Article 20 - Equality before the law
Article 24 - The rights of the child
Article 33 - Family and professional life
Key facts of the case:
Reference for a preliminary ruling from the Diikitiko Efetio Thessalonikis (Greece) (Directive 96/34/EC – Parental leave – Duration of the parental leave to be granted in the event of the birth of twins
Outcome of the case:
In the light of the above, I propose that the Court answer the Diikitiko Efetio Thessalonikis as follows:
5) The framework agreement is underlain by the consideration that the Community Charter of Fundamental Social Rights of Workers stipulates, at point 16, that measures should be developed to enable men and women to reconcile their occupational and family obligations. (4)
14) By decision of 17 February 2010, received at the Court on 29 March 2010, the Diikitiko Efetio Thessalonikis stayed the proceedings before it and referred the following questions to the Court:
(1) Can clause 2.1 of the framework agreement on parental leave, interpreted in conjunction with Article 24 of the Charter of Fundamental Rights of the European Union 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 on parental leave 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?
16) It is appropriate first of all to consider briefly the extent of the Court’s jurisdiction to interpret the framework agreement at issue. The German Government stresses that, when interpreting the framework agreement, special regard is to be had to the will of management and labour, since otherwise their rights as recognised in Article 28 of the Charter of Fundamental Rights of the European Union and Article 155 TFEU will be infringed.
25) Nor does a different interpretation of the framework agreement follow from Article 24 of the Charter of Fundamental Rights of the European Union, to which the referring court makes reference. Article 24 states that children are to have the right to such protection and care as is necessary for their well-being. It is not necessary however, for this right to protection and care, that children have their own entitlement to the grant of parental leave to their parents. It is sufficient if such an entitlement is possessed by the parents themselves, who of course ultimately determine how their children are to be looked after and can also decide to look after them and ensure their well-being by a means other than the taking of parental leave.
28) 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’. Similar wording is contained in Article 33(2) of the Charter of Fundamental Rights of the European Union, which provides inter alia that, ‘to reconcile family and professional life, everyone shall have … the right … to parental leave following the birth or adoption of a child’.