Terveys- ja sosiaalialan neuvottelujärjestö (TSN) ry v Terveyspalvelualan Liitto ry and Ylemmät Toimihenkilöt (YTN) ry v Teknologiateollisuus ry and Nokia Siemens Networks Oy.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2014:73
• Docket Number: C‑513/11,C‑512/11
• Celex Number: 62011CJ0512
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 13 February 2014

JUDGMENT OF THE COURT (Third Chamber)

13 February 2014 ( *1 )

‛Social policy — Directive 92/85/EEC — Protection of the safety and health of workers — Pregnant workers and workers who have recently given birth or are breastfeeding — Maternity leave — Maintenance of payment and/or entitlement to an adequate allowance — Directive 96/34/EC — Framework Agreement on parental leave — Individual right to parental leave on the grounds of the birth or adoption of a child — Working and remuneration conditions — National collective agreement — Female workers having taken maternity leave after interruption of a period of unpaid parental leave — Refusal to pay a salary during the maternity leave’

In Joined Cases C‑512/11 and C‑513/11,

TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Työtuomioistuin (Finland), made by decision of 28 September 2011, received at the Court on 3 October 2011, in the proceedings

Terveys- ja sosiaalialan neuvottelujärjestö TSN ry

v

Terveyspalvelualan Liitto ry,

supported by:

Mehiläinen Oy (C-512/11),

and

Ylemmät Toimihenkilöt YTN ry

v

Teknologiateollisuus ry,

Nokia Siemens Networks Oy (C-513/11),

THE COURT (Third Chamber),

composed of M. Ilešič, President of the Chamber, K. Lenaerts, Vice-President of the Court, acting as Judge of the Third Chamber, A. Ó Caoimh (Rapporteur), C. Toader and E. Jarašiūnas Judges,

Advocate General: J. Kokott,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 8 November 2012,

after considering the observations submitted on behalf of:

— Terveys- ja sosiaalialan neuvottelujärjestö TSN ry and Ylemmät Toimihenkilöt YTN ry, by A. Vainio and T. Lehtinen, asianajajat,

— Terveyspalvelualuan Liitto ry and Mehiläinen Oy, by M. Kärkkäinen, asianajaja,

— Teknologiateollisuus ry and Nokia Siemens Networks Oy, by S. Koivistoinen and J. Ikonen, asianajajat,

— the Finnish Government, by J. Heliskoski, acting as Agent,

— the Estonian Government,, by M. Linntam, acting as Agent,

— the Spanish Government, by A. Rubio González, acting as Agent,

— the United Kingdom Government, by S. Ossowski, acting as Agent, and S. Lee, Barrister,

— the European Commission, by I. Koskinen and C. Gheorghiu, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 21 February 2013,

gives the following

Judgment

1 These requests for a preliminary ruling relate, in essence, to the interpretation of Council Directive 92/85/EEC 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), 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) and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ 2006 L 204, p. 23).

2 The requests have been made in proceedings between, on the one hand, Terveys- ja sosiaalialan neuvottelujärjestö TSN ry (trade union in the health and social sector; ‘TSN’) and Terveyspalvelualan Liitto ry (trade union in the health services sector), supported by Mehiläinen Oy (‘Mehiläinen’) and, on the other, between Ylemmät Toimihenkilöt (YTN) ry (senior officials’ trade union) and Teknologiateollisuus ry (Technological industry association) and Nokia Siemens Networks Oy (‘Nokia Siemens’) concerning the refusal by the respective employers of two Finnish female workers, on the basis of collective agreements applicable to them, to pay their remuneration, as provided for in those agreements during their maternity leave, on the ground that those workers had interrupted unpaid parental leave.

Legal context

European Union law

Directive 92/85

3 The recitals 1 and 17 in the preamble to Directive 92/85 read as follows: ‘Whereas Article 118 a of the [EEC] Treaty provides that the Council must adopt, by means of directives, minimum requirements to encourage improvements, especially in the working environment, as regards the health and safety of workers; … Whereas, moreover, provision concerning maternity leave would also serve no purpose unless accompanied by the maintenance of rights linked to the employment contract and or entitlement to an adequate allowance’.

4 Article 8 of Directive 92/85, entitled ‘Maternity leave’, provides, in paragraph 1: ‘Member States shall take the necessary measures to ensure that workers within the meaning of Article 2 are entitled to a continuous period of maternity leave of a least 14 weeks allocated before and/or after confinement in accordance with national legislation and/or practice.’

5 Article 11 of Directive 92/85, entitled ‘Employment rights’, provides: ‘In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognized under this Article, it shall be provided that: … (2) in the case referred to in Article 8, the following must be ensured: (a) the rights connected with the employment contract of workers within the meaning of Article 2, other than those referred to in point (b) below; (b) maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2; (3) the allowance referred to in point 2 (b) shall be deemed adequate if it guarantees income at least equivalent to that which the worker concerned would receive in the event of a break in her activities on grounds connected with her state of health, subject to any ceiling laid down under national legislation; (4) Member States may make entitlement to pay or the allowance referred to in points 1 and 2 (b) conditional upon the worker concerned fulfilling the conditions of eligibility for such benefits laid down under national legislation. These conditions may under no circumstances provide for periods of previous employment in excess of 12 months immediately prior to the presumed date of confinement.’

Directive 96/34

6 Directive 96/34 puts into effect the framework agreement on parental leave concluded on 14 December 1995 by the general cross-industry organisations (‘the framework agreement’).

7 The preamble to the framework agreement annexed to Directive 96/34 states: ‘The … 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.’

8 Clause 1 of the framework agreement, entitled ‘Purpose and scope’, is worded as follows: ‘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.’

9 Clause 2 of the framework agreement, entitled ‘Parental leave’, provides: ‘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. … … 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. 6. 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. … 7. Member States and/or social partners shall define the status of the employment contract or employment relationship for the period of parental leave. …’

10 Clause 4.1 of the framework agreement provides that Member States may apply or introduce more favourable provisions than those set out in this agreement.

Finnish law

Applicable laws

– The Law on employment contracts

11 Under Chapter 4, Paragraph 3, of the Law on employment contracts (Työsopimuslaki (55/2001)), workers are entitled to parental education/childcare leave in order to care for their child, or for another other child permanently living under the same roof, which may last until the child reaches the age of three.

12 Chapter 4, Paragraph 8, of that Law provides that the employer is not required to pay a salary to the worker for the periods of family-related leave.

– The Law on sickness insurance

13 Chapter 9 of the Law...