Order of the Court (Sixth Chamber) of 7 April 2011 – Dai Cugini v Rijksdienst voor Sociale Zekerheid
(Case C-151/10)
First subparagraph of Article 104(3) of the Rules of Procedure – Directive 97/81/EC – Equal treatment of part-time and full-time workers – Discrimination – Administrative obstacle likely to limit the opportunities for part-time work – Mandatory publication and retention of contracts and work-schedules
Social policy – Framework agreement on part-time work concluded by UNICE, CEEP and the ETUC – Directive 97/81 – National legislation requiring part-time workers’ contracts and work schedules to be kept and published (Council Directive 97/81, Annex, Clauses 4 and 5(1)) (see paras 45-46, 49-50, 55-56, operative part)
Re:
Reference for a preliminary ruling – Arbeidshof te Antwerpen (Afdeling Hasselt) – Interpretation of Council Directive 97/81/EC of 15 December 1997 concerning the Framework agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998 L 14, p. 9) – National legislation providing for a system for the publication and monitoring of work schedules of part-time workers, consisting of the mandatory compilation and retention, subject to criminal or administrative penalties, of documents recording the exact duration of work performed by each worker.
Operative part
Clause 4 of the Framework agreement annexed to Council Directive 97/81/EC of 15 December 1997 concerning the Framework agreement on part-time work concluded by UNICE, CEEP and the ETUC must be interpreted as not precluding national legislation which makes employers responsible for the obligations of retention and publication of the contracts and work-schedules of part-time workers, if it is established that such legislation does not lead to their being treated less favourably than full-time workers in a similar situation or, if there is such a difference in treatment, it is established that it is justified on objective grounds and does not go beyond what is necessary to attain the objectives thus pursued.
It is for the referring court to perform the necessary factual and legal investigation, particularly with regard to the applicable national law, in order to determine whether that is so in the case before it.
If the referring court were to conclude that the national legislation at issue is incompatible with Clause 4 of the Framework Agreement on part-time work annexed to Directive 97/81, Clause 5(1) thereof would have to be interpreted as precluding such legislation.
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