Evangelina Gómez-Limón Sánchez-Camacho v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) and Alcampo SA.
Date: 2009-07-16
1. This reference for a preliminary ruling relates to the interpretation of Clause 2(6) and (8) of the framework agreement on parental leave concluded on 14 December 1995, annexed to Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC (OJ 1996 L 145, p. 4; ‘the framework agreement on parental leave’), and of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24).
24. In that regard, it should be recalled that, in proceedings under Article 234 EC, which are based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the forthcoming 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 Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑326/00 IKA  [2003] ECR I‑1703, paragraph 27; Case C‑145/03 Keller  [2005] ECR I‑2529, paragraph 33; and Case C‑419/04 Conseil générale de la Vienne  [2006] ECR I‑5645, paragraph 19).
25. However, the Court has held that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see, to that effect, Case 244/80 Foglia  [1981] ECR 3045, paragraph 21). 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 Community 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, inter alia, Case C‑379/98 PreussenElektra  [2001] ECR I‑2099, paragraph 39 and Case C‑390/99 Canal Satélite Digital  [2002] ECR I‑607, paragraph 19).
33. The Court has consistently held in that regard 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 State, particularly in its capacity as an employer (see, in particular, to that effect, Case 152/84 Marshall  [1986] ECR 723, paragraphs 46 and 49; Case C‑187/00 Kutz-Bauer  [2003] ECR I‑2741, paragraphs 69 and 71; and Case C‑268/06 Impact  [2008] ECR I‑2483, paragraph 57).
34. As the Court has held, that case-law can be applied to agreements which, like the framework agreement on parental leave, are the product of a dialogue, based on Article 139(1) EC, between management and labour at Community level and which have been implemented in accordance with Article 139(2) EC by a directive of the Council of the European Union, of which they are thus an integral component (see Impact , paragraph 58, and Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others  [2009] ECR I‑0000, paragraph 195).
36. Clause 2(6) of that framework agreement, which is intended to avoid any detriment to the rights of employees who have opted to take parental leave, requires, generally and in unequivocal terms, both national authorities and employers to recognise rights already acquired and those being acquired at the start of such leave and to guarantee that, at the end of the leave, employees will be able to continue to acquire rights as if that leave had not taken place. Accordingly, the content of Clause 2(6) of the framework agreement on parental leave thus is sufficiently precise for that provision to be relied on by an individual and applied by courts (see, by analogy, Marshall , paragraph 52).
39. It is apparent 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 the loss of entitlements derived from an employment relationship, acquired or being acquired, which the employee already has when he starts parental leave, and to ensure that, at the end of that leave, with regard to those entitlements, he will find himself in the same situation as that in which he was before that leave. Those entitlements derived from an employment relationship are those which the employee had at the date when the leave commenced.
46. In that regard, it must be pointed out, firstly, that Clause 2(3) of the framework agreement on parental leave refers to the law and/or to collective agreements in the Member States for definition of the conditions of access and detailed rules for applying parental leave. Nevertheless, those conditions and rules must be defined in compliance with the minimum requirements laid down by the framework agreement on parental leave.
48. In addition, both the wording of Clause 2(8) of the framework agreement on parental leave and the fact that that framework agreement was concluded by management and labour represented by joint trade bodies shows that it could not impose obligations on the national social security organisations, which were not party to that agreement.
49. Furthermore, in accordance with point 11 of the general considerations of the framework agreement on parental leave, Member States should, where appropriate under national conditions and taking into account the budgetary situation, consider the maintenance of entitlements to relevant social security benefits as they stand during the minimum period of parental leave.
50. It follows from the foregoing that Clause 2(8) of the framework agreement on parental leave does not impose any obligation on the Member States to ensure, during parental leave, that employees continue to receive social security benefits and does not establish entitlements for employees. Accordingly, Clause 2(8) of the framework agreement cannot be relied on by individuals before a national court against public authorities and there is no need to examine whether it contains provisions which are unconditional and sufficiently precise.
54. According to settled case-law, indirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men (see, in particular, Case C‑411/96 Boyle and Others  [1998] ECR I‑6401, paragraph 76, and Case C‑333/97 Lewen  [1999] ECR I‑7243, paragraph 34).
56. Nevertheless, according to established case-law, discrimination consists in the application of different rules to comparable situations or the application of the same rule to different situations (see, in particular, Boyle , paragraph 39, and Lewen , paragraph 36).
57. An employee benefiting from parental leave, to which she is entitled under Directive 96/34 implementing the framework agreement on parental leave, in a manner defined by national law or by collective agreement, who works only part-time as is the case in the main proceedings, is in a specific situation which cannot be compared to that of a man or woman who works on a full-time basis (see, to that effect, Lewen , paragraph 37).
59. It must be borne in mind, in that regard, that the Court has already held that Community law does not preclude a retirement pension being calculated pro rata temporis  in the case of part-time employment. The fact that, in addition to the number of years spent working in the civil ser vice, an official’s actual period of service during those years, as compared with the actual period of service of an official who has worked on a full-time basis throughout his career, is also taken into account is an objective criterion unrelated to any discrimination on grounds of sex, allowing his pension entitlement to be reduced proportionately (see, regarding officials, Joined Cases C‑4/02 and C‑5/02 Schönheit and Becker  [2003] ECR I‑12575, paragraphs 90 and 91).
60. With regard to Directive 79/7, according to the first recital of the preamble thereto and Article 1 thereof, the purpose of the directive is only the progressive implementation of the principle of equal treatment for men and women in matters of social security. Thus, pursuant to Article 7(1)(b) of that directive, Member States may exclude from its scope the acquisition of entitlements to social security benefits under statutory schemes following periods of interruption of employment due to the bringing up of children
61. It follows that the acquisition of entitlement to social security benefits following periods of interruption of employment due to the bringing up of children is still a matter for the Member States to regulate (see Case C‑31/90 Johnson  [1991] ECR I‑3723, paragraph 25).
62. It is apparent from case-law that Directive 79/7 in no way obliges the Member States to grant advantages in respect of social security to persons who have brought up children or to provide benefit entitlements where employment has been interrupted in order to bring up children (see, by analogy, Case C‑297/93 Grau-Hupka  [1994] ECR I‑5535, paragraph 27).