RE v Praxair MRC.
Date: 2019-05-08
33


In that regard, it should be recalled that it is solely for the national court before which the 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 a rule of EU law, the Court is in principle bound to give a ruling (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 26 and the case-law cited).
34


It follows that questions relating to EU law enjoy a presumption of relevance. 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 EU 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 (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 27 and the case-law cited).
35


In that regard, it follows from the Court’s case-law that the Court has jurisdiction to give preliminary rulings concerning the interpretation of provisions of EU law irrespective of whether or not they have direct effect (judgment of 27 November 2012, Pringle, C‑370/12, EU:C:2012:756, paragraph 89 and the case-law cited).
36


Additionally, as regards the obligation of interpretation in conformity with EU law, it should be recalled that, according to settled case-law, the Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 4(3) TEU and Article 288 TFEU to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation are binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts (judgment of 4 October 2018, Link Logistik N&N, C‑384/17, EU:C:2018:810, paragraph 57 and the case-law cited).
37


To fulfil that obligation, the principle of interpretation in conformity with EU law requires the national authorities to do everything within their power, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that EU law is fully effective and to achieving an outcome consistent with the objective pursued by it (judgment of 4 October 2018, Link Logistik N&N, C‑384/17, EU:C:2018:810, paragraph 58 and the case-law cited).
38


However, that principle of interpretation of national law in conformity with EU law has certain limits. Thus the obligation for a national court to refer to EU law when interpreting and applying the relevant rules of domestic law is limited by general principles of law and cannot serve as the basis for an interpretation of national law that is contra legem (judgment of 4 October 2018, Link Logistik N&N, C‑384/17, EU:C:2018:810, paragraph 59 and the case-law cited).
41


As a preliminary point, it should be noted that, as is apparent from the first paragraph in the preamble to the framework agreement on parental leave, from paragraphs 4 and 5 of the general considerations of that framework agreement and from clause 1.1 thereof, the framework agreement constitutes an undertaking by the two sides of industry to introduce, through minimum requirements, measures to offer both men and women an opportunity to reconcile their work responsibilities with family obligations (judgments of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 35, and of 27 February 2014, Lyreco Belgium, C‑588/12, EU:C:2014:99, paragraph 30).
48


In that regard, it is clear both from the wording of clause 2.6 of the framework agreement on parental leave and its context that that provision is intended to avoid loss or reduction of 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 he was before the leave (judgments of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 39, and of 27 February 2014, Lyreco Belgium, C‑588/12, EU:C:2014:99, paragraph 43).
49


Having regard to the objective of equal treatment between men and women which is pursued by the framework agreement on parental leave, clause 2.6 thereof must be interpreted as articulating a particularly important principle of EU social law which cannot therefore be interpreted restrictively (see, to that effect, judgment of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 42).
50


It is clear from the objectives of the framework agreement on parental leave that the concept of ‘rights acquired or in the process of being acquired’ within the meaning of clause 2.6 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 (judgment of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 43).
51


Such rights and benefits include all those relating to employment conditions, such as the right of a full-time worker on part-time parental leave to a period of notice in the event of the employer’s unilateral termination of a contract of indefinite duration, the length of which depends on the worker’s length of service in the company and the aim of which is to facilitate the search for a new job (judgment of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 44).
52


It is true that, whilst on part-time parental leave, a worker employed under a full-time contract does not work the same number of hours as someone working full-time. However, that does not mean that the two workers are in a different position in relation to the initial employment contract with their employer (judgment of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 51).
53


As the Court has already held, in respect of a worker employed under a full-time contract who is on part-time parental leave, the unilateral termination by the employer must be regarded as relating to a full-time employment contract (see, to that effect, judgment of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 55).
54


Under those circumstances, the Court held that clauses 2.6 and 2.7 of the framework agreement on parental leave must be interpreted as precluding, where an employer unilaterally terminates a worker’s full-time employment contract of indefinite duration, without urgent cause or without observing the statutory period of notice, whilst the worker is on part-time parental leave, the compensation to be paid to the worker from being determined on the basis of the reduced salary being received when the dismissal takes place (judgment of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 56).
57


National legislation which would result in the rights flowing from the employment relationship being reduced in the event of parental leave could discourage workers from taking such leave and could encourage employers to dismiss workers who are on parental leave rather than other workers. This would run directly counter to the aim of the framework agreement on parental leave, one of the objectives of which is to make it easier to reconcile working and family life (judgment of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 47).
67


As a preliminary point, it must be pointed out that since Article 157 TFEU is mandatory in nature, the prohibition on discrimination between men and women applies not only to the action of public authorities but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals (see, to that effect, judgments of 8 April 1976, Defrenne, 43/75, EU:C:1976:56, paragraph 39, and of 18 November 2004, Sass, C‑284/02, EU:C:2004:722, paragraph 25).
68


Thus, the principle established by that article may be invoked before national courts, in particular in cases of discrimination arising directly from legislative provisions or collective labour agreements, as well as in cases in which work is carried out in the same establishment or service, whether private or public (see, to that effect, judgments of 8 April 1976, Defrenne, 43/75, EU:C:1976:56, paragraph 40, and of 13 January 2004, Allonby, C‑256/01, EU:C:2004:18, paragraph 45).
70


It is apparent from the Court’s case-law that the concept of ‘pay’ within the meaning of Article 157(2) TFEU must be interpreted broadly. It covers, in particular, any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer, and irrespective of whether it is received under a contract of employment, by virtue of legislative provisions or on a voluntary basis. Moreover, the fact that certain benefits are paid after the termination of the employment relationship does not prevent them from being in the nature of pay within the meaning of that provision (judgments of 6 December 2012, Dittrich and Others, C‑124/11, C‑125/11 and C‑143/11, EU:C:2012:771, paragraph 35, and of 19 September 2018, Bedi, C‑312/17, EU:C:2018:734, paragraph 33).
71


As regards the compensation granted by an employer to a worker when he is made redundant, the Court has already stated that such compensation is a form of deferred pay to which the worker is entitled by reason of his employment but which is paid to him on termination of the employment relationship with a view to enabling him to adjust to the new circumstances arising from such a termination (judgments of 17 May 1990, Barber, C‑262/88, EU:C:1990:209, paragraph 13, and of 19 September 2018, Bedi, C‑312/17, EU:C:2018:734, paragraph 35).
73


In order to assess whether there is discrimination, it should be recalled that, according to settled case-law, discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations (judgments of 13 February 1996, Gillespie and Others, C‑342/93, EU:C:1996:46, paragraph 16, and of 14 July 2016, Ornano, C‑335/15, EU:C:2016:564, paragraph 39).
79


According to the Court’s settled case-law, the principle of equal pay enshrined in Article 157 TFEU, precludes not only the application of provisions leading to direct sex discrimination, but also the application of provisions which maintain different treatment between men and women at work as a result of the application of criteria not based on sex where those differences of treatment are not attributable to objective factors unrelated to sex discrimination (see, to that effect, judgments of 15 December 1994, Helmig and Others, C‑399/92, C‑409/92, C‑425/92, C‑34/93, C‑50/93 and C‑78/93, EU:C:1994:415, paragraph 20, and of 17 July 2014, Leone, C‑173/13, EU:C:2014:2090, paragraph 40).
80


More specifically, the Court has consistently held that indirect discrimination on grounds of sex arises where a national measure, albeit formulated in neutral terms, puts considerably more workers of one sex at a disadvantage than the other. Such a measure is compatible with the principle of equal pay only if the difference in treatment between the two categories of workers to which it gives rise is justified by objective factors unrelated to any sex discrimination (see, to that effect, judgment of 17 July 2014, Leone, C‑173/13, EU:C:2014:2090, paragraph 41 and the case-law cited).