H. v Land Berlin.
Date: 2017-09-07
33


Moreover, the objectives thus pursued by the revised Framework Agreement are associated with the improvement of living and working conditions and with the existence of proper social protection for workers, which, as is apparent from Article 151 TFEU, are included among the objectives pursued by EU social policy (see, to that effect, as regards the 1995 Framework Agreement, judgment of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 37).
34


Finally, it should be recalled that the revised Framework Agreement, like the 1995 Framework Agreement, is intended also to apply to workers who, like the applicant in the main proceedings, have the status of civil servant. Clause 1(2) of the revised Framework Agreement covers generally ‘all workers … who have an employment contract or employment relationship as defined by the law, collective agreements and/or practice in force in each Member State’ and Clause 2(1) of the Framework Agreement covers ‘workers’, without drawing a distinction according to whether their employer is in the public or private sector, thereby encompassing all workers (see, to that effect, judgment of 16 September 2010, Chatzi, C‑149/10, EU:C:2010:534, paragraphs 28 to 30).
35


It is important to note, first of all, that paragraphs 1 to 3 of Clause 5 of the revised Framework Agreement are worded in terms almost identical to those of paragraphs 5 to 7 of Clause 2 of the 1995 Framework Agreement, with the result that the interpretation given by the Court concerning the latter provisions are also valid in relation to the former (see, to that effect, judgment of 16 June 2016, Rodríguez Sánchez, C‑351/14, EU:C:2016:447, paragraph 47).
36


With a view to enabling new parents to interrupt their professional activities to devote themselves to their family responsibilities, the revised Framework Agreement gives them the assurance, set out in Clause 5(1) of that framework agreement, that they will return to the same job or, if that is not possible, to an equivalent or similar job consistent with their employment contract or relationship at the end of parental leave. That provision therefore guarantees the return to the job at the end of the leave on the same conditions as those existing when the leave was taken (see, to that effect, judgment of 13 February 2014, TSN and YTN, C‑512/11 and C‑513/11, EU:C:2014:73, paragraph 39 and the case-law cited).
37


In the same vein, the first sentence of Clause 5(2) 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, judgments of 16 July 2009, Gómez-Limón Sánchez-Camacho, C‑537/07, EU:C:2009:462, paragraph 39, and of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 39 and the case-law cited).
38


That provision does not, admittedly, govern the rights and obligations derived from an employment relationship during parental leave, which are to be defined, pursuant to Clause 5(3) of the revised Framework Agreement, by the Member States and/or by the social partners. However, as the Court has held, such a reference to national law and collective agreements is to be understood without prejudice to the minimum requirements laid down by the revised Framework Agreement and in particular those set out in Clause 5(1) and (2) of the framework agreement (see, to that effect, judgments of 16 July 2009, Gómez‑Limón Sánchez‑Camacho, C‑537/07, EU:C:2009:462, paragraph 46, and of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 45).
40


Apart from the fact, pointed out by the Advocate General in point 20 of his Opinion, that that conclusion follows implicitly from the case‑law of the Court (see, to that effect, judgment of 20 June 2013, Riežniece, C‑7/12, EU:C:2013:410, paragraphs 12, 17, 32, 50 and 51), the opposing view, defended by the Land of Berlin, finds no basis in the text of the revised Framework Agreement, Clause 5 of which refers, in paragraphs 1 and 2 respectively, to the right to return to the same job ‘at the end of parental leave’ and the right to maintain rights acquired or in the process of being acquired ‘until the end of parental leave’.
41


Moreover, depriving the worker concerned of the guarantee of returning to the post previously occupied and continuing to enjoy such rights acquired or in the process of being acquired, where the parental leave exceeds a minimum period of four months, would have the effect of dissuading that worker from deciding to exercise his right to parental leave, thereby undermining the effectiveness of that right and the effectiveness of Directive 2010/18 and the revised Framework Agreement (judgment of 13 February 2014, TSN and YTN, C‑512/11 and C‑513/11, EU:C:2014:73, paragraph 51) and thus frustrating the objective of reconciling professional and family responsibilities pursued by the revised Framework Agreement (judgment of 27 February 2014, Lyreco Belgium, C‑588/12, EU:C:2014:99, paragraph 40).
43


The concepts ‘job’ and ‘rights acquired or in the process of being acquired’ referred to in Clause 5(1) and (2) must, failing any express reference to the law of the Member States for the purpose of determining their meaning and scope, normally be given an autonomous and uniform interpretation throughout the European Union, having regard to the context of the provisions and the objective pursued by the legislation in question (see, to that effect, judgment of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 41).
44


Having regard to the objectives pursued by the revised Framework Agreement and Directive 2010/18, as recalled in paragraphs 29 and 30 above, and to the fact that Clause 5(1) and the first sentence of Clause 5(2) of the revised Framework Agreement, first, articulate a particularly important principle of EU social law and, secondly, give specific expression to the right to parental leave also guaranteed as a fundamental right in Article 33(2) of the Charter, that provision cannot be interpreted restrictively (see, to that effect, judgments of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 42, and of 27 February 2014, Lyreco Belgium, C‑588/12, EU:C:2014:99, paragraph 36).
51


As regards, secondly, the first sentence of Clause 5(2) of the revised Framework Agreement, providing for the maintenance of ‘rights acquired or in the process of being acquired’ as they stand, it should be recalled that that concept 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 (see, to that effect, judgment of 22 October 2009, Meerts, C‑116/08, EU:C:2009:645, paragraph 43).
52


Such rights and benefits include those resulting from the provisions establishing the conditions of access to a higher level of the professional hierarchy, since they are derived from the employment relationship (see, to that effect, judgment of 18 November 2004, Sass, C‑284/02, EU:C:2004:722, paragraph 31). That is, in the present case, the situation of the right, laid down in Paragraph 97 of the LBG, for a civil servant to obtain potential definitive promotion to a managerial post by carrying out, during the performance of the employment relationship in the service of the Land of Berlin and following a prior selection procedure, a probationary period of a certain duration.
56


In this respect, it should be recalled that, according to settled case-law, where there is a divergence between the language versions of an EU text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see, inter alia, judgments of 4 September 2014, Vnuk, C‑162/13, EU:C:2014:2146, paragraph 46, and of 26 April 2017, Popescu, C‑632/15, EU:C:2017:303, paragraph 35).
66


A preliminary point to note is that the Court has consistently held that when national courts apply domestic law they are bound to interpret that law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and, consequently, comply with the third paragraph of Article 288 TFEU (see, inter alia, judgment of 24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraph 24 and the case-law cited). The same also applies in the case of agreements which, like the revised Framework Agreement, have been implemented by a directive of the Council, of which they are thus an integral component (see, by analogy, judgment of 16 September 2010, Chatzi, C‑149/10, EU:C:2010:534, paragraphs 43 and 44).
68


In those circumstances, it should also be recalled that, as is clear from settled case-law, wherever the provisions of a directive appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by individuals as against the Member State, particularly in its capacity as an employer. Moreover, the Court has previously held that that case-law can be applied to agreements which, like the framework agreements on parental leave, are the product of a dialogue between management and labour at EU level and have been implemented, in accordance with their legal basis, by a directive of the Council, of which they are thus an integral component (see, to that effect, judgment of 22 April 2010, Zentralbetriebsrat der Landeskrankenhäuser Tirols, C‑486/08, EU:C:2010:215, paragraphs 22 and 23).
69


Clause 5(1) and (2), first sentence, of the revised Framework Agreement assures, generally and in unequivocal terms, the worker’s rights to return to the same job or, if that is not possible, to an equivalent or similar job, and to retain rights already acquired or in the process of being acquired at the start of his parental leave, at the end of that leave. The content of such provisions thus is unconditional and sufficiently precise to be relied on by an individual and applied by courts (see, by analogy, judgment of 16 July 2009, Gómez-Limón Sánchez-Camacho, C‑537/07, EU:C:2009:462, paragraph 36).
70


It follows that, according to the Court’s case-law, where they are unable to interpret and apply national law in compliance with the requirements of EU law, it is for the national courts and administrative bodies to apply EU law in its entirety and to protect rights which the latter confers on individuals, disapplying, if necessary, any contrary provision of domestic law (judgment of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 40 and the case-law cited).
71


Consequently, it is for the referring court to ascertain, in particular, whether, in circumstances such as those of the main proceedings, it was not actually possible for the Land of Berlin, in its capacity as an employer, to guarantee to Ms H. that she could return to her post at the end of her parental leave and, if so, to ensure that she would then be assigned, as required by Clause 5(1) of the revised Framework Agreement, an equivalent or similar post consistent with her employment contract or employment relationship, so as to enable her to continue a probationary period there under conditions that were, moreover, in compliance with the requirements arising from Clause 5(2) of that framework agreement (see, by analogy, judgment of 20 June 2013, Riežniece, C‑7/12, EU:C:2013:410, paragraph 51).
73


Although the Court has, admittedly, recognised that an employer is allowed to reorganise its services in order to ensure efficient management of its organisation, it has nonetheless made clear that this is subject to compliance with the applicable provisions of EU law (see, by analogy, as regards the 1995 Framework Agreement, judgment of 20 June 2013, Riežniece, C‑7/12, EU:C:2013:410, paragraph 36).
79


Finally, as regards the potential requirement of making the assignment of the applicant in the main proceedings, as a civil servant on probation, to a similar or equivalent managerial post conditional upon holding a new selection procedure beforehand, it is clear that this would render nugatory the right of a worker, such as that at issue in the main proceedings, who has taken parental leave to be transferred to another post, in accordance with the conditions laid down in Clause 5(1) of the revised Framework Agreement, in order to continue a probationary period there under conditions that are, moreover, in compliance with the requirements arising from the first sentence of Clause 5(2) of that framework agreement (see, by analogy, judgment of 20 June 2013, Riežniece, C‑7/12, EU:C:2013:410, paragraph 54).