Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol.
Date: 2010-04-22
22. In that regard, it must be recalled that the Court has consistently held that whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon by individuals as against the Member State, particularly in its capacity as an employer (see, in particular, to that effect, Case C‑187/00 Kutz-Bauer  [2003] ECR I‑2741, paragraphs 69 and 71; Case C‑268/06 Impact  [2008] ECR I‑2483, paragraph 57; and Case C-537/07 Gómez-Limón Sánchez-Camacho [2009] ECR I‑0000, paragraph 33). That is undoubtedly the case with regard to Article 14 of Directive 2006/54.
23. That case-law can be applied to agreements which, like the framework agreements on part-time work and on fixed-term work, are the product of a dialogue between management and labour at European Union level and which have been implemented, in accordance with their respective legal basis, by a directive of the Council of the European Union, of which they are thus an integral component (see, to that effect, Impact , paragraph 58).
24. Taking those considerations into account, the Court held in particular that Clause 4.1 of the framework agreement on fixed-term work is unconditional and sufficiently precise for individuals to be able to rely upon it before a national court (see Impact , point 2 of the operative part of the judgment). The Court has further made clear that Clause 4.2 of that framework agreement simply articulates one of the consequences which may be associated, where appropriate, subject to judicial control, with the application of the principle of non-discrimination in favour of fixed-term workers, without in any way undermining the substance of that principle ( Impac t, paragraph 65).
28. In that regard, it is important to note first that, according to settled case-law, the right of every worker to paid annual leave must be regarded as a particularly important principle of European Union 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 Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18) itself (see Case C‑173/99 BECTU  [2001] ECR I‑4881, paragraph 43; Case C‑342/01 Merino Gómez  [2004] ECR I‑2605, paragraph 29; and Joined Cases C‑131/04 and C‑257/04 Robinson-Steele and Others  [2006] ECR I‑2531, paragraph 48; and regarding Directive 2003/88, see Joined Cases C‑350/06 and C-520/06 Schultz-Hoff and Others  [2009] ECR I‑179, paragraph 22, and Case C‑277/08 Vicente Pereda [2009] ECR I‑0000, paragraph 18).
29. Second, it should be noted that that particularly important principle of European Union social law cannot be interpreted restrictively (see, by analogy, Case C‑116/08 Meerts [2009] ECR I‑0000, paragraph 42).
30. It is, moreover, common ground that the purpose of the right to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure (see Schultz-Hoff and Others , paragraph 25). The positive effect of paid annual leave for the safety and health of the worker continues to be of significance if it is not taken in the reference period but during a later period (Case C‑124/05 Federatie Nederlandse Vakbeweging  [2006] ECR I‑3423, paragraph 30).
31. A worker must normally be entitled to actual rest, since it is only where the employment relationship is terminated that Article 7(2) of Directive 2003/88 permits an allowance to be paid in lieu of paid annual leave (see, to that effect, with regard to Directive 93/104, BECTU , paragraph 44, and Merino Gómez , paragraph 30).
32. It follows from the above that the taking of annual leave in a period after the reference period has no connection to the hours worked by the worker during that later period. Consequently, a change, and in particular a reduction, of working hours when moving from full-time to part-time employment cannot reduce the right to annual leave that the worker has accumulated during the period of full‑time employment.
33. On the other hand, it is indeed appropriate to apply the principle of pro rata temporis, set out in Clause 4.2 of the framework agreement on part-time work, to the grant of annual leave for a period of employment on a part-time basis. For such a period, the reduction of annual leave by comparison to that granted for a period of full-time employment is justified on objective grounds. However, that principle cannot be applied ex post to a right to annual leave accumulated during a period of full-time work.
34. While, in conclusion, it cannot be inferred from the relevant provisions of Directive 2003/88 or from Clause 4.2 of the framework agreement on part-time work that national legislation may provide, among the conditions for the exercise of the right to paid annual leave, for the partial loss of the right to leave accumulated over a reference period, nevertheless this conclusion must be reached only when the worker has not actually had the opportunity to exercise that right (see Vicente Pereda , paragraph 19).
42. According to settled case-law, the concept of ‘grounds’ for the purposes of Clause 5.1(a) of the framework agreement on fixed-term work must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks to be performed under such contracts and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State (Case C-212/04 Adeneler and Others [2006] ECR I‑6057, paragraphs 69 and 70, and Case C‑307/05 Del Cerro Alonso  [2007] ECR I‑7109, paragraph 53).
44. In those circumstances, the concept ‘objective grounds’ within the meaning of that clause must be understood as not permitting a difference in treatment between fixed-term workers and permanent workers to be justified on the basis that the difference is provided for by a general, abstract national norm. On the contrary, that concept requires the unequal treatment at issue to respond to a genuine need, be appropriate for achieving the objective pursued and be necessary for that purpose ( Del Cerro Alonso , paragraphs 57 and 58).
46. Such an argument cannot however be accepted. First, rigorous personnel management is a budgetary consideration and cannot therefore justify discrimination (see, to that effect, Joined Cases C‑4/02 and C-5/02 Schönheit and Becker  [2003] ECR I-12575, paragraph 85). Second, the European Commission rightly points out that the aim of Clause 4 of the framework agreement on fixed-term work is not necessarily to create permanent jobs.
49. In that regard, it must be noted that even though, strictly speaking, the national court has directed its reference for a preliminary ruling solely to the interpretation of Article 14(1)(c) of Directive 2006/54, the Court is not thereby precluded from providing the national court with all the elements for the interpretation of European Union law which may be of assistance in adjudicating on the case pending before it, whether or not that court has specifically referred to them in its question (see, to that effect, Case C-387/01 Weigel  [2004] ECR I-4981, paragraph 44, and Case C‑152/03 Ritter-Coulais  [2006] ECR I-1711, paragraph 29).
50. Therefore, it is to be remembered, first of all, that according to Clause 2.6 of the framework agreement on parental leave, which can be relied on by individuals before a national court (see Gómez-Limón Sánchez-Camacho , point 1 of the operative part of the judgment), 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 and apply after that leave.
51. Thus, it is apparent from both the wording of Clause 2.6 and its context that that provision is intended to avoid the loss of or reduction in rights derived from an employment relationship, acquired or being acquired, to which the worker is entitled when he starts parental leave, and to ensure that, at the end of that leave, with regard to those rights, he will find himself in the same situation as that in which he was before the leave (see Gómez-Limón Sánchez-Camacho , paragraph 39, and Meerts , paragraph 39).
52. The framework agreement on parental leave is in line with the fundamental objectives enshrined in paragraph 16 of the Community Charter of the Fundamental Social Rights of Workers on equal treatment for men and women, to which the framework agreement refers and which is also mentioned in Article 136 EC, objectives which are associated with the improvement of living and working conditions and with the existence of proper social protection for workers, in the present case those who have applied for or taken parental leave (see Meerts , paragraph 37).
53. It is clear from the objectives of the framework agreement on parental leave, that the concept of ‘[r]ights acquired or in the process of being acquired’ within the meaning of Clause 2.6 of the framework agreement covers all the rights and benefits, whether in cash or in kind, derived directly or indirectly from the employment relationship, which the worker is entitled to claim from the employer at the date on which parental leave starts ( Meerts , paragraph 43).
54. Since the right to paid annual leave is, as noted in paragraph 28 above, particularly important, it is undoubtedly one of the rights derived directly from the employment relationship of every worker, and this is true both in the case of male and female workers.