the employee: 
1. either one twelfth of the pay for the last twelve months prior to dismissal;  
2. or one third of the pay for the last three months. In this case, any annual 
bonus or premium or any bonus or premium of an exceptional nature, paid to the 
employee during that period, shall be taken into account in a proportionate 
manner’. 
Furthermore, article L. 3123-13 of the Labour Code, which applies to the present 
proceedings, … provides: 
‘The compensation payment for dismissal and the retirement benefit payable to an 
employee who has worked on both a full-time and part-time basis for the same 
undertaking shall be calculated in proportion to the periods of each of those types 
of employment completed since the employee joined the undertaking’. 
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It follows, according to the case-law of the Cour de cassation (Court of Cassation) 
that, in order to determine the amount of compensation for dismissal, account 
should be taken of the period of full-time employment and the compensation 
calculated in proportion to the periods of full-time and periods of part-time 
employment (…) 
(…). 
9. As regards the redeployment leave allowance, (…) the payment 
arrangements for redeployment leave are laid down by article R. 1233-32 of the 
Labour Code, in the following terms:  
‘During a period of redeployment leave exceeding the period of notice, an 
employee shall receive a monthly payment from his employer.  
The amount of that payment shall be equivalent to at least 65% of the employee’s 
average gross monthly salary for the twelve months preceding the notification of 
dismissal, subject to the contributions referred to in Article L. 5422-9. 
It may not be less than a monthly salary equivalent to 85% of the product of the 
minimum wage provided for in article L. 3231-2 multiplied by the number of the 
working hours agreed for the undertaking.  
Nor may it be less than 85% of the guaranteed amount of remuneration paid by 
the employer in accordance with the provisions of article 32 of Law No. 2000-37 
of 19 January 2000 on the negotiated reduction in working hours. 
Each month, the employer shall give the employee a payslip specifying the amount 
and method of calculation of that payment’. 
10. The question therefore arises as to whether Clauses 2.4 and 2.6 of Council 
Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave, 
concluded by UNICE, CEEP and the ETUC, are to be interpreted as precluding 
the application to an employee on part-time parental leave at the time of his 
dismissal of a provision of domestic law, such as Article L. 3123-13 of the Labour 
Code, applicable at the material time, according to which ‘The compensation 
payment for dismissal and the retirement benefit payable to an employee who has 
worked on both a full-time and part-time basis for the same undertaking shall be 
calculated in proportion to the periods of each of those types of employment 
completed since the employee joined the undertaking’. 
11. The question also arises as to whether Clauses 2.4 and 2.6 of Council 
Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave 
concluded by UNICE, CEEP and the ETUC are to be interpreted as precluding the 
application to an employee who is on part-time parental leave at the time of his 
dismissal of a provision of domestic law, such as Article R. 1233-32 of the Labour 
Code, according to which, during a period of redeployment leave which exceeds 
the notice period, an employer is to make a monthly payment to the employee 
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which is at least equivalent to 65% of the employee’s average gross monthly 
salary for the twelve months preceding the notification of dismissal, subject to the 
contributions referred to in Article L. 54222-9. 
12. Indeed, it is not clear whether Clause 2.6 of the aforementioned directive is 
applicable to redeployment leave allowance, which is paid after the dismissal of 
the employee. Nevertheless, the Court of Justice stated in the grounds of the 
aforementioned Meerts judgment that the rights and benefits 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, 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 (paragraph 44). 
13. If the Court of Justice were to consider that the answer to either of the 
preceding two questions is in the affirmative, then, as directives do not have direct 
effect in proceedings between private individuals, the Cour de cassation (Court of 
Cassation) would be obliged to consider national law as a whole in order to 
achieve an interpretation which is in conformity with EU law (judgment of 
16 July 2009, Mono Car Styling, Case C-12/08). However, such an interpretation 
of Article L. 3123-13 of the Labour Code, in the light of directive 96/34, may 
result in an interpretation contra legem, which is not permissible. Moreover, 
although the Cour de cassation (Court of Cassation) has held (…), as regards 
Article R. 1234-4 of the Labour Code, which is drafted in similar terms to Article 
R. 1233-32 of the Code, that, having regard to the principle of non-discrimination 
on grounds of health, the relevant salary to be taken into consideration in 
calculating the statutory compensation for dismissal or that provided for by 
collective agreement is, depending on the one which is the more beneficial to the 
employee, either that paid during the twelve months or that paid during the three 
months prior to the absence from work due to sickness, it is uncertain whether it is 
possible to interpret Article R. 1233-32 of the Labour Code in a manner that is 
consistent with Clauses 2.4 and 2.6 of Directive 96/34. 
14. Furthermore, Article 157 of the Treaty on the Functioning of the European 
Union applies to the present proceedings, insofar as, pursuant to the second 
paragraph thereof, pay means the ordinary basic or minimum wage or salary and 
any other consideration, whether in cash or in kind, which the worker receives 
directly or indirectly, in respect of his employment, from his employer. The Court 
has consistently held (in particular, the judgment of 17 May 1990, Barber, Case 
C-262/88), that the compensation granted to a worker in connection with his 
redundancy constitutes a form of pay to which the worker is entitled in respect of 
his employment, which is paid to him upon termination of the employment 
relationship, which makes it possible to facilitate his adjustment to the new 
circumstances resulting from the loss of his employment and which provides him 
with a source of income during the period in which he is seeking new employment 
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and that it follows that compensation granted to a worker in connection with his 
redundancy falls within the concept of pay for the purposes of Article 157 of the 
Treaty on the Functioning of the European Union.  
15. The Court of Justice has held that Article 157 has direct effect (judgment of 
8 April 1976, Defrenne II, Case 43/75, ECR p. 455). It prohibits both direct and 
indirect discrimination (judgment of 13 July 1989, Rinner-Kühn, Case 171/88, 
ECR p. 2743, and 13 December 1989, Ruzius-Wilbrink, Case C-102/88, ECR 
p. 4311). (…) Moreover, the Court of Justice, in a judgment of 20 June 2013 
concerning parental leave, has previously found there to be indirect discrimination 
in this area (Nazezda Riezniece, Case C-7/12), observing that, according to the 
Court’s established case law, indirect discrimination arises where a national 
measure, albeit formulated in neutral terms, works to the disadvantage of far more 
women than men (paragraph 39).  
16. Furthermore, the Court of Justice has held, in the aforementioned Meerts 
judgment, that the framework agreement on parental leave is in line with the 
fundamental objectives enshrined in paragraph 16 of the Community Charter of 
the Fundamental Social Rights of Workers on equal treatment for men and 
women, to which the framework agreement refers and which is also mentioned in 
Article 136 of the EC Treaty, objectives which are associated with the 
improvement of living and working conditions and with the existence of proper 
social protection for workers, in that case, those who have applied for or taken 
parental leave (paragraph 37). It has also ruled (judgment of 7 September 2017, 
H. v Land Berlin, Case C-174/16) that the principle of equal treatment between 
men and women, in particular, in matters of employment, occupation and pay, and 
the right to parental leave in order to balance family and working life, are 
enshrined in Articles 23 and 33(2) of the Charter of Fundamental Rights of the 
European Union (paragraph 31). 
17. Nevertheless, as regards the provisions of article L. 3123-13 of the Labour 
Code, the fact cannot be overlooked that there are objective factors justifying 
indirect discrimination insofar as, in accordance with Clauses 4.1 and 4.2 of the 
framework agreement on part-time work annexed to Council Directive 97/81/EC 
of 15 December 1997 concerning part-time work, concluded by UNICE, CEEP 
and the ETUC, concerning employment conditions, part-time workers are not to 
be treated in a less favourable manner than comparable full-time workers solely 
because they work part-time unless different treatment is justified on objective 
grounds (paragraph 1) and, where appropriate, the principle of pro rata temporis is 
to apply. Article L. 3123 of the Labour Code transposes into French law the 
principle of proportionate allocation, with the aim of ensuring equal treatment 
between full-time and part-time workers. Nevertheless, in its judgment in Meerts, 
the Court of Justice held that, even though, whilst on part-time parental leave, a 
worker employed under a full-time contract does not work the same number of 
hours as an employee working full-time, that does not mean that the two workers 
are in a different position in relation to the original employment contract with 
their employer and that the full-time worker, whilst on part-time parental leave, 
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continues to acquire years of service in the undertaking, which are taken into 
account in calculating the statutory period of notice in the event of dismissal as if 
he had not reduced his working hours (paragraphs 51 and 52). Furthermore, it 
stated that, the period during which a full-time worker is on part-time parental 
leave is of limited duration and that in the two cases compared by the government 
concerned, the unilateral termination by the employer would relate to a full-time 
employment contract (paragraphs 54 and 55). 
18. The question therefore arises as to whether Article 157 of the Treaty on the 
Functioning of the European Union must be interpreted as precluding provisions 
of national law, such as Article L. 3123-13 of the Labour Code, applicable at the 
material time, and article R. 1233-32 of that Code, insofar as a far greater number 
of women than men choose to take part-time parental leave and the indirect 
discrimination that results therefrom as regards the receipt of a redundancy pay 
and redeployment leave allowance which are less than those received by 
employees who have not taken part-time parental leave, is not justified by 
objective factors unrelated to any form of discrimination. 
ON THOSE GROUNDS: 
REFERS the following questions to the Court of Justice of the European Union: 
(1) Are Clauses 2.4 and 2.6 of the framework agreement on parental leave, 
annexed to Council Directive 96/34/EC of 3 June 1996 concerning the framework 
agreement on parental leave concluded by UNICE, CEEP and the ETUC, to be 
interpreted as precluding the application to an employee who is on part-time 
parental leave at the time of his dismissal of a provision of domestic law, such as 
Article L. 3123-13 of the Labour Code, applicable at the material time, under 
which ‘the compensation payment for dismissal and retirement benefit payable to 
an employee who has worked on both a full-time and part-time basis for the same 
undertaking shall be calculated in proportion to the periods of each of those types 
of employment completed since the employee joined the undertaking’?  
(2) Are Clauses 2.4 and 2.6 of the framework agreement, annexed to Council 
Directive 96/34/EC of 3 June 1996 concerning the framework agreement on 
parental leave concluded by UNICE, CEEP and the ETUC, to be interpreted as 
precluding the application to an employee who is on part-time parental leave at 
the time of his dismissal of a provision of domestic law, such as Article R. 1233-
32 of the Labour Code, under which, during a period of redeployment leave which 
exceeds the notice period, the employee is to receive a monthly payment from the 
employer of an amount equivalent to at least 65% of the employee’s average gross 
monthly pay during the twelve months preceding the notice of dismissal, subject 
to the contributions referred to in Article L. 5422-9?  
(3) If the answer to either of the preceding questions is in the affirmative, is 
Article 157 of the Treaty on the Functioning of the European Union to be 
interpreted as precluding provisions of national law, such as Article L. 3123-13 of 
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the Labour Code, applicable at the material time, and Article R. 1233-32 of that 
Code, insofar as a far greater number of women than men choose to take part-time 
parental leave and the indirect discrimination which results therefrom as regards 
the receipt of redundancy pay and redeployment leave allowance, which are less 
than those received by employees who have not taken part-time parental leave, is 
not justified by objective factors unrelated to any form of discrimination?; 
STAYS the proceedings pending a preliminary ruling by the Court of Justice […]