Ministerul Justiţiei and Tribunalul Botoşani v Maria Dicu.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Levits
• ECLI: ECLI:EU:C:2018:799
• Date: 04 October 2018
• Docket Number: C-12/17
• Procedure Type: Reference for a preliminary ruling

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

4 October 2018 (*)

(Reference for a preliminary ruling — Social policy — Organisation of working time — Directive 2003/88/EC — Right to paid annual leave — Directive 2010/18/EU — Revised Framework Agreement on parental leave — Parental leave not regarded as a period of actual work)

In Case C‑12/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the Curtea de Apel Cluj (Court of Appeal, Cluj, Romania), made by decision of 11 October 2016, received at the Court on 10 January 2017, in the proceedings

Tribunalul Botoşani,

Ministerul Justiţiei

v

Maria Dicu,

intervening parties:

Curtea de Apel Suceava,

Consiliul Superior al Magistraturii,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, A. Tizzano, Vice-President, M. Ilešič, L. Bay Larsen, T. von Danwitz and E. Levits (Rapporteur), Presidents of Chambers, A. Borg Barthet, A. Arabadjiev, F. Biltgen, K. Jürimäe and C. Lycourgos, Judges,

Advocate General: P. Mengozzi,

Registrar: R. Şereş, Administrator,

having regard to the written procedure and further to the hearing on 15 January 2018,

after considering the observations submitted on behalf of:

– the Consiliul Superior al Magistraturii, by M. Ghena, acting as Agent,

– the Romanian Government, initially by R.-H. Radu, O.-C. Ichim, L. Liţu and E. Gane, and subsequently by C.-R. Canţăr, O.-C. Ichim, L. Liţu and E. Gane, acting as Agents,

– the German Government, by D. Klebs and T. Henze, acting as Agents,

– the Estonian Government, by A. Kalbus, acting as Agent,

– the Spanish Government, by S. Jiménez García, acting as Agent,

– the Italian Government, by G. Palmieri, acting as Agent, and G. De Socio, avvocato dello Stato,

– the Polish Government, by B. Majczyna, acting as Agent,

– the European Commission, by M. van Beek and C. Hödlmayr, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 20 March 2018,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).

2 The request has been made in connection with a dispute between the Tribunalul Botoșani (Regional Court, Botoșani, Romania) and the Ministerul Justiției (Ministry of Justice, Romania), on the one hand, and Ms Maria Dicu, on the other, concerning the determination of her annual paid leave entitlement for 2015.

Legal context

European Union law

Directive 2003/88

3 Recital 6 of Directive 2003/88 states as follows:

‘Account should be taken of the principles of the International Labour Organisation with regard to the organisation of working time, including those relating to night work.’

4 Article 1 of Directive 2003/88, entitled ‘Purpose and scope’, provides as follows:

‘1. This Directive lays down minimum safety and health requirements for the organisation of working time.

2. This Directive applies to:

(a) minimum periods of … annual leave

…’

5 Article 7 of that directive, entitled ‘Annual leave’, states as follows:

‘1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.’

6 Article 15 of the directive is worded as follows:

‘This Directive shall not affect Member State’ right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers.’

7 Article 17 of Directive 2003/88 provides that Member States may derogate from certain provisions of the directive. However, no derogation is permitted in respect of Article 7 of the directive.

Directive 2010/18/EU

8 The revised Framework Agreement on parental leave concluded on 18 June 2009 (‘the Framework Agreement on parental leave’), annexed to 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 (OJ 2010 L 68, p. 13), provides, in Clause 2(1) thereof, as follows:

‘This agreement entitles men and women workers to an individual right to parental leave on the grounds of the birth or adoption of a child …’

9 Clause 2(2) of the Framework Agreement on parental leave provides:

‘The leave shall be granted for at least a period of four months and, to promote equal opportunities and equal treatment between men and women, should, in principle, be provided on a non-transferable basis. To encourage a more equal take-up of leave by both parents, at least one of the four months shall be provided on a non-transferable basis. The modalities of application of the non-transferable period shall be set down at national level through legislation and/or collective agreements taking into account existing leave arrangements in the Member States.’

10 Clause 5 of that agreement is worded as follows:

‘1. 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.

2. Rights acquired or in the process of being acquired by the worker on the date on which parental leave starts shall be maintained as they stand until the end of parental leave. At the end of parental leave, these rights, including any changes arising from national law, collective agreements and/or practice, shall apply.

3. Member States and/or social partners shall define the status of the employment contract or employment relationship for the period of parental leave.

…’

11 Clause 8(1) of the Framework Agreement on parental leave states that the Member States may apply or introduce more favourable provisions than those set out in the agreement.

Romanian law

12 The Legea nr. 53/2003 privind Codul muncii (Law No 53/2003 establishing the Labour Code), in the...