1. This reference for a preliminary ruling relates to the interpretation of clause 2.1 of the framework agreement on parental leave concluded on 14 December 1995 (‘the Framework Agreement’), which is set out in the annex 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) as amended by Council Directive 97/75/EC of 15 December 1997 (OJ 1998 L 10, p. 24) (‘Directive 96/34’).
2. The reference has been made in proceedings between Mrs Chatzi and her employer, the Ipourgos Ikonomikon (Minister for Finance) concerning a decision by the Head of State Tax Office I, Thessaloniki (Greece), refusing her additional parental leave on account of the birth of twins. Legal context European Union legislation
3. Directive 96/34 was adopted in accordance with the procedure laid down by Article 4(2) of the Agreement on Social Policy annexed to Protocol No 14 on social policy, which was itself annexed to the Treaty establishing the European Community by the Treaty on European Union (‘the Agreement on Social Policy’).
4. The first recital in the preamble to the Framework Agreement, which Directive 96/34 implements, states: ‘The enclosed framework agreement represents an undertaking by UNICE, CEEP and the ETUC to set out minimum requirements on parental leave and time off from work on grounds of force majeure, as an important means of reconciling work and family life and promoting equal opportunities and treatment between men and women.’
5. Paragraphs 4 to 6 and 9 of the general considerations in the Framework Agreement are worded as follows: ‘4. … the Community Charter of Fundamental Social Rights stipulates at point 16 dealing with equal treatment that measures should be developed to enable men and women to reconcile their occupational and family obligations; 5. … the Council Resolution of 6 December 1994 recognises that an effective policy of equal opportunities presupposes an integrated overall strategy allowing for better organisation of working hours and greater flexibility, and for an easier return to working life, and notes the important role of the two sides of industry in this area and in offering both men and women an opportunity to reconcile their work responsibilities with family obligations;
6. … measures to reconcile work and family life should encourage the introduction of new flexible ways of organising work and time which are better suited to the changing needs of society and which should take the needs of both undertakings and workers into account; … 9. … the present agreement is a framework agreement setting out minimum requirements and provisions for parental leave, distinct from maternity leave, and for time off from work on grounds of force majeure, and refers back to Member States and social partners for the establishment of the conditions of access and detailed rules of application in order to take account of the situation in each Member State’. 6. Clause 1 of the Framework Agreement provides: ‘1. This agreement lays down minimum requirements designed to facilitate the reconciliation of parental and professional responsibilities for working parents. 2. This agreement applies to all workers, men and women, who have an employment contract or employment relationship as defined by the law, collective agreements or practices in force in each Member State.’
7. Clauses 2.1, 2.3 and 2.5 of the Framework Agreement stipulate as follows: ‘1. This agreement grants, subject to clause 2.2, men and women workers an individual right to parental leave on the grounds of the birth or adoption of a child to enable them to take care of that child, for at least three months, until a given age up to 8 years to be defined by Member States and/or management and labour. … 3. The conditions of access and detailed rules for applying parental leave shall be defined by law and/or collective agreement in the Member States, as long as the minimum requirements of this agreement are respected. Member States and/or management and labour may, in particular: (a) decide whether parental leave is granted on a full-time or part-time basis, in a piecemeal way or in the form of a time-credit system; … (c) adjust conditions of access and detailed rules for applying parental leave to the special circumstances of adoption; … 5. At the end of parental leave, workers shall have the right to return to the same job or, if that is not possible, to an equivalent or similar job consistent with their employment contract or employment relationship.’
8. Clause 4.6 of the Framework Agreement provides: ‘Without prejudice to the respective role of the Commission, national courts and the Court of Justice, any matter relating to the interpretation of this agreement at European level should, in the first instance, be referred by the Commission to the signatory parties who will give an opinion.’
9. … the present agreement is a framework agreement setting out minimum requirements and provisions for parental leave, distinct from maternity leave, and for time off from work on grounds of force majeure, and refers back to Member States and social partners for the establishment of the conditions of access and detailed rules of application in order to take account of the situation in each Member State’. 6. Clause 1 of the Framework Agreement provides: ‘1. This agreement lays down minimum requirements designed to facilitate the reconciliation of parental and professional responsibilities for working parents. 2. This agreement applies to all workers, men and women, who have an employment contract or employment relationship as defined by the law, collective agreements or practices in force in each Member State.’ 7. Clauses 2.1, 2.3 and 2.5 of the Framework Agreement stipulate as follows: ‘1. This agreement grants, subject to clause 2.2, men and women workers an individual right to parental leave on the grounds of the birth or adoption of a child to enable them to take care of that child, for at least three months, until a given age up to 8 years to be defined by Member States and/or management and labour. … 3. The conditions of access and detailed rules for applying parental leave shall be defined by law and/or collective agreement in the Member States, as long as the minimum requirements of this agreement are respected. Member States and/or management and labour may, in particular: (a) decide whether parental leave is granted on a full-time or part-time basis, in a piecemeal way or in the form of a time-credit system; … (c) adjust conditions of access and detailed rules for applying parental leave to the special circumstances of adoption; … 5. At the end of parental leave, workers shall have the right to return to the same job or, if that is not possible, to an equivalent or similar job consistent with their employment contract or employment relationship.’ 8. Clause 4.6 of the Framework Agreement provides: ‘Without prejudice to the respective role of the Commission, national courts and the Court of Justice, any matter relating to the interpretation of this agreement at European level should, in the first instance, be referred by the Commission to the signatory parties who will give an opinion.’ 9. By virtue of Article 2(1) of Directive 96/34, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the directive by 3 June 1998 at the latest. National legislation
10. It is apparent from the order for reference that Directive 96/34 was transposed into Greek law in stages.
11. The provision applicable to the facts of the main proceedings is Article 53 of the new Code on the status of civil servants and of employees of legal persons governed by public law, as amended by Law 3528/2007.
12. Article 53, headed ‘Facilities granted to public servants with family obligations’, provides in paragraph 2: ‘Working parents’ working time shall be reduced by two hours per day if they have children of up to two years of age and by one hour if they have children from two up to four years of age. Working parents are entitled to nine months’ paid parental leave to bring up a child if they do not make use of the reduced hours under the previous sentence. …’
13. It is also apparent from the order for reference that this provision is interpreted by the Greek authorities as meaning that a working parent qualifies for parental leave only until the fourth birthday of the child concerned. The dispute in the main proceedings and the questions referred for a preliminary ruling
14. The claimant in the main proceedings, Mrs Chatzi, is a public servant at State Tax Office I, Thessaloniki.
15. On 21 May 2007 she gave birth to twins.
16. By decision of 27 June 2008 of the Head of State Tax Office I, Thessaloniki, she was granted, at her request, nine months’ paid parental leave from 20 September 2007.
17. Subsequently, on 30 January 2009, she applied for a second period of nine months’ paid parental leave from 1 March 2009, in respect of the second of her twins. This application was rejected by decision of 14 May 2009 of the Head of State Tax Office I, Thessaloniki.
18. Mrs Chatzi brought an appeal against that decision before the Diikitiko Efetio Thessalonikis (Administrative Court of Appeal, Thessaloniki).
19. The referring court observes that the Simvoulio tis Epikratias (Council of State) ruled in 2008 that multiple pregnancy of a public servant does not give rise to a right to a number of periods of parental leave equal to the number of children born.
20. The referring court has doubts, however, as to the interpretation to be given to Directive 96/34 in the light of the Charter of Fundamental Rights of the European Union (‘the Charter of Fundamental Rights’), which became legally binding upon the entry into force of the Treaty of Lisbon on 1 December 2009.
21. It is in those circumstances that the Diikitiko Efetio Thessalonikis decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling: ‘1. Can clause 2.1 of [the Framework Agreement], interpreted in conjunction with Article 24 of the Charter of Fundamental Rights … relating to the rights of the child - and in light of the enhanced level of protection of those rights which has been brought about by the Charter of Fundamental Rights - be regarded as also creating in parallel a right to parental leave for the child, so that, if twins have been born, the grant of one period of parental leave constitutes an infringement of Article 21 of the Charter of Fundamental Rights on the grounds of discrimination on the basis of birth and a restriction on the right of twins that is not permitted by the principle of proportionality? 2. If the answer to the preceding question is in the negative, does the term “birth” in clause 2.1 of [the Framework Agreement] mean that a double right to the grant of parental leave is created for working parents, that right being based on the fact that pregnancy with twins results in two successive births of children (twins), or does it mean that parental leave is granted for one birth, irrespective of how many children are thereby born, without any infringement in the latter case of equality before the law under Article 20 of the Charter of Fundamental Rights …?’ Consideration of the questions referred Preliminary observations Jurisdiction of the Court to interpret the Framework Agreement
22. The German Government states that the right of management and labour to negotiate collective agreements, which they have under Article 28 of the Charter of Fundamental Rights, and their right, now enshrined in Article 155 TFEU, to conclude agreements on issues of social policy that can be implemented at European Union level by a Council decision mean that management and labour can determine autonomously the scope of those agreements, without running the risk that the scope of such an agreement will be extended beyond its wording and aims.
23. In this regard, it is to be noted that the idea of participation of management and labour in the interpretation of the Framework Agreement is expressed in clause 4.6 thereof, which states that any matter relating to the interpretation of that agreement at European level should, in the first instance, be referred by the Commission to the signatory parties who will give an opinion. Asked by the Court whether the Framework Agreement’s signatory parties had given an opinion on the points raised in the present reference for a preliminary ruling, the Commission replied at the hearing in the negative. It explained, first, that the time constraints imposed by an accelerated procedure were incompatible with such consultation and, second, that such consultation would have been neither effective nor constructive since the questions forming the subject-matter of the reference for a preliminary ruling have never been examined at European level.
24. In any event, as clause 4.6 of the Framework Agreement expressly states, consultation of the agreement’s signatory parties cannot prejudice the respective roles of the Commission, national courts and the Court.
25. The Court, for its part, derives its jurisdiction to interpret directives from Article 267 TFEU. The Framework Agreement is admittedly the product of a dialogue, based on the Agreement on Social Policy, between management and labour at European level, but it has been implemented, in accordance with Article 4(2) of the Agreement on Social Policy, by a Council directive, of which it is thus an integral component (see, to this effect, Case C-537/07 Gómez-Limón Sánchez-Camacho [2009] ECR I‑6525, paragraph 34).
26. It follows that the jurisdiction of the Court to interpret the Framework Agreement does not differ from its general jurisdiction to interpret other provisions contained in directives. Persons covered by the Framework Agreement
27. Since Mrs Chatzi has the status of public official, it should be established first of all whether Directive 96/34 and the Framework Agreement which is annexed to it are intended to apply also to public officials.
28. The provisions of those two measures do not contain anything permitting the inference that public officials are excluded from their scope.
29. On the contrary, as is apparent from the wording of clause 1.2 of the Framework Agreement, the scope of the Framework Agreement is conceived in broad terms, covering generally ‘all workers … who have an employment contract or employment relationship as defined by the law, collective agreements or practices in force in each Member State’. Furthermore, clause 2.1 of the Framework Agreement refers to ‘workers’, without drawing a distinction according to whether their employer is in the public or private sector, thereby encompassing all workers (see, in relation to the framework agreement on fixed-term work, set out in the annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43), Case C-212/04 Adeneler and Others [2006] ECR I‑6057, paragraph 54 et seq., and Case C-180/04 Vassallo [2006] ECR I-7251, paragraph 32).
30. This interpretation is, moreover, borne out by the consideration that, as is apparent from the first recital in the preamble to the Framework Agreement and paragraph 4 of the general considerations, the Framework Agreement is intended, in particular, to promote equal treatment between men and women in the field of employment and work. The Court has held that the principle of equal treatment for men and women, which forms part of the social provisions of the Treaty, is of general application and applies to employment in the public sector (see, to this effect, Case C-1/95 Gerster [1997] ECR I‑5253, paragraph 18, and Case C-285/98 Kreil [2000] ECR I-69, paragraph 18). Question 1
31. By its first question, the referring court asks, in essence, whether clause 2.1 of the Framework Agreement can be interpreted as meaning that it confers an individual right to parental leave on the child and that, consequently, the refusal of a second period of parental leave in the event of the birth of twins infringes the rights which twins derive from the European Union legal order.
32. As has been observed by all the interested persons which have submitted observations to the Court, both the wording and the purpose of the Framework Agreement lead to this question being answered in the negative.
33. Clause 2.1 of the Framework Agreement expressly provides that an individual right to parental leave is granted ‘to men and women workers’. Similarly, as regards the scope of the Framework Agreement, clause 1.2 states that it applies ‘to all workers, men and women, who have an employment contract or employment relationship’.
34. It is clear from that wording that the persons granted the right to parental leave are the parents, in their capacity as workers, and they alone.
35. This literal interpretation is confirmed by the purpose of parental leave.
36. In accordance with clause 1.1 of the Framework Agreement, parental leave is designed ‘to facilitate the reconciliation of parental and professional responsibilities for working parents’, an objective set, as paragraph 4 of the general considerations in the Framework Agreement recalls, by point 16 of the Community Charter of the Fundamental Social Rights of Workers, adopted at the European Council meeting held in Strasbourg on 9 December 1989.
37. It was with the same objective that the right to parental leave was included in Article 33(2) of the Charter of Fundamental Rights among the fundamental social rights grouped together in Title IV under the heading ‘Solidarity’.
38. Article 24 of the Charter of Fundamental Rights, which the referring court mentions, cannot alter the foregoing analysis.
39. That article, which is in Title III of the Charter of Fundamental Rights, headed ‘Equality’, states that children are to have the right to such protection and care as is necessary for their well-being. However, this right to protection and care does not mean that children have to be acknowledged as having an individual right to see their parents obtain parental leave. It is sufficient for such a right to be conferred on the parents themselves. It is they who have both the right and the duty to bring up their children and who, for that purpose, can decide on how best to perform their parental responsibilities, in choosing whether or not to have recourse to parental leave.
40. The answer to the first question therefore is that clause 2.1 of the Framework Agreement cannot be interpreted as conferring an individual right to parental leave on the child. Question 2
41. By its second question, the referring court asks, in essence, whether clause 2.1 of the Framework Agreement can be interpreted as meaning that the birth of twins confers entitlement to a number of periods of parental leave equal to the number of children born or whether it must be interpreted as meaning that their birth confers entitlement, like the birth of a single child, to just a single period of parental leave.
42. In accordance with settled case-law, it is necessary, in interpreting a provision of Community law, to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, inter alia, Case C-306/05 SGAE [2006] ECR I-11519, paragraph 34, and Joined Cases C‑402/07 and C-432/07 Sturgeon and Others [2009] ECR I-0000, paragraph 41).
43. In addition, under a general principle of interpretation, a Community measure must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with primary law as a whole (see, in particular, Case C-361/06 Feinchemie Schwebda and Bayer CropScience [2008] ECR I‑3865, paragraphs 49 and 50, and Sturgeon and Others , paragraphs 47 and 48), including with the principle of equal treatment.
44. This case-law may be applied to agreements, such as the Framework Agreement, that have been implemented by a Council directive, of which they are thus an integral component (see paragraph 25 of the present judgment). Wording of clause 2.1 of the Framework Agreement
45. Under clause 2.1 of the Framework Agreement, men and women workers have an ‘individual right to parental leave on the grounds of the birth or adoption of a child to enable them to take care of that child, for at least three months’. Article 33(2) of the Charter of Fundamental Rights is couched in similar terms, since it provides that ‘everyone shall have … the right to … parental leave following the birth or adoption of a child’.
46. The Cypriot and United Kingdom Governments observe that the use of the singular (‘the birth …. of a child’, ‘to enable them to take care of that child’) suggests that a worker is entitled to a separate period of parental leave for each child.
47. According to the Cypriot Government, confirmation for the interpretation that the decisive criterion conferring entitlement to parental leave is the child and not the birth is found in Case C-519/03 Commission v Luxembourg [2005] ECR I-3067, paragraph 47, in which the Court held that the wording that parental leave is conferred ‘on the grounds of the birth’ of a child reflects only the fact that the grant of parental leave is subject to the condition that a child has been born.
48. The literal interpretation thereby proposed is not free from doubt.
49. It is possible that the use of the singular in clause 2.1 of the Framework Agreement is not numerical but generic, and that the singular does not establish a correlation between the number of children and the number of periods of parental leave but designates the children as a whole, as a category of persons capable of conferring entitlement to parental leave.
50. So far as concerns the purport of Commission v Luxembourg , it is clear on reading paragraph 47 of that judgment that, in interpreting clause 2.1 of the Framework Agreement as meaning that the grant of parental leave is subject not to birth but to the condition that a child has been born, the Court sought to indicate that the right to parental leave is not connected with the date of birth and that it is not necessary for the child to have been born after the entry into force of Directive 96/34 in the Member State concerned. The Court thus ruled on the temporal application of Directive 96/34 and not on whether, in the event of a multiple birth, a number of periods of parental leave equal to the number of children born must be granted.
51. Accordingly, so far as concerns the answer to be given to the present question, the wording of clause 2.1 of the Framework Agreement is ambiguous and does not by itself provide an answer to the question asked by the referring court.
52. The purpose of the rules of which that provision is part must therefore be taken into consideration. Context and objectives of Directive 96/34
53. It is apparent from clause 2.1 of the Framework Agreement that the purpose of parental leave is to enable parents to take care of their child.
54. The Cypriot Government considers that parental leave is linked to the parent’s ability to devote himself or herself entirely to the child. In the case of twins, the fact that the parent must take care of each child therefore justifies the grant of a separate period of leave for each of them.
55. This analysis is contested by the Greek, Czech, German, Estonian and Polish Governments, which consider that the purpose of parental leave is not affected by the number of children whom the parent must take care of during that time. In their submission, in the case of twins the parent concerned must respond immediately and simultaneously to their needs; since the difference between the situation of that parent and the situation of a parent of a single child lies only in the intensity of the tasks to be performed and not in their duration, a doubling of parental leave is not justified.
56. As is apparent from the first recital in the preamble to the Framework Agreement and from paragraph 5 of its general considerations, the Framework Agreement constitutes an undertaking by the two sides of industry 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 (Case C-116/08 Meerts [2009] ECR I‑0000, paragraph 35).
57. To this end, the Framework Agreement enables new parents to take a break from work to devote themselves to their family responsibilities, whilst giving them the assurance, set out in clause 2.5 of the Framework Agreement, that they will be entitled to return to the same job at the end of the leave. During a period freely set by each Member State subject to a minimum duration of three months, and in accordance with detailed rules left to national legislatures to determine, the new parents are thus able to provide their child with the assistance that his or her age requires and to make provision for measures organising family life with a view to their return to work.
58. As regards the question whether, in the light of this purpose, the parents of twins must be able to claim a number of periods of parental leave equal to the number of children born, it must be stated, as the Greek, Czech, German, Estonian and Polish Governments have observed, that the increase in burdens that parents of twins must face up to is quantitative in nature, in that they must simultaneously meet the needs of two children, but that this additional effort does not extend over a greater period since twins, in principle, go through the same stages of development at the same time.
59. It is therefore clear that doubling the duration of parental leave does not necessarily constitute the only appropriate measure to which the Member States may have recourse to facilitate the coordination of work and family life of the parents of twins, and that account should be taken of the whole of the system of which the measures intended to provide a response to the constraints encountered by such parents form part.
60. This assessment is confirmed by the consideration that, given that the requirements of the Framework Agreement are minima and, as a result, the Member States have a wide discretion as regards implementation of parental leave, national transposing measures vary considerably from one Member State to another.
61. Accordingly, in the light of the context in which it occurs and of the purpose pursued by the Framework Agreement, clause 2.1 of the Framework Agreement does not require that entitlement to a number of periods of parental leave equal to the number of children born be automatically recognised in the event of the birth of twins.
62. It nevertheless remains necessary to examine the implications that the principle of equal treatment may have for the situation of parents of twins. Principle of equal treatment
63. Observance of the principle of equal treatment, which is one of the general principles of European Union law and whose fundamental nature is affirmed in Article 20 of the Charter of Fundamental Rights, is all the more important in implementing the right to parental leave because this social right is itself recognised as fundamental by Article 33(2) of the Charter of Fundamental Rights.
64. This principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Case C-164/07 Wood [2008] ECR I-4143, paragraph 13, and Sturgeon and Others , paragraph 48).
65. The Commission submits that parents of twins are in a situation comparable to that of parents of children separated by a small difference in age inasmuch as they all have in common that they bring up their children simultaneously; the former must therefore, like the latter, be granted parental leave independently for each child.
66. The criterion for comparison adopted by the Commission underscores the difficulty that exists in defining the group of persons with whom the parents of twins may be compared. That criterion is based on a factor that is difficult to quantify, namely the factor of a ‘small difference in age’.
67. Furthermore, whilst it cannot be denied that the task of bringing up twins entails greater effort and therefore is not comparable to care of a single child, it also cannot be ignored that the fact that twins grow up and develop in parallel entails synergies and that, consequently, the task of bringing them up is not necessarily comparable to the task that bringing up two children of different ages involves.
68. Accordingly, it must be found that the parents of twins are in a special situation which must be taken into account in the first instance by the national legislature when it adopts the measures transposing Directive 96/34.
69. In this context, it is to be pointed out once again that, as clauses 1.1 and 2.1 of the Framework Agreement state, the Framework Agreement lays down only minimum requirements. Besides the duration of parental leave, which they are free to set subject only to a minimum threshold of three months, the Member States may in their discretion determine the conditions of access and detailed rules for such leave. Clause 2.3 of the Framework Agreement refers in this regard to the law and/or collective agreements in the Member States, this reference being justified, according to paragraph 9 of the general considerations in the Framework Agreement, by the concern to take account of the situation in each Member State.
70. The Member States can thus define, subject to compliance with the minimum three-month threshold imposed by the Framework Agreement in respect of the duration of parental leave, the detailed temporal rules under which parental leave may be taken. This discretion means in particular that, when Member States decide to set a period of parental leave that is longer than the minimum period prescribed by the Framework Agreement, they can lay down adjustments to the rules for the case of successive births of children.
71. It follows that the national legislature has wide freedom of action when establishing the parental leave regime that is applicable to parents of twins and enables them to receive treatment that takes due account of their particular needs.
72. In this regard, it should be stated that, generally, a duration appreciably longer than the minimum duration prescribed by the Framework Agreement and a certain degree of flexibility granted to the parents to take the leave on the basis of the age of the child are such as to make it easier to deal with the increased burdens connected with bringing up twins. Likewise, detailed implementing rules which, in accordance with paragraph 6 of the general considerations in the Framework Agreement, make substantial provision for flexible ways of organising work are such as to facilitate reconciliation of the requirements of work and the particular constraints that bringing up twins involves.
73. However, it is also possible to conceive of and adopt other measures that are appropriate for the purpose of meeting the particular needs of the parents of twins, such as material assistance, in the form, for example, of a right of access to childcare centres, or financial aid, in the form, inter alia, of specific benefits allowing the method of care to be freely chosen.
74. It is for the national court, which has sole jurisdiction to assess the facts of the dispute before it, to determine whether the body of national rules offers sufficient possibilities to meet, in a specific case, the particular needs of the parents of twins in their work and family life.
75. In view of the foregoing considerations, the answer to the second question is that clause 2.1 of the Framework Agreement is not to be interpreted as requiring the birth of twins to confer entitlement to a number of periods of parental leave equal to the number of children born. However, read in the light of the principle of equal treatment, this clause obliges the national legislature to establish a parental leave regime which, according to the situation obtaining in the Member State concerned, ensures that the parents of twins receive treatment that takes due account of their particular needs. It is incumbent upon national courts to determine whether the national rules meet that requirement and, if necessary, to interpret those national rules, so far as possible, in conformity with European Union law. Costs
76. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.