Order of the Court (Sixth Chamber) of 9 December 2011 – Auditeur du travail v Yangwei
(Case C-349/11)
First subparagraph of Article 104(3) of the Rules of Procedure – Directive 97/81/EC – Administrative obstacles liable to limit the opportunities for part-time work – Obligation to publicise and keep employment 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 the contracts and work schedules of part-time workers to be kept and published – Whether lawful – Conditions – Determination by the national court (Council Directive 97/81, Annex, Clauses 4 and 5(1)) (see paras 22-30, 32-33, 38-39 and operative part)
Re:
| Reference for a preliminary ruling – Tribunal de première instance de Liège – 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) – Whether permissible for national legislation to require an employer to draw up documents recording departures from work schedules and also to keep and make public the contracts and work schedules of part-time workers – Administrative obstacles liable to limit the opportunities for part-time work. |
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 incumbent on employers the obligations to keep and to make public 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 also have to be interpreted as precluding such legislation.