Commission of the European Communities v Grand Duchy of Luxemburg.
Date: 2005-04-14
18. The Court has consistently held that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-173/01 Commission  v Greece  [2002] ECR I-6129, paragraph 7, and Case C-114/02 Commission  v France [2003] ECR I-3783, paragraph 9).
19. It is also settled case-law that the Commission still has an interest in bringing an action under Article 226 EC even when the alleged infringement has been remedied after the expiry of the period prescribed in the reasoned opinion (see, to that effect, Case 283/86 Commission  v Belgium  [1988] ECR 3271, paragraph 6).
20. Firstly, in the present case, the question whether, before the end of the period prescribed in the reasoned opinion, the Law of 2002 had remedied the alleged failure to fulfil obligations, and whether, consequently, the action had become devoid of purpose before it was brought, is one that must be examined in the context of the analysis of the merits of the case.
21. Secondly, the Grand Duchy of Luxembourg cannot rely on the failure of the Commission to take account of its reply to the reasoned opinion, or on the late transmission of that reply to the General Secretariat of the Commission, in order to justify the plea of inadmissibility which it puts forward against the action. The Court has already held that failure to take account of a reply to a reasoned opinion is not decisive. Thus, at paragraph 20 of its judgment in Commission v Netherlands (cited above), the Court held that, even assuming that the contentious procedure was opened by a Commission application which took no account of any new matters of fact or law put forward by the Member State concerned in its reply to the reasoned opinion, that State’s right to a fair hearing had not been infringed.
31. Clause 2(1) of the framework agreement grants men and women workers an individual right to parental leave of at least three months.
32. Pursuant to paragraph 9 of the General Considerations of that framework agreement, parental leave is distinct from maternity leave. Parental leave is granted to parents to enable them to take care of their child. This leave may be taken until the child has reached a given age up to 8 years. Maternity leave has a different purpose. It is intended to protect a woman’s biological condition and 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 simulta neous pursuit of employment (see, to that effect, Case C-366/99 Griesmar [2001] ECR I-9383, paragraph 43).
33. It follows that each parent is entitled to parental leave of at least three months’ duration and that this may not be reduced when it is interrupted by another period of leave which pursues a purpose different from that of parental leave, such as maternity leave. The Court has already held that a period of leave guaranteed by Community law cannot affect the right to take another period of leave guaranteed by that law. Thus, in Case C-342/01 Merino Gómez  [2004] ECR I-0000, paragraph 41, the Court ruled that taking maternity leave could not affect the right to full annual leave.
47. It follows that the right to parental leave is granted by Directive 96/34 to all parents having a child below a certain age limit. Since that directive provides that entitlement to parental leave is available during a certain period, until the child has reached the age set by the Member State concerned, the fact that the child was born before or after the time-limit laid down for the implementation of that directive is not relevant in this regard. The right to parental leave is not connected with the birth or adoption of the child considered as facts which, by reason of the date at which they occurred, give rise to entitlement to such leave. It is true that the text of the framework agreement states that the right to parental leave is conferred ‘on the grounds of the birth or adoption’ of a child, but such wording reflects only the fact that the grant of parental leave is subject to the condition that a child has been born or adopted. This does not imply that for the right to parental leave to be justified, the birth or adoption of the child must have occurred after that directive has come into force in the Member State concerned.
49. As the Advocate General rightly observed at point 73 of his Opinion, that analysis does not in any way confer retroactive effect on Directive 96/34. It is merely a question of that directive being immediately applicable to situations arising prior to its entry into force (see, to that effect, Case C-162/00 Pokrzeptowicz-Meyer [2002] ECR I-1049, paragraph 50).