Opinion of Advocate General Szpunar delivered on 3 March 2016

1. The Workers’ Statute

13. Under Article 1(1) of 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. The Explanatory Memorandum of Law 39/1999 to reconcile work and family life for employees (Ley 39/1999 para promover la conciliación de la vida familiar y laboral de las personas trabajadoras) of 5 November 1999 (BOE No 266, 6 November 1999, p. 38934), states, inter alia:

‘... at Community level, maternity and paternity, construed in their broadest sense, are mentioned in Directives [92/85/EEC⁽⁴⁾ and 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.

…’

15. 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 or of a person with a physical, mental or sensory disability who does not carry out a gainful activity 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. The worker must notify the employer 15 days in advance of the date on which he or she intends to return to his or her normal working pattern.’

16. Law 39/1999 comprises a ‘First Additional Provision’ worded as follows:

‘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.’

17. Under Article 34(8) of the Workers’ Statute, as amended by Organic Law 3/2007 on effective equality between women and men (Ley Orgánica 3/2007 para la igualdad efectiva de mujeres y hombres) of 22 March 2007 (BOE No 71, 23 March 2007, p. 12611):

‘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.’

2. Organic Law 3/2007

18. Under Article 44(1) of Organic Law 3/2007:

‘Rights to reconcile personal, family and work life shall be afforded to workers of both sexes so that family responsibilities may be taken on in a balanced manner, avoiding any discrimination based on their exercise.’

3. Law 36/2011

19. Article 139(1)(a) of Law 36/2011 governing the social courts (Ley 36/2011 reguladora de la jurisdicción social) of 10 October 2011 (BOE No 245, 11 October 2011, p. 106584) provides:

‘1.

The procedure governing the exercise of rights to reconcile personal, family and work life, recognised by law and by agreement, is subject to the following rules:

1. if they are to bring an action before the Juzgado de lo Social, workers shall have a period of 20 days commencing upon notification from the employer of its rejection or disapproval of their proposal.

…

Employers and workers shall, at the conciliation meeting prior to the legal action and during the legal proceedings themselves, present their proposals and other respective solutions for adapting working hours; these may be submitted, where appropriate, with reports from the joint bodies or bodies monitoring the undertaking’s equality programmes which may be taken into consideration for the purpose of the decision.’

4. Legislation on cooperatives

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

‘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.

…’

21. Under Article 89(3) of Law 8/2003 on cooperatives in the Autonomous Community of Valencia (Ley 8/2003 de Cooperativas de la Comunidad Valenciana) of 24 March 2003 (BOE No 87, 11 April 2003, p. 14308):

‘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:

1. the form of organisation of work provision;

2. functional and/or geographic mobility;

3. occupational classification;

4. the rules on public and personal holidays and leave;

5. the hours of work, job rotation and the weekly rest period;

6. causes of the suspension or termination of the provision of work;

7. member returns: where a cooperative realises more than 80 per cent of its annual turnover with a single customer or with a single group of undertakings, the member return guaranteed annually to the member must be equivalent to the average salary payable in the corresponding area, sector and occupational category;

8. 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.

By a decision adopted by a two-thirds majority, the general assembly may amend the occupational status.

…

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.’

5. Internal rules applying to the worker members of Consum SCV

22. Under Article 14(7) of the internal rules of Consum Sociedad Cooperativa Valenciana (‘Consum SCV’):

‘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.’

1. Applicability of Clause 6(1) of the revised Framework Agreement

32. At the hearing, the Spanish Government raised the question of the admissibility of the questions referred for a preliminary ruling. It maintains that the Court’s answers would not assist the referring court in disposing of the case before it.

2. Applicability of other clauses of the revised Framework Agreement

44. In its written observations the Commission mentioned that the reduction in working hours granted to Mrs Rodríguez Sánchez on the basis of Article 37(5) of the Workers’ Statute might correspond to one of the forms of parental leave established by national law.⁽¹²⁾ That possibility, raised by the Commission, was the subject of a question addressed to the interested parties at the hearing. In its reply, the Spanish Government first stated that the right to parental leave, to which Clause 2 of the revised Framework Agreement refers, was already established in Spanish law in Article 46(3) of the Workers’ Statute. That article provides that ‘workers shall be entitled to an extended period of leave not exceeding three years to enable them to take care of the child, whether by birth or by adoption, or in cases of foster care, whether permanent or preliminary to an adoption, including temporary foster care, as from the date of birth of the child, or, as the case may be, the date of the judicial or administrative decision’. The purpose of that parental leave, it notes, is to reconcile the work and family responsibilities of working parents (whether men or women), whereas the purpose of maternity leave is to safeguard the mother’s health and protect the special bond between the mother and the newborn child after the birth.

45. Secondly, the Spanish Government confirmed that the reduction in working hours granted to Mrs Rodríguez Sánchez under Article 37(5) of the Workers’ Statute corresponds to one of the forms of parental leave established by Spanish law so that working parents (whether men or women) can take care of children under the age of 12 years.⁽¹³⁾

46. In the light of the foregoing considerations, if, as borne out by the Spanish Government in the previous point, Mrs Rodríguez Sánchez benefits from a form of parental leave consisting in a reduction of her working hours, assessment of which falls to the referring court, it is my view that the first and second questions should be examined. However, in order to provide the referring court with a helpful answer to its third question, the question must, in my view, be reworded so as to be considered in the light of Clauses 2 and 3, as opposed to Clause 6(1), of the revised Framework Agreement.

1. The first question

47. The referring court asks the Court in essence whether the relationship between a worker member of a cooperative and that cooperative constitutes an employment contract or employment relationship within the meaning of Clause 1(2) of the revised Framework Agreement with the result that the relationship falls within the scope of those measures.

48. I note that the referring court asks this question based on Mrs Rodríguez Sánchez’s status as a worker member. In order to provide a helpful answer to this question, it is necessary at the outset to consider, on the one hand, the scope ratione personae of the revised Framework Agreement as defined by Clause 1(2) thereof, and, on the other hand, the relevant case-law.

49. With regard to the applicability ratione personae of the revised Framework Agreement, I would point out that the agreement uses the terms ‘workers’, ‘employment contract’ and ‘employment relationship’ but does not define them in specific terms. On the one hand, as is apparent from the wording of Clause 1(2) of the Framework Agreement, the scope of the agreement is conceived in broad terms, covering generally ‘all workers … who have an employment contract or employment relationship as defined by the law, collective agreements and/or practice in force in each Member State’.⁽¹⁴⁾ On the other hand, paragraph 15 of the general considerations of the agreement states that the agreement ‘is a framework agreement setting out minimum requirements and provisions for parental leave, distinct from maternity leave, … 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’.

50. With regard to case-law, reference must be had to the case giving rise to the judgment in O’Brien,⁽¹⁵⁾ which concerned the Framework Agreement on part-time work annexed to Directive 97/81/EC⁽¹⁶⁾ (‘Framework Agreement on part-time work’). That case concerned a part-time judge remunerated on a daily fee-paid basis who requested a pension in respect of his activity to which he had no claim under national law.

51. It its judgment, the Court first of all held that there was no single definition of ‘worker’ in EU law: it varied according to the area in which the definition was to be applied.⁽¹⁷⁾ It pointed out, however, that ‘the discretion granted to the Member States by Directive 97/81 in order to define the concepts used in the Framework Agreement on part-time work is not unlimited’ and that ‘certain words used in that agreement may be defined in accordance with the national law and practices on condition that they respect the effectiveness of the directive and the general principles of EU law’.⁽¹⁸⁾ According to the Court, ‘it follows ... from the need to safeguard the effectiveness of the principle of equal treatment enshrined in that framework agreement, that such an exclusion may be permitted, if it is not to be regarded as arbitrary, only if the nature of the employment relationship concerned is substantially different from the relationship between employers and their employees which fall within the category of “workers” under national law’.⁽¹⁹⁾

52. In this case, the Commission submitted in its written observations that the wording of Clause 2(1) of the Framework Agreement on part-time work⁽²⁰⁾ is the same as the wording of Clause 1(2) of the revised Framework Agreement and that, in each case, the legislature’s intention was to establish general personal scope.

53. I agree with that analysis.

54. Consequently, as follows from the case-law mentioned in point 51 of this Opinion, the discretion afforded to the Member States in order to define the concepts used in the revised Framework Agreement is not unlimited, in that those concepts may be defined in accordance with the national law and/or practices ‘on condition that they respect the effectiveness of ... Directive [2010/18] and the general principles of EU law’.⁽²¹⁾ As the Commission rightly states, it also follows from the case-law that the need to ensure the effectiveness of Directive 2010/18 and the principle of equal treatment enshrined in the revised Framework Agreement means that an exclusion of worker members from the scope of that agreement may be permitted only if the relationship between them and Consum SCV is, by its nature, substantially different from the relationship between employers and their employees which fall within the category of ‘workers’ under national law, a matter that is ultimately for the referring court to examine.⁽²²⁾ However, the Court may mention to the referring court a number of principles and criteria which it must take into account in the course of its examination.⁽²³⁾

55. In this regard, it is apparent from the order for reference that, in the case of worker members of a cooperative, such as in the case at issue in the main proceedings, there is no doubt that the work is provided in the context of a relationship of subordination and dependence and in return for remuneration.⁽²⁴⁾ The referring court states that the work arrangements set out in Chapter II of Consum SCV’s internal rules are broadly identical to those applying to employees under the Workers’ Statute. As regards a large number of matters covered by those arrangements, Consum SCV’s internal rules reproduce the exact wording of the Workers’ Statute. I would note, like the referring court, that the arrangements are identical in particular as regards salaries or returns, hours of work, paid leave, availability, suspension of the contract or personal holidays.

56. In my view, those findings are not challenged by the argument put forward by Consum SCV and the Spanish Government that worker members receive returns or dividends in respect of the cooperative’s profits, as opposed to a salary, and are involved in the management of the cooperative, as opposed to working under the direction of a third party.

57. Furthermore, as is also clear from the order for reference, when transposing the first framework agreement on parental leave annexed to Directive 96/34 into Spanish national law, the Spanish legislature had expressly extended the application of the new rights for reconciling work and family life to ‘the worker members of cooperative societies’.

58. It follows from the foregoing considerations that the question whether the relationship between a worker member of a cooperative and that cooperative constitutes an employment contract or employment relationship within the meaning of Clause 1(2) of the revised Framework Agreement, with the result that the relationship falls within the scope of those measures, must be settled by recourse to national law, provided that this category of persons is not as a result excluded arbitrarily from the scope of the protection afforded by Directive 2010/18 and the revised Framework Agreement. An exclusion from that protection may be allowed only if the relationship between the worker members and the cooperative is, by its nature, substantially different from that between employers and their employees falling, according to national law, under the category of workers.

2. The second question

59. In view of the answer to the first question, I consider it unnecessary to reply to the second question referred.

3. The third question

60. It should be noted first of all that, in the context of the procedure for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it.⁽²⁵⁾ Consequently, even if, formally, the referring court has limited its third question to the interpretation of Clause 6(1) of the revised Framework Agreement, that does not prevent this Court from providing the referring court with all the elements of interpretation of EU law that may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in this context, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of EU law which require interpretation, regard being had to the subject matter of the dispute.⁽²⁶⁾

61. Here, if the Court sees reason to answer the third question, I take the view, for the reasons set out in point 46 of this Opinion, that the question must be reformulated in such a way as to be considered in the light of Clauses 2 and 3, as opposed to Clause 6(1), of the revised Framework Agreement so that the Court is able to provide an answer that is of assistance to the referring court.

62. In those circumstances, that question must be construed as seeking, in essence, to establish whether Clauses 2 and 3 of the revised Framework Agreement preclude national legislation, such as that at issue in the main proceedings, which provides for parental leave in the form of a reduction in working time coupled with a right to adapt hours of work within normal working hours but which subjects the implementation of changes outside normal working hours to the arrangements laid down in the terms established in the collective negotiation.

63. For the purpose of answering that question, I shall first of all set out the background to the provision at issue in the main proceedings, namely Article 34(8) of the Workers’ Statute.⁽²⁷⁾

64. The Spanish Government claims that reform of the Workers’ Statute by Law 39/1999, which transposes the first Framework Agreement on parental leave annexed to Directive 96/34 into Spanish law, introduced a right to reduce hours of work and to change working hours in Article 37(5) and (6) of the Workers’ Statute. However, that change must be made within normal working hours.⁽²⁸⁾ According to the Spanish Government, that article applies to any person taking care of a minor, whether or not the worker is returning from maternity or parental leave, since it recognises an autonomous right.

65. As regards the provision at issue, the Spanish Government adds that Organic Law 3/2007 inserted into Article 34 of the Workers’ Statute a paragraph 8 on adapting hours of work and the work schedule beyond the scope of Article 37(5) and (6) of the Workers’ Statute. However, such changes are unconnected with the care of a minor and are subject to collective negotiation or an agreement concluded with the employer with due regard for such negotiation. According to the Spanish Government, like Article 37(5) and (6) of the Workers’ Statute, which grant workers the right to reduce their hours of work within normal working hours, Article 34(8) of the Statute recognises the right of workers to request changes to their hours of work outside normal working hours but still does not recognise a right to obtain such changes. The purpose of that provision is, it argues, to facilitate reconciliation of workers’ work and family responsibilities by recognising the right to request changes to their hours of work and work schedule beyond the right recognised in Article 37 of the Workers’ Statute.

66. I also observe that it is apparent from the order for reference that Law 3/2012 inserted a second subparagraph into Article 34(8) of the Workers’ Statute under which ‘it is necessary to promote recourse to the continuous working day, flexible hours of work or other methods for organising working hours so as to facilitate greater compatibility between the right to reconcile personal, family and work life and improving productivity at work’.

67. The third question referred must be examined in the light of those factors.

68. Under Clause 1(1) of the revised Framework Agreement, the agreement is designed to ‘facilitate the reconciliation of parental and professional responsibilities for working parents’. Similarly, it is apparent from Clause 2(1) of the Framework Agreement that the purpose of parental leave is to enable parents to take care of their child. That clause expressly provides that an individual right to parental leave is granted to ‘men and women workers’.

69. Paragraph 24 of the general considerations of that framework agreement states that ‘the social partners are best placed to find solutions that correspond to the needs of both employers and workers and shall therefore play a special role in the implementation … of this agreement …’. Clause 3(1) of the agreement provides that ‘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’.⁽²⁹⁾

70. From that viewpoint, as the Commission rightly states, the discretion enjoyed by the Member States and the social partners in establishing the conditions of access and detailed rules for applying parental leave is not unlimited. After all, it is incumbent upon them to meet the object and respect the very purpose of parental leave, as established in the revised Framework Agreement.

71. However, a Member State would not exceed such discretion by providing in its legislation, as in this case, for a type of parental leave that reduces workers’ hours of work within normal working hours whilst still affording those workers the possibility of requesting changes to their hours of work outside those normal working hours yet not recognising a right to obtain such changes or even to establish the detailed rules applying to them, which are subject to collective negotiation or to the agreement concluded with the employer with due regard for such negotiation.

72. I therefore propose that the answer to the third question referred should be that Clauses 2 and 3 of the revised Framework Agreement do not preclude national legislation, such as that at issue in the main proceedings, which provides for parental leave in the form of a reduction in working hours coupled with a right to adapt hours of work within normal working hours but which subjects the implementation of changes outside normal working hours to the arrangements laid down in the terms of the collective negotiation.