Official Journal of the European Union

C 374/5

(Case C-174/16) (<span class="super note-tag">1</span>)

((Reference for a preliminary ruling - Social policy - Directive 2010/18/EU - Revised Framework Agreement on parental leave - Clause 5(1) and (2) - Return from parental leave - Right to return to the same job or an equivalent or similar job - Rights acquired or in the process of being acquired to be maintained as they stand - Civil servant of a Land promoted to civil servant on probation in a managerial post - Rules of that Land providing for the ending of the probationary period by operation of law and with no possibility of extension on expiry of a two-year period, even in the case of absence as a result of parental leave - Incompatibility - Consequences))

(2017/C 374/07)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: H.

Defendant: Land Berlin

Operative part of the judgment

1.Clause 5(1) and (2) of the revised Framework Agreement on parental leave set out in the Annex 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 must be interpreted as precluding rules of national law, such as those at issue in the main proceedings, which subject definitive promotion to a managerial post in the civil service to the condition that the candidate selected successfully carries out a prior two-year probationary period in that post, and by virtue of which, in a situation where such a candidate was on parental leave for most of that period and still is, that probationary period ends by operation of law after two years with no possibility of extending it and the person concerned is consequently, on return from parental leave, reinstated in the post, at a lower level both in status and in terms of remuneration, occupied before that probationary period. The infringements of that clause cannot be justified by the objective pursued by the probationary period, which is to enable the assessment of suitability for the managerial post to be assigned permanently.

2.It is for the referring court, if necessary by disapplying the rules of national law at issue in the main proceedings, to ascertain, as required by Clause 5(1) of the revised Framework Agreement on parental leave set out in the Annex to Directive 2010/18, whether, in circumstances such as those of the main proceedings, it was not objectively possible for the Land concerned, in its capacity as an employer, to enable the person concerned to return to her post at the end of her parental leave and, if so, to ensure that she is assigned to an equivalent or similar post consistent with her employment contract or relationship, without that assignment of a post being made conditional upon holding a new selection procedure beforehand. It is also for that court to ensure that the person concerned may, at the end of parental leave, continue, in the post thus returned to or newly assigned, a probationary period under conditions that are in compliance with the requirements of Clause 5(2) of the revised Framework Agreement.

(<span class="super">1</span>) OJ C 232, 27.6.2016.