Key facts of the case:
Social policy – Directive 96/34/EC – Framework agreement on parental leave – Interpretation of clause 2.1 of the framework agreement – Person granted the right to parental leave – Parental leave in the event of the birth of twins – Meaning of ‘birth’ – Taking account of the number of children born – Principle of equal treatment.
Outcome of the case:
On those grounds, the Court (First Chamber) hereby rules:
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 …?’
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.
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.
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’.
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.