OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 3 March 2016 ( 1 )

Case C‑351/14

Estrella Rodríguez Sánchez

v

Consum Sociedad Cooperativa Valenciana

(Request for a preliminary ruling from the Juzgado de lo Social No 33 de Barcelona (Social Court No 33, Barcelona, Spain))

‛Reference for a preliminary ruling — Social policy — Directive 2010/18/EU and revised Framework Agreement on parental leave — Request by a worker member returning from maternity leave for changes to her working hours — Clause 1(2) — Concept of ‘worker’ — Clause 8(2) — Concept of ‘reducing the general level of protection afforded to workers’ — Clause 6(1) — Employer’s consideration of and response to the request — Requirements as regards transposition into national law — Whether there is horizontal direct effect in the event of a failure to transpose or to transpose correctly’

I – Introduction

1. This reference to the Court of Justice from the Juzgado de lo Social No 33 de Barcelona (Social Court No 33, Barcelona, Spain) for a preliminary ruling concerns the interpretation of Directive 2010/18/EU, ( 2 ) implementing the revised Framework Agreement on parental leave (‘revised Framework Agreement’).

2. The main proceedings arise as a result of a request made by a worker member in a cooperative for changes to be made to her working hours.

3. The referring court seeks in particular to establish whether the relationship between a worker member in a cooperative and that cooperative constitutes an employment contract or employment relationship within the meaning of Clause 1(2) of the revised Framework Agreement and, if so, whether a worker member is entitled, when returning from a period of ‘maternity leave’, to benefit from changes to her working hours and patterns within the meaning of Clause 6(1) of the Framework Agreement.

II – Legal framework

A – EU law

4. Article 3(1) of Directive 2010/18 provides that ‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive or shall ensure that the social partners have introduced the necessary measures by agreement by 8 March 2012 at the latest. They shall forthwith inform the Commission thereof.’

5. In its first paragraph, the preamble to the revised Framework Agreement in the Annex to Directive 2010/18 states that ‘this framework agreement ... revises the framework agreement on parental leave, concluded on 14 December 1995, setting out the minimum requirements on parental leave [contained in the annex to Directive 96/34/EC ( 3 )], as an important means of reconciling professional and family responsibilities and promoting equal opportunities and treatment between men and women’.

6. Paragraphs 3, 15 and 21 of the general considerations of the revised Framework Agreement read as follows: ‘3. Having regard to the Charter of Fundamental Rights of the European Union of 7 December 2000 and Articles 23 and 33 thereof relating to equality between men and women and reconciliation of professional, private and family life; … 15. Whereas this agreement is a framework agreement setting out minimum requirements and provisions for parental leave, distinct from maternity leave, and for time off from work on grounds of force majeure, and refers back to Member States and social partners for the establishment of conditions for access and modalities of application in order to take account of the situation in each Member State; … 21. Whereas the access to flexible working arrangements makes it easier for parents to combine work and parental responsibilities and facilitates the reintegration into work, especially after returning from parental leave; …’

7. Under the heading ‘Purpose and scope’, Clause 1(2) of the revised Framework Agreement states that ‘this agreement applies to all workers, men and women, who have an employment contract or employment relationship as defined by the law, collective agreements and/or practice in force in each Member State’.

8. Clause 2(1) of the revised Framework Agreement provides that ‘this agreement entitles men and women workers to an individual right to parental leave on the grounds of the birth or adoption of a child to take care of that child until a given age up to eight years to be defined by Member States and/or social partners’.

9. Clause 3(1) of the revised Framework Agreement states: ‘The conditions of access and detailed rules for applying parental leave shall be defined by law and/or collective agreements in the Member States, as long as the minimum requirements of this agreement are respected. Member States and/or social partners may, in particular: (a) decide whether parental leave is granted on a full-time or part-time basis, in a piecemeal way or in the form of a time-credit system, taking into account the needs of both employers and workers; …’

10. Clause 6(1) of the revised Framework Agreement, under the heading ‘Return to work’, provides: ‘In order to promote better reconciliation, Member States and/or social partners shall 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. Employers shall consider and respond to such requests, taking into account both employers’ and workers’ needs. The modalities of this paragraph shall be determined in accordance with national law, collective agreements and/or practice.’

11. Clause 8 of the revised Framework Agreement states: ‘1. Member States may apply or introduce more favourable provisions than those set out in this agreement. 2. Implementation of the provisions of this agreement shall not constitute valid grounds for reducing the general level of protection afforded to workers in the field covered by this agreement. This shall not prejudice the right of Member States and/or social partners to develop different legislative, regulatory or contractual provisions, in the light of changing circumstances (including the introduction of non-transferability), as long as the minimum requirements provided for in the present agreement are complied with. … 4. Member States shall adopt the laws, regulations and administrative provisions necessary to comply with the Council decision within a period of two years from its adoption or shall ensure that social partners introduce the necessary measures by way of agreement by the end of this period. … …’

B – Spanish law

12. The referring court points out that no specific measures were introduced for transposing Directive 2010/18 into the Spanish legal system. In its observations, the Commission states that it received notification from the Kingdom of Spain that Directive 2010/18 had already been transposed by Royal Legislative Decree 1/1995 approving the consolidated version of the Law on the Workers’ Statute (Real Decreto Legislativo 1/1995 por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores) of 24 March 1995 (BOE No 75, 29 March 1995, p. 9654; ‘the Workers’ Statute’).

1. The Workers’ Statute

13. Under Article 1(1) of the Workers’ Statute: ‘This Law shall apply to workers who voluntarily offer their services in return for payment by another within an organisation and under the direction of a natural or legal person, known as the “employer or undertaking”. …’

14. The Explanatory Memorandum of Law 39/1999 to reconcile work and family life for employees (Ley 39/1999 para promover la conciliación de la vida familiar y laboral de las personas trabajadoras) of 5 November 1999 (BOE No 266, 6 November 1999, p. 38934), states, inter alia: ‘... at Community level, maternity and paternity, construed in their broadest sense, are mentioned in Directives [92/85/EEC ( 4 ) and 96/34]. The former directive relates to maternity from the point of view of the health and safety at work of pregnant workers and workers who have recently given birth or are breastfeeding. The latter, on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, provides for parental leave and time off from work on grounds of force majeure as important means of reconciling work and family life and promoting equal opportunities and treatment between men and women. This Law transposes into Spanish law the guidelines framed by international and Community rules, exceeding the minimum level of protection provided for in those guidelines. …’

15. Following amendment of the Workers’ Statute by Law 39/1999, Article 37(5) and (6) thereof reads as follows: ‘5. Any person who, for reasons of legal custody, takes direct care of a child under the age of six years or of a person with a physical, mental or sensory disability who does not carry out a gainful activity shall be entitled to a reduction in his or her hours of work, with a proportionate reduction in salary, of a minimum of one third and a maximum of one half of the duration of those hours. ... 6. Responsibility for the actual adjustment of working hours and for determining the period of application ... of the reduction in the hours of work, provided for [in paragraph 5] of this Article, shall lie with the worker within his or her normal working hours. The worker must notify the employer 15 days in advance of the date on which he or she intends to return to his or her normal working pattern.’

16. Law 39/1999 comprises a ‘First Additional Provision’ worded as follows: ‘Worker members of cooperative societies and workers of other cooperatives may, during periods of maternity leave, periods of risk during pregnancy, adoption and fostering, enjoy the advantages established in this Law, irrespective of the social security membership scheme of which they are part, together with the particular features specific to an associative relationship.’

17. Under Article 34(8) of the Workers’ Statute, as amended by Organic Law 3/2007 on effective equality between women and men (Ley Orgánica 3/2007 para la igualdad efectiva de mujeres y hombres) of 22 March 2007 (BOE No 71, 23 March 2007, p. 12611): ‘Workers shall have the right to adapt their hours of work and work schedule in order to make effective their right to reconcile personal, family and work life, in the terms established in the collective negotiation or in the agreement reached with the employer complying, in any event, with the terms of that negotiation.’

2. Organic Law 3/2007

18. Under Article 44(1) of Organic Law 3/2007: ‘Rights to reconcile personal, family and work life shall be afforded to workers of both sexes so that family responsibilities may be taken on in a balanced manner, avoiding any discrimination based on their exercise.’

3. Law 36/2011

19. Article 139(1)(a) of Law 36/2011 governing the social courts (Ley 36/2011 reguladora de la jurisdicción social) of 10 October 2011 (BOE No 245, 11 October 2011, p. 106584) provides: ‘1. The procedure governing the exercise of rights to reconcile personal, family and work life, recognised by law and by agreement, is subject to the following rules: (a) if they are to bring an action before the Juzgado de lo Social, workers shall have a period of 20 days commencing upon notification from the employer of its rejection or disapproval of their proposal. … Employers and workers shall, at the conciliation meeting prior to the legal action and during the legal proceedings themselves, present their proposals and other respective solutions for adapting working hours; these may be submitted, where appropriate, with reports from the joint bodies or bodies monitoring the undertaking’s equality programmes which may be taken into consideration for the purpose of the decision.’

4. Legislation on cooperatives

20. Article 80 of Law 27/1999 on cooperatives (Ley 27/1999 de Cooperativas) of 16 July 1999 (BOE No 170, 17 July 1999, p. 27027) states: ‘1. Shareholders’ cooperatives are cooperatives with the purpose of providing their members with employment activities that they carry out personally and directly, on a part-time or full-time basis, by means of the common organisation for the production of goods or the provision of services for third parties ... The relationship between the worker members and the cooperative is associative. … 4. Worker members shall be entitled periodically, within a maximum period of one month, to payments known as “member returns”, paid out of the cooperative’s surplus, which are not salaries and depend on participation in the cooperative’s activity. 5. Workplaces of worker members and the members themselves shall be subject to the rules on health protection and risk prevention in the workplace, which shall apply taking into account the special features of the associative and self-managed relationship which is established between worker members and their cooperative. …’

21. Under Article 89(3) of Law 8/2003 on cooperatives in the Autonomous Community of Valencia (Ley 8/2003 de Cooperativas de la Comunidad Valenciana) of 24 March 2003 (BOE No 87, 11 April 2003, p. 14308): ‘The relationship between worker members and the cooperative is an associative one and, therefore, the statutes of the cooperative, the internal rules or the general meeting shall establish the occupational status of members, which shall, as a minimum requirement, lay down the rules governing the following matters: (a) the form of organisation of work provision; (b) functional and/or geographic mobility; (c) occupational classification; (d) the rules on public and personal holidays and leave; (e) the hours of work, job rotation and the weekly rest period; (f) causes of the suspension or termination of the provision of work; (g) member returns: where a cooperative realises more than 80 per cent of its annual turnover with a single customer or with a single group of undertakings, the member return guaranteed annually to the member must be equivalent to the average salary payable in the corresponding area, sector and occupational category; (h) other rights and obligations of members that, in terms of work provision, the cooperative sees fit to establish. In any event, regulation by the cooperative’s statutes of the hours of work, the weekly rest period, national holidays, personal holidays, leave and the causes of suspension or termination of the work relationship must comply with the minimum requirements laid down by the State legislation on cooperatives. By a decision adopted by a two-thirds majority, the general assembly may amend the occupational status. … For all matters relating to cooperatives which are not expressly addressed by this Law, the cooperative relationship shall, on a supplementary basis, be subject to the relevant provisions laid down in the State Law on cooperatives.’

5. Internal rules applying to the worker members of Consum SCV

22. Under Article 14(7) of the internal rules of Consum Sociedad Cooperativa Valenciana (‘Consum SCV’): ‘Worker members shall have the right to adapt their hours of work and work schedule in order to make effective their right to reconcile personal, family and work life, in the terms agreed upon with the manager of the relevant production unit, and, in the absence of agreement, the Members’ Committee shall, having heard both parties, settle the matter, seeking alternatives to enable that right to be effective.’

III – The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

23. Consum SCV is a multi-purpose cooperative governed by Law 8/2003 with a network of over 450 supermarkets. Consum’s objects are, inter alia, to provide stable employment within the cooperative for its worker members.

24. Mrs Rodríguez Sánchez is a worker member of Consum SCV assigned to the ‘cashier/shelf-stacking’ unit of a shopping centre. She signed a membership contract on 25 June 2012 with Consum SCV which was subject to the statutes of the cooperative and, in particular, the internal rules. Her working pattern and working hours, based on rotating weekly shifts, were a morning shift Monday to Saturday (from 08.00 to 15.00) and an evening shift Monday to Saturday (from 15.00 to 22.00), plus two Sundays per month (from 08.30 to 15.00).

25. On 19 August 2013, Mrs Rodríguez Sánchez gave birth to a child. At the end of her maternity leave, she made an initial request on 27 December 2013, which she amended on 15 January 2014, for a reduction in her hours of work to 30 hours per week and a change of her work schedule to fixed morning shifts from 09.00 to 15.00 Monday to Friday, citing her legal custody of her child and relying on Article 37(5) and (6) of the Workers’ Statute. On 24 January 2014, Consum SCV responded to that request, recognising the right to a reduction in working hours. However, it did not grant the hours requested, asserting inter alia that to do so would result in a surplus of staff on the morning shift.

26. In February 2014 Mrs Rodríguez Sánchez brought an action challenging that decision to refuse her request before the Juzgado de lo Social No 33 de Barcelona (Social Court No 33, Barcelona). In March 2014, the proceedings were stayed, on the initiative of that court, in order to initiate a procedure under Article 34(8) of the Workers’ Statute. Mrs Rodríguez Sánchez thus sent a new request to Consum SCV based on that provision and on her right to reconcile family and work life, citing in this regard the need for her to adapt her working hours to the hours of her child’s nursery.

27. Consum SCV agreed to the reduction in working hours but did not reply to the request to adapt her hours of work; nor did it refer that request to the Members’ Committee referred to in Article 17(4) of its internal rules.

28. The Juzgado de lo Social No 33 de Barcelona (Social Court No 33, Barcelona) notes that the dispute between the parties is now confined to considering a possible change to working hours and patterns under Article 34(8) of the Workers’ Statute, given that the reduction in working hours under Article 37(5) of the Statute has been approved. In those circumstances, that court asks whether Clause 6(1) of the revised Framework Agreement may have a bearing on the outcome of the proceedings of which it is accordingly seised.

29. Against this background, the Juzgado de lo Social No 33 de Barcelona (Social Court No 33, Barcelona) decided, by order of 15 July 2014 received by the Court Registry on 22 July 2014, to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Does the relationship of worker member in a cooperative such as that regulated by Article 80 of Law 27/1999 on cooperatives and Article 89 of Law 8/2003 on cooperatives of the Autonomous Community of Valencia — a relationship which, although characterised by the national legislation and case-law as “associative” (one of membership), could be considered to amount to an “employment contract” under EU law — come within the scope of Directive 2010/18 relating to the [revised Framework Agreement] as defined in Clause 1(2) of [that Framework Agreement]? If that first question is answered in the negative, a second, subsidiary question arises. (2) Must Clause 8(2) of the [revised Framework Agreement] and, more specifically, the provision in accordance with which “implementation of the provisions of this agreement shall not constitute valid grounds for reducing the general level of protection afforded to workers in the field covered by this agreement”, be interpreted as meaning that, should a Member State fail to implement Directive 2010/18 expressly, the scope of the protection which that State itself defined in transposing the earlier Directive 96/34 may not be reduced? Only if the answer to either of those two questions is in the affirmative, Directive 2010/18 being considered applicable to an “associative-work” relationship such as that of the applicant, will the other questions which follow be justified, for the reasons set out below: (3) Must Clause 6 of the new [revised Framework Agreement], incorporated in Directive 2010/18, be interpreted as meaning that the national implementing provision or agreement must incorporate and make explicit the obligations of employers to “consider” and “respond to” the requests of its workers for “changes to their working hours and/or patterns”, when returning from parental leave, taking into account both employers’ and workers’ needs, and that the implementing mandate cannot be understood to have been complied with by means of national rules — legislative or those of cooperatives — which make the effectiveness of such a right conditional solely upon the mere discretion of the employer as to whether or not to grant such requests? (4) Must it be found [that] Clause 6 [of the revised Framework Agreement] — in the light of Article 3 of Directive 2010/18 and the “Final provisions” in Clause 8 of that Agreement — has, where there has been a failure to transpose, “horizontal direct effect” as a result of being a minimum European Union standard?’

30. On 10 June 2015 the Court sent to the referring court a request for clarification pursuant to Article 101 of its Rules of Procedure, to which the referring court responded on 22 July 2015.

31. Written observations were submitted by Consum SCV, the Spanish, French and Hungarian Governments and the European Commission. Consum SCV, the Spanish Government and the Commission attended the hearing on 18 November 2015.

IV – Assessment

A – The Court’s jurisdiction

1. Applicability of Clause 6(1) of the revised Framework Agreement

32. At the hearing, the Spanish Government raised the question of the admissibility of the questions referred for a preliminary ruling. It maintains that the Court’s answers would not assist the referring court in disposing of the case before it.

a) General observations

33. This reference for a preliminary ruling concerns the interpretation of a number of clauses in the revised Framework Agreement, most significantly Clause 6(1) of that agreement. As regards that clause, the referring court is seeking in particular to establish whether Mrs Rodríguez Sánchez is entitled, when returning from her maternity leave, to benefit from a change to her working hours and patterns pursuant to Article 34(8) of the Workers’ Statute. Clause 6(1) of the revised Framework Agreement does not concern parental leave as such but concerns the situation of workers returning from such leave. More specifically, that clause provides for possible changes to working hours, not when returning from maternity leave, as seems to be the case for Mrs Rodríguez Sánchez, but when returning from parental leave. After all, it is apparent from the order for reference that, in the main proceedings, she made her requests for her working hours to be reduced and her hours of work to be adapted not when returning from parental leave but when returning from maternity leave.

34. Against that background, the Court of Justice called upon the referring court to state, inter alia, the reasons for its view that an answer to the various questions raised may still have a bearing on the outcome of the main proceedings. In its reply, the referring court asserted that maternity leave is the name usually given in Spain to the parental leave mentioned in Clause 2 of the revised Framework Agreement and that the maternity leave mentioned constituted a form of ‘parental leave’ understood to be a cause for suspending the contract while maintaining the position, which in this case is governed by Article 48(4) of the Workers’ Statute concerning childbirth. ( 5 ) It added that references in the decision to refer to maternity leave should also be understood as meaning — to adopt the terminology of EU law — parental leave. The referring court consequently concludes that the situation at issue in the main proceedings is consistent with a return to work after the ‘parental leave’ mentioned in Clause 6(1) of the revised Framework Agreement, with the result that, for the reasons set out in the order for reference, an answer to the questions referred, in particular the first three questions, would be necessary in order to rule on the action at issue in the main proceedings.

b) Assessment

35. I would point out first of all that, according to settled case-law, the procedure provided for by Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the former provides the latter with the criteria for the interpretation of EU law which they need in order to decide the disputes before them. ( 6 ) In the context of that cooperation, the national court seised of the dispute is in the best position to assess, having regard to the particular features of the case, whether a preliminary ruling is necessary to enable it to give judgment and the relevance of the questions which it refers to the Court. ( 7 )

36. That does not alter the fact that it is for the Court, where appropriate, to examine the circumstances in which the case was referred to it by a national court in order to assess whether it has jurisdiction and, in particular, determine whether the interpretation of EU law that is sought bears any relation to the facts of the main action or its purpose, so that the Court is not led to deliver advisory opinions on general or hypothetical questions. ( 8 ) If it appears that the question raised is manifestly irrelevant for the purposes of deciding the case, an answer from the Court is consequently unnecessary for the national court to decide the dispute before it.

37. In order to assess whether the presumption of relevance attributed to requests for a preliminary ruling is rebutted, it must be determined at the outset whether, in this case, a situation such as that of Mrs Rodríguez Sánchez falls within the material scope of the revised Framework Agreement.

38. Consum SCV, the Spanish Government and the Commission concur that Mrs Rodríguez Sánchez is returning from a period of maternity leave and not from a period of parental leave.

39. In particular, the Spanish Government maintained at the hearing that the referring court’s interpretation forming the basis of its reply to the request for clarification, that Article 48(4) of the Workers’ Statute governs parental leave, is inaccurate. According to the Spanish Government, that provision, after all, does concern maternity leave within the meaning of Directive 92/85. It explained that maternity leave for the purposes of Article 48(4) of the Workers’ Statute is intended to protect the physical condition of the mother, following pregnancy and childbirth, whereas the objective of parental leave is to reconcile personal, family and work life.

40. In this connection, I would point out that, in the case giving rise to the judgment in Betriu Montull, ( 9 ) in which the questions referred to the Court concerned Article 48(4) specifically of the Workers’ Statute, the Court held that maternity leave to which that provision refers ‘must be taken when the child is born’. ( 10 ) It held in particular, as the Instituto Nacional de la Seguridad Social (National Social Security Agency) and the Spanish Government had pointed out, that Article 48(4) of the Workers’ Statute ‘does not concern parental leave within the meaning of Directive 96/34’; ( 11 ) it concerns the right to maternity leave within the meaning of Directive 92/85.

41. I also note that the referring court, in its reply to the request for clarification from the Court, took Article 48(4) only of the Workers’ Statute as the basis for the leave at issue in the main proceedings, which provision, as is clear from my earlier points, refers expressly to ‘childbirth’. I cannot therefore dismiss from consideration that, ultimately, that reply from the referring court seems to confirm that Mrs Rodríguez Sánchez made her request for a change to her working hours on her return from a period of leave granted to the mother on account of the birth of the child she was carrying, which, in accordance with Directive 92/85, corresponds to maternity leave, not parental leave.

42. Consequently, I take the view that Mrs Rodríguez Sánchez’s situation falls outside the scope of Clause 6(1) of the revised Framework Agreement.

43. In view of all the considerations set out above, there is, to my mind, no need to answer the fourth question referred by the national court. However, it still has to be assessed whether, as the Commission suggests, other clauses would apply to Mrs Rodríguez Sánchez’s circumstances if her maternity leave in this instance had been followed by a period of parental leave separate from that maternity leave.

2. Applicability of other clauses of the revised Framework Agreement

44. In its written observations the Commission mentioned that the reduction in working hours granted to Mrs Rodríguez Sánchez on the basis of Article 37(5) of the Workers’ Statute might correspond to one of the forms of parental leave established by national law. ( 12 ) That possibility, raised by the Commission, was the subject of a question addressed to the interested parties at the hearing. In its reply, the Spanish Government first stated that the right to parental leave, to which Clause 2 of the revised Framework Agreement refers, was already established in Spanish law in Article 46(3) of the Workers’ Statute. That article provides that ‘workers shall be entitled to an extended period of leave not exceeding three years to enable them to take care of the child, whether by birth or by adoption, or in cases of foster care, whether permanent or preliminary to an adoption, including temporary foster care, as from the date of birth of the child, or, as the case may be, the date of the judicial or administrative decision’. The purpose of that parental leave, it notes, is to reconcile the work and family responsibilities of working parents (whether men or women), whereas the purpose of maternity leave is to safeguard the mother’s health and protect the special bond between the mother and the newborn child after the birth.

45. Secondly, the Spanish Government confirmed that the reduction in working hours granted to Mrs Rodríguez Sánchez under Article 37(5) of the Workers’ Statute corresponds to one of the forms of parental leave established by Spanish law so that working parents (whether men or women) can take care of children under the age of 12 years. ( 13 )

46. In the light of the foregoing considerations, if, as borne out by the Spanish Government in the previous point, Mrs Rodríguez Sánchez benefits from a form of parental leave consisting in a reduction of her working hours, assessment of which falls to the referring court, it is my view that the first and second questions should be examined. However, in order to provide the referring court with a helpful answer to its third question, the question must, in my view, be reworded so as to be considered in the light of Clauses 2 and 3, as opposed to Clause 6(1), of the revised Framework Agreement.

B – The first, second and third questions

1. The first question

47. The referring court asks the Court in essence whether the relationship between a worker member of a cooperative and that cooperative constitutes an employment contract or employment relationship within the meaning of Clause 1(2) of the revised Framework Agreement with the result that the relationship falls within the scope of those measures.

48. I note that the referring court asks this question based on Mrs Rodríguez Sánchez’s status as a worker member. In order to provide a helpful answer to this question, it is necessary at the outset to consider, on the one hand, the scope ratione personae of the revised Framework Agreement as defined by Clause 1(2) thereof, and, on the other hand, the relevant case-law.

49. With regard to the applicability ratione personae of the revised Framework Agreement, I would point out that the agreement uses the terms ‘workers’, ‘employment contract’ and ‘employment relationship’ but does not define them in specific terms. On the one hand, as is apparent from the wording of Clause 1(2) of the Framework Agreement, the scope of the agreement is conceived in broad terms, covering generally ‘all workers … who have an employment contract or employment relationship as defined by the law, collective agreements and/or practice in force in each Member State’. ( 14 ) On the other hand, paragraph 15 of the general considerations of the agreement states that the agreement ‘is a framework agreement setting out minimum requirements and provisions for parental leave, distinct from maternity leave, … and refers back to Member States and social partners for the establishment of conditions for access and modalities of application in order to take account of the situation in each Member State’.

50. With regard to case-law, reference must be had to the case giving rise to the judgment in O’Brien, ( 15 ) which concerned the Framework Agreement on part-time work annexed to Directive 97/81/EC ( 16 ) (‘Framework Agreement on part-time work’). That case concerned a part-time judge remunerated on a daily fee-paid basis who requested a pension in respect of his activity to which he had no claim under national law.

51. It its judgment, the Court first of all held that there was no single definition of ‘worker’ in EU law: it varied according to the area in which the definition was to be applied. ( 17 ) It pointed out, however, that ‘the discretion granted to the Member States by Directive 97/81 in order to define the concepts used in the Framework Agreement on part-time work is not unlimited’ and that ‘certain words used in that agreement may be defined in accordance with the national law and practices on condition that they respect the effectiveness of the directive and the general principles of EU law’. ( 18 ) According to the Court, ‘it follows ... from the need to safeguard the effectiveness of the principle of equal treatment enshrined in that framework agreement, that such an exclusion may be permitted, if it is not to be regarded as arbitrary, only if the nature of the employment relationship concerned is substantially different from the relationship between employers and their employees which fall within the category of “workers” under national law’. ( 19 )

52. In this case, the Commission submitted in its written observations that the wording of Clause 2(1) of the Framework Agreement on part-time work ( 20 ) is the same as the wording of Clause 1(2) of the revised Framework Agreement and that, in each case, the legislature’s intention was to establish general personal scope.

53. I agree with that analysis.

54. Consequently, as follows from the case-law mentioned in point 51 of this Opinion, the discretion afforded to the Member States in order to define the concepts used in the revised Framework Agreement is not unlimited, in that those concepts may be defined in accordance with the national law and/or practices ‘on condition that they respect the effectiveness of ... Directive [2010/18] and the general principles of EU law’. ( 21 ) As the Commission rightly states, it also follows from the case-law that the need to ensure the effectiveness of Directive 2010/18 and the principle of equal treatment enshrined in the revised Framework Agreement means that an exclusion of worker members from the scope of that agreement may be permitted only if the relationship between them and Consum SCV is, by its nature, substantially different from the relationship between employers and their employees which fall within the category of ‘workers’ under national law, a matter that is ultimately for the referring court to examine. ( 22 ) However, the Court may mention to the referring court a number of principles and criteria which it must take into account in the course of its examination. ( 23 )

55. In this regard, it is apparent from the order for reference that, in the case of worker members of a cooperative, such as in the case at issue in the main proceedings, there is no doubt that the work is provided in the context of a relationship of subordination and dependence and in return for remuneration. ( 24 ) The referring court states that the work arrangements set out in Chapter II of Consum SCV’s internal rules are broadly identical to those applying to employees under the Workers’ Statute. As regards a large number of matters covered by those arrangements, Consum SCV’s internal rules reproduce the exact wording of the Workers’ Statute. I would note, like the referring court, that the arrangements are identical in particular as regards salaries or returns, hours of work, paid leave, availability, suspension of the contract or personal holidays.

56. In my view, those findings are not challenged by the argument put forward by Consum SCV and the Spanish Government that worker members receive returns or dividends in respect of the cooperative’s profits, as opposed to a salary, and are involved in the management of the cooperative, as opposed to working under the direction of a third party.

57. Furthermore, as is also clear from the order for reference, when transposing the first framework agreement on parental leave annexed to Directive 96/34 into Spanish national law, the Spanish legislature had expressly extended the application of the new rights for reconciling work and family life to ‘the worker members of cooperative societies’.

58. It follows from the foregoing considerations that the question whether the relationship between a worker member of a cooperative and that cooperative constitutes an employment contract or employment relationship within the meaning of Clause 1(2) of the revised Framework Agreement, with the result that the relationship falls within the scope of those measures, must be settled by recourse to national law, provided that this category of persons is not as a result excluded arbitrarily from the scope of the protection afforded by Directive 2010/18 and the revised Framework Agreement. An exclusion from that protection may be allowed only if the relationship between the worker members and the cooperative is, by its nature, substantially different from that between employers and their employees falling, according to national law, under the category of workers.

2. The second question

59. In view of the answer to the first question, I consider it unnecessary to reply to the second question referred.

3. The third question

60. It should be noted first of all that, in the context of the procedure for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. ( 25 ) Consequently, even if, formally, the referring court has limited its third question to the interpretation of Clause 6(1) of the revised Framework Agreement, that does not prevent this Court from providing the referring court with all the elements of interpretation of EU law that may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in this context, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of EU law which require interpretation, regard being had to the subject matter of the dispute. ( 26 )

61. Here, if the Court sees reason to answer the third question, I take the view, for the reasons set out in point 46 of this Opinion, that the question must be reformulated in such a way as to be considered in the light of Clauses 2 and 3, as opposed to Clause 6(1), of the revised Framework Agreement so that the Court is able to provide an answer that is of assistance to the referring court.

62. In those circumstances, that question must be construed as seeking, in essence, to establish whether Clauses 2 and 3 of the revised Framework Agreement preclude national legislation, such as that at issue in the main proceedings, which provides for parental leave in the form of a reduction in working time coupled with a right to adapt hours of work within normal working hours but which subjects the implementation of changes outside normal working hours to the arrangements laid down in the terms established in the collective negotiation.

63. For the purpose of answering that question, I shall first of all set out the background to the provision at issue in the main proceedings, namely Article 34(8) of the Workers’ Statute. ( 27 )

64. The Spanish Government claims that reform of the Workers’ Statute by Law 39/1999, which transposes the first Framework Agreement on parental leave annexed to Directive 96/34 into Spanish law, introduced a right to reduce hours of work and to change working hours in Article 37(5) and (6) of the Workers’ Statute. However, that change must be made within normal working hours. ( 28 ) According to the Spanish Government, that article applies to any person taking care of a minor, whether or not the worker is returning from maternity or parental leave, since it recognises an autonomous right.

65. As regards the provision at issue, the Spanish Government adds that Organic Law 3/2007 inserted into Article 34 of the Workers’ Statute a paragraph 8 on adapting hours of work and the work schedule beyond the scope of Article 37(5) and (6) of the Workers’ Statute. However, such changes are unconnected with the care of a minor and are subject to collective negotiation or an agreement concluded with the employer with due regard for such negotiation. According to the Spanish Government, like Article 37(5) and (6) of the Workers’ Statute, which grant workers the right to reduce their hours of work within normal working hours, Article 34(8) of the Statute recognises the right of workers to request changes to their hours of work outside normal working hours but still does not recognise a right to obtain such changes. The purpose of that provision is, it argues, to facilitate reconciliation of workers’ work and family responsibilities by recognising the right to request changes to their hours of work and work schedule beyond the right recognised in Article 37 of the Workers’ Statute.

66. I also observe that it is apparent from the order for reference that Law 3/2012 inserted a second subparagraph into Article 34(8) of the Workers’ Statute under which ‘it is necessary to promote recourse to the continuous working day, flexible hours of work or other methods for organising working hours so as to facilitate greater compatibility between the right to reconcile personal, family and work life and improving productivity at work’.

67. The third question referred must be examined in the light of those factors.

68. Under Clause 1(1) of the revised Framework Agreement, the agreement is designed to ‘facilitate the reconciliation of parental and professional responsibilities for working parents’. Similarly, it is apparent from Clause 2(1) of the Framework Agreement that the purpose of parental leave is to enable parents to take care of their child. That clause expressly provides that an individual right to parental leave is granted to ‘men and women workers’.

69. Paragraph 24 of the general considerations of that framework agreement states that ‘the social partners are best placed to find solutions that correspond to the needs of both employers and workers and shall therefore play a special role in the implementation … of this agreement …’. Clause 3(1) of the agreement provides that ‘the conditions of access and detailed rules for applying parental leave shall be defined by law and/or collective agreements in the Member States, as long as the minimum requirements of this agreement are respected’. ( 29 )

70. From that viewpoint, as the Commission rightly states, the discretion enjoyed by the Member States and the social partners in establishing the conditions of access and detailed rules for applying parental leave is not unlimited. After all, it is incumbent upon them to meet the object and respect the very purpose of parental leave, as established in the revised Framework Agreement.

71. However, a Member State would not exceed such discretion by providing in its legislation, as in this case, for a type of parental leave that reduces workers’ hours of work within normal working hours whilst still affording those workers the possibility of requesting changes to their hours of work outside those normal working hours yet not recognising a right to obtain such changes or even to establish the detailed rules applying to them, which are subject to collective negotiation or to the agreement concluded with the employer with due regard for such negotiation.

72. I therefore propose that the answer to the third question referred should be that Clauses 2 and 3 of the revised Framework Agreement do not preclude national legislation, such as that at issue in the main proceedings, which provides for parental leave in the form of a reduction in working hours coupled with a right to adapt hours of work within normal working hours but which subjects the implementation of changes outside normal working hours to the arrangements laid down in the terms of the collective negotiation.

V – Conclusion

73. In light of all the foregoing considerations, I propose that the Court should answer the questions referred by the Juzgado de lo Social No 33 de Barcelona (Social Court No 33, Barcelona) for a preliminary ruling as follows: (1) The question whether the relationship between a worker member of a cooperative and that cooperative constitutes an employment contract or employment relationship within the meaning of Clause 1(2) of the revised Framework Agreement on parental leave annexed to 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, with the result that the relationship falls within the scope of those measures, must be settled by recourse to national law, provided that this category of persons is not as a result excluded arbitrarily from the scope of the protection afforded by Directive 2010/18 and that framework agreement. An exclusion from that protection may be allowed only if the relationship between the worker members and the cooperative is, by its nature, substantially different from that between employers and their employees falling, according to national law, under the category of workers. (2) Clauses 2 and 3 of that Framework Agreement do not preclude national legislation, such as that at issue in the main proceedings, which provides for parental leave in the form of a reduction in working hours coupled with the right to adapt hours of work within normal working hours but which subjects the implementation of changes outside normal working hours to the arrangements laid down in the terms of the collective negotiation.

( 1 ) Original language: French.

( 2 ) Council Directive 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 (OJ 2010 L 68, p. 13).

( 3 ) Council 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).

( 4 ) Council 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).

( 5 ) It should be noted that Article 48(4) of the Workers’ Statute, mentioned by the referring court in its response to the request for clarification, provides that ‘in the case of childbirth, the contract shall be suspended for a continuous period of 16 weeks, which may be extended where there are multiple births by two additional weeks per child, starting with the second child ...’ (my emphasis).

( 6 ) Judgment in Stoilov i Ko, C‑180/12, EU:C:2013:693, paragraph 36, and the case-law cited.

( 7 ) Judgment in Stoilov i Ko, C‑180/12, EU:C:2013:693, paragraph 37.

( 8 ) Judgment in Stoilov i Ko, C‑180/12, EU:C:2013:693, paragraph 38.

( 9 ) C‑5/12, EU:C:2013:571 (paragraph 46). That case, in which the Court interpreted Directive 92/85, concerned the situation of a father who applied for maternity benefit in place of the mother.

( 10 ) Judgment in Betriu Montull, C‑5/12, EU:C:2013:571, paragraphs 45 and 46.

( 11 ) Judgment in Betriu Montull, C‑5/12, EU:C:2013:571, paragraph 46.

( 12 ) See point 12 of this Opinion.

( 13 ) Under Article 37(5) of the Workers’ Statute, as amended by Article 1(4) of Royal Legislative Decree 16/2013 laying down measures to promote stable employment and to improve employability (Real Decreto-ley 16/2013, de medidas para favorecer la contratación estable y mejorar la empleabilidad de los trabajadores) of 20 December 2013 (BOE No 305, 21 December 2013, p. 103148).

( 14 ) As regards the Framework Agreement on parental leave annexed to Directive 96/34, see, by analogy, judgment in Chatzi, C‑149/10, EU:C:2010:534, paragraph 29.

( 15 ) Judgment in O’Brien, C‑393/10, EU:C:2012:110.

( 16 ) Council 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).

( 17 ) Judgment in O’Brien, C‑393/10, EU:C:2012:110, paragraph 30 and the case-law cited.

( 18 ) Judgment in O’Brien, C‑393/10, EU:C:2012:110, paragraph 34.

( 19 ) Judgment in O’Brien, C‑393/10, EU:C:2012:110, paragraph 42.

( 20 ) Under Clause 2(1) of the Framework Agreement on part-time work, that agreement ‘applies to part-time workers who have an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each Member State’.

( 21 ) See, by analogy, judgment in O’Brien, C‑393/10, EU:C:2012:110, paragraph 34.

( 22 ) See, by analogy, judgment in O’Brien, C‑393/10, EU:C:2012:110, paragraph 43.

( 23 ) Judgment in O’Brien, C‑393/10, EU:C:2012:110, paragraph 43. See also judgment in Patriciello, C‑163/10, EU:C:2011:543, paragraph 21.

( 24 ) In this connection, the referring court considers that Mrs Rodríguez Sánchez’s worker-member status alone cannot preclude the existence of an actual ‘employment relationship’ between the parties. It states that Consum SCV has some 9000 other worker members.

( 25 ) See, inter alia, judgment in Betriu Montull, C‑5/12, EU:C:2013:571, paragraph 40.

( 26 ) See, to that effect, judgment in Betriu Montull, C‑5/12, EU:C:2013:571, paragraph 41.

( 27 ) On the latest amendment to Article 34(8) of the Workers’ Statute, see Law 3/2012 of 6 July 2012 (BOE No 162, 7 July 2012, p. 49113).

( 28 ) It is clear from Article 37(6) of the Workers’ Statute that responsibility for the actual adjustment of working hours and for determining the period of application of the reduction in the hours of work, provided for in paragraph 5 of that article, lies with the worker ‘within his or her normal working hours’.

( 29 ) See also paragraph 15 of the general considerations of the revised Framework Agreement.