Marc Betriu Montull v Instituto Nacional de la Seguridad Social (INSS).
Date: 2013-09-19
33. In that regard, it must be borne in mind that, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑119/05 Lucchini  [2007] ECR I‑6199, paragraph 43, and Case C‑534/11 Arslan  [2013] ECR I-0000, paragraph 33).
34. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, for example, Lucchini , paragraph 44, and Case C‑290/12 Della Rocca  [2013] ECR I-0000, paragraph 29).
40. In the procedure laid down by Article 267 TFEU providing 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. The Court has a duty to interpret all provisions of European Union law which national courts require in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court by those courts (see, inter alia, Case C‑243/09 Fuß [2010] ECR I‑9849, paragraph 39, and Case C‑342/12 Worten  [2013] ECR I-0000, paragraph 30).
41. Consequently, even if, formally, the referring court has limited its questions to the interpretation only of the provisions of Directives 76/207 and 96/34, that does not prevent this Court from providing the referring court with all the elements of interpretation of European Union 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 regard, 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 European Union law which require interpretation in view of the subject matter of the dispute (see Fuß , paragraph 40, and Worten , paragraph 31).
45. The leave in question in the main proceedings must be taken when the child is born. Article 8 of Directive 92/85 precisely guarantees a right to maternity leave of at least 14 continuous weeks, including a period of compulsory leave of at least 2 weeks allocated before and/or after confinement in accordance with national legislation and/or practice. In addition, the fact that legislation grants women maternity leave of more than 14 weeks does not preclude that leave from being considered to be maternity leave as referred to in Article 8 of Directive 92/85 (see Case C‑284/02 Sass  [2004] ECR I‑11143, paragraph 44).
46. Furthermore, while the referring court appears to consider that the period of leave after the six weeks which the mother must take following childbirth must be regarded as parental leave within the meaning of Directive 96/34, there is no information in the order for reference relating to the content of the national legislative rules on parental leave which would make it possible to reply to the questions referred in the light of that directive. In that regard, as stated by the INSS and the Spanish Government, Article 48(4) of the Workers’ Statute, which is the exclusive subject of the three questions referred by the national court, does not concern parental leave within the meaning of Directive 96/34.
48. According to the case-law of the Court, the right to maternity leave granted to pregnant workers must be regarded as a particularly important mechanism of protection under employment law. The European Union legislature thus considered that the fundamental changes to the living conditions of the persons concerned during the period of at least 14 weeks preceding and after childbirth constituted a legitimate ground on which they could suspend their employment, without the public authorities or employers being allowed in whatever way to call the legitimacy of that ground into question (see Case C‑116/06 Kiiski  [2007] ECR I‑7643, paragraph 49).
49. Pregnant workers and workers who have recently given birth or who are breastfeeding are in an especially vulnerable situation which makes it necessary for the right to maternity leave to be granted to them but which, particularly during that leave, cannot be compared to that of a man or a woman on sick leave (Case C‑411/96 Boyle and Others [1998] ECR I‑6401, paragraph 40).
50. That maternity leave from which the female worker benefits is intended, first, to protect a woman’s biological condition during and after pregnancy and, second, to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment (see, inter alia, Case 184/83 Hofmann  [1984] ECR 3047, paragraph 25, and Kiiski , paragraph 46).
57. By contrast, according to the case-law of the Court, although the Member States are required, pursuant to Article 8 of Directive 92/85, to take the necessary measures to ensure that women workers are entitled to a period of maternity leave of at least 14 weeks, those workers may waive that right, with the exception of the 2 weeks’ compulsory maternity leave provided for in Article 8(2) of Directive 92/85 ( Boyle and Others , paragraph 58).
61. With regard to the justification for such a difference in treatment, Article 2(3) of Directive 76/207 lays down that that directive is without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity (see Case C-104/09 Roca Álvarez  [2010] ECR I‑8661, paragraph 26).
62. In that regard, the Court has repeatedly held that, by reserving to the Member States the right to retain or introduce provisions which are intended to protect women in connection with pregnancy and maternity, Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment of the sexes, first, of protecting a woman’s biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows childbirth (see, inter alia, Hofmann , paragraph 2, and Roca Álvarez , paragraph 27).
68. It should be recalled that, in the context of a request for a preliminary ruling under Article 267 TFEU, the Court may interpret the law of the European Union only within the limits of the powers conferred on it (see Case C-400/10 PPU McB.  [2010] ECR I-8965, paragraph 51, and order of the Court of 6 July 2012 in Case C-16/12 Hermes Hitel és Faktor , not published in the ECR, paragraph 13).
69. According to settled case-law, where national legislation falls within the scope of application of European Union law, the Court, in a request for a preliminary ruling, must give the national court all the guidance as to interpretation necessary to enable it to assess the compatibility of that legislation with European Union law the observance of which the Court ensures. By contrast, the Court has no such jurisdiction where, first, the subject matter of the dispute in the main proceedings has no link with European Union law and, second, the legislation the interpretation of which is sought lies outside the scope of European Union law (see Case C-299/95 Kremzow  [1997] ECR I-2629, paragraph 15, and order in Hermes Hitel és Faktor , paragraph 14).
70. With regard to the requirements arising from the general principles of European Union law and from the protection of fundamental rights, it is settled case-law that they bind the Member States in all cases where they are called upon to apply European Union law (see Case C-555/07 Kücükdeveci  [2010] ECR I-365, paragraph 23, and order in Hermes Hitel és Faktor , paragraph 15).