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Document 62010CP0149

View of Advocate General Kokott delivered on 7 July 2010.
Zoi Chatzi v Ypourgos Oikonomikon.
Reference for a preliminary ruling: Dioikitiko Efeteio Thessalonikis - Greece.
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.
Case C-149/10.

European Court Reports 2010 I-08489

ECLI identifier: ECLI:EU:C:2010:407

VIEW OF ADVOCATE GENERAL

KOKOTT

delivered on 7 July 2010 (1)

Case C‑149/10

Zoi Chatzi

v

Ipourgos Ikonomikon

(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)





I –    Introduction

1.        This reference for a preliminary ruling concerns the interpretation of the framework agreement on parental leave which is implemented by Directive 96/34/EC. (2)

2.        It is necessary to determine the extent of the parental leave that the Member States must ensure is granted in the event of the birth of twins. Is a separate period of parental leave required for each twin? Or are the requirements of the framework agreement satisfied if the birth of twins is treated no differently from the birth of a single child and only one period of parental leave is granted?

II – Legal context

A –    European Union law

3.        Directive 96/34 puts into effect the framework agreement on parental leave which was concluded on 14 December 1995 between management and labour at European level (the Union of Industrial and Employers’ Confederations of Europe (UNICE), the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP) and the European Trade Union Confederation (ETUC)) and is annexed to the directive.

4.        The framework agreement is intended to lay down minimum requirements on parental leave, because management and labour at European level see this as an important means of reconciling work and family life and promoting equal opportunities and treatment between men and women. (3)

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)

6.        Clause 2 of the framework agreement is worded 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.

2.      To promote equal opportunities and equal treatment between men and women, the parties to this agreement consider that the right to parental leave provided for under clause 2.1 should, in principle, be granted on a non-transferable basis.

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;

(b)      make entitlement to parental leave subject to a period of work qualification and/or a length of service qualification which shall not exceed one year;

(c)      adjust conditions of access and detailed rules for applying parental leave to the special circumstances of adoption;

…’

7.        Clause 4.1 of the framework agreement provides:

‘Member States may apply or introduce more favourable provisions [than] those set out in this agreement.’

8.        Clause 4.6 provides as follows in respect of interpretation of the framework agreement:

‘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.’

B –    National law

9.        Directive 96/34 was transposed into Greek law for workers in the public sector by Article 53 (‘Facilities granted to public servants with family obligations’) of the new Code on the status of civil servants and of employees of legal persons governed by public law (Law 3528/2007), which includes the following:

‘… (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. For a parent who is unmarried, widowed or divorced or has a disability of 67% or more, the one-hour reduction in hours under the first sentence or the leave under the second sentence shall be increased by six months and one month respectively. In the event of a fourth child being born, the reduction in working hours shall be extended for a further two years …’

10.      The referring court states that domestic law does not contain specific provisions on the grant of parental leave in the event of the birth of twins.

III – Facts and main proceedings

11.      The claimant in the main proceedings, Mrs Chatzi, is a public servant at State Tax Office I, Thessaloniki. On 21 May 2007 she gave birth to twins. Her employer granted her nine months’ paid parental leave from 20 September 2007 as provided for by Greek law for public-sector workers on the birth of a child.

12.      On 30 January 2009 Mrs Chatzi applied for a second such period of parental leave from 1 March 2009. She stated that she should be entitled on the birth of twins to a period of parental leave for each twin. The application was rejected on 14 May 2009. Mrs Chatzi brought an appeal against that decision before the Diikitiko Efetio Thessalonikis, (5) the referring court.

13.      The referring court explains that the Simvoulio tis Epikratias (6) interprets the Greek provision on parental leave as meaning in the case of siblings who are not twins that the parents are entitled to a separate period of nine months’ parental leave for each child. The referring court notes that, on the basis of this, two administrative courts of appeal (7) have held that, in the event also of the birth of twins, a separate period of parental leave is, in the absence of specific statutory provisions, to be granted for each twin, but the Simvoulio tis Epikratias has not followed them in this regard.

IV – Reference for a preliminary ruling and procedure before the Court of Justice

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?

15.      By order of 12 May 2010, the President of the Court granted the referring court’s request for an accelerated procedure under 62a of the Rules of Procedure of the Court. In the proceedings before the Court, the Estonian, Greek, Polish, Czech and United Kingdom Governments and the European Commission both submitted written observations and presented oral argument at the hearing on 7 July 2010. In addition, the German and Cypriot Governments submitted written observations.

V –    Assessment

A –    Preliminary observations

1.      Extent of the interpretative jurisdiction of the Court

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.

17.      The importance of management and labour when interpreting the framework agreement is also expressed in clause 4.6 of that agreement. It is stated there that ‘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’.

18.      It cannot, however, be inferred from this that the Court’s interpretative jurisdiction is restricted if there is no such opinion of the framework agreement’s signatory parties.

19.      The Court has the task under Article 267 TFEU of interpreting directives when references are made for a preliminary ruling. Whilst it is true that the framework agreement set out in the annex to Directive 96/34 was negotiated between management and labour, it became, however, by virtue of Article 1 of Directive 96/34, an integral part of that directive and shares its legal status. (8) Clause 4.6 of the framework agreement thus also explicitly states that the provisions of that clause apply ‘without prejudice to the role of the Court of Justice’. The extent of the Court’s jurisdiction to interpret the framework agreement therefore does not differ from its comprehensive jurisdiction to interpret other provisions of directives. Nor could this interpretative jurisdiction of the Court, which results from primary law, be restricted anyway by a provision contained in a directive such as clause 4.6 of the framework agreement.

2.      Applicability of Directive 96/34 to public officials

20.       It should also be made clear by way of a preliminary point, given that the claimant in the main proceedings is a public official, that public officials too can be persons covered by Directive 96/34 and the framework agreement set out in its annex.

21.      It is true that clause 1.2 of the framework agreement states that the agreement applies to all workers, which might exclude public officials. However, neither the directive nor the framework agreement contains anything indicating that their scope is limited to contracts concluded by workers with employers in the private sector alone, and they therefore also apply to the public service. (9) The concept of worker in Article 141 EC (now Article 157 TFEU, equal pay for male and female workers) has also been interpreted broadly by the Court so as to encompass public officials too. (10) The Court’s basis in holding this was the consideration that the principle of equal pay enshrined there forms part of the foundations of the Community and the public service therefore cannot be excluded from its scope. The Court has also so held in respect of Directives 76/207/EEC (11) and 75/117/EEC (12) since they are of general application, a factor which is inherent in the very nature of the principle of equal treatment for men and women which they lay down. (13) Since Directive 96/34 is likewise intended to promote equal treatment between women and men, (14) here also the concept of worker should be construed broadly and encompass public officials too.

B –    First question referred

22.      By its first question the referring court wishes to ascertain whether clause 2.1 of the framework agreement gives children an individual entitlement to parental leave and therefore denial of a second period of parental leave in the event of the birth of twins constitutes an infringement of the twins’ rights.

23.      This question is correctly answered in the negative by all the parties which have participated in the proceedings. The wording of the framework agreement contains nothing to support an individual legal entitlement for the child. The framework agreement grants only the parents an individual right to parental leave. This follows clearly from the wording of clause 2.1 of the framework agreement as it is expressly stated there that men and women workers are granted an individual right to parental leave.

24.      This literal interpretation is also supported by teleological considerations. According to the framework agreement’s preamble and clause 1.1, the whole point of parental leave is to facilitate the reconciliation of parents’ work and family life and to promote equal treatment between men and women. To this end, the framework agreement grants working parents an individual right to parental leave and thereby governs the relationship between parents and their employers. (15) It is also not necessary for children to have their own legal entitlement to parental leave in order to achieve the objective of better reconciliation of family life and work.

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.

C –    Second question referred

26.      By its second question the referring court wishes to ascertain in essence whether under the framework agreement a separate entitlement to parental leave is to be granted for each twin or whether the requirements of the framework agreement are satisfied if the birth of twins is treated no differently from the birth of a single child and only one period of parental leave is prescribed.

27.      This question arises correspondingly for other multiple births (triplets, quadruplets and so forth). However, since the main proceedings concern the birth of twins, I will proceed below on the basis of that eventuality.

1.      Interpretation of clause 2.1 of the framework agreement

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’.

29.      The observations that follow on the meaning of that rule relate initially only to the three-month minimum duration of parental leave laid down in the directive. Only subsequently will I seek to explain what the consequences are if a Member State prescribes a longer duration of parental leave.

30.      The United Kingdom and Cypriot Governments rightly point out that the use of the singular (‘birth of a child’, ‘to enable them to take care of that child’) supports the view that the entitlement to parental leave exists separately for each child. (16) The framework agreement does not refer generally to parental leave being intended to serve ‘the looking-after of children’, but makes the leave entitlement specific to a particular child, namely ‘that child’, to whose birth the entitlement is linked. This is to be understood as meaning that the birth of every child gives rise to a separate entitlement to parental leave of at least three months.

31.      The wording of the framework agreement therefore suggests that it should be interpreted as meaning that a separate entitlement to parental leave also arises for each twin in the event of the birth of twins.

32.      The view of other parties which have participated in the proceedings that the entitlement to parental leave is linked only to the fact of ‘birth’, irrespective of the number of children born, is not convincing. In my opinion, that interpretation finds no support in the wording of clause 2.1 of the framework agreement. It is not a question there simply of parental leave after birth, but of the birth ‘of a child’ and enabling care of ‘that child’. The provision’s wording therefore focuses not on birth but on the particular child and proceeds on the basis of the principle that parental leave is to be granted per child.

33.      This interpretation that clause 2.1 of the framework agreement focuses not on childbirth, irrespective of the number of children born, but on the children born, is confirmed by the Court’s judgment in Commission v Luxembourg. (17) There the Court expressly held, in connection with the question of the temporal applicability of the Parental Leave Directive, that there is also an entitlement to parental leave where the child was born before the directive’s entry into force. The Court’s reasoning for this was that it is not the birth and the date of the birth that are decisive for establishing entitlement to parental leave, but only the existence of a child at the time when the application is made. (18) If regard is had to the child and not the birth, it appears impermissible to lay down the principle that only one entitlement to parental leave arises per childbirth irrespective of the number of children born. Rather, regard is to be had to both twins, which in turn suggests that there are two separate entitlements to parental leave.

34.      It must therefore be found by way of interim conclusion that, according to its wording, clause 2.1 of the framework agreement requires a separate entitlement to parental leave for the birth of each child. It is not to be inferred from the framework agreement’s wording that something different applies in respect of the birth of twins.

2.      Teleological interpretation

35.      The framework agreement’s spirit and purpose do not support restriction of the interpretation derived from the wording.

36.      The aim of the framework agreement is to facilitate reconciliation of family life and work by enabling parents to take care of their children themselves for a certain period of time without thereby suffering occupational disadvantages. (19) Parents are to be able to meet both their occupational and their family obligations. (20) This is also intended, against the background of demographic change, to have a positive effect on the birth rate. (21) At the same time, women’s participation in the labour force and equal treatment of the sexes are intended to be promoted through parental leave. (22)

37.      The outcome of the literal interpretation, that a separate entitlement to parental leave exists for each twin, is particularly appropriate for promoting the abovementioned aims of the framework agreement. A separate entitlement to parental leave of three months per twin is the best way of helping parents who have the particularly demanding task of looking after twins to reconcile their family and occupational obligations. It can also constitute an incentive for the parent looking after the twins – in real life, even today, still mostly the mother – not to give up work in view of the demands resulting from the birth of twins.

38.      Some of the parties which have participated in the proceedings object, however, that twins are cared for simultaneously and therefore sufficient justice to the framework agreement’s spirit and purpose is done if parents of twins are granted only one period of parental leave.

39.      This objection does not succeed in the final analysis, however. An interpretation in light of the principle of equal treatment in European Union law precludes granting parental leave just once in the case of twins.

40.      It must be acknowledged that looking after twins involves synergies. Nevertheless, the task entailed by looking after twins is significantly greater and not to be compared with looking after a single child. Since twins are the same age, they admittedly have fundamentally the same needs, but those needs must be satisfied twice and, moreover, it is not stated that twins, for example, are always hungry or asleep at the same time. If parents of twins were to be granted only one period of parental leave, as parents of a single child are, that difference would be ignored and different situations would thereby impermissibly be treated in the same way.

41.      The two examples below are intended to illustrate that the grant of just one period of parental leave for twins would conflict with the principle of equal treatment.

42.      The Commission correctly points out that, under the model provided by the framework agreement, parental leave does not have to follow on directly from maternity protection but can also be taken later. Clause 2.1 specifies, as the time frame within which the Member States can provide for parental leave, a maximum age of the child of eight years. This has the consequence that, where the birth of one child is followed by the birth of another, the parental leave for the first born does not have to be taken until after the birth of the second child.

43.      In this situation also, parents on parental leave in respect of one of the children can care for both of them, and the framework agreement does not provide any basis upon which the parental leave in respect of the second child may as a result be lost. Accordingly, in the case of twins too, the argument that children can be cared for simultaneously cannot limit the entitlement to just one period of parental leave.

44.      The following example also militates against the grant of just a single period of parental leave for twins. On the basis of the model which is provided by the framework agreement, and which is underlain by a time frame of up to eight years within which the parental leave can be taken, parents of siblings can decide to take parental leave for one child when the child is a baby and thereby witness this stage of development more intensively, but take parental leave for the second child for example when the child starts school in order to provide the child particular support there. This flexibility would be taken away from parents of twins if they were granted only one period of parental leave for the twins. This too would involve impermissible unequal treatment.

45.      In so far as the Greek Government emphasised at the hearing that in the case of twins the need to look after each of them intensively ends simultaneously and therefore only one period of parental leave is to be granted, it must be pointed out that under the Greek provisions parental leave can be taken within the first four years of life. The Greek legislature too therefore sets a broad time frame within which the parents can determine when parental leave is taken. This possibility would be taken away from them in the case of twins if parents were granted only one period of parental leave for twins.

46.      An argument advanced by the German Government should also be dealt with now. It points out that a rule covering the particular situation of children who are disabled or have a long-term illness is included for the first time in the new version of the framework agreement on parental leave. (23) Here, clause 3.3 provides that Member States and/or management and labour should assess the need to adjust the conditions for access and modalities of application of parental leave to the needs of parents of children with a disability or a long-term illness. The German Government infers from the fact that the particular situation of a multiple birth is not mentioned in the new version that neither the old nor the new version of the directive makes provision for this situation. It can therefore at most be dealt with in respect of the future by management and labour.

47.      This argument fails to convince me. The silence of the new framework agreement in relation to multiple births can equally well be put forward as an argument that multiple births fall within the general rule on parental leave in clause 2.1 of the original version of the framework agreement, as is maintained here. There is then absolutely no need for a separate rule, and the silence of the new 2010 version of the framework agreement could in turn be put forward in support of this.

48.      Some of the parties which have participated in the proceedings refer furthermore to a Commission proposal (24) for amendment of Directive 92/85/EEC (25) on the protection of mothers. The intention is that this directive be amended so that the Member States are required to take the necessary measures to ensure that additional maternity leave is granted inter alia in the case of multiple births. However, the fact that only an extension and not a doubling of leave is planned here does not allow any conclusions to be drawn for the interpretation of the framework agreement on parental leave. As the Commission correctly pointed out at the hearing, the two directives pursue different aims. Directive 92/85 is concerned primarily with protecting a woman’s biological condition, (26) whilst the Parental Leave Directive relates to the looking-after of children with a view to reconciling family life and work. Whilst protection of a woman’s biological condition after the birth of twins can be taken sufficiently into account by simply extending the period of parental leave, this outcome is not transferable to the requirements relating to parental leave, which serves other purposes.

49.      The parties which have participated in the proceedings have also mentioned the Court’s case-law stating that a period of leave guaranteed by Community law cannot affect the right to take another period of leave guaranteed by Community law. (27) Each of these judgments nevertheless concerned periods of leave which served different purposes, for example in Merino Gómez(28) maternity and annual leave. In the present case, however, different kinds of leave do not confront each other. Consideration could though be given to whether the leave entitlements at issue here do not, none the less, serve different purposes. It could be argued in this regard that one entitlement to parental leave is intended to take care of the first twin and the other to take care of the second twin. In this respect too, the entitlements could pursue different purposes. The decisive factor would be how broadly or narrowly the concept of ‘different purpose’ is to be understood. However, I consider it unnecessary to determine conclusively whether the case‑law set out above is transferable to the present case, since there are already sufficient arguments that clause 2.1 of the framework agreement is to be interpreted as meaning that an entitlement to parental leave is to be granted for each child, irrespective of whether the child is a twin or a single child.

50.      It remains, finally, to consider the power of the Member States to define the time frame within which parental leave may be taken, subject to the limit of eight years prescribed by the framework agreement. This power results from clause 2.1 of the framework agreement. At the end of this provision, the German version states: ‘Die genauen Bestimmungen sind von den Mitgliedstaaten und/oder Sozialpartnern festzulegen.’ [That is to say: ‘The specific provisions are to be defined by Member States and/or management and labour.’] At first sight it is not clear in the German version to what these additional words relate. This is revealed, however, by looking at the other language versions of the framework agreement. They contain, following the age-limit of eight years, not this additional sentence but a subordinate clause requiring the Member States to define the age‑limit for taking parental leave. (29) The specific determination by Member States or management and labour accordingly relates to the time frame within which parental leave is to be taken within the limit of eight years.

51.      Proceeding on the basis of this power of the Member States to define a specific maximum age of the child for the taking of parental leave, it would be conceivable to lay down that parental leave may be taken only during the three months following the end of maternity leave. Whilst a separate entitlement would admittedly then exist in theory for each twin, the parents would in reality, however, be entitled to only one period of parental leave since the leave would have to be taken for both twins simultaneously. When defining the framework for the taking of parental leave, the Member States and/or management and labour have a broad discretion with regard to determination of the time at which it is to be taken. When exercising that discretion, the Member States must, however, also ensure that that the practical effectiveness of the framework agreement is not compromised. The specific way in which the time frame is defined cannot therefore have the effect that the two separate three-month periods of parental leave for twins to which the parents are entitled ultimately cannot be granted.

52.      It can therefore be found by way of interim conclusion that under the framework agreement parents of twins are to be granted two separate entitlements to parental leave of at least three months.

3.      Parental leave of a duration exceeding the minimum requirement

53.      As made clear at the outset, the basis of the discussion up until this point has been the parental leave of three months’ duration laid down as a minimum requirement in the framework agreement.

54.      It remains to be discussed what consequences the interpretation set out above has where a Member State grants parental leave exceeding the minimum duration. Parental leave prescribed by the Member States varies greatly in its duration: under the law in the United Kingdom, for example, 13 weeks’ leave is granted, under Greek law nine months’ leave is granted for workers in the public sector, and in other Member States three years’ leave is granted (for example in Germany, France, Lithuania, Spain and the Czech Republic). (30)

55.      The question therefore arises whether in the case of twins too the period of parental leave prescribed in national law for a single child is to be doubled.

56.      The starting point for the answer to this question is that the framework agreement lays down only minimum requirements. (31) The framework agreement requires only that Member States prescribe parental leave of at least three months per child. If a Member State decides to grant parental leave exceeding that duration, it enjoys a wide discretion for that purpose. As a matter of principle, however, this leave exceeding the minimum requirements must also be granted on the same terms to all individuals covered by the directive, unless the difference in treatment can be objectively justified. (32)

57.      If a Member State introduces a longer period of parental leave, its discretion does not extend merely to the setting of a longer absolute duration of the parental leave per child. On the contrary, when granting a longer period of parental leave, it may also lay down rules governing the concurrence of parental leave entitlement for a number of children. That is clear if only from the spirit and purpose of the framework agreement, which seeks to promote reconciliation of family life and work. In this connection, there can be an objective justification for unequal treatment vis-à-vis single births. The United Kingdom also submitted accordingly at the hearing that, in the case of parental leave of greater duration, unequal treatment might be justified and that this is a matter to be assessed primarily by the Member States.

58.      In particular, in the case of a longer period of parental leave, its multiple grant in full can, as the Estonian and German Governments have rightly submitted, lead to parental leave of such a long uninterrupted duration that it no longer promotes attainment of the aim pursued by it of return to work, but even produces opposing stimuli or at any rate makes returning markedly more difficult. In this connection, paragraph 6 of the general considerations in the framework agreement also emphasises that measures to reconcile work and family life should take the needs of both undertakings and workers into account.

59.      Nor is it evident that the particular burden of looking after twins demands multiplication of parental leave even where it is already granted for a single child for a much longer period than the minimum duration of three months that is required by European Union law. Rather, particular significance can then be ascribed to the fact that looking after twins involves synergies. The longer the period of parental leave already granted for one child, the more that leave already cushions the extra burden which can hardly be offset in the minimum period of three months.

60.      It must therefore be found that, if a Member State prescribes parental leave exceeding the minimum duration of three months laid down in the framework agreement, parents are here too fundamentally entitled to parental leave for each twin. However, the principle of equal treatment does not require the parental leave entitlement exceeding the minimum duration of three months to be mechanically doubled; instead, in light of the aims and objectives pursued by the framework agreement, provisions laying down temporal deductions which reduce the parental leave entitlement to below a double period of leave can be justified. The Member State must, when carrying out the necessary appraisal, have regard to the aim pursued by the framework agreement of promoting reconciliation of family life and work.

61.      The Greek legislature has not laid down an express rule providing for such deduction in the case of the birth of twins. The referring court will have to examine whether it can, through interpretation, infer from domestic law a rule on deductions which meets the criteria indicated. Should that not be the case, the basic rule resulting from the directive that parental leave is doubled would apply.

VI – Conclusion

62.      In the light of the above, I propose that the Court answer the Diikitiko Efetio Thessalonikis as follows:

1.      Clause 2.1 of the framework agreement on parental leave concluded on 14 December 1995, which is contained 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, as amended by Council Directive 97/75/EC of 15 December 1997, is not to be interpreted as giving children an individual entitlement to parental leave.

2.      Clause 2.1 of the framework agreement on parental leave concluded on 14 December 1995, which is contained 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, as amended by Council Directive 97/75/EC of 15 December 1997, is to be interpreted as meaning that men and women workers have an individual entitlement to parental leave of at least three months for each twin.


1 – Original language: German.


2 –     Council Directive 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’ or ‘the Parental Leave Directive’). Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC must be transposed by 8 March 2012 and is therefore not applicable to the present case. Nor does it contain any amendments relevant to the issues raised here.


3 –     See the first recital in the preamble to the framework agreement.


4 –     Paragraph 4 of the general considerations in the framework agreement.


5 –     Administrative Court of Appeal, Thessaloniki.


6 –     Council of State.


7 –     The Diikitiko Efetio Athinon and the Diikitiko Efetio Thessalonikis.


8 –     See Case C-268/06 Impact [2008] ECR I-2483, paragraph 58, referring to point 87 of my Opinion in that case.


9 –     See, to this effect, Case C-212/04 Adeneler [2006] ECR I-6057, paragraph 54 et seq., and Case C-180/04 Vassallo [2006] ECR I-7251, paragraph 32.


10 –     See Case C-1/95 Gerster [1997] ECR I‑5253, paragraph 18.


11 –     Council Directive of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40).


12 –     Council Directive of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19).


13 –     Case 248/83 Commission v Germany [1985] ECR 1459, paragraph 16.


14 –     Paragraphs 4 and 7 of the general considerations of the framework agreement and the first recital in its preamble.


15 –     Case C-519/03 Commission v Luxembourg [2005] ECR I-3067, paragraph 46.


16 –     Correspondingly, the German version refers to ‘Geburt eines Kindes/um dieses Kind kümmern zu können’, the French version refers to ‘naissance d'un enfant/pour pouvoir s'occuper de cet enfant’, and the Greek version states ‘λόγω γέννησης παιδιού/ώστε να μπορέσουν να ασχοληθούν με το παιδί αυτό’.


17 –     Commission v Luxembourg (cited in footnote 15).


18 –     Commission v Luxembourg (cited in footnote 15), paragraph 47.


19 –     See clause 1.1 of the framework agreement.


20 –     Paragraph 4 of the general considerations in the framework agreement.


21 –     See paragraph 7 of the general considerations in the framework agreement.


22 –     Paragraphs 4 and 7 of the general considerations in the framework agreement and the first recital in its preamble.


23 –     Contained in the annex to Directive 2010/18 (cited in footnote 2).


24 –     COM(2008) 637 final.


25 –     Council Directive of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1).


26 –     See Commission v Luxembourg (cited in footnote 15), paragraph 32.


27 –     Joined Cases C-350/06 and C-520/06 Schultz-Hoff and Others [2009] ECR I‑179, paragraph 26; Case C‑342/01 Merino Gómez [2004] ECR I‑2605, paragraphs 32 and 33; Commission v Luxembourg (cited in footnote 15), paragraph 33; and Case C-116/06 Kiiski [2007] ECR I-7643, paragraph 56.


28 –     Cited in footnote 27.


29 –     See, for example, the French version (‘… au moins trois mois jusqu'à un âge déterminé pouvant aller jusqu'à huit ans, à définir par les États membres et/ou les partenaires sociaux’), the English version (‘… for at least three months, until a given age up to 8 years to be defined by Member States and/or management and labour’) or the Greek version (‘… τουλάχιστον επί τρεις μήνες, μέχρι μιας ορισμένης ηλικίας, η οποία μπορεί να φθάσει μέχρι τα 8 έτη και προσδιορίζεται από τα κράτη μέλη ή/και τους κοινωνικούς εταίρους’).


30 –     In Germany for each parent until the child has reached the age of three, in the other Member States for both parents jointly.


31 –     See, in particular, recital 10 in the preamble to Directive 96/34.


32 –     See the Opinion of Advocate General Tizzano in Commission v Luxembourg (cited in footnote 15), point 49.

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