In his conclusions delivered on Tuesday 20 March (C-12/17), the Advocate General Paolo Mengozzi held that the member states are free to consider parental leave as the effective working time required to determine the right to annual paid leave.
Ms Maria Dicu had maternity leave at the beginning of 2015, followed by parental leave until 16 September 2015. This parental leave was followed by annual paid leave of 30 days. Romanian law contains the right to annual paid leave of 35 days and Ms Dicu requested the five remaining days of paid leave. According to Romanian law, the duration of annual paid leave is proportionate to the actual working time accomplished during the current year. Parental leave is not considered as actual working time that grants the right to annual paid leave and the work contract is effectively suspended during parental leave.
After Ms Dicu Took the case to court in Romania, the latter requested clarification from the European Court of Justice on this subject.
In his conclusions, Mr Mengozzi Point out that in Romanian law, the work contract is suspended during the whole period of parental leave. He therefore concludes that the work contract is suspended for reasons that are not related to the health of Ms Dicu and the situation of the latter with regard to the right for annual paid leave appears to compare with that of a worker who's working time has been temporarily reduced so that the right to annual paid leave can be determined through the application of the pro rata temporis rule.
Therefore, according to the Advocate General, the failure to take into account parental leave in the evaluation of the right to annual paid leave is simply the consequence of the suspension of reciprocal obligations that have hitherto linked Ms Dicu to her employer.
The Advocate General also points out that according to the case law of the Court, the leave guaranteed by Union law cannot affect other leave guaranteed by that law and is therefore not contradicted when the Union law does not guarantee a right to annual paid leave in a period where the reciprocal obligations of the worker and employer are suspended. (Original version in French by Mathieu Bion)