Opinion of the Advocate General — ECLI:EU:C:2008:688
Date: 2008-12-04
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

summary: first, clause 2(6) of the framework agreement on parental leave attached to Directive 96/34 does not apply to matters of social security; and secondly, clause 2(8) of the framework agreement on parental leave cannot be relied upon against the public authorities of a Member State before a national court. 36. It is therefore unnecessary to answer the first question. The third and fifth questions 37. By its third question, the referring court asks whether Community law is compatible with national legislation which, during the period of reduction in the working day by reason of parental leave, reduces the amount of the invalidity pension to be paid and reduces the accrual and consolidation of future benefits in proportion to the reduction in working hours and in salary. 38. The jurisdiction of the Court is confined to considering provisions of Community law only, while it is for national courts to assess the scope of national provisions and the manner in which they must be applied. (27) I therefore understand the national court to be asking whether national legislation such as that at issue in the main proceedings is compatible with Community law. 39. By its fifth question, the referring court asks whether the reduction in the grant and accrual of social security entitlements during the period of parental leave (a) constitutes direct or indirect discrimination contrary to the provisions of Directive 79/7 and (b) is contrary to the principle of equality and non-discrimination between men and women, to the extent that that principle applies not only to conditions of employment but also to social protection of workers. 40. Both questions essentially ask whether legislation under which an invalidity benefit for a person in part-time employment is calculated pro rata temporis on the basis of the time actually spent at work is compatible with the Community law prohibition on discrimination between women and men, when the reason for the reduction in working time is a period of parental leave. 41. If the provisions at issue grant the right to parental leave to both women and men and if the consequences of the exercise of that right are the same there can be no question of direct discrimination. The Spanish legislation as described in the order for reference, in particular Article 37(5) of the Workers’ Statute, appears to satisfy those requirements. The system that it sets out does not therefore discriminate directly on grounds of sex. 42. As regards indirect discrimination, it is settled case-law that national provisions discriminate indirectly against women where, although worded in neutral terms, they work to the disadvantage of a much higher percentage of women than men, unless that difference in treatment is justified by objective factors unrelated to any discrimination on grounds of sex. (28) 43. A useful parallel can be drawn with the facts that gave rise to Grau-Hupka. (29) Mrs Grau-Hupka claimed that insufficient account had been taken, for the purposes of calculating her retirement pension, of the period which she had spent bringing up children. The referring court started from the assumption that more women than men spend a period of time at home to raise children, and that as a result more women than men see their pension ‘reduced’ in application of the relevant national rules. It suggested that, where such a ‘reduced’ pension is regarded as income from a person’s main occupation, thus allowing his or her employer to pay him a lower remuneration in respect of his or her part-time employment, there is indirect discrimination with respect to such remuneration. (30) 44. In his Opinion, Advocate General Jacobs refuted that suggestion. While Mrs Grau-Hupka’s total income was less, that was due to the ‘reduction’ of her pension, not to any inequality in her pay. As to the suggestion that the reduction of her pension was not in accordance with the Community’s equal treatment rules, Advocate General Jacobs considered that there was clearly no discrimination in her pension award that was incompatible with the provisions of Directive 79/7. (31) 45. The Court agreed, holding that Directive 79/7 in no way obliges the Member States to grant advantages in respect of old-age pension schemes to persons who have brought up children or to provide benefit entitlements where employment has been interrupted in order to bring up children. It continued: ‘Since Community law on equal treatment in matters of social security does not oblige Member States to take into account in calculating the statutory pension years spent bringing up children, it is not possible to regard as incompatible with the principle of equal pay for men and women, which is laid down in Article [141 EC] and in the equal pay directive, the possibility of giving pay lower than the normal rate to a person who is in receipt of a pension and who thus enjoys social security, but whose pension has been reduced by loss of earnings as a result of time spent bringing up a child’. (32) 46. I see no relevant difference between retirement pensions and invalidity pensions that would justify a different approach as regards applying the pro rata temporis principle to calculating invalidity pensions. 47. Subsequent case-law does not suggest that the framework agreement on parental leave has changed that analysis. (33) 48. Rather, the Court is not inclined to consider the consequences that parental leave may have on the calculation of certain rights as an infringement of the prohibition on sex discrimination. 49. The Court has held, for example, that Article 141 EC and Council Directive 75/117/EEC (34) do not preclude the calculation of a termination payment in a way that takes account, as qualifying service, of the duration of periods of military service or the civilian equivalent (performed mainly by men) but not of parental leave (taken usually by women). (35) In so holding, the Court pointed out that while performance of national service corresponds to a civic obligation laid down by law and not governed by the individual interests of the worker, parental leave is taken voluntarily by a worker in order to bring up a child. (36) 50. The Court has also held that a worker who takes parental leave is in a special situation, which cannot be assimilated to that of a man or woman at work since it involves suspension of the contract of employment and, therefore, of the respective obligations of the employer and the worker. (37) The Court therefore concluded that Article 141 EC, Article 11(2)(b) of Council Directive 92/85/EEC (38) and clause 2(6) of the framework agreement on parental leave do not preclude an employer, when granting a Christmas bonus to a female worker who is on parental leave, (39) from taking such periods of leave into account so as to reduce the benefit pro rata. (40) 51. Both those judgments concerned the contractual relationship between employer and employee. Since the Court considers that the consequences parental leave may have on the calculation of certain rights in the relationship between employer and employee do not infringe the prohibition on sex discrimination, it seems to me that it would be inconsistent to hold otherwise in relation to social security. Whereas the relationship between employer and employee comes within the scope of the framework agreement on parental leave and of EC law in general, matters pertaining to social security remain largely within the competence of the Member States. Thus, they fall outwith the scope of the framework agreement on parental leave, as clause 2(8) of that agreement makes clear. 52. Moreover, as the Commission observes, neither Directive 96/34 nor any other Community directive contains explicit provisions addressing the question of remuneration during parental leave. Regulation of that question therefore belongs to the competence of the Member States. 53. It is true that in accordance with the principle of non-discrimination contained in clause 4(1) of the Framework Agreement on part-time work, part-time workers are not to be treated less favourably in respect of employment conditions than comparable full-time workers solely because they work part time, unless the difference in treatment is justified on objective grounds. However, clause 4(2) of that agreement explicitly provides that, where appropriate, the principle of pro rata temporis is to apply. (41) 54. An attractive argument can of course be made that taking parental leave should be encouraged (42) by not reducing the entitlement to social security benefits in accordance with the amount of time actually spent at work, but instead allowing persons on parental leave to go on acquiring rights as if they were still working full time. Such an approach would bolster substantive equality between the sexes (43) by taking into account the fact that women, as noted in the order for reference, are significantly more likely to take parental leave to care for their children. It would also encourage men to do the same. (44) 55. I cannot, however, read the existing legislative provisions as imposing any obligation on Member States to provide such inducements towards taking parental leave. On the contrary, they make explicit provision for applying the pro rata temporis principle and retain substantial discretion for Member States to make whatever arrangements they deem appropriate. In this regard, it appears that the Spanish legislator had made provision, at the material time, for workers to conclude a special agreement to preserve their previous contribution bases (45) and that a scheme has now been put in place (46) to enable persons who reduce their hours of work in order to take care of a child to maintain their original level of social security cover for the first two years in which they do so. 56. If inducements towards taking parental leave are deemed socially desirable – as they may well be – it is for the Member States and/or the Community legislator to put in place the necessary legislative measures to attain that objective. As matters stand, however, Community law contains no obligation requiring entitlement to social security benefits during a period of parental leave to accrue as though the person concerned were not on parental leave, but still working full time. 57. I therefore consider that legislation under which an invalidity benefit is calculated pro rata temporis on the basis of the time actually spent at work in case of part-time employment is compatible with Community law, even when the reason for the reduction in working time is a period of parental leave. The fourth question 58. By its fourth question, the referring court asks whether the duty of national courts to interpret national law in the light of the obligations imposed by Directive 96/34 applies equally to the continuity of social security entitlements during the period of parental leave and, specifically, in the circumstances of the case to a form of part-time leave or reduction in the working day such as was used on this occasion. 59. If I am right that clause 2(8) of the framework agreement on parental leave does not impose obligations on Member States, who retain competence in social security matters, it becomes unnecessary to answer this question. Conclusion 60. For the reasons given above, I am of the view that the questions referred by the Juzgado de lo Social should be answered as follows: – Clause 2(6) of the framework agreement on parental leave 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 does not apply to matters of social security; – Clause 2(8) of that framework agreement does not impose a clear, precise, and unconditional obligation on Member States and cannot therefore be relied upon against the public authorities of the Member State before the national courts; – Legislation under which an invalidity benefit is calculated pro rata temporis on the basis of the time actually spent at work in case of part-time employment is not incompatible with Community law, even when the reason for the reduction in working time is a period of parental leave. 1 – Original language: English. 2 – Directive of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC (OJ 1996 L 145, p. 4). 3 – Directive of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24). 4 – Union of Industrial and Employers’ Confederations of Europe. Note that as from 23 January 2007, UNICE changed its name into BUSINESSEUROPE, the Confederation of European Business. 5 – European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest. 6 – European Trade Union Confederation. 7 – Providing that the right to parental leave should, in principle, be granted on a non-transferable basis. 8 – Directive of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998 L 14, p. 9). Although not specifically referred to in the national court’s questions, this directive forms part of the Community law framework within which they are to be resolved. 9 – Adopted under Royal Legislative Decree (Real Decreto Legislativo) No 1/1995 of 24 March 1995 (Boletín Oficial del Estado (BOE) of 29 March 1995). 10 – The version adopted under the Law of 5 November 1999 to encourage the reconciliation of workers’ family life and work life (Ley 39/1999 para promover la conciliación de la vida familiar y laboral de las personas trabajadoras) (BOE of 6 November 1999). 11 – Article 37(5) of the Workers’ Statute was subsequently amended by the Basic Law of 22 March 2007 for the effective equality of women and men (Ley Orgánica 3/2007 para la igualdad efectiva de mujeres y hombres) (BOE of 23 March 2007). The amendment merely extends the scope for reducing the working day, which can now be between a minimum of one eighth and a maximum of one half of its previous duration. 12 – As consolidated by Royal Legislative Decree No l/1994 of 20 June 1994 (BOE of 29 June 1994). 13 – Article 140(1) of the LGSS. 14 – Royal Decree (Real Decreto) of 22 December 1995 (BOE of 25 January 1996). 15 – ‘Contrato de relevo’. The Spanish Ministerio de Trabajo e Inmigración’s website on social security translates this as ‘relief contract’, defined there in English as ‘… the contract drawn up simultaneously with the part-time contract with a partially retired person, with an unemployed worker or one who has [entered] into a contract with the company for a specific duration, in order to cover [time not being worked] by the partially retired employee. The relief contract is required to replace workers who have partially retired prior to the age of 65 and is authorised if they have already reached that age. The contract must also meet certain legal [requirements].’ http://www.seg‑social.es/Internet_6/Masinformacion/Glosario/index.htm?ssUserText=R. 16 – Orden Ministerial de 18 de julio de 1991, por que se regula el convenio especial en el Sistema de la Seguridad Social (BOE of 30 July 1991). This order has been repealed and replaced by Order TAS/2865/2003 of 13 October 2003 (Orden de 13 octubre, por la que se regula el convenio especial en el Sistema de la Seguridad Social, BOE of 18 October 2003). The Spanish Ministerio de Trabajo e Inmigración’s website on social security translates ‘convenio especial’ as ‘special agreement’, defined there in English as ‘Agreement reached with the Social Security for [employees whose contracts have been terminated], or for those affiliated in other specific situations, in order to [preserve rights being accrued], without losing the [benefit] of the contributions [already made].’ http://www.seg-social.es/Internet_6/Masinformacion/Glosario/index.htm?ssUserText=S. 17 – I.e., pursuant to the special agreement: in other words, the ‘top-up’ contribution base that is to be added to the standard contribution base for part-time employment. 18 – Paragraph 12 of the Eighteenth Additional Provision of Basic Law 3/2007 amended Article 180 of the LGSS so that Article 180(3) now provides that contributions paid during the first two years of the period of a reduction in the working day to care for a child referred to in Article 37(5) of the Workers’ Statute are to be increased up to 100 per cent of the amount which would have been paid if the working day had not been thus reduced, for the purposes of the benefits referred to in Article 180(1), which include permanent invalidity allowances such as that claimed by the applicant in the present case. However, that new Basic Law expressly provides (see paragraph 3 of the Seventh Transitional Provision) that this is not applicable to benefits entitlement to which arose before that law’s entry into force on 24 March 2007 (the day after publication in the BOE). 19 – Invalidity benefits are a traditional branch of social security. They are for example mentioned as such in Article 4(1)(b) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and to their families moving within the Community (OJ, English Special Edition, 1971(II) p. 416, amended on numerous occasions). It is settled case-law that a benefit may be regarded as a social security benefit in so far as it is granted to the recipients, without any individual and discretionary assessment of personal needs, on the basis of a legally defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia, Case C‑286/03 Hosse [2006] ECR I-1771, paragraph 37; Joined Cases C‑396/05, C‑419/05 and C‑450/05 Habelt and Others [2007] ECR I‑11895, paragraph 63; and Case C‑228/07 Petersen [2008] ECR I-0000, paragraph 19). In the present case, it is not disputed that the invalidity benefit at issue in the main proceedings is a social security benefit. 20 – See also general consideration 13 to the framework agreement: ‘Whereas management and labour are best placed to find solutions that correspond to the needs of both employers and workers and must therefore have conferred on them a special role in the implementation and application of the present agreement’. 21 – See for example Case C-363/05 JP Morgan Fleming Claverhouse Investment Trust and The Association of Investment Trust Companies [2007] ECR I-5517, paragraph 58, and the case-law cited there. 22 – Case C-389/95 Klattner [1997] ECR I-2719, paragraph 33. 23 – See, for example, Case C-317/93 Nolte [1995] ECR I-4625, paragraph 33; and Case C-322/98 Kachelmann [2000] ECR I-7505, paragraph 30 and the case-law cited there. 24 – See further general consideration 11 to the framework agreement on parental leave, which provides that the Member States are to consider, where appropriate under national conditions and taking into account the budgetary situation, the maintenance of entitlements to relevant social security benefits as they stand during the minimum period of parental leave (emphasis added). 25 – By virtue of Article 37, paragraph 5 of the Workers’ Statute. See point 16 above, where this is explained. 26 – See point 17 above. 27 – Case C-453/04 innoventif [2006] ECR I-4629, paragraph 29 and the case-law cited there. 28 – See Case C-226/98 Jørgensen [2000] ECR I-2447, paragraph 29; Kachelmann, cited in footnote 23, paragraph 23; Case C-25/02 Rinke [2003] ECR I-8349, paragraph 33; and Case C-313/02 Wippel [2004] ECR I-9483, paragraph 43. 29 – Case C-297/93 [1994] ECR I-5535. 30 – See the Opinion of Advocate General Jacobs, point 15. 31 – See point 17 of his Opinion. Advocate General Jacobs pointed out, in particular, that Article 7(b) of Directive 79/7 is a permissive, not a mandatory, provision. 32 – Grau-Hupka, cited in footnote 29, paragraphs 27 and 28. See also Joined Cases C‑4/02 and C‑5/02 Schönheit [2003] ECR I-12575, paragraphs 90 and 91, where the Court held that Community law did not preclude a retirement pension being calculated pro rata temporis in the case of part-time employment. The fact that the actual period of service, as compared with that of a person who has worked on a full-time basis throughout his career, is also taken into account is an objective criterion unrelated to any discrimination on grounds of sex, allowing a pension entitlement to be reduced proportionately. See also the Opinion of Advocate General Geelhoed, point 102. 33 – Under Article 2(1) of Directive 96/34, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 3 June 1998 at the latest or were to ensure by that date at the latest that management and labour had introduced the necessary measures by agreement, the Member States being required to take any necessary measure enabling them at any time to be in a position to guarantee the results imposed by the Directive. 34 – Directive of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19). 35 – Case C-220/02 Österreichischer Gewerkschaftsbund [2004] ECR I-5907, paragraph 65. 36 – Österreichischer Gewerkschaftsbund, paragraphs 60 and 61. 37 – Case C-333/97 Lewen [1999] ECR I-7243, paragraph 37. 38 – Directive of 19 October 1992 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 (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1). 39 – The judgment in Lewen, cited in footnote 37, uses ‘parental leave’ and ‘parenting leave’ interchangeably (see, for example, paragraph 10). 40 – Lewen, cited in footnote 37, paragraph 50. 41 – See also the Opinion of Advocate General Kokott in Case C-268/06 Impact [2008] ECR I-0000, point 101. 42 – The objective of the Framework Agreement on part-time work, as defined in Clause 1(a), is ‘to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work’. 43 – See, for example, C. Barnard, EC Employment Law (3rd ed., 2006), pp. 333 to 338. 44 – See, for example, general consideration 8 to the framework agreement on parental leave, which states that ‘men should be encouraged to assume an equal share of family responsibilities, for example they should be encouraged to take parental leave by means such as awareness programmes’. 45 – See point 16 above. 46 – See footnote 18 above.