Pedro Manuel Roca Álvarez v Sesa Start España ETT SA.

• Jurisdiction: European Union
• Celex Number: 62009CC0104
• ECLI: ECLI:EU:C:2010:254
• Date: 06 May 2010
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-104/09

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 6 May 2010 ¹(1)

Case C‑104/09

Pedro Manuel Roca Álvarez

v

Sesa Start España ETT SA

(Reference for a preliminary ruling from the Tribunal Superior de Justicia de Galicia (Spain))

(Social policy – Equal treatment for men and women – Breastfeeding leave)

I – Introduction

1. This reference for a preliminary ruling provides the Court with an opportunity to set out its case-law on the principle of non-discrimination on grounds of sex.

2. Under Spanish law employed mothers are entitled to a reduction in their working day in the first nine months following the birth of their child. Although the law refers to time off work ‘for the purpose of breastfeeding’, that time off work is granted, pursuant to Spanish case-law, also to non-breastfeeding mothers. Even at this point it must therefore be observed that the terms ‘time off work for breastfeeding’ are misleading, since breastfeeding certainly is not a condition for being granted time off work. If a female worker does not claim the time off work for herself, the child’s father may take the time off instead of the mother, provided that he too is an employee.

3. Mr Roca Álvarez applied to his employer for such time off work. His request was refused on the ground that the child’s mother was self-employed and consequently was not personally entitled to time off work. Nor, therefore, did Mr Roca Álvarez have a derived entitlement: Spanish law does not recognise the existence of an independent entitlement for employed fathers to time off work. Mr Roca Álvarez regards this as discrimination on grounds of his sex.

II – Relevant legislation

A – European Union law

4. The EU law background to this case is defined by Council Directive 76/207/EEC 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. (2)

1. Directive 76/207

5. Article 1(1) of Directive 76/207 provides:

‘The purpose of this Directive is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the conditions referred to in paragraph 2, social security. This principle is hereinafter referred to as “the principle of equal treatment”.’

6. The provisions of Article 2(1) and (3) of this directive state:

‘1. For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.

3. This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.’

7. Article 5(1) of the directive states:

‘Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex.’

2. Directive 96/34

8. In addition, reference should be made to Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC. (3)

9. That directive implements the framework agreement on parental leave concluded on 14 December 1995 between the general cross-industry organisations (UNICE, CEEP and the ETUC). The framework agreement is annexed to the directive.

10. Clause 2(1) of the framework agreement provides:

‘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.’

B – National law

11. In Spain, the rules governing industrial relations are laid down in the Estatuto de los Trabajadores (‘Workers’ Statute’), as amended by Royal Legislative Decree 1/1995 of 24 March 1995. (4) Under Article 1 thereof, this law is to apply to persons who voluntarily offer their services in return for payment by another within an organisation and under the direction of a natural or legal person, known as the employer.

12. Article 1(3) of the Workers’ Statute makes clear that any activity performed outside the scope of Article 1(1) is to be excluded from the application of the Workers’ Statute.

13. Article 37(4) of the Workers’ Statute in the version in force, according to the referring court, when the action was brought provides:

‘Female workers shall be entitled to take one hour off work, which they may divide into two parts, in order to breastfeed a child under the age of nine months. The woman may, if she wishes, replace this entitlement with a half-hour reduction in her working day for the same purpose. This time off work may be taken by the mother or the father without distinction, provided that they are both employed.’

14. Article 37 of the Workers’ Statute was amended by Basic Law 3/2007 of 22 March 2007. (5) Contrary to the previous version, the amended version in particular provides that, instead of claiming the hour off work, female workers may, if they wish, shorten their working day by half an hour or accumulate their entitlement into whole days off on the terms laid down in the collective negotiation or in the agreement which they reach with their employer in accordance with the terms agreed in the collective negotiation.

III – Facts and question referred

15. Mr Roca Álvarez (‘the applicant’) is employed by Sesa Start España ETT SA (‘the employer’).

16. On 7 March 2005 he applied to his employer for paid time off work as provided for under Article 37(4) of the Workers’ Statute. The employer refused his request on the ground that the applicant’s wife was self-employed, not employed. However, an essential condition for entitlement to the requested time off work was the employed status of the mother.

17. Mr Roca Álvarez brought an action challenging that refusal. The court adjudicating at first instance took the view that, in the light of the wording of the provision of the Workers’ Statute beginning with ‘Female workers …’, the right to take time off work for the purpose of feeding an unweaned child was conferred exclusively on the mother. Moreover, the mother had to be employed because the Workers’ Statute would otherwise be inapplicable. The court therefore refused to acknowledge that Mr Roca Álvarez was entitled to time off work on the ground that his wife was self-employed. Since the mother had no entitlement, the father had no derived entitlement either.

18. The applicant appealed against that decision to the Tribunal Superior de Justicia de Galicia (High Court of Justice of Galicia). That court took the view that the right asserted by the applicant could be conferred on him only if granting the right concerned exclusively to the mother would offend against the principle of equal treatment.

19. In those circumstances the Tribunal Superior de Justicia de Galicia decided to refer the following question to the Court for a preliminary ruling:

‘Does a national law (specifically Article 37(4) of the Workers’ Statute) which recognises only employed mothers, but not employed fathers, as holders of the right to paid time off work for the purpose of feeding an unweaned child – time off which consists in a half-hour reduction in the working day or an hour taken off work that may be divided into two parts, which is voluntary, paid for by the employer and may be taken until the child is nine months old – offend against the principle of equal treatment, which prohibits discrimination on grounds of sex and is enshrined in Article 13 EC, in Directive 76/207 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 and in Directive 2002/73 amending that directive?’

20. In the proceedings before the Court, the Spanish and Irish Governments and the Commission have submitted written...