Opinion of the Advocate General — ECLI:EU:C:2017:223
Date: 2017-03-16
Language of the case: Spanish
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Spain

Summary — Judgment of the Court (Fifth Chamber), 9 November 2017 1. Social policy — Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC — Directive 97/81 — Scope — Conditions of employment — Definition — Contributory unemployment benefit — Not included (Council Directive 97/81, Annex, Clause 4(1)) 2. Social policy — Equal treatment for men and women in matters of social security — Directive 79/7 — Article 4(1) — National legislation excluding days not worked from the contribution period — Reduction of the duration of unemployment benefit — ‘Vertical’ part-time work — Mainly women affected — Not permissible (Council Directive 79/7, Art. 4(1)) 1. Clause 4(1) of the Framework Agreement on part-time work concluded on 6 June 1997, which is annexed to Council Directive 97/81/EC of 15 December 1997 concerning the framework agreement on part-time work concluded by UNICE, CEEP and the ETUC, is not applicable to a contributory unemployment benefit such as that at issue in the main proceedings. In addition, the Court has ruled, first, that it is clear from its preamble that the Framework Agreement relates to the ‘employment conditions of part-time workers, recognising that matters concerning statutory social security are for decision by the Member States’ (judgment of 14 April 2015, Cachaldora Fernández, C‑527/13, EU:C:2015:215, paragraph 36). It has found, second, that the term ‘employment conditions’, within the meaning of the Framework Agreement, covers pensions that depend on an employment relationship between the worker and the employer, excluding statutory social security pensions, which are determined less by that relationship than by considerations of social policy (judgments of 22 November 2012, Elbal Moreno, C‑385/11, EU:C:2012:746, paragraph 21, and of 14 April 2015, Cachaldora Fernández, C‑527/13, EU:C:2015:215, paragraph 37). In the present case, it is clear from the case file before the Court that, although the sole source of finance for the unemployment benefit at issue is the contributions paid by the worker and the employer, those contributions are paid pursuant to national legislation and are not, therefore, governed by the employment contract between the worker and the employer. As a result, those contributions cannot be included in the concept of ‘employment conditions’. (see paras 31-34, operative part 1) 2. Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as precluding legislation of a Member State which, in the case of ‘vertical’ part-time work, excludes days not worked from the calculation of days in respect of which contributions have been paid, and therefore reduces the unemployment benefit payment period, when it is established that the majority of vertical part-time workers are women who are adversely affected by such legislation. (see para. 49, operative part 2)