Case C-342/01

María Paz Merino Gómez

v

Continental Industrias del Caucho SA

(Reference for a preliminary ruling from the Juzgado de lo Social nº 33 de Madrid)

(Social policy – Equal treatment for men and women – Maternity leave – Worker whose period of maternity leave coincides with the period of annual leave for all staff agreed in a collective agreement on annual leave)

Summary of the Judgment

1. Social policy – Protection of safety and health of workers – Directive 93/104 concerning certain aspects of the organisation of working time – Entitlement to annual leave – Pregnant workers and workers who have recently given birth or are breastfeeding – Directive 92/85 – Equal treatment of male and female workers – Directive 76/207 – Maternity leave coinciding with period for annual leave fixed by a collective agreement for the entire workforce – Worker’s entitlement to take annual leave outside the period of maternity leave

(Council Directives 76/207, Art. 5(1), 92/85, Art. 11(2)(a), and 93/104, Art. 7(1))

2. Social policy – Protection of safety and health of workers – Pregnant workers and workers who have recently given birth or are breastfeeding – Directive 92/85 – Maternity leave coinciding with period for annual leave fixed, by a collective agreement, for the entire workforce – Worker’s entitlement to a longer period of annual leave, provided for by national law, than the minimum laid down by Directive 93/104

(Council Directives 92/85, Art. 11(2)(a), and 93/104)

1. Article 7(1) of Directive 93/104 concerning certain aspects of the organisation of working time, Article 11(2)(a) of Directive 92/85 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 and Article 5(1) of Directive 76/207 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 are to be interpreted as meaning that a worker must be able to take her annual leave during a period other than the period of her maternity leave, including in a case in which the period of maternity leave coincides with the general period of annual leave fixed, by a collective agreement, for the entire workforce.

(see para. 41, operative part 1)

2. As regards the preservation of rights connected with the employment contract, Article 11(2)(a) of Directive 92/85 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 is to be interpreted as also applying to the entitlement of a worker, whose period of maternity leave coincides with the general period of annual leave fixed, by a collective agreement, for the entire workforce, to a longer period of annual leave, provided for by national law, than the minimum laid down by Directive 93/104 concerning certain aspects of the organisation of working time.

(see para. 45, operative part 2)

JUDGMENT OF THE COURT (Sixth Chamber) 18 March 2004 (1)

(Social policy – Equal treatment for men and women – Maternity leave – Worker whose period of maternity leave coincides with the period of annual leave for all staff agreed in a collective agreement on annual leave)

In Case C-342/01,

REFERENCE to the Court under Article 234 EC by the Juzgado de lo Social No 33 de Madrid (Spain) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Article 7(1) of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18), of 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) (OJ 1992 L 348, p. 1) and of 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 (OJ 1976 L 39, p. 40),

THE COURT (Sixth Chamber),,

composed of: J.N. Cunha Rodrigues, acting for the President of the Sixth Chamber, J.-P. Puissochet, R. Schintgen, F. Macken and N. Colneric (Rapporteur), Judges,

Advocate General: J. Mischo,

after considering the written observations submitted on behalf of:

after hearing the Opinion of the Advocate General at the sitting on 3 April 2003,

gives the following

‘Annual leave

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.’

‘More favourable provisions

This Directive shall not affect Member States’ 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.’

‘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 at least 14 weeks allocated before and/or after confinement in accordance with national legislation and/or practice.’

‘Employment rights

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 provided that:

…

2. in the case referred to in Article 8, the following must be ensured:

…’

‘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.’

‘1. 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. To this end, Member States shall take the measures necessary to ensure that:

…

…’

Relevant law

‘1.

2.…’

‘In the case of childbirth, the contract shall be suspended for an uninterrupted period of sixteen weeks, which may be extended where there are multiple births by two weeks per child, starting with the second child. The leave shall be allocated in accordance with the wishes of the woman concerned, provided that at least six weeks is taken immediately following the birth …’

The collective agreement

The collective agreement between the employer and the workforce

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Juzgado de lo Social No 33 de Madrid by order of 3 September 2001, hereby rules:

Cunha Rodrigues

Puissochet

Schintgen

Macken

Colneric

Delivered in open court in Luxembourg on 18 March 2004.

R. Grass

V. Skouris

Registrar

President