Opinion of the Advocate General — ECLI:EU:C:2020:550
Date: 2020-07-09
Language of the case: French
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: France

Anonymised version 
Translation  C-463/19 — 1 
Case C-463/19 
Request for a preliminary ruling 
Date lodged: 
18 June 2019 
Referring court: 
Conseil de prud’hommes de Metz (France) 
Date of the decision to refer: 
15 May 2019 
Applicant: 
Syndicat CFTC du personnel de la Caisse primaire d’assurance 
maladie de la Moselle 
Defendant: 
Caisse primaire d’assurance maladie de Moselle 
  
[OMISSIS] [OMISSIS] 
JUDGMENT of 15 May 2019 
Syndicat CFTC DU PERSONNEL DE LA 
CAISSE PRIMAIRE D’ASSURANCE 
MALADIE DE LA MOSELLE 
[OMISSIS] 
57000 METZ 
[OMISSIS] 
APPLICANT 
LA CAISSE PRIMAIRE D’ASSURANCE 
MALADIE DE MOSELLE 
[OMISSIS] 
57751 METZ [OMISSIS] 
[OMISSIS] 
DEFENDANT 
EN 
REQUEST FOR A PRELIMINARY RULING OF 15. 5. 2019 — CASE C-463/19 
 
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MISSION NATIONALE DE CONTROLE ET 
D’AUDIT DES ORGANISMES DE 
SECURITE SOCIALE 
[OMISSIS] 
54035 NANCY [OMISSIS] 
not present, not represented, 
INTERVENER 
[FORMATION DE JUGEMENT] [OMISSIS] 
[OMISSIS] 
PROCEDURE 
- Date of application: 27 December 2017 
[OMISSIS] 
Decision [OMISSIS] of 15 ΜAY 2019 
  
[Or. 2] By application initiating proceedings of 27 December 2017 [OMISSIS], 
the CFTC [Confédération Française des Travailleurs Chrétiens (French 
Confederation of Christian Workers)] of the Caisse Primaire d’Assurance Maladie 
de la Moselle [local sickness insurance fund, Moselle, the ‘CPAM’] brought legal 
proceedings before [le Conseil de Prud’hommes de Metz (Labour Tribunal, Metz) 
(‘the Labour Court’)] against the CPAM [OMISSIS]. 
The syndicat CFTC of the Caisse Primaire d’Assurance Maladie de la 
Moselle requests that the Labour Court: 
[OMISSIS] 
DECLARE that the refusal of the CPAM to grant Mr CY the leave provided for in 
Article 46 of the CCN [Convention Collective Nationale de Travail du Personnel 
des Organismes de Sécurité Sociale (National Collective Labour Agreement for 
Personnel of Social Security Organisations)] is discriminatory,  
ORDER the CPAM to pay Mr CY compensation in the amount of EUR 4 661.83, 
ORDER the CPAM to provide for a salary catch-up in respect of the 2016 
financial year in the same way as that applied to employees of the organisation 
benefitting from Article 46 of the CCN. 
If necessary, pursuant to Article 267 TFEU, 
REFER the following question to the CJEU for a preliminary ruling: 
‘Should Directive 2006/54/EC, read in conjunction with Articles 8 and 157 TFEU, 
the general EU law principles of equal treatment and of the prohibition of 
discrimination, and Articles 20, 21(1) and 23 of the Charter of Fundamental 
Rights of the European Union, be interpreted as meaning that the provisions of 
Article 46 of the CCN, which grant female employees of social security 
organisations raising children on their own three months leave with half pay, one 
SYNDICAT CFTC DU PERSONNEL DE LA CAISSE PRIMAIRE D’ASSURANCE MALADIE DE LA MOSELLE 
 
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and a half months leave with full pay or unpaid leave of up to a year after 
maternity leave, are excluded from the scope of application of that directive?’ 
[OMISSIS] 
ORDER the CPAM to pay the CFTC [a procedural indemnity] and [OMISSIS] to 
bear the costs. 
The CPAM contends that the Labour Court should: 
Principally: 
DECLARE that all of the claims made against the CPAM by the CFTC are 
inadmissible. 
In the alternative: 
DECLARE that the refusal of the CPAM to grant Mr CY the leave provided for in 
Article 46 of the CCN is by no means discriminatory. 
REJECT the claims made on behalf of Mr CY by the CFTC against the CPAM. 
REJECT the request made by the CFTC to refer a question to the Court of Justice 
of the European Union for a preliminary ruling. 
REJECT the claim [for a procedural indemnity] made by the CFTC. 
ORDER the CFTC to pay the CPAM [a procedural indemnity]. 
ORDER the CFTC to bear all the costs. 
[OMISSIS] 
[OMISSIS] [stages of the proceedings] 
FACTS OF THE CASE, CLAIMS AND ARGUMENTS OF THE PARTIES 
The applicant states: 
The CFTC requests that the Labour Court find the refusal of the CPAM to allow 
Mr CY to benefit from the provisions of Article 46 of the CCN, which provides 
for educational leave for [care of a] child, be declared unenforceable because it is 
discriminatory, and order the CPAM to allow him to benefit from those 
provisions. The [CFTC] invokes Article L.1134-2 of the Code du Travail (Labour 
Code) in support of its argument which provides: 
‘Trade union organisations representative of workers at the national, 
departmental or local authority level in overseas departments, in Saint 
REQUEST FOR A PRELIMINARY RULING OF 15. 5. 2019 — CASE C-463/19 
 
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Barthémely and Saint Martin, or within the company may initiate proceedings 
against all actions resulting from the application of the provisions of Chapter II. 
They may initiate such proceedings on behalf of an applicant for a job, internship 
or for a period of training within a company, or an employee, in accordance with 
the conditions laid down in Article L. 1134-1. It is not necessary for the trade 
union organisation to justify its authority to act on behalf of the interested party. 
It is sufficient for the interested party to have been informed of the proceedings in 
writing and not to have raised any objections against them within a period of 15 
days from the day on which he was informed of the trade union organisation’s 
intention to initiate proceedings. 
The interested party may always intervene in the proceedings initiated by the 
trade union organisation.’ 
Mr CY is an employee of the CPAM carrying out the duties of a benefits inspector 
in the employee or executive category, level 03S of the CCN. He is the father of a 
little girl [Or. 4] born on 5 April 2016 and was not granted educational leave 
under Article 46 on the ground that such an entitlement is reserved for women. 
In response to the request made by the Syndicat CFTC to extend the wording of 
that provision to include male employees, the management of the CPAM points 
out that: ‘the literal application of Article 46 implies that contractual maternity 
leave is granted only to the mother (the word “employee” is in the feminine form). 
The father is not therefore entitled to maternity leave. That article is not 
discriminatory, in so far as Article 46 is ancillary to Article 45 which is granted 
only to women. Since a man is not entitled to benefit from Article 45, he cannot 
benefit from Article 46’. 
The CFTC contends that such an answer is based on a misinterpretation of the 
texts and is discriminatory on grounds of sex, which is prohibited both by EU law 
and French labour law.  
It is therefore incorrect to claim that Article 46 is ancillary to Article 45. 
Article 46 is not dependant on any physiological considerations, unlike Article 45 
which refers to leave related to pregnancy and maternity and which provides for 
an entitlement to 16 weeks’ statutory leave.  
The application of Article 46 of the CCN by the CPAM amounts to double 
discrimination: 
- With regard to employees: 
Since male and female employees, fathers or mothers, are equally responsible for 
educating their children. Male employees of the CPAM should therefore be 
entitled to the same benefits (being allowed to spend time educating their child). 
SYNDICAT CFTC DU PERSONNEL DE LA CAISSE PRIMAIRE D’ASSURANCE MALADIE DE LA MOSELLE 
 
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- With regard to the child: 
Article 46 refers to the legitimate or natural child whereas Article 46a refers to the 
adoptive child. However, the two texts treat the child differently according to their 
ties of filiation: 
The adoptive child may benefit from the presence of their father or mother, 
whereas the legitimate or natural child may not benefit from the presence of their 
father. 
If only the father works within the institution, depending on whether the child is 
adopted or not, only the father of the adoptive child may benefit from educational 
leave. 
The defendant contends: 
[OMISSIS] 
[OMISSIS] [Or. 5] 
[OMISSIS] [invoking grounds for inadmissibility of national law] The Labour 
Court has therefore been asked, principally, to declare that all of the claims made 
by the CFTC are inadmissible. 
In the alternative, the Labour Court is asked to declare that Article 46, which 
provides for three months leave with half pay, one and a half months leave with 
full pay or unpaid leave of up to a year and which the CFTC intends to claim on 
behalf of Mr CY, is undoubtedly integrated into contractual provisions relating to 
maternity. Article 46, subparagraph 1, of the CCN expressly refers to the leave 
provided for in the previous article of that agreement, namely Article 45, which 
concerns statutory maternity leave. 
With regard to the judgment of 21 September 2017 of the Chambre Sociale de la 
Cour de Cassation (Court of Cassation, Social Division), it is established that a 
male employee is not entitled to benefit from the provisions of Article 46 of the 
CCN. 
In addition, it is apparent that the arguments of the CFTC concerning cases of 
alleged discrimination on the basis of the ties of filiation of the child — depending 
on whether the child is a natural or adoptive child — are ineffective in the case in 
the main proceedings because the Labour Court is only called upon to hear a case 
of alleged discrimination between male and female employees, with regard to the 
application of Article 46 CCN, and not a case of discrimination involving a child 
on the basis of his/her ties of filiation, with regard to the application of Article 46 
and 46a CCN. 
So far as concerns the question referred for a preliminary ruling, the CFTC is 
clearly not seeking an interpretation of the aforementioned European directive, the 
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terms of which are, moreover, perfectly clear, but merely seeking a declaration of 
invalidity, at supranational level, of the provisions of Article 46 CCN, as applied 
by the Chambre Sociale de la Cour de Cassation, with regard to the general EU 
law principles of equal treatment and of the prohibition of discrimination. 
The CJEU has had the opportunity to point out, on several occasions, that it does 
not have the jurisdiction to examine the compatibility of national law, including 
the case-law of the Member States, with EU law. Likewise, the CJEU is not 
competent to interpret national law and has observed that it is for the national 
court to interpret national law in the light of EU law. 
Accordingly, the Labour Court cannot uphold the request submitted by CFTC, 
before issuing a ruling, that a question be referred to the CJEU for a preliminary 
ruling. [Or. 6]  
ACCORDINGLY, THE LABOUR COURT: 
Having regard to the documents relating to the procedure, supporting documents 
and annexes submitted by the parties, Having regard to the application initiating 
proceedings submitted by the applicant dated 21 December 2017, 
Having regard to the forms of order sought by the CFTC of 18 June 2018 
[OMISSIS] Having regard to the forms of order sought by the CPAM of 
8 October 2018, [OMISSIS] 
To which it refers for a more detailed statement of the facts and pleas in law 
advanced by the parties in accordance with Article 455 of the Code de procédure 
civile (Civil Procedure Code). 
Admissibility 
[OMISSIS] 
[OMISSIS] [consideration of admissibility] 
Consequently, the Labour Court considers that the procedure is in line with the 
provisions of Article L. 1134-2 of the Code du Travail [Labour Code] and finds 
the application submitted by the CFTC is admissible. 
Consideration of the question referred 
Having regard to the decision of the Cour de cassation of 21 September 2017, 
which, by decision containing a statement of principle, declared that the objective 
of the leave provided for in Article 46 CCN is ‘to grant supplementary maternity 
leave’. 
Having regard to the provisions of Article 2 and Article 3(2) of the Treaty 
establishing the European Community and the case-law of the Court of Justice of 
the European Union according to which equality between men and women is 
SYNDICAT CFTC DU PERSONNEL DE LA CAISSE PRIMAIRE D’ASSURANCE MALADIE DE LA MOSELLE 
 
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proclaimed as a ‘task’ and mission of the Community imposing the positive 
obligation to promote such equality in all its activities. [Or. 7]  
Having regard to Articles 21 and 23 of the Charter of Fundamental Rights of the 
European Union which also prohibit any discrimination on grounds of sex and 
enshrine the right to equal treatment between men and women in all areas, 
including employment, work and pay. 
Having regard to Article 267 TFEU which provides that ‘the Court of Justice of 
the European Union is to have jurisdiction to give preliminary rulings concerning: 
- the interpretation of the Treaties; 
- the validity and interpretation of acts of the institutions, bodies, offices or 
agencies of the Union; 
Where such a question is raised before any court or tribunal of a Member State, 
that court or tribunal may, if it considers that a decision on the question is 
necessary to enable it to give judgment, request the Court to give a ruling 
thereon.’ 
In the light of the discussions and documents put before it,  
The Labour Court decides, before issuing a ruling, to refer the following question 
to the CJEU for a preliminary ruling: 
‘Should Directive 2006/54/EC, read in conjunction with Articles 8 and 157 
TFEU, the general EU law principles of equal treatment and of the 
prohibition of discrimination, and Articles 20, 21(1) and 23 of the Charter of 
Fundamental Rights of the European Union, be interpreted as meaning that 
the provisions of Article 46 of the Convention collective nationale française 
des organismes de sécurité sociale, which grant female employees of social 
security organisations raising children on their own three months leave with 
half pay, one and a half months leave with full pay or unpaid leave of up to a 
year after maternity leave, are excluded from the scope of application of that 
directive?’ 
Consequently, the Labour Court decides to stay the proceedings as to the 
substantive issues of the action brought by the CFTC. 
ON THOSE GROUNDS 
The bureau de jugement du Conseil des Prud’hommes de Metz, Section 
Activités Diverses (Adjudication Panel of the Labour Tribunal, Metz, 
Miscellaneous Activities Chamber), giving judgment in open court in inter 
partes proceedings and before issuing a ruling, after consideration in 
accordance with the law,  
REQUEST FOR A PRELIMINARY RULING OF 15. 5. 2019 — CASE C-463/19 
 
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DECLARES the request brought by the CFTC is admissible, 
UPHOLDS the request of the CFTC to refer a question to the Court of Justice of 
the European Union for a preliminary ruling, [Or. 8] 
Having regard to Article 267 TFEU, 
REFERS the following question to the Court of Justice of the European 
Union for a preliminary ruling: 
‘Should Directive 2006/54/EC, read in conjunction with Articles 8 and 157 
TFEU, the general EU law principles of equal treatment and of the 
prohibition of discrimination, and Articles 20, 21(1) and 23 of the Charter of 
Fundamental Rights of the European Union, be interpreted as meaning that 
the provisions of Article 46 of the Convention collective nationale française 
des organismes de sécurité sociale, which grant female employees of social 
security organisations raising children on their own three months leave with 
half pay, one and a half months leave with full pay or unpaid leave of up to a 
year after maternity leave, are excluded from the scope of application of that 
directive?’ 
Consequently, 
STAYS the proceedings as to the substantive issues pending the decision of the 
Court of Justice of the European Union,  
DECLARES that the proceedings shall be continued at the initiative of the parties 
following the decision of the Court of Justice of the European Union,  
[OMISSIS]