C-342/01

MERINO GÓMEZ

OPINION OF ADVOCATE GENERAL MISCHO delivered on 3 April 2003 1

I — Introduction 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 1. Is an employee whose maternity leave given birth or are breastfeeding (tenth coincides with the period fixed by a individual Directive within the meaning of collective agreement for the annual leave Article 16(1) of Directive 89/391/EEC), 3 of the undertaking's entire workforce and Council Directive 76/207/EEC of 9 entitled to take full annual leave during a February 1976 on the implementation of period other than the one fixed in that the principle of equal treatment for men agreement? This is the question raised, in and women as regards access to employ- the present case, by Juzgado de lo Social No ment, vocational training and promotion, 33 de Madrid (Spain). and working conditions. 4

1. Directive 93/104 I I— Legal framework

3. Article 7 of the directive provides: A — Community law

2. In order to settle the question raised by 'Annual leave the national court, the Court of Justice is called upon to interpret a number of provisions of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working 1. Member States shall take the measures time, 2Council Directive 92/85/EEC of 19 necessary to ensure that every worker is

This Directive shall not affect Member States' right to apply or introduce laws, regulations or administrative provisions 7. Article 11 of the directive provides: 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 'Employment rights are more favourable to the protection of the safety and health of workers.'

In order to guarantee workers within the meaning of Article 2 the exercise of their health and safety protection rights as recognised in this article, it shall be 2. Directive 92/85 provided that:

5. Article 2 of the directive gives general definitions of the terms 'pregnant worker',

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2. in the case referred to in Article 8, the mean that there shall be no discrimination following must be ensured: whatsoever on grounds of sex either directly or indirectly by reference in parti- cular to marital or family status.'

8. Article 2(1) of the directive provides:

10. Article 38 of the Estatuto de los Trabajadores (Workers Statute) approved by Real Decreto Legislativo (Royal Decree- Law) 1/95 of 24 March 1995 (BOE No 75, 'For the purposes of the following provi- 29 March 1995, last amended on 9 July sions, the principle of equal treatment shall 2001), provides:

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'1. The period of paid annual leave, which sixteen weeks, which may be extended, in may not be replaced by an allowance the case of multiple births, by two weeks in lieu, shall be that agreed in collective per child starting with the second child. The agreements or individual contracts. In leave shall be allocated in accordance with no circumstances shall the period be the wishes of the woman concerned, less than thirty calendar days. provided that at least six weeks is taken immediately following the birth...'

2. The period or periods during which leave may be taken shall be fixed by mutual consent between the employer and the workers, in accordance, where 2. Collective agreements appropriate, with the provisions of the collective agreements on the annual planning of leave.

III— Facts and main proceedings 18. On 6 June 2001, Ms Merino Gómez brought an action against the defendant before the Juzgado de lo Social No 33, Madrid, for the holiday she was claiming.

15. Ms Merino Gómez has worked for the defendant undertaking since 12 September 1994. She was on maternity leave from 5 May 2001 until 24 August 2001.

19. The national court refers to the pre- cedents established by a number of Spanish courts hearing cases concerning an overlap between the period of maternity leave and collectively agreed staff holiday periods. 16. Ms Merino Gómez asked to take her According to that case-law, in such cases, annual holiday from 25 August to 21 Sep- the employee is not entitled to take her tember 2001 or, alternatively, from 1 annual leave during a period other than the September to 27 September 2001, that is, one fixed by the collective agreement a period following her maternity leave. As concluded in the undertaking, since com- we have already seen, the collective agree- pliance with the provisions of that agree- ment provided that, by way of exception, ment takes precedence over the individual six workers could take their holiday in right of the worker to take leave.

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20. The national court does not share that 22. To counter the national case-law cited, opinion and cites Community law and the the referring court cites the case-law of the case-law of the Court of Justice which, it Court of Justice concerning Article 7 of maintains, supports the claimant's point of Directive 93/104, 6Article 8 of Directive view. It considers that it should refer two 92/85 7 and Directive 76/207. 8 questions to the Court of Justice for a preliminary ruling on the principle and scope of Ms Merino Gomez's statutory and contractual rights.

24. According to the national court, such a finding is not precluded by the fact that the holiday dates for the entire workforce were fixed in advance by collective agreement. In order to comply with Community rules 'Where collective agreements between an guaranteeing the principle of equal treat- employer and workers' representatives fix ment and non-discrimination and the en- the timing of leave for the entire workforce, titlement to annual leave, the collective and where the dates concerned coincide agreement should have made provision for with those of a worker's maternity leave, do the special situation of pregnant workers at Article 7(1) of Directive 93/104, Article 11 the undertaking by guaranteeing their (2)(a) of Directive 92/85 and Article 5(1) of double entitlement to maternity leave and Directive 76/207 guarantee that worker's entitlement to take annual leave during a period other than the one agreed, which 6 — Case C-173/99 BECTU [2001] ECR I-4881. does not coincide with her period of 7 — Case C-411/96 Boyle and Others [1998] ECR I-6401. maternity leave?' 8 — Case C-136/95 Thibault [1998] ECR I-2011.

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annual holidays. The national court con- period other than the one agreed by siders, on the basis of the judgment in collective agreement, which does not coin- Lewen, 9 that, by failing to do so, the cide with her period of maternity leave. agreement infringed the relevant Commu- nity legislation.

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31. The Court of Justice had the opportun- leave laid down by national legislation and/ ity to give a ruling on the nature and scope or practice must be construed as meaning of that entitlement in its judgment in that the national procedures for implement- BECTU 10 in which it stated that it should ing the directive must, in any event, observe be noted that Article 7(1) of Directive that fundamental right. 12 93/104 imposes a clear and precise obliga- tion on Member States. Moreover, it is an obligation from which there can be no derogations, since Article 17 of the directive gives an exhaustive list of the provisions from which Member States or the two sides of industry may derogate and since Article 7 is not one of those provisions. The Court therefore concluded that: 33. The fact that, under Article 7(2) of Directive 93/104, the minimum period of annual leave may not be replaced by an allowance in lieu is additional proof that paid annual leave is an absolute right. It is a right to genuine and actual rest, enabling the worker to make a physical recovery, in accordance with the objectives of the 'It follows that the entitlement of every directive, which are to protect the safety worker to paid annual leave must be and health of workers. regarded as a particularly important prin- ciple of Community social law from which there can be no derogations and whose implementation by the competent national authorities must be confined within the limits expressly laid down by Directive 93/104.' 11

39. To the same effect, Article 5(1) of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employ- ment, vocational training and promotion, and working conditions, provides that 'application of the principle of equal treat- ment with regard to working conditions, including the conditions governing dismis- 36. That too is an absolute right, which sal, means that men and women shall be permits no derogation or limitation and guaranteed the same conditions without whose objective is, as the Court has pointed discrimination on grounds of sex'. out, to guarantee the worker a minimum period of rest, not only with the aim of protecting her physical condition but also to enable her to look after her child in the period following the birth.

40. The Court reiterated the importance of that principle in its judgment in Thibault, 14 in which it stated:

37. In the present case, the worker was 'The principle of non-discrimination entitled to maternity leave in accordance requires that a woman who continues to with her absolute right under Directive be bound to her employer by her contract 92/85 and, since that period coincides with of employment during maternity leave the period fixed for the annual leave of the should not be deprived of the benefit of whole workforce, she has been denied the working conditions which apply to both right to her annual leave; she has therefore been refused an absolute right to which every worker in his capacity as a worker is entitled under Directive 93/104. 14 — Cued above in footnote 8, paragraph 29.

43. Finally, the last aspect of the first question raised by the national court concerns the nature of the rule which is at 'It must be borne in mind, first of all, that, in view of its mandatory nature, the

15 — The judgment in Lewen, cited above in footnote 9, paragraphs 41 and 42. 16 — Ibid., paragraph 26.

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prohibition of discrimination between male take holiday in September. Priority for the and female workers not only applies to exceptional period is given to workers who action on the part of public authorities, but were not able to choose their holiday period also extends to all collective agreements the previous year. designed to regulate employment relation- ships and to contracts between individuals (see, in particular, Case C-184/89 Nimz [1991] ECR I-297, paragraph 11, and Case C-281/97 Krüger [1999] ECR I-5127, paragraph 20). That prohibition also applies to unilateral action by an employer vis-à-vis his employees.' 47. It would therefore have been possible to provide for a similar exception in favour of a worker who has recently given birth, without causing too much disruption to the running of the undertaking.

45. I am fully aware of the fact that periods of maternity leave may create serious organisational problems for undertakings or administrations, especially if they are 48. For all those reasons, I therefore small. I even think, as the German Govern- conclude that the first question should be ment pointed out in another case, 17 that a answered as follows: woman has a duty of loyalty to her employer which requires her to take those problems into consideration.

50. The national court points out that, 54. It therefore suggests that the reply under national law, the worker has mater- should be that the scope of the entitlement nity leave which is two weeks longer than to leave as just recognised is consistent with the minimum fixed in Article 8(1) of that established for other workers by each Directive 92/85 and that the national national legislation. legislation also entitles her to thirty calen- dar days' leave, that is, two days more than the four weeks (twenty-eight days) laid down by Article 7 of Directive 93/104.

55. The Commission submits that the Court answered that question in its recent judgment in Finalarte and Others, 18in 51. Since national law transposes and which, after noting that Directive 93/104 improves the Community law, the national lays down only minimum requirements as court considers that the worker s entitle- ment-should consist of a total of thirty calendar days' leave, as laid down in the national legislation and endorsed by the 18 —Joined Cases C-49/98, C-50/98, C-52/98 to C-54/98 and C-68/98 to C-71/98 Finalarte and Others [2001] ECR relevant collective agreement. I-7831, paragraph 58.

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to the period of paid leave and that Article 59. To reduce the period of annual leave of 15 of the directive confers on Member women who have taken maternity leave States the right to adopt provisions more during the period of collective leave would favourable to the protection of the safety also contravene Article 11(2)(a) of Directive and health of workers, it stated that it is for 92/85, which requires that their rights each Member State to determine the period connected with the contract of employment of paid leave which is necessary in the be upheld. public interest.

62. In the light of the foregoing considerations, I propose that the Court should give the following replies to the questions posed:

(1) Where collective agreements between an employer and workers' representa- tives fix the annual holiday periods for the entire workforce, and where the dates of a worker's maternity leave coincide with those periods, Article 7(1) of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, Article 11(2)(a) 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), and Article 5(1) of 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, guarantee that worker's entitlement to take annual leave during a period other than the one agreed by collective agreement, which does not coincide with her period of maternity leave.

(2) In such a case, the substantive scope of the entitlement to annual leave covers the whole of the period laid down by national legislation.

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