Rodriguez Sanchez (Judgment) [2016] EUECJ C-351/14 (16 June 2016)

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(Reference for a preliminary ruling — Social policy — Directive 2010/18/EU — Revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC — Reconciliation of professional and family life — Return from maternity leave of a worker member — Request for a reduction of working hours and for a change in work pattern — Situation which does not fall within the scope of Clause 6(1) of the revised Framework Agreement — Inadmissibility of the request for a preliminary ruling)

REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de lo Social No 33 de Barcelona (Social Court No 33, Barcelona, Spain), made by decision of 15 July 2014, received at the Court on 22 July 2014, in the proceedings

composed of M. Ilešič, President of the Chamber, C. Toader, A. Rosas, A. Prechal (Rapporteur) and E. Jarašiūnas, Judges,

having regard to the written procedure and further to the hearing on 18 November 2015,

– Consum Sociedad Cooperativa Valenciana, by C. Durá Valero and C. Villarino Moreno, abogados,

– the French Government, by G. de Bergues, D. Colas and R. Coesme, acting as Agents,

– the Hungarian Government, by M. Fehér, G. Koós and A. Pálfy, acting as Agents,

– the European Commission, by S. Pardo Quintillán and D. Roussanov, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 3 March 2016,

1 This request for a preliminary ruling concerns the interpretation of Clauses 1(2), 6(1) and 8(2) of the revised Framework Agreement on parental leave, concluded on 18 June 2009 (‘the revised Framework Agreement’), 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).

2 The request has been made in proceedings between Estrella Rodríguez Sánchez and Consum Sociedad Cooperativa Valenciana (‘Consum SCV’) concerning the latter’s refusal to grant the application made by Mrs Rodríguez Sánchez to change her working hours.

3 Directive 2010/18 repealed, with effect from 8 March 2012, Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC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).

‘This Directive puts into effect the revised Framework Agreement on parental leave …’

‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive or shall ensure that the social partners have introduced the necessary measures by agreement by 8 March 2012 at the latest. They shall forthwith inform the Commission thereof.

6 The preamble to the revised Framework Agreement states the following, inter alia:

‘This framework agreement ... revises the framework agreement on parental leave, concluded on 14 December 1995, setting out the minimum requirements on parental leave as an important means of reconciling professional and family responsibilities and promoting equal opportunities and treatment between men and women.

3. Having regard to the Charter of Fundamental Rights of the European Union of 7 December 2000 and Articles 23 and 33 thereof relating to equality between men and women and reconciliation of professional, private and family life;

15. Whereas this agreement is a framework agreement setting out minimum requirements and provisions for parental leave, distinct from maternity leave, and for time off from work on grounds of force majeure, and refers back to Member States and social partners for the establishment of conditions for access and modalities of application in order to take account of the situation in each Member State;

‘This agreement applies to all workers, men and women, who have an employment contract or employment relationship as defined by the law, collective agreements and/or practice in force in each Member State.’

‘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 to take care of that child until a given age up to eight years to be defined by Member States and/or social partners.’

‘The conditions of access and detailed rules for applying parental leave shall be defined by law and/or collective agreements in the Member States, as long as the minimum requirements of this agreement are respected. …

10 Clause 6(1) of the revised Framework Agreement, under the heading ‘Return to work’, provides:

‘In order to promote better reconciliation, Member States and/or social partners shall take the necessary measures to ensure that workers, when returning from parental leave, may request changes to their working hours and/or patterns for a set period of time. Employers shall consider and respond to such requests, taking into account both employers’ and workers’ needs.

The modalities of this paragraph shall be determined in accordance with national law, collective agreements and/or practice.’

11 Under the heading ‘Final provisions’, Clause 8 of the revised Framework Agreement states, inter alia:

2. Implementation of the provisions of this agreement shall not constitute valid grounds for reducing the general level of protection afforded to workers in the field covered by this agreement. This shall not prejudice the right of Member States and/or social partners to develop different legislative, regulatory or contractual provisions, in the light of changing circumstances (including the introduction of non-transferability), as long as the minimum requirements provided for in the present agreement are complied with.

4. Member States shall adopt the laws, regulations and administrative provisions necessary to comply with the Council decision within a period of two years from its adoption or shall ensure that social partners introduce the necessary measures by way of agreement by the end of this period. …

12 The referring court points out that no specific measures were introduced to transpose Directive 2010/18 into the Spanish legal system. In its observations, the Commission states that it received notification from the Kingdom of Spain that the transposition of Directive 2010/18 had already been ensured by the provisions of Real Decreto Legislativo 1/1995 por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores (Royal Legislative Decree 1/1995 approving the consolidated version of the Law on the Workers’ Statute) of 24 March 1995 (BOE No 75, 29 March 1995, p. 9654; ‘the Workers’ Statute’).

‘This Law shall apply to workers 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 or undertaking”. ...’

14 Ley 39/1999 para promover la conciliación de la vida familiar y laboral de las personas trabajadoras (Law 39/1999 to reconcile work and family life for employees) of 5 November 1999 (BOE No 266, 6 November 1999, p. 38934), amended the Workers’ Statute in a number of ways.

15 The Explanatory Memorandum of Law 39/199 contains the following information, inter alia:

‘... at Community level, maternity and paternity, construed in their broadest sense, are mentioned in [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) and Directive 96/34]. The former directive relates to maternity from the point of view of the health and safety at work of pregnant workers and workers who have recently given birth or are breastfeeding. The latter, on the Framework Agreement on parental leave concluded by UNICE, CEEP and the ETUC, provides for parental leave and time off from work on grounds of force majeure as important means of reconciling work and family life and promoting equal opportunities and treatment between men and women.

This Law transposes into Spanish law the guidelines framed by international and Community rules, exceeding the minimum level of protection provided for in those guidelines.

16 Following amendment of the Workers’ Statute by Law 39/1999, Article 37(5) and (6) thereof reads as follows:

‘5. Any person who, for reasons of legal custody, takes direct care of a child under the age of six years … shall be entitled to a reduction in his or her hours of work, with a proportionate reduction in salary, of a minimum of one third and a maximum of one half of the duration of those hours. ...

6. Responsibility for the actual adjustment of working hours and for determining the period of application ... of the reduction in the hours of work, provided for [in paragraph 5] of this article, shall lie with the worker within his or her normal working hours. …’

‘Worker members of cooperative societies and workers of other cooperatives may, during periods of maternity leave, periods of risk during pregnancy, adoption and fostering, enjoy the advantages established in this Law, irrespective of the social security membership scheme of which they are part, together with the particular features specific to an associative relationship.’

18 Ley Orgánica 3/2007 para la igualdad efectiva de mujeres y hombres (Organic Law 3/2007 on effective equality between women and men) of 22 March 2007 (BOE No 71, 23 March 2007, p. 12611) further amended the Workers’ Statute.

‘Workers shall have the right to adapt their hours of work and work schedule in order to make effective their right to reconcile personal, family and work life, in the terms established in the collective negotiation or in the agreement reached with the employer complying, in any event, with the terms of that negotiation.’

‘In the case of childbirth, the contract shall be suspended for a continuous period of 16 weeks … The period of suspension shall be divided up as the interested party sees fit, on the condition that six weeks are taken immediately after the birth. …’

21 Under Article 89 of Ley 8/2003 de Cooperativas de la Comunidad Valenciana (Law 8/2003 on cooperatives in the Autonomous Community of Valencia) of 24 March 2003 (BOE No 87, 11 April 2003, p. 14308):

‘1. Shareholders’ cooperatives are those which act as an association of natural persons who, by providing their labour services, whether on a part-time or full-time basis, carry out an economic or professional activity by which they provide goods or services to third parties. Persons who are entitled by law to enter into contracts under which they offer such services may be worker members …

3. The relationship between worker members and the cooperative is an associative one and, therefore, the statutes of the cooperative, the internal rules or the general meeting shall establish the occupational status of members, which shall, as a minimum requirement, lay down the rules governing the following matters:

(h) other rights and obligations of members that, in terms of work provision, the cooperative sees fit to establish.

In any event, regulation by the cooperative’s statutes of the hours of work, the weekly rest period, national holidays, personal holidays, leave and the causes of suspension or termination of the work relationship must comply with the minimum requirements laid down by the State legislation on cooperatives.

For all matters relating to cooperatives which are not expressly addressed by this Law, the cooperative relationship shall, on a supplementary basis, be subject to the relevant provisions laid down in the State Law on cooperatives.’

22 Article 80 of Ley 27/1999 de Cooperativas (Law 27/1999 on cooperatives ) of 16 July 1999 (BOE No 170, 17 July 1999, p. 27027) states, inter alia:

‘1. Shareholders’ cooperatives are cooperatives with the purpose of providing their members with employment activities that they carry out personally and directly, on a part-time or full-time basis, by means of the common organisation for the production of goods or the provision of services for third parties ... The relationship between the worker members and the cooperative is associative.

4. Worker members shall be entitled periodically, within a maximum period of one month, to payments known as “member returns”, paid out of the cooperative’s surplus, which are not salaries and depend on participation in the cooperative’s activity.

5. Workplaces of worker members and the members themselves shall be subject to the rules on health protection and risk prevention in the workplace, which shall apply taking into account the special features of the associative and self-managed relationship which is established between worker members and their cooperative.

‘Worker members shall have the right to adapt their hours of work and work schedule in order to make effective their right to reconcile personal, family and work life, in the terms agreed upon with the manager of the relevant production unit, and, in the absence of agreement, the Members’ Committee shall, having heard both parties, settle the matter, seeking alternatives to enable that right to be effective.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

24 Consum SCV is a cooperative governed by Law 8/2003 with a network of supermarkets and its corporate purpose is, inter alia, to provide stable employment within the cooperative for its worker members.

25 Mrs Rodríguez Sánchez is a worker member of Consum SCV assigned to the ‘cashier/shelf-stacking’ unit of a shopping centre. She signed a membership contract on 25 June 2012 with Consum SCV which was subject to the statutes of the cooperative and, in particular, the internal rules. Her working pattern and working hours, based on rotating weekly shifts, were a morning shift Monday to Saturday (from 08.00 to 15.00) and an evening shift Monday to Saturday (from 15.00 to 22.00), plus two Sundays per month (from 08.30 to 15.00).

26 On 19 August 2013, Mrs Rodríguez Sánchez gave birth to a child. At the end of her maternity leave, she made an application on 27 December 2013 in which she requested a reduction in her hours of work to 30 hours per week and a change of her work pattern to fixed morning shifts from 09.00 to 15.00 Monday to Friday, citing her legal custody of her child and relying on Article 37(5) and (6) of the Workers’ Statute.

27 On 24 January 2014, Consum SCV recognised the right to a reduction in working hours, but it did not grant the second request on the ground that it would result in a surplus of staff on the morning shift.

28 In February 2014 Mrs Rodríguez Sánchez brought an action challenging that decision to refuse her request before the Juzgado de lo Social No 33 de Barcelona (Social Court No 33, Barcelona).

29 In March 2014, the proceedings were stayed, on the initiative of that court, in order to initiate a procedure under Article 34(8) of the Workers’ Statute. Mrs Rodríguez Sánchez thus sent a new request to Consum SCV based on that provision and on her right to reconcile family and work life, citing in this regard the need for her to adapt her working hours to the hours of her child’s nursery.

30 Consum SCV agreed to the reduction in working hours but did not reply to the request to adapt the applicant’s hours of work; nor did it refer that request to the Members’ Committee referred to in Article 14(7) of its internal rules.

31 The Juzgado de lo Social No 33 de Barcelona (Social Court No 33, Barcelona) notes that the dispute between the parties is now confined to considering a possible change to working hours and patterns under Article 34(8) of the Workers’ Statute, given that the reduction in working hours under Article 37(5) of the Statute has been approved.

32 In those circumstances, that court asks whether Clause 6(1) of the revised Framework Agreement may have a bearing on the outcome of the proceedings of which it is accordingly seised.

33 It states, in that respect, that it needs to be determined, first, whether the relationship linking a worker member to a cooperative falls within the scope of the revised Framework Agreement as defined in Clause 1(2) of that agreement.

34 Second, the referring court points out that, if it is to be considered that the relationship concerned does not constitute an employment contract or relationship within the meaning of Clause 1(2) of the revised Framework Agreement, consideration would then have to be given to the scope of Clause 8(2) of that agreement. Given that it is apparent from the first additional provision of Law 39/1999 that the Spanish legislature extended the benefit of the Framework Agreement on parental leave annexed to Directive 96/34 to worker members, it would need to be examined whether backtracking on that extension when implementing the revised Framework Agreement would amount to a reduction of the general level of protection afforded to workers in disregard of Clause 8(2) thereof.

35 Third, and supposing that Clause 6(1) of the revised Framework Agreement is applicable to a situation such as that at issue in the main proceedings, the referring court asks whether that clause has been correctly transposed into national law in Article 34(8) of the Workers’ Statute and Article 14(7) of Consum SCV’s internal rules.

36 Fourth and finally, if it is to be inferred from the answer to the foregoing questions that Clause 6(1) of the revised Framework Agreement has not been correctly transposed, the further question arises, in its view, as to whether that clause may benefit from horizontal direct effect, since that clause sets out clear obligations and the revised Framework Agreement constitutes a measure which implements the general principle of equal treatment recognised in Articles 23 and 33 of the Charter of Fundamental Rights of the European Union.

37 In those circumstances the Juzgado de lo Social No 33 de Barcelona (Social Court No 33, Barcelona) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1. Does the relationship of worker member in a cooperative such as that regulated by Article 80 of Law 27/1999 on cooperatives and Article 89 of Law 8/2003 on cooperatives of the Autonomous Community of Valencia — a relationship which, although characterised by the national legislation and case-law as “associative” (one of membership), could be considered to amount to an “employment contract” under EU law — come within the scope of Directive 2010/18 relating to the [revised Framework Agreement] as defined in Clause 1(2) of [that Framework Agreement]?

If that first question is answered in the negative, a second, subsidiary question arises.

2. Must Clause 8(2) of the [revised Framework Agreement] and, more specifically, the provision in accordance with which “implementation of the provisions of this agreement shall not constitute valid grounds for reducing the general level of protection afforded to workers in the field covered by this agreement”, be interpreted as meaning that, should a Member State fail to implement Directive 2010/18 expressly, the scope of the protection which that State itself defined in transposing the earlier Directive 96/34 may not be reduced?

Only if the answer to either of those two questions is in the affirmative, Directive 2010/18 being considered applicable to an ‘associative-work’ relationship such as that of the applicant, will the other questions which follow be justified, for the reasons set out below:

3. Must Clause 6 of the new [revised Framework Agreement], incorporated in Directive 2010/18, be interpreted as meaning that the national implementing provision or agreement must incorporate and make explicit the obligations of employers to “consider” and “respond to” the requests of its workers for “changes to their working hours and/or patterns”, when returning from parental leave, taking into account both employers’ and workers’ needs, and that the implementing mandate cannot be understood to have been complied with by means of national rules — legislative or those of cooperatives — which make the effectiveness of such a right conditional solely upon the mere discretion of the employer as to whether or not to grant such requests?

4. Must it be found [that] Clause 6 [of the revised Framework Agreement] — in the light of Article 3 of Directive 2010/18 and the “Final provisions” in Clause 8 of that Agreement — has, where there has been a failure to transpose, “horizontal direct effect” as a result of being a minimum European Union standard?’

38 As is apparent from the questions referred and the information relating thereto in the order for reference and as summarised in paragraphs 31 to 36 above, the referring court asks, in essence, whether Clause 6(1) of the revised Framework Agreement, to which its third and fourth questions relate, must be interpreted as being capable of influencing the outcome of the dispute pending before the national court. The first and second questions, for their part, seek only to ascertain, prior to the examination of that clause, whether a relationship such as that which links the applicant in the main proceedings to Consum SCV, of which she is a worker member, actually falls within the scope of the revised Framework Agreement, either, as per the first question, on the ground that such a relationship constitutes an employment contract or relationship within the meaning of Clause 1(2) of the Framework Agreement or, as per the second question, in the event that it does not constitute such a relationship, because the refusal to allow such a worker member to benefit from the provisions of the revised Framework Agreement would, in the case at hand, constitute a reduction in the general level of protection of workers, which is prohibited by Clause 8(2) of the Framework Agreement.

39 It should be noted from the outset that, as is apparent from its very wording, Clause 6(1) of the revised Framework Agreement concerns situations in which a worker ‘returning from parental leave’ wishes, at that juncture, to change his or her working hours and/or patterns.

40 In this instance, it is apparent from the order for reference that, in the case in the main proceedings, Mrs Rodríguez Sánchez made her request to reduce her working hours and subsequently change her pattern of work on her return from maternity leave.

41 In the light of that fact, on 10 June 2015 the Court of Justice requested the referring court, in accordance with Article 101 of its rules of procedure, to clarify the extent to which an answer to the questions referred could, in the case at hand, actually prove useful for the purposes of resolving the dispute in the main proceedings.

42 By order of 13 July 2015, which was adopted in response to that request, the referring court indicated, inter alia, that the leave following which Mrs Rodríguez Sánchez made the above request had been taken in accordance with Article 48(4) of the Workers’ Statute. It further pointed out that, in Spain, maternity leave taken on such a basis is regarded as parental leave within the meaning of Clause 2 of the revised Framework Agreement.

43 It should be pointed out in that regard, however, that EU law makes a distinction between the notion of ‘maternity leave’, as referred to, in particular, in Directive 92/5, and that of ‘parental leave’, as used in the revised Framework Agreement, and that paragraph 15 of the general considerations of that agreement states expressly, moreover, that the agreement sets out minimum requirements and provisions for parental leave, ‘distinct from maternity leave’.

44 As the Court has already pointed out in relation to paragraph 9 of the general considerations of the Framework Agreement on parental leave annexed to Directive 96/34, which is drafted in similar terms to paragraph 15 of the general conditions of the revised Framework Agreement, parental leave is granted to parents to enable them to take care of their child and may be taken until the child has reached a given age up to 8 years. Maternity leave has a different purpose. It is intended to protect a woman’s biological condition and the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment (see judgment of 14 April 2005 in Commission v Luxembourg, C‑519/03, EU:C:2005:234, paragraph 32).

45 Moreover, it should be noted that, in its judgment of 19 September 2013 in Betriu Montull (C‑5/12, EU:C:2013:571), the Court has already given judgment on the classification to be given, in respect of EU law, to leave taken on the basis of Article 48(4) of the Workers’ Statute by a mother at the time of the birth of her child.

46 In respect of such leave, the Court has held that Article 8 of Directive 92/85 precisely guaranteed a right to maternity leave of at least 14 continuous weeks, including a period of compulsory leave of at least 2 weeks allocated before and/or after confinement in accordance with national legislation, and pointed out that, the fact that legislation grants women maternity leave of more than 14 weeks does not preclude that leave from being considered to be maternity leave as referred to in Article 8 of Directive 92/85. The Court has also stated in that regard that leave such as that provided for in Article 48(4) of the Workers’ Statute did not concern ‘parental leave’ within the meaning of Directive 96/34 (judgment of 19 September 2013 in Betriu Montull, C‑5/12, EU:C:2013:571, paragraphs 45 and 46).

47 The assessments made by the Court in its judgement of 19 September 2013 in Betriu Montull (C‑5/12, EU:C:2013:571) regarding Directive 96/34 and the Framework Agreement on parental leave annexed to that directive are also valid in relation to Directive 2010/18 and the revised Framework Agreement which, as is apparent from the wording of paragraph 15 of the general considerations and Clause 2(1) of the revised Framework Agreement, did not introduce anything new in that regard.

48 It results from all of the foregoing that Clause 6(1) of the revised Framework Agreement, which relates to situations in which a worker returns to work following ‘parental leave’, cannot be interpreted as also covering a situation in which a worker returns from ‘maternity leave’ within the meaning of Directive 92/85, such as the situation of the applicant in the main proceedings when she made the request referred to in paragraph 40 above.

49 By order of 16 March 2016, received at the Court on 17 March 2016, the referring court also submitted to the Court certain observations following the Opinion of the Advocate General, which he delivered on 3 March 2016. In that order, the referring court sets out the reasons why, in its view, the Court should not reformulate its third question as recommended by the Advocate General in his Opinion, but should adjudicate on that question as it was initially formulated in the order for reference. Consequently, it requests the Court to invite the Advocate General to supplement his Opinion or, in the alternative, to admit its observations as clarification within the meaning of Article 101 of the Rules of Procedure.

50 In that regard, it should be pointed out, from the outset, that neither the Statute of the Court of Justice of the European Union nor the Rules of Procedure make provision for the parties or the referring court to submit observations in response to the Advocate General’s Opinion. Moreover, in accordance with Article 101 of the Rules of Procedure, only the Court may request clarification from the referring court (see judgment of 13 May 2015, Rabal Cañas, C‑392/13, EU:C:2015:318, paragraph 32).

51 However, in so far as it can be considered that, by its order of 16 March 2016, the referring court sought, inter alia, to provide further clarification to that already provided in its order of 13 July 2015 in response to the request for clarification made by the Court in the context of the present case, the following must be pointed out.

52 In that order of 16 March 2016, the referring court appears to suggest that, in so far as the request initially made by Mrs Rodríguez Sánchez on her return from maternity leave to change her working hours was followed, during the proceedings before the referring court and as is apparent from paragraph 29 above, by a reiteration of that request on a different basis of national law, it is no longer necessary, in the light of the time which had passed between those two requests, to consider that the second request was made once the applicant in the main proceedings had returned from maternity leave.

53 However, even supposing that it may be considered that, given the time which had passed between those two requests, the second request should no longer be considered to be a request made after the maternity leave, the fact nonetheless remains that the second request can also not be regarded as a request to change working hours or working pattern made after a ‘return from parental leave’ within the meaning of Clause 6(1) of the revised Framework Agreement, since the applicant in the main proceedings was not ‘returning’ to work following such leave.

54 It is true that, in accordance with settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of EU law, the Court of Justice is, in principle, bound to give a ruling (see, inter alia, judgment of 24 April 2012 in Kamberaj, C‑571/10, EU:C:2012:233, paragraph 40 and the case-law cited).

55 However, it is also settled case-law that it is for the Court to examine the conditions in which a case has been referred to it by the national court, in order to assess whether it has jurisdiction. The spirit of cooperation which must prevail in preliminary ruling proceedings requires the national court for its part to have regard to the function entrusted to the Court of Justice, which is to contribute to the administration of justice in the Member States and not to give opinions on general or hypothetical questions (see, inter alia, judgment of 24 April 2012 in Kamberaj, C‑571/10, EU:C:2012:233, paragraph 41 and the case-law cited).

56 The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (see, inter alia, judgment of 8 September 2010 in Winner Wetten, C‑409/06, EU:C:2010:503, paragraph 38 and the case-law cited).

57 In that regard, the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, judgment of 24 April 2012 in Kamberaj, C‑571/10, EU:C:2012:233, paragraph 42 and the case-law cited).

58 As regards, first of all, the third question referred, it should be pointed out that that question essentially concerns the issues as to (i) the conditions under which it may be considered that national provisions or agreements between social partners ensure a correct transposition into national law of Clause 6(1) of the revised Framework Agreement, and (ii) whether provisions such as Article 34(8) of the Workers’ Statute or Article 14(7) of Consum SCV’s internal rules satisfy such conditions.

59 It has already been stated in paragraphs 48 and 53 above, however, that it is evident that a situation such as that of the applicant in the main proceedings does not fall within the scope of Clause 6(1) of the revised Framework Agreement — an interpretation of which is sought by the referring court — with the result that it is not apparent how an answer from the Court to the third question referred would have any bearing on the outcome of the dispute in the main proceedings.

60 It is worth pointing out, in that respect, that the Court has repeatedly held that it has jurisdiction to give preliminary rulings on questions concerning EU provisions in situations where the facts of the cases being considered by the national courts were outside the scope of EU law but where those provisions of EU law had been rendered applicable by domestic law due to a reference made by that law to the content of those provisions (see, inter alia, judgment of 18 October 2012 in Nolan, C‑583/10, EU:C:2012:638, paragraph 45 and the case-law cited).

61 The Court has already held that where, in regulating situations outside the scope of the EU measure concerned, national legislation seeks to adopt the same solutions as those adopted in that measure, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions taken from that measure should be interpreted uniformly (see, inter alia, judgment of 18 October 2012 in Nolan, C‑583/10, EU:C:2012:638, paragraph 46 and the case-law cited).

62 Thus, an interpretation by the Court of provisions of EU law in situations outside its scope is justified where those provisions have been made applicable to such situations by national law in a direct and unconditional way in order to ensure that internal situations and situations governed by EU law are treated in the same way (see, inter alia, judgment of 18 October 2012 in Nolan, C‑583/10, EU:C:2012:638, paragraph 47 and the case-law cited).

63 In the present case, however, it is not apparent in any way from the explanations provided in the order for reference or, moreover, from the information provided by the referring court in response to the Court’s request for clarification referred to in paragraph 41 above, that that would be the case in Spanish law in relation to Clause 6(1) of the revised Framework Agreement in a situation such as that of the applicant in the main proceedings.

64 In so far as concerns, in particular, Article 34(8) of the Workers’ Statute, the application of which is, as the referring court points out and as has been noted in paragraph 31 above, at the centre of the dispute in the main proceedings, the referring court asserts (in its order of 16 March 2016 referred to in paragraph 49 above) that that provision of national law, which the Spanish Government claims has rendered superfluous the transposition of Clause 6(1) of the revised Framework Agreement into national law, does not make entitlement to the right which it establishes subject to a return to work after parental leave, which would be understandable where the parental leave is taken on a part-time basis.

65 In that regard, it should be observed that that provision of national law which was incorporated into the Workers’ Statute by Organic Law 3/2007 of 22 March 2007 on effective equality between women and men, namely two years before the revised Framework Agreement was concluded, does not relate specifically to situations of return from leave but establishes, in a general manner, a right for all workers to adapt their hours of work and work schedule in order to make effective their right to reconcile personal, family and work life, in the terms to be established in a collective negotiation or in an agreement reached with the employer.

66 In those circumstances, it must be found that the claim of the referring court mentioned in paragraph 64 above is not sufficient to establish that Clause 6(1) of the revised Framework Agreement, which refers to the possibility for workers to request that their working hours be changed on their return from parental leave, would have been rendered directly and unconditionally applicable, by a provision of Spanish law which makes reference to that clause, to situations in which a worker returns from maternity leave or to other situations unrelated to a return from parental leave, and that, in that way, the national legislation would have sought to align solutions to be provided in such situations which do not fall within the scope of that provision of EU law with those provided for in that latter provision, so as to ensure that those situations and those which fall within its scope are treated in an identical manner.

67 Thus, in the light of the fact, noted above, that a situation such as that of the applicant in the main proceedings does not fall within the scope of Clause 6(1) of the revised Framework Agreement and in the light of the case-law cited in paragraphs 55 to 57 above, since the third question relates to Clause 6(1) it must be deemed to be inadmissible.

68 As regards, secondly, the fourth question referred, it should be pointed out that, since it is thus apparent that Clause 6(1) of the revised Framework Agreement is not applicable to a situation such as that at issue in the main proceedings, an answer to that question, which seeks, in essence, to ascertain whether EU law must be interpreted to the effect that, in the absence of national measures transposing Clause 6(1), that clause could acquire so-called ‘horizontal’ direct effect, would not be of relevance for the resolution of the dispute in the main proceedings.

69 Even supposing that that provision were to have such horizontal direct effect, the fact would still remain that, since the applicant in the main proceedings is not in a situation which falls within the scope of Clause 6(1), she would not be able to rely on such direct effect.

70 It follows that, in the light of the case-law cited in paragraphs 55 to 57 above, the fourth question referred must be deemed to be inadmissible.

71 Finally, since the first and second questions, which refer, respectively, to Clause 1(2) and Clause 8(2) of the revised Framework Agreement, have — and as has already been noted in paragraph 38 above — been referred by the national court only from the perspective of a possible application of Clause 6(1) of that framework agreement in the context of the dispute in the main proceedings, it is no longer necessary for the Court to provide an answer to them in the present case. Given the inadmissibility of the third and fourth questions in relation to Clause 6(1), it is not evident how, in the present case, an answer to the first two questions referred would still have any bearing on the outcome of the dispute in the main proceedings or, therefore, how those questions would still relate to the reality and subject matter of that dispute, with the result that, in accordance with the case-law set out in paragraphs 55 to 57 above, those questions must also be deemed to be inadmissible.

72 It follows from all of the foregoing considerations that this request for a preliminary ruling must be declared inadmissible.

73 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

The request for a preliminary ruling made by the Juzgado de lo Social No 33 de Barcelona (Social Court No 33, Barcelona, Spain) is inadmissible.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Rodriguez Sanchez (Judgment) [2016] EUECJ C-351/14 (16 June 2016) URL: http://www.bailii.org/eu/cases/EUECJ/2016/C35114.html Cite as: EU:C:2016:447, ECLI:EU:C:2016:447, [2016] EUECJ C-351/14

Court of Justice of the European Communities (including Court of First Instance Decisions)