Christel Meerts v Proost NV.
Date: 2009-10-22
25. It should be recalled that, according to settled case-law, 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 (see, in particular, Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 59, and Case C‑466/04 Acereda Herrera  [2006] ECR I‑5341, paragraph 47).
26. Nevertheless, the Court cannot give a preliminary ruling on a question referred where it is quite obvious that the interpretation of Community law sought by the national court 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 that question (see, to that effect, in particular, Bosman , paragraph 61; Acereda Herrera , paragraph 48, and Joined Cases C‑94/04 and C‑202/04 Cipolla and Others  [2006] ECR I‑11421, paragraph 25).
27. In that regard, the order for reference must set out the precise reasons why the national court was unsure as to the interpretation of Community law and why it considered it necessary to refer questions to the Court for a preliminary ruling. Against that background, it is essential that the national court provide at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute in the main proceedings (see, in particular, order in Case C‑167/94 Grau Gomis and Others  [1995] ECR I‑1023, paragraph 9; Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others  [2005] ECR I‑10423, paragraph 46; and Case C‑380/05 Centro Europa 7  [2008] ECR I-349, paragraph 54).
33. It is apparent, however, from the wording of Clause 2 that under point 4 it seeks to protect workers against dismissal on the grounds of an application for, or the taking of, parental leave and under point 5 it recognises the right of workers, at the end of parental leave, to return to the same job or to an equivalent or similar job.
35. As is apparent from the first paragraph in the preamble to the framework agreement on parental leave and from paragraph 5 of its general considerations, the framework agreement constitutes an undertaking by the two sides of industry, represented by the general cross-industry organisations, namely UNICE, CEEP and the ETUC, to introduce, through minimum requirements, measures to promote equal opportunities and treatment between men and women, by offering them an opportunity to reconcile their work responsibilities with family obligations.
36. It is also clear from paragraph 6 of the general considerations of the framework agreement that measures to reconcile work and family life should encourage the introduction in the Member States of new flexible ways of organising work and time which are better suited to the changing needs of society, taking the needs of both undertakings and workers into account.
37. 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.
39. 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, to that effect, Case C-537/07 Gómez-Limón Sánchez-Camacho  [2009] ECR I-0000, paragraph 39).
41. However, it follows from the need for uniform application of Community law and the principle of equality that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Community, having regard to the context of the provision and the objective pursued by the legislation in question (see, in particular, Case 327/82 Ekro  [1984] ECR 107, paragraph 11; Case C‑323/03 Commission  v Spain  [2006] ECR I‑2161, paragraph 32, and Case C‑13/05 Chacón Navas  [2006] ECR I-6467, paragraph 40).
42. Having regard to the objective of equal treatment between men and women which is pursued by the framework agreement on parental leave, as recalled in paragraph 35 above, Clause 2.6 must be interpreted as articulating a particularly important principle of Community social law which cannot therefore be interpreted restrictively (see, by analogy, Case C‑173/99 BECTU  [2001] ECR I‑4881, paragraph 43; Case C‑307/05 Del Cerro Alonso  [2007] ECR I‑7109, paragraph 38; Case C‑268/06 Impact  [2008] ECR I‑2483, paragraph 114; and Joined Cases C‑350/06 and C‑520/06 Schultz-Hoff  [2009] ECR I-0000, paragraph 22).
43. It is clear from the objectives of the framework agreement on parental leave, recalled in paragraphs 35 to 37 above, 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.
44. 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.
45. Clause 2.7 of the framework agreement on parental leave refers to the Member States and/or to management and labour for the determination of the status of the employment contract or employment relationship during the period of parental leave, including the extent to which the worker may, during that period, continue to acquire rights vis-à-vis the employer. On the basis of the purpose and structure of the framework agreement, that reference is to be understood without prejudice to Clause 2.6, which states that ‘[r]ights 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’.
46. That body of rights and benefits would be compromised if, where the statutory period of notice was not observed in the event of dismissal during part-time parental leave, a worker employed on a full-time basis lost the right to have the compensation for dismissal due to him determined on the basis of the salary relating to his employment contract.
47. As the Advocate General observes in points 54 and 55 of her Opinion, 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.
51. 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.
55. Finally, in the two cases compared by the Belgian Government, the unilateral termination by the employer would relate to a full-time employment contract.
56. It therefore follows that Clause 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.
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