CELEX: 62008CC0116
Language: en
Date: 2009-05-14
Title: Opinion of Advocate General Kokott delivered on 14 May 2009. # Christel Meerts v Proost NV. # Reference for a preliminary ruling: Hof van Cassatie - Belgium. # Directive 96/34/EC - Framework agreement on parental leave concluded by UNICE, CEEP and the ETUC - Interpretation of Clause 2.6 and 2.7 - Part-time parental leave - Dismissal of a worker before the end of parental leave without observing the statutory period of notice - Calculation of compensation. # Case C-116/08.

OPINION OF ADVOCATE GENERAL
      KOKOTT
      delivered on 14 May 2009 1(1)
      
      Case C‑116/08
      C. Meerts
      v
      Proost NV
      (Reference for a preliminary ruling from the Hof van Cassatie, Belgium)
      (Parental leave – Unilateral termination of a contract of employment by the employer – Payment in lieu of notice – Directive 96/34/EC)I –  Introduction
      1.        This reference for a preliminary ruling concerns the interpretation of Council Directive 96/34/EC of 3 June 1996 on the framework
         agreement on parental leave concluded by UNICE, CEEP and the ETUC. (2) It presents an opportunity to define the legal position of workers on parental leave. 
      
      II –  Legal background
      A –    Community law
      2.        Directive 96/34 puts into effect the Framework agreement on parental leave concluded on 14 December 1995 between the general
         cross-industry organisations.
      
      3.        The Framework agreement on parental leave annexed to Directive 96/34 contains in recital 9 of its preamble the following statement:
      
      ‘… the present 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 the conditions of access
         and detailed rules of application in order to take account of the situation in each Member State;
      
      …’
      4.        Clause 1 of the Framework agreement sets out its purpose and scope:
      
      ‘This agreement lays down minimum requirements designed to facilitate the reconciliation of parental and professional responsibilities
         for working parents. …’
      
      5.        Clause 2.1 of the Framework agreement, headed ‘Parental leave’, states:
      
      ‘This agreement grants, subject to clause 2.2, men and women workers an individual right to parental leave on the grounds
         of the birth or adoption of a child to enable them to take care of that child, for at least three months, until a given age
         up to 8 years to be defined by Member States and/or management and labour.’
      
      6.        Clause 2.4 of the Framework agreement on parental leave provides:
      
      ‘In order to ensure that workers can exercise their right to parental leave, Member States and/or management and labour shall
         take the necessary measures to protect workers against dismissal on the grounds of an application for, or the taking of, parental
         leave in accordance with national law, collective agreements or practices.’
      
      7.        Clause 2.5 states:
      
      ‘At the end of parental leave, workers shall have the right to return to the same job or, if that is not possible, to an equivalent
         or similar job consistent with their employment contract or employment relationship.’
      
      8.        Clause 2.6 provides that:
      
      ‘Rights acquired or in the process of being acquired by the worker on the date on which parental leave starts shall be maintained
         as they stand until the end of parental leave. At the end of parental leave, these rights, including any changes arising from
         national law, collective agreements or practice, shall apply.’
      
      B –    National law
      9.        The national court sets out the legal situation in Belgium as follows.
      
      10.      In Belgium, Directive 96/34 was transposed by Royal Decree of 29 October 1997, which introduced parental leave.
      
      11.      Under Article 2(1) of the Royal Decree workers can take parental leave in one of the following ways:
      
      –        either by suspending their employment contract for a period of three months,
      –        or by reducing working hours by half for a period of six months,
      –        or by reducing working hours by one fifth for a period of 15 months.
      12.      A worker taking parental leave receives a State allowance. 
      
      13.      The rules on parental leave were inserted into existing rules on career breaks. The term ‘career break’ describes in Belgium
         a rule which permits either the temporary suspension of the performance of work or a reduction thereof. The legal provisions
         on this are essentially contained in Part 5 of the Law on financial stabilisation of 22 January 1985.
      
      14.      Article 101 of the Law on financial stabilisation provides that, in the event of a reduction in working hours, the employer
         may not unilaterally terminate the employment relationship unless there is urgent cause as provided for in Article 35 of the
         Law on employment contracts or there is a sufficient ground for doing so.
      
      15.      Article 103 of the Law on financial stabilisation states that, in the case of a unilateral termination of the employment contract
         by the employer, the notice period applicable in respect of a worker who has reduced his or her working hours is to be calculated
         as if the worker had not reduced his or her hours.
      
      16.      In accordance with Article 103 of the Law on financial stabilisation, the length of that notice period is also to be taken
         into account in determining the payment referred to in Article 39 of the Law on employment contracts.
      
      17.      The Law on financial stabilisation is silent as to the amount of salary to be taken as a basis for the determination of the
         payment in lieu of notice. In that context, general labour law, in particular Article 39 of the Law on employment contracts,
         is to be applied.
      
      18.      In accordance with Article 39(1)(1) of the Law on employment contracts, in the case of a contract of indefinite duration,
         the party terminating the contract without urgent cause or without giving statutory notice is required to pay the other party
         an amount equivalent to the current salary for the duration of the period of notice or for the period of notice remaining.
      
      19.      Also in this context, when working hours have been reduced, the notice period is calculated as if working time had not been
         reduced.
      
      20.      The determination of the amount of the payment under Article 39(1) of the Law on employment contracts is not, however, subject
         to any derogation. Therefore, in the event of a unilateral termination by the employer, payment in lieu of notice for a worker
         who has reduced his or her working hours would have to be calculated by reference to the salary actually due to that worker
         at the time of notice of termination of the employment contract.
      
      21.      According to the referring court, that provision is also applicable when a worker reduces his or her working time on the ground
         of parental leave.
      
      III –  Facts and main proceedings
      22.      The following facts are apparent from the reference for a preliminary ruling and the observations of the parties.
      
      23.      Since 1992, Ms Meerts had had an employment contract of indefinite duration with NV Proost. For the period from 18 November
         2002 to 17 May 2003, she reduced her working hours by half by taking parental leave.
      
      24.      On 8 May 2003, thus 9 days before the end of her parental leave, NV Proost dismissed Ms Meerts for economic reasons without
         notice. The dismissal as such is not a matter of dispute between the parties, but solely the amount of payment in lieu of
         notice owing to her. Ms Meerts received a payment in lieu of notice from her employer calculated on the basis of the part-time
         salary she earned for the duration of parental leave. She, however, takes the view that the payment in lieu of notice should
         have been calculated on the basis of the full-time salary that she earned before taking parental leave and that she would
         have earned again after the parental leave came to an end.
      
      25.      For that reason, Ms Meerts brought a claim for a higher payment before the Arbeidsrechtbank Turnhout. The claim was dismissed.
         The appeal against that judgment to the Arbeidshof Antwerpen was unsuccessful. Ms Meerts brought a further appeal against
         that decision to the referring court.
      
      26.      The dispute between the parties is confined to the question whether Ms Meerts is entitled to a payment in lieu of notice the
         amount of which is calculated by reference to the part-time salary which she earned by reason of her reduced hours during
         her parental leave, or by reference to the full-time salary to which she was entitled before she took parental leave.
      
      IV –  Reference for a preliminary ruling and procedure before the Court
      27.      By order of 25 February 2008, lodged at the Court’s Registry on 17 March 2008, the Hof van Cassatie stayed proceedings and
         referred the following question to the Court for a preliminary ruling:
      
      ‘Are Clauses 2.4, 2.5, 2.6 and 2.7 of the Framework agreement on parental leave to be interpreted as meaning that, where an
         employer unilaterally terminates an employment contract without urgent cause or without compliance with the statutory period
         of notice at a time when the worker is availing him or herself of arrangements for reduced working hours, the payment in lieu
         of notice that is due to the worker must be determined by reference to the basic salary calculated on the basis that the worker
         had not reduced his or her working hours as a form of parental leave in accordance with Clause [2].3(a) of the Framework agreement?’
      
      28.      Before the Court, besides Ms Meerts and NV Proost, the Belgian, French and Greek Governments, as well as the Commission of
         the European Communities, have submitted written and oral observations.
      
      V –  Assessment
      A –    Admissibility of the reference for a preliminary ruling
      29.      The Commission takes the view that the reference for a preliminary ruling is inadmissible. It merely reproduces the pleas
         of the appellant in cassation without expressing with the necessary clarity why the referring court considers an interpretation
         of the Framework agreement to be necessary.
      
      30.      According to settled case-law, it is solely for the national court to determine the need for a preliminary ruling and where
         questions submitted by a national court concern the interpretation of Community law the Court is in principle bound to give
         a ruling. (3) There is a general presumption that references made by national courts for a preliminary ruling are relevant and this presumption
         may be rebutted only in exceptional cases, where it is quite obvious that the interpretation of Community law which is sought
         bears no relation to the actual facts of the main action or to its purpose. (4) The Court may also refuse to rule on a question referred for a preliminary ruling by a national court where it does not have
         before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (5)
      
      31.      In the present case, however, it cannot be said that it is obvious that the question referred for a preliminary ruling by
         the Hof van Cassatie is irrelevant. Directive 96/34 sets out minimum rights for workers regarding parental leave, which could
         be relevant in the main proceedings for the calculation of the payment in lieu of notice to a worker who is on parental leave.
         In addition, the factual and legal material necessary to give a useful answer to the questions submitted to the Court may
         also be adequately gleaned from the order for reference.
      
      32.      Therefore, the reference for a preliminary ruling must be considered admissible.
      
      B –    Substantive analysis of the question referred
      33.      The referring court requests an interpretation of Clauses 2.4, 2.5, 2.6 and 2.7 of the Framework agreement on parental leave
         in connection with national provisions on payment in connection with dismissal without notice.
      
      34.      The Commission correctly states that this case essentially concerns the interpretation of Clause 2.6 of the Framework agreement.
         The other paragraphs of Clause 2 are not, however, directly relevant.
      
      35.      Clause 2.4 of the Framework agreement states that Member States and/or management and labour are to take the necessary measures
         to protect workers against dismissal on the grounds of an application for, or the taking of, parental leave. That provision
         thus concerns dismissal itself and not, directly, the consequences of dismissal. According to the referring court, the parties
         in the main proceedings are, however, solely in dispute over the payment in lieu of notice due as a consequence of the dismissal.
         Clause 2.4 can therefore at most be only incidentally of significance in the interpretation of Clause 2.6.
      
      36.      In addition, no direct indication of the amount of payment in lieu of notice due for a dismissal during parental leave may
         be derived from Clause 2.5 of the Framework agreement. That provision governs only employment relationship arrangements after
         the return from parental leave. It therefore presupposes a resumption of the employment relationship, while in the present
         case it is the arrangements following dismissal that are to be assessed.
      
      37.      Clause 2.7, which provides that Member States and/or management and labour are to define the status of the employment contract
         or employment relationship for the period of parental leave, can only indirectly influence the assessment of national rules
         on payment in lieu of notice.
      
      38.      I shall therefore examine below the question of when rules on the amount of compensation for dismissal affect the acquired
         rights of a worker within the meaning of Clause 2.6. That provision provides that rights acquired or in the process of being
         acquired by the worker on the date on which parental leave starts are to be maintained as they stand until the end of parental
         leave.
      
      1.      A position protected by law 
      39.      According to Belgian law, the notice period to be observed by the employer is related to the duration of the worker’s employment.
         The duration of the notice period increases with the duration of employment. That ‘acquired’ duration of the notice period
         indubitably falls within the scope of Clause 2.6. If a worker is on parental leave, the same notice period therefore applies
         as would have applied before the start of parental leave.
      
      40.      Under Belgian law the length of the notice period also determines the payment in lieu of notice due to the worker in the event
         of a dismissal without notice. This is calculated on the basis of the current salary for the duration of the notice period.
         Consequently, the notice period ‘acquired’ by the worker for length of service affects the amount of his or her payment in
         lieu of notice. That linking of the duration of employment with the amount of payment in lieu of notice in the event of a
         dismissal without notice means that, in the context of a worker’s entitlement to payment in lieu of notice, it can be regarded
         as an ‘acquired right’ within the meaning of Clause 2.6. (6)
      
      41.      The exact content of the worker’s ‘acquired right’ is however uncertain. Two alternative interpretations are possible.
      
      42.      On the one hand, the legal position of the worker with its economic value before parental leave is taken can be regarded as
         an ‘acquired right’. In the event of dismissal during parental leave, the payment in lieu of notice should not then be less
         than if the dismissal had taken place on the day before parental leave began. The worker had acquired the right to payment
         in lieu of notice in that amount before taking parental leave. Clause 2.6 prohibits, on that construction, a reduced payment
         in lieu of notice in the event of dismissal during parental leave.
      
      43.      On the other hand, a construction of ‘acquired right’ which is linked to the actual loss of earnings may also be considered.
         To the extent that the payment is to compensate for the fact that dismissal was without notice, the acquired right could be
         seen solely as placing the worker in the same position by the payment in lieu of notice as if he or she had been dismissed
         with notice. Clause 2.6 would accordingly merely preclude, in the case of dismissal without notice during parental leave,
         the payment in lieu of notice being less than the salary which would otherwise have been earned during the notice period.
         The fact that this payment in lieu of notice is provided for in the case of dismissal without notice, and is determined on
         the basis of the salary which would otherwise have been earned, could indicate that its purpose is to compensate for the fact
         that the dismissal was without notice.
      
      44.      Before those two alternative interpretations are discussed in more detail, their consequences should first be identified,
         taking the example of the case in the main proceedings.
      
      45.      According to the approach based on the status of the worker before taking parental leave, Ms Meert would be entitled to a
         payment in lieu of notice at least in the amount which she would have received in the event of dismissal without notice on
         the last day before she took parental leave. Accordingly, the fact that she received only a part‑time salary while she was
         on parental leave would not affect the amount of her payment in lieu of notice. It would continue to be calculated on the
         basis of the full-time salary previously received.
      
      46.      If the construction of the acquired right based on actual loss of earnings is taken as a basis, the calculation of the payment
         in lieu of notice protected by Clause 2.6 is somewhat more complex. Ms Meerts should receive payment in lieu of notice in
         the amount she would have received during the notice period had she been dismissed with notice. For the portion of the notice
         period which fell within the period of her parental leave, the payment in lieu of notice would therefore be proportionate
         to her part-time salary. For the subsequent part of the notice period falling after the end of parental leave and her return
         to full-time work, the full‑time salary would have to be taken as a basis. As Ms Meert was dismissed 9 days before the end
         of her parental leave, the payment in lieu of notice would correspond to the part-time salary for those 9 days but for the
         rest of the notice period to her full-time salary.
      
      47.      From a financial point of view, there would therefore not be a significant difference between both possible interpretations
         in the case in the main proceedings. The earlier in the parental leave that the dismissal without notice takes place, the
         more apparent will be the difference between the two possible interpretations in the result.
      
      48.      It can therefore be stated at this point, as an interim conclusion, that, in the context of rules such as these for the calculation
         of the rate of the compensation for dismissal, it is not permissible solely to take into account the amount of the part-time
         salary received only during parental leave. On both alternative interpretations, that would infringe an acquired right.
      
      49.      The Belgian Government defended the calculation of compensation on the sole basis of the part-time salary by reference to
         the fact that, under Belgian law, the employment relationship of a worker who has reduced his or her working hours on the
         ground of parental leave becomes that of a part-time worker for the duration of the parental leave. It is true that Clause
         2.7 of the Framework agreement confirms that the Member States can define the status of the contract or employment relationship
         for the period of parental leave. Restrictions on the acquired rights of the worker may not, however, be derived from the
         status of the contract or employment relationship contrary to what is clearly provided in Clause 2.6.
      
      2.      Discussion of the alternative interpretations
      50.      In favour of the construction of Clause 2.6 as relating to actual loss of earnings is the fact that it avoids workers on parental
         leave who are dismissed without notice being in a better position than workers who are dismissed with due notice. If payment
         in lieu of notice merely constituted compensation for the fact that the dismissal was without notice, the argument could be
         made that it is more logical to put workers only in the same financial position as they would have been in had the notice
         period been complied with. If payment in lieu of notice had other objectives as well, it would not be necessary from the start
         to treat such workers in the same way as a worker who had been dismissed with notice.
      
      51.      The issue whether the payment in lieu of notice under Belgian law is indeed merely compensation for lack of notice, which
         was denied by the claimant in the main proceeding at the hearing, is a matter of national law, which is ultimately for the
         national court to determine.
      
      52.      In my view, however, the economic approach, in this specific case basing the calculation of the payment in lieu of notice
         on the full-time salary earned before parental leave, is preferable anyway. Only that construction effectively safeguards
         the aim of Clause 2.6 to protect workers who take parental leave.
      
      53.      According to the wording of the preamble to the Framework agreement, its spirit and purpose is to improve the reconciliation
         of work and family life and to promote equal opportunities and equal treatment between men and women. It also refers to point
         16 of the Community Charter of Fundamental Social Rights which calls for measures to be developed to enable men and women
         to reconcile their occupational and family obligations.
      
      54.      The fact that a worker might receive a smaller payment in lieu of notice during parental leave than the amount to which he
         or she was entitled before taking parental leave could discourage workers from taking parental leave. That would be contrary
         to the aim outlined above of the Framework agreement. The option of taking parental leave promotes the reconciliation of family
         and professional life.
      
      55.      An economic construction safeguards the spirit and purpose of the Framework agreement. On the one hand, in that way the worker
         is not put in a financially worse situation and, on the other hand, the dismissal of a worker on parental leave is not financially
         more attractive to the employer than the dismissal of another worker. Workers do not therefore have to worry, because they
         have taken parental leave, that their job might not continue to exist. In relation specifically to the case before the referring
         court, it does not appear inconceivable that the employer carried out the dismissal without notice ‘at the right time’, a
         few days before the end of the parental leave, as he saw financial advantages in a dismissal at the end of parental leave,
         as compared with the dismissal of another worker.
      
      56.      In addition, that construction of the provision does not have the effect of placing a particular burden on the employer, because
         the employer merely cannot derive a benefit from the fact that the dismissed worker is on parental leave at the time of the
         dismissal. Rather, the employer must pay the same amount of compensation in the event of dismissal without notice, irrespective
         of whether the worker is on parental leave or not at the time of dismissal.
      
      C –    Interim conclusion
      57.      The Directive consequently precludes national legislation which, as regards payment in lieu of notice, takes only the part-time
         salary, reduced because of parental leave, into consideration.
      
      D –    Consequences for the dispute in the main proceedings
      58.      The consequences of that determination for the dispute in the main proceedings are a matter for the referring court to decide.
      
      59.      However, in that respect it should be recalled that, according to settled case-law, a directive cannot of itself impose obligations
         on an individual and cannot therefore be relied upon as such against an individual. It follows that even a clear, precise
         and unconditional provision of a directive seeking to confer rights or impose obligations on individuals cannot of itself
         apply in proceedings exclusively between private parties. (7) Therefore, no obligation on the part of the employer to make the higher payment in lieu of notice can be deduced directly
         from the Directive. National law must, however, be interpreted to the fullest extent possible in conformity with Community
         law. (8) The fact that in interpreting national law in accordance with Community law detriment to an individual may result does not
         militate against such interpretation. (9) Thus it is recognised that the obligation to interpret national law in accordance with directives applies also as regards
         horizontal legal relationships, in which a burden is necessarily imposed on a private individual. (10)
      
      60.      The principle that national law must be interpreted in conformity with Community law requires national courts to do whatever
         lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods
         recognised by domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome
         consistent with the objective pursued by it. (11)
      
      61.      The obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules
         of domestic law is limited by general principles of law, particularly those of legal certainty and non-retroactivity, and
         that obligation cannot serve as the basis for an interpretation of national law contra legem. (12)
      
      62.      It is thus for the national court to verify whether the above interpretation of the Directive can be achieved by interpretation
         of national law. 
      
      VI –  Conclusion
      63.      On the basis of the foregoing, I propose that the Court should answer the question referred by the Hof van Cassatie as follows:
      
      Clause 2.6 of the Framework agreement on parental leave annexed to Council Directive 96/34/EC of 3 June 1996 must be interpreted
         as meaning that, where an employer unilaterally terminates an employment contract without urgent cause or compliance with
         the statutory period of notice at a time when the worker is availing him or herself of arrangements for reduced working hours,
         the payment in lieu of notice that is due to the worker must be determined by reference to the basic salary calculated on
         the basis that the worker had not reduced his or her working hours as a form of parental leave.
      
      1 –	Original language: German.
      
      2 –	OJ 1996 L 145, p. 4 (‘Directive 96/34’ or ‘Framework agreement on parental leave’).
      
      3 –	Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 59; Case C‑119/05 Lucchini [2007] ECR I‑6199, paragraph 43; and Case C‑404/06 Quelle [2008] ECR I‑2685, paragraph 19.
      
      4 –	Case C‑467/05 Dell’Orto [2007] ECR I‑5557, paragraph 40, and Case C‑212/06 Government of the French Community and Walloon Government [2008] ECR I‑1683, paragraph 29; with regard to the presumption that references for a preliminary ruling are relevant, see
         also Case C‑429/05 Rampion and Godard [2007] ECR I‑8017, paragraph 23.
      
      5 –	Settled case-law: see, by way of example, Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 24; Case C‑11/07 Eckelkamp and Others [2008] ECR I‑6845, paragraphs 27 and 28; and Case C‑213/07 Michaniki [2008] ECR I‑0000, paragraphs 32 to 34.
      
      6 –	On this point the subject-matter of this case can be distinguished from that in Lewen, in which the Court of Justice also gave a ruling on Clause 2.6 of the Framework agreement. The bonus at issue in that case
         was a purely voluntary payment made by the employer, and therefore not an acquired right of the worker; see Case 333/97 Lewen [1997] ECR I‑7243, paragraph 32).
      
      7 –	Case 152/84 Marshall [1986] ECR 723, paragraph 48, Case C‑91/92 Faccini Dori [1994] ECR I‑3325, paragraph. 20, Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑8835, paragraphs 108 und 109, and Case C‑80/06 Carp [2007] ECR I‑4473, paragraph 20. Unclear in this regard, Case C‑144/04 Mangold [2005] ECR I‑9981, paragraphs 74 to 77.
      
      8 –	On the obligation of national courts to interpret national law in accordance with directives, see consistent case-law and,
         in particular, Case 14/83 Von Colson and Kamann [1984] ECR 1891, paragraph 26; Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others, cited in footnote 7, paragraphs 113 to 119, with further references; and Case C‑212/04 Adeneler and Others [2006] ECR I‑6057, paragraphs 108, 109 and 111. 
      
      9 –	See my Opinion in Case C-321/05 Kofoed [2007] ECR I-5795, and the case-law cited therein.
      
      10 –	See Case C‑106/89 Marleasing [1990] ECR I‑4135, paragraphs 6 to 8, and Faccini Dori, cited in footnote 7, paragraphs 20, 25 and 26.
      
      11 –	See Pfeiffer and Others, cited in footnote 7, paragraph 115 et seq.; Adeneler and Others, cited in footnote 8, paragraph 111; Case C‑268/06 Impact [2008] ECR I‑2483, paragraph 101; and Case C-378/07 Angelidaki and Others [2009] ECR I-0000, paragraph 200.
      
      12 –	See Case 80/86 Kolpinghuis [1987] ECR 3969, paragraph 13; Adeneler and Others, cited in footnote 8, paragraph 110; and Impact, cited in footnote 11, paragraph 100.