CELEX: 62001CC0342
Language: en
Date: 2003-04-03
Title: Opinion of Mr Advocate General Mischo delivered on 3 April 2003. # María Paz Merino Gómez v Continental Industrias del Caucho SA. # Reference for a preliminary ruling: Juzgado de lo Social nº 33 de Madrid - Spain. # Social policy - Equal treatment for men and women - Maternity leave - Worker whose period of maternity leave coincides with the period of annual leave for all staff agreed in a collective agreement on annual leave. # Case C-342/01.

OPINION OF ADVOCATE GENERALMISCHOdelivered on 3 April 2003(1)
         Case C-342/01María Paz Merino GómezvContinental Industrias del Caucho SA(Reference for a preliminary ruling from the Juzgado de lo Social No 33 de Madrid, Spain)
            (Social policy  –  Equal treatment for men and women  –  Maternity leave  –  Worker whose period of maternity leave coincides with her workshop's annual closure, which has been fixed in a collective
               agreement concerning annual leave)
            
            
      
         
      I –  Introduction
        1.        Is an employee whose maternity leave coincides with the period fixed by a collective agreement for the annual leave of the
      undertaking’s entire workforce entitled to take full annual leave during a period other than the one fixed in that agreement?
      This is the question raised, in the present case, by Juzgado de lo Social No 33 de Madrid (Spain).
      
      
      II –  Legal framework
       A – Community law
        2.        In order to settle the question raised by the national court, the Court of Justice is called upon to interpret a number of
      provisions of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time,
      
         			(2)
         		 Council Directive 92/85/EEC 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), 
         			(3)
         		 and Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and
      women as regards access to employment, vocational training and promotion, and working conditions. 
         			(4)
         		
      
       1. Directive 93/104
      
        3.        Article 7 of the directive provides:
      ‘Annual leave
       1.       Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four
      weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation
      and/or practice.
       2.       The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship
      is terminated.’
      
      
        4.        Article 15 of the directive provides:
      ‘More favourable provisions
       This Directive shall not affect Member States’ right to apply or introduce laws, regulations or administrative provisions
      more favourable to the protection of the safety and health of workers or to facilitate or permit the application of collective
      agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety
      and health of workers.’
      
      
       2. Directive 92/85
      
        5.        Article 2 of the directive gives general definitions of the terms ‘pregnant worker’, ‘worker who has recently given birth’
      and ‘worker who is breastfeeding’ for the purposes of the directive.
      
      
        6.        Article 8(1) of the directive reads as follows:
      ‘Maternity leave
       1.       Member States shall take the necessary measures to ensure that workers within the meaning of Article 2 are entitled to a continuous
      period of maternity leave of at least 14 weeks allocated before and/or after confinement in accordance with national legislation
      and/or practice.’
      
      
        7.        Article 11 of the directive provides:
      ‘Employment rights
       In order to guarantee workers within the meaning of Article 2 the exercise of their health and safety protection rights as
      recognised in this article, it shall be provided that:
      ...
       2. in the case referred to in Article 8, the following must be ensured:
      (a)     the rights connected with the employment contract of workers within the meaning of Article 2, other than those referred to
      in point (b) below;
      (b)     maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2;
      ...’
      
      
       3. Directive 76/207
      
        8.        Article 2(1) of the directive provides:
      ‘For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination
      whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.’
      
      
        9.        Article 5(1) of the directive reads as follows:
      ‘Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal,
      means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex.’
      
      
       B – National law
       1. The relevant law
      
        10.      Article 38 of the Estatuto de los Trabajadores (Workers  Statute) approved by Real Decreto Legislativo (Royal Decree-Law)
      1/95 of 24 March 1995 (BOE No 75, 29 March 1995, last amended on 9 July 2001), provides:
      ‘1.     The period of paid annual leave, which may not be replaced by an allowance in lieu, shall be that agreed in collective agreements
      or individual contracts. In no circumstances shall the period be less than thirty calendar days.
       2.       The period or periods during which leave may be taken shall be fixed by mutual consent between the employer and the workers,
      in accordance, where appropriate, with the provisions of the collective agreements on the annual planning of leave.
      ...’
      
      
        11.      Article 48(4) of the Estatuto de los Trabajadores, as it results from Ley 39/1999 para promover la Conciliación de la Vida
      familiar y laboral de las Personas Trabajadoras (Law of 5 November 1999 to reconcile the family life and occupational life
      of workers). 
         			(5)
         		‘In the case of childbirth, the contract shall be suspended for an uninterrupted period of sixteen weeks, which may be extended,
      in the case of multiple births, by two weeks per child starting with the second child. The leave shall be allocated in accordance
      with the wishes of the woman concerned, provided that at least six weeks is taken immediately following the birth ...’
      
      
       2. Collective agreements
      
        12.      Relations between Continental Industrias del Caucho SA, whose business is the manufacture of tyres, and its workers are regulated
      by the Chemical Industry Agreement. Article 46 thereof, which concerns suspension of the contract by reason of maternity,
      fixes a period of 16 weeks, which is the same as the statutory period. Article 43 of the agreement governs the taking and
      duration of leave, which is thirty calendar days, and stipulates that at least fifteen continuous days are to be taken between
      June and September.
      
      
        13.      Under a collective agreement concluded on 7 May 2001 between the defendant and its workers’ representatives (hereinafter ‘the
      collective agreement’) – which resulted from conciliation reached in a collective dispute settlement procedure initiated by
      the workers’ representatives – two general periods were established within which all staff could take holiday, the first running
      from 16 July to 12 August 2001 and the second from 6 August to 2 September 2001.
      
      
        14.      The agreement also provides, by way of exception, that six workers may take holiday in September. Priority for the exceptional
      period is given to workers who were not able to choose their holiday period the previous year.
      
      
      III –  Facts and main proceedings
        15.      Ms Merino Gómez has worked for the defendant undertaking since 12 September 1994. She was on maternity leave from 5 May 2001
      until 24 August 2001.
      
      
        16.      Ms Merino Gómez asked to take her annual holiday from 25 August to 21 September 2001 or, alternatively, from 1 September to
      27 September 2001, that is, a period following her maternity leave. As we have already seen, the collective agreement provided
      that, by way of exception, six workers could take their holiday in September, and that priority would be given to workers
      who had not been able to choose their holiday period the previous year. The claimant had been able to choose her holiday dates
      in 2000 and, accordingly, under that agreement she would not normally have been able to take her leave during the exceptional
      period of 1 to 30 September 2001.
      
      
        17.      The defendant company refused to authorise the holiday period requested.
      
      
        18.      On 6 June 2001, Ms Merino Gómez brought an action against the defendant before the Juzgado de lo Social No 33, Madrid, for
      the holiday she was claiming.
      
      
        19.      The national court refers to the precedents established by a number of Spanish courts hearing cases concerning an overlap
      between the period of maternity leave and collectively agreed staff holiday periods. According to that case-law, in such cases,
      the employee is not entitled to take her annual leave during a period other than the one fixed by the collective agreement
      concluded in the undertaking, since compliance with the provisions of that agreement takes precedence over the individual
      right of the worker to take leave.
      
      
        20.      The national court does not share that opinion and cites Community law and the case-law of the Court of Justice which, it
      maintains, supports the claimant’s point of view. It considers that it should refer two questions to the Court of Justice
      for a preliminary ruling on the principle and scope of Ms Merino Gómez’s statutory and contractual rights.
      
      
      IV –  Law
       A – The first question
        21.      This states:
      ‘Where collective agreements between an employer and workers’ representatives fix the timing of leave for the entire workforce,
      and where the dates concerned coincide with those of a worker’s maternity leave, do Article 7(1) of Directive 93/104, Article
      11(2)(a) of Directive 92/85 and Article 5(1) of Directive 76/207 guarantee that worker’s entitlement to take annual leave
      during a period other than the one agreed, which does not coincide with her period of maternity leave?’
      
      
        22.      To counter the national case-law cited, the referring court cites the case‑law of the Court of Justice concerning Article
      7 of Directive 93/104, 
         			(6)
         		 Article 8 of Directive 92/85 
         			(7)
         		 and Directive 76/207. 
         			(8)
         		
      
        23.      The national court considers that it follows from that case-law that the principle of equal treatment and non-discrimination
      for women who are pregnant or breastfeeding requires that, if the dates of a worker’s maternity leave coincide with the annual
      holiday dates fixed in advance by collective agreement between the undertaking and workers’ representatives, she must be entitled
      to take her annual leave during a period which does not coincide with her maternity leave. Allowing the two periods of leave
      to overlap would entail one of them being lost, in this case the annual holiday.
      
      
        24.      According to the national court, such a finding is not precluded by the fact that the holiday dates for the entire workforce
      were fixed in advance by collective agreement. In order to comply with Community rules guaranteeing the principle of equal
      treatment and non-discrimination and the entitlement to annual leave, the collective agreement should have made provision
      for the special situation of pregnant workers at the undertaking by guaranteeing their double entitlement to maternity leave
      and annual holidays. The national court considers, on the basis of the judgment in Lewen, 
         			(9)
         		 that, by failing to do so, the agreement infringed the relevant Community legislation.
      
      
        25.      Ms Merino Gómez, the Spanish and Italian Governments and the Commission suggest that the first question should be answered
      in the affirmative.
      
      
        26.     Ms Merino Gómez points out that Directives 93/104, 92/85 and 76/207 do not permit the merging of maternity leave and annual leave, and preclude
      the absorption of the former by the latter. She submits that the protection of the entitlement to maternity leave must prevail
      over any collective agreement. To merge it with another entitlement such as that relating to annual leave would infringe her
      fundamental right to maternity leave. Any interpretation must ensure the prohibition of discrimination on grounds of sex,
      which is one of the fundamental principles.
      
      
        27.     The Spanish Government, whose view largely concurs with that of the national court, submits that Directives 93/104, 92/85 and 76/207 guarantee a
      worker’s entitlement to take annual leave during a period other than the one agreed by collective agreement, which does not
      coincide with her period of maternity leave.
      
      
        28.     The Italian Government refers to its national law, which, through judicial interpretation and the implementation of the Community directives, has
      resolved – in a manner favourable to the employee – the question of adding maternity leave to annual leave. The Italian State
      is therefore concerned that the decision to be given should ensure the uniformity of the treatment of workers and of the costs
      borne by undertakings in the European Union.
      
      
        29.      I share the views expressed above, but concur, more particularly, with the more detailed arguments submitted by the Commission,
      which I set out below. 
      
      
        30.      The Commission rightly points out that, in order to answer the question posed, it is first necessary to examine the nature of the entitlement
      claimed. The starting-point of the analysis must be Article 7(1) of Directive 93/104 concerning certain aspects of the organisation
      of working time, which governs the right of workers to annual leave and provides: ‘Member States shall take the measures necessary to ensure that every worker is entitled to annual paid leave of at least four
         weeks ...’.
      
      
        31.      The Court of Justice had the opportunity to give a ruling on the nature and scope of that entitlement in its judgment in BECTU
         			(10)
         		 in which it stated that it should be noted that Article 7(1) of Directive 93/104 imposes a clear and precise obligation on
      Member States. Moreover, it is an obligation from which there can be no derogations, since Article 17 of the directive gives
      an exhaustive list of the provisions from which Member States or the two sides of industry may derogate and since Article
      7 is not one of those provisions. The Court therefore concluded that:
      ‘It follows that the entitlement of every worker to paid annual leave must be regarded as a particularly important principle
      of Community social law from which there can be no derogations and whose implementation by the competent national authorities
      must be confined within the limits expressly laid down by Directive 93/104.’ 11  –Ibid., paragraph 43.
      
      
        32.      Annual leave is therefore a worker’s absolute right from which there are no exceptions or derogations, so that Article 7(1)
      of Directive 93/104, which provides that Member States shall take the measures necessary in accordance with the conditions
      for entitlement to, and granting of, such leave laid down by national legislation and/or practice must be construed as meaning
      that the national procedures for implementing the directive must, in any event, observe that fundamental right. 
         			(12)
         		
      
        33.      The fact that, under Article 7(2) of Directive 93/104, the minimum period of annual leave may not be replaced by an allowance
      in lieu is additional proof that paid annual leave is an absolute right. It is a right to genuine and actual rest, enabling
      the worker to make a physical recovery, in accordance with the objectives of the directive, which are to protect the safety
      and health of workers.
      
      
        34.      As a corollary to all the aforementioned aspects of the entitlement to a minimum period of paid annual leave, the Court pointed
      out 
         			(13)
         		 that, according to the fifth recital of Directive 93/104, ‘the improvement of workers’ safety, hygiene and health at work
      is an objective which should not be subordinated to purely economic considerations’. It is to be inferred from that that there
      can be no derogation on economic grounds from the entitlement to annual leave.
      
      
        35.      As regards entitlement to maternity leave, Article 8 of Directive 92/85 requires Member States to take the necessary measures
      to ensure that pregnant workers, workers who have recently given birth and workers who are breastfeeding ‘are entitled to
      a continuous period of maternity leave of at least 14 weeks allocated before and/or after confinement in accordance with national
      legislation and/or practice.’
      
      
        36.      That too is an absolute right, which permits no derogation or limitation and whose objective is, as the Court has pointed
      out, to guarantee the worker a minimum period of rest, not only with the aim of protecting her physical condition but also
      to enable her to look after her child in the period following the birth. 
      
      
        37.      In the present case, the worker was entitled to maternity leave in accordance with her absolute right under Directive 92/85
      and, since that period coincides with the period fixed for the annual leave of the whole workforce, she has been denied the
      right to her annual leave; she has therefore been refused an absolute right to which every worker in his capacity as a worker
      is entitled under Directive 93/104.
      
      
        38.      Furthermore, it is expressly stated, in Article 11(2)(a) of Directive 92/85, that Member States have a duty to ensure workers’
      rights connected with the employment contract in the case of maternity leave.
      
      
        39.      To the same effect, Article 5(1) of Directive 76/207 on the implementation of the principle of equal treatment for men and
      women as regards access to employment, vocational training and promotion, and working conditions, provides that ‘application
      of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means
      that men and women shall be guaranteed the same conditions without discrimination on grounds of sex’.
      
      
        40.      The Court reiterated the importance of that principle in its judgment in Thibault, 
         			(14)
         		 in which it stated:
      ‘The principle of non-discrimination requires that a woman who continues to be bound to her employer by her contract of employment
      during maternity leave should not be deprived of the benefit of working conditions which apply to both men and women and are
      the result of that employment relationship.’
      
      
        41.      It is indisputable, in the circumstances, that a right as fundamental as the right to a minimum period of paid annual leave,
      which must be guaranteed to every worker, is a right connected with the employment contract and must be protected in every
      case. If, as in Ms Merino Gómez’s case, there is an overlap between the period of maternity leave and the general period of
      annual leave fixed for the entire workforce, the necessary measures must be taken to ensure that the worker may take her full
      annual leave at another time.
      
      
        42.      The Commission also points out, rightly, that the Court has held that periods of maternity leave are to be assimilated to
      periods worked, because there would otherwise be discrimination against female workers simply as workers. 
         			(15)
         		
      
        43.      Finally, the last aspect of the first question raised by the national court concerns the nature of the rule which is at the
      origin of the dispute, namely the collective agreement, which resulted from conciliation reached in a collective dispute settlement
      procedure initiated by the workers’ representatives. In that regard, it should be pointed out that the agreement governs solely
      the periods of annual leave for the entire workforce, and the possible derogations, and does not govern other aspects of working
      relations. The fact that that agreement was concluded in isolation, without taking account of specific situations, such as
      that of a worker on maternity leave who is unable to take her annual leave during the period fixed because it coincides with
      her maternity leave, may explain the existence of that discriminatory situation, which denies the worker her fundamental right
      to annual leave, inherent in her capacity as a worker.
      
      
        44.      As the Commission also rightly states, it goes without saying that the collective agreement at issue is also subject to the
      duty to observe the principle of equality of treatment for men and women, as regards the working conditions connected with
      the contract. In its judgment in Lewen, 
         			(16)
         		 the Court stated:
      ‘It must be borne in mind, first of all, that, in view of its mandatory nature, the prohibition of discrimination between
      male and female workers not only applies to action on the part of public authorities, but also extends to all collective agreements
      designed to regulate employment relationships and to contracts between individuals (see, in particular, Case C-184/89 Nimz [1991] ECR I‑297, paragraph 11, and Case C-281/97 Krüger [1999] ECR I-5127, paragraph 20). That prohibition also applies to unilateral action by an employer vis-à-vis his employees.’
      
      
        45.      I am fully aware of the fact that periods of maternity leave may create serious organisational problems for undertakings or
      administrations, especially if they are small. I even think, as the German Government pointed out in another case, 
         			(17)
         		 that a woman has a duty of loyalty to her employer which requires her to take those problems into consideration.
      
      
        46.      However, I also note that the collective agreement, in the present case,  provides, by way of an exception, that six workers
      may take holiday in September. Priority for the exceptional period is given to workers who were not able to choose their holiday
      period the previous year.
      
      
        47.      It would therefore have been possible to provide for a similar exception in favour of a worker who has recently given birth,
      without causing too much disruption to the running of the undertaking.
      
      
        48.      For all those reasons, I therefore conclude that the first question should be answered as follows:
      ‘Where collective agreements between an employer and workers’ representatives fix the annual holiday periods for the entire
      workforce, and where the dates of a worker’s maternity leave coincide with those periods, Article 7(1) of Directive 93/104,
      Article 11(2)(a) of Directive 92/85 and Article 5(1) of Directive 76/207 guarantee that worker’s entitlement to take annual
      leave at a time other than the contractual period, which does not coincide with her period of maternity leave’.
      
      
       B – The second question
        49.      The question is worded as follows:
      ‘If the first question is answered in the affirmative, what is the substantive scope of the entitlement to annual leave? Does
      it cover exclusively the four weeks’ leave referred to in Article 7(1) of Directive 93/104, or does it extend to the thirty
      calendar days laid down by national legislation, in Article 38(1) of Royal Decree-Law 1/95, the Workers’ Statute?’
      
      
        50.      The national court points out that, under national law, the worker has maternity leave which is two weeks longer than the
      minimum fixed in Article 8(1) of Directive 92/85 and that the national legislation also entitles her to thirty calendar days’
      leave, that is, two days more than the four weeks (twenty-eight days) laid down by Article 7 of Directive 93/104. 
      
      
        51.      Since national law transposes and improves the Community law, the national court considers that the worker s entitlement should
      consist of a total of thirty calendar days’ leave, as laid down in the national legislation and endorsed by the relevant collective
      agreement.
      
      
        52.      The Spanish Government submits that the substantive scope of the entitlement to annual leave is the thirty calendar days fixed by Spanish legislation
      in Article 38(1) of Royal Decree-Law 1/95, the Workers’ Statute.
      
      
        53.      The Italian Government points out that the consequence of a reply to the first question based on the principle that there is to be no discrimination
      on grounds of sex is that Spanish law should apply for the purpose of regulating periods of leave.
      
      
        54.      It therefore suggests that the reply should be that the scope of the entitlement to leave as just recognised is consistent
      with that established for other workers by each national legislation.
      
      
        55.      The Commission submits that the Court answered that question in its recent judgment in Finalarte and Others, 
         			(18)
         		 in which, after noting that Directive 93/104 lays down only minimum requirements as to the period of paid leave and that
      Article 15 of the directive confers on Member States the right to adopt provisions more favourable to the protection of the
      safety and health of workers, it stated that it is for each Member State to determine the period of paid leave which is necessary
      in the public interest.
      
      
        56.      The Commission therefore suggests that the reply should be that, if a Member State, exercising the power conferred on it by
      Articles 7(1) and 15 of Directive 93/104, has extended the period of paid annual leave in its national legislation, it is
      that legislation which will apply to the workers of that Member State.
      
      
        57.      I suggest that the Court’s reply be to the same effect as that proposed by the two governments and the Commission.
      
      
        58.      Once a Member State has opted for a period of annual leave which is longer than the minimum period prescribed by the directive,
      undertakings must guarantee that period to women and to men in order not to infringe the principle of equality of treatment.
      
      
        59.      To reduce the period of annual leave of women who have taken maternity leave during the period of collective leave would also
      contravene Article 11(2)(a) of Directive 92/85, which requires that their rights connected with the contract of employment
      be upheld.
      
      
        60.      However, I suggest that the Court does not reply in exactly the same terms as those used by the Commission, which refers to
      a Member State ‘exercising the power conferred on it by Articles 7(1) and 15 of Directive 93/104’. It is not under a power
      conferred on them by that directive that Member States may establish a longer period of annual leave, but under their power
      to adopt the labour legislation which they consider most appropriate. The Community has only intervened in order to lay down
      minimum requirements within the framework of the directive.
      
      
        61.      The reply which I propose the Court give to the second question is therefore as follows:
      ‘In such a case, the substantive scope of the entitlement to annual leave covers the whole of the period laid down by national
      legislation.’
      
       
      V –  Conclusion
        62.      In the light of the foregoing considerations, I propose that the Court should give the following replies to the questions
      posed:
      
      (1)
         Where collective agreements between an employer and workers’ representatives fix the annual holiday periods for the entire
            workforce, and where the dates of a worker’s maternity leave coincide with those periods, Article 7(1) of Council Directive
            93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, Article 11(2)(a) of Council
            Directive 92/85/EEC 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), and Article 5(1) of Council Directive 76/207/EEC of 9 February 1976
            on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training
            and promotion, and working conditions, guarantee that worker’s entitlement to take annual leave during a period other than
            the one agreed by collective agreement, which does not coincide with her period of maternity leave. 
         
      
      
      (2)
         In such a case, the substantive scope of the entitlement to annual leave covers the whole of the period laid down by national
            legislation.
         
      
      
      
       1 –
         
         Original language: French.
      
      2 –
         
         OJ 1993 L 307, p. 18.
            
         
      
      3 –
         
         OJ 1992 L 348, p. 1.
            
         
      
      4 –
         
         OJ 1976 L 39, p. 40.
            
         
      
      5 –
         
         BOE No 266 of 6 November 1999.
            
         
      
      6 –
         
         Case C-173/99 BECTU [2001] ECR I‑4881.
            
         
      
      7 –
         
         Case C-411/96 Boyle and Others [1998] ECR I-6401.
            
         
      
      8 –
         
         Case C-136/95 Thibault [1998] ECR I-2011.
            
         
      
      9 –
         
         Case C-333/97 Lewen [1999] ECR I-7243.
            
         
      
      10 –
         
         Cited above in footnote 6.
            
         
      
      11 –
         
         Ibid., paragraph 43.
            
         
      
      12 –
         
         Ibid., paragraph 53.
            
         
      
      13 –
         
         Ibid., paragraph 59.
            
         
      
      14 –
         
         Cited above in footnote 8, paragraph 29.
            
         
      
      15 –
         
         The judgment in Lewen, cited above in footnote 9, paragraphs 41 and 42.
            
         
      
      16 –
         
         Ibid., paragraph 26.
            
         
      
      17 –
         
         Case C-320/01 Busch [2003] ECR I-2041.
            
         
      
      18 –
         
         Joined Cases C-49/98, C-50/98, C-52/98 to C-54/98 and C-68/98 to C-71/98 Finalarte and Others [2001] ECR I-7831, paragraph 58.