Judgment;Summary — ECLI:EU:C:2019:757
Date: 2019-09-18
Language of the case: Spanish
Court formation: Sixth Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Spain

summary of the subject matter of the dispute and the relevant findings of fact as determined by the referring court or tribunal, or, at least, an account of the facts on which the questions are based’, ‘the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case-law’ and ‘a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of European Union law, and the relationship between those provisions and the national legislation applicable to the main proceedings’. 33 In the present case, it should be noted that, under the first subparagraph of Article 37(6) of the Workers’ Statute, any person who, for reasons of legal custody, takes direct care of a child under the age of 12 years or of a person with a disability who does not carry out a gainful activity is to be entitled to a reduction in his or her hours of work, with a proportionate reduction in salary, of a minimum of one eighth and a maximum of one half of the duration of those hours. 34 In the first place, with regard to the application of Directive 2010/18 in a case such as that in the main proceedings, the referring court considers that that directive constitutes open legislation, which must be supplemented in each Member State, and that the Kingdom of Spain has chosen, in accordance with Article 34(8) and Article 37(6) of the Workers’ Statute, to establish a minimum legal framework which can be improved by means of collective or individual agreements. That court is therefore of the opinion that the right of workers referred to in Article 37(6) of the Workers’ Statute falls within the concept of ‘parental leave’ within the meaning of Directive 2010/18. 35 Given that the national court has thus established a link between that directive and Article 37(6) of the Workers’ Statute, in so far as it concerns Directive 2010/18, the question raised cannot be rejected as inadmissible. 36 In the second place, the referring court states, in essence, that Directive 2010/18 must be interpreted in the light of the principle of equality between women and men and the right to family life, enshrined in Article 23 and Article 33(2) of the Charter. Consequently, in so far as it concerns those provisions of the Charter, the question raised must be declared admissible. 37 In the third place, with regard to Directive 2006/54, the referring court considers that Article 37(6) of the Workers’ Statute introduces indirect discrimination against female workers within the meaning of Article 2(1)(b) of that directive. 38 In this respect, it is important to note that Article 37(6) constitutes a rule that applies indiscriminately to male and female workers, unlike the national legislation at issue in the cases which gave rise to the judgments of 30 September 2010, Roca Álvarez (C‑104/09, EU:C:2010:561) and of 16 July 2015, Maïstrellis (C‑222/14, EU:C:2015:473). 39 However, the referring court does not demonstrate, in the presence of such an indiscriminate rule, what the particular disadvantage suffered, in a case such as that in the main proceedings, by a male worker such as Mr Ortiz Mesonero would be if indirect discrimination on grounds of sex applies to female workers. 40 Consequently, the finding of indirect discrimination against female workers, assuming that it exists, does not appear relevant to the resolution of the dispute in the main proceedings. Consequently, in so far as it concerns Directive 2006/54, the question raised is of a hypothetical nature and must therefore be considered inadmissible. 41 Finally, the national court also refers in its question to Articles 8, 10 and 157 TFEU and Article 3 TEU. 42 However, that court does not specify either the reasons which led it to question the interpretation of those provisions or the link it establishes between those provisions and the national legislation at issue in the dispute submitted to it. Consequently, there is no need to interpret those same provisions. 43 In the light of the foregoing considerations, it must be held that the question referred for a preliminary ruling is admissible in so far as it concerns Directive 2010/18 and Articles 23 and 33(2) of the Charter and is inadmissible in respect of Directive 2006/54, Articles 8, 10 and 157 TFEU and Article 3 TEU. Substance 44 The referring court asks, in essence, whether Directive 2010/18 and Articles 23 and 33(2) of the Charter must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides for a worker’s right, in order to take direct care of minors or dependent family members, to reduce his ordinary hours of work, with a proportional reduction in his salary, without being able, when his usual work system is in shifts with a variable schedule, to benefit from a fixed working schedule while maintaining his ordinary hours of work. 45 In this respect, it should be noted that, under Clause 1(1) of the Framework Agreement on parental leave, the framework agreement lays down minimum requirements designed to facilitate the reconciliation of parental and professional responsibilities for working parents, while respecting national law, collective agreements and/or practice. 46 The only provision of the Framework Agreement on parental leave relating to the adjustment of working time is Clause 6(1) of the Framework Agreement, under which Member States and/or social partners are to take the necessary measures to ensure that workers, when ‘returning from parental leave’, may request changes to their working hours and/or patterns for a set period of time. 47 In this case, Mr. Ortiz Mesonero, whose usual work pattern is shift work with variable hours, wishes to have his working schedule adjusted to allow him to work a fixed schedule. It is not apparent from the decision to refer that he is in a situation of returning from parental leave within the meaning of Clause 6(1) of that framework agreement. 48 In those circumstances, it should be noted that neither Directive 2010/18 nor the Framework Agreement on parental leave contain any provision which would require Member States, in the context of a request for parental leave, to grant the applicant the right to work a fixed working time when his usual pattern of work is shift work with variable hours. 49 With regard to Article 23 and Article 33(2) of the Charter, it is important to recall that, under Article 51(1) of the Charter, the provisions of the Charter are addressed to Member States only when they are implementing Union law. Article 6(1) TEU and Article 51(2) of the Charter provide that the provisions of the Charter do not extend the field of application of Union law beyond the powers of the Union as defined in the Treaties. 50 In that regard, it follows from the Court’s consistent case-law that, where a legal situation does not come within the scope of EU law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction (judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 22, and order of 15 May 2019, Corte dei Conti and Others, C‑789/18 and C‑790/18, not published, EU:C:2019:417, paragraph 28). 51 In the present case, in so far as it is apparent from paragraphs 40, 42 and 48 of this judgment that neither Directive 2010/18 nor any other provision referred to in the preliminary question is applicable to the main proceedings, it does not appear that that dispute concerns national legislation implementing Union law within the meaning of Article 51(1) of the Charter (see, by analogy, order of 15 May 2019, Corte dei Conti and Others, C‑789/18 and C‑790/18, not published, EU:C:2019:417, paragraph 29). 52 Consequently, there is no need to interpret Article 23 and Article 33(2) of the Charter. 53 In the light of the foregoing considerations, the answer to the question raised is that Directive 2010/18 must be interpreted as not applying to national legislation, such as that at issue in the main proceedings, which provides for a worker’s right, in order to take direct care of minors or dependent family members, to reduce his ordinary hours of work, with a proportional reduction in his salary, without being able, when his usual work system is in shifts with a variable schedule, to benefit from a fixed working schedule while maintaining his ordinary hours of work. Costs 54 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Sixth Chamber) hereby rules: Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC must be interpreted as not applying to national legislation, such as that at issue in the main proceedings, which provides for a worker’s right, in order to take direct care of minors or dependent family members, to reduce his ordinary hours of work, with a proportional reduction in his salary, without being able, when his usual work system is in shifts with a variable schedule, to benefit from a fixed working schedule while maintaining his ordinary hours of work. [Signatures] * Language of the case: Spanish.