Slipping through our fingers: the CJEU rules on the value of parenthood in EU law

Steve Peers

The vast bulk of EU legislation and case law on sex discrimination aims to facilitate women’s access to employment, and their equal treatment within the workplace. Yesterday’s CJEU ruling in Maistrellis approaches these issues from an unusual angle: the access of a father to parental leave, in a case where the mother of his children was not working or seeking paid work at all. The judgment raises interesting questions about the role that EU employment and discriminaton law plays in family life. 

Background

EU rules on parental leave date from an agreement of social partners in 1996, which was updated in 2010. This case concerns the 1996 version of the agreement, which begins by stating the social partners’ intention: ‘reconciling work and family life and promoting equal opportunities and equal treatment between men and women’. The preamble refers to the work/life balance point (paragraph 4) and the promotion of ‘women’s participation in the labour force’ (paragraph 7). It also states that ‘men should be encouraged to assume an equal share of family responsibilities’. 

  

The main text of the agreement makes clear that it sets out only ‘minimum requirements’. It applies to ‘all workers, men and women’, who have an employment contract or relationship as defined by national law. It gives ‘men and women workers an individual right to parental leave’ on the birth or adoption of a child, for at least three months, up to an age (up to 8) to be defined by Member States or social partners. ‘To promote equal opportunities’, the right should be non-transferable.

Detailed rules on parental leave must be defined by national legislation and/or collective agreements, as long as those rules meet the minimum requirements in the Directive. These rules can: decide if parental leave is granted on a full-time or part-time basis; set out a waiting period of up to one year of employment; adjust the rules to the particular circumstances of adoption; establish notice periods to be given to the employer; define when the employer can postpone parental leave; and ‘authorise special arrangements’ for small businesses.

Furthermore, the agreement specifies that workers who apply for or take parental leave are protected from dismissal on those grounds. They have the right to return to the same job (or a similar job, if that’s not possible) at the end of the parental leave. Parents also retain any rights which they acquired before the parental leave began, although it’s up to national law or employers to determine whether parents are paid during their leave period. All social security issues are left to national law. Finally, workers are also entitled to time off from work for ‘urgent family reasons’, although the details and limits on this right are left to national law and social partners to determine.

Judgment

The father in this case was a Greek judge, who sought to exercise parental leave for a paid period of nine months. In practice Greek law curtailed this benefit in two ways: first of all by limiting it to mothers only; and secondly (in a rather contradictory manner) by attaching strict conditions as regards fathers, which didn’t apply to mothers. If a mother stays at home to look after the child (as in this case), a father could only obtain the leave if the mother was unable to look after the child due to illness or injury. The Greek courts had already ruled that the first limit was inapplicable, and now asked the CJEU if the second limit breached EU law.

According to the CJEU it did, for two reasons. First of all, it breached the parental leave agreement, because that agreement states that parental leave is an ‘individual right’ which is ‘non-transferable’. Therefore (reiterating prior case law) it applied to each parent. The possible limits referred to in the Directive make no provision for denying parental leave based on the employment status of the spouse. This literal interpretation was reinforced by the overall context of the agreement: obtaining a better work/life balance, and encouraging men to take on more family responsibilities. The right to parental leave also appears in the EU Charter of Fundamental Rights.

Secondly, the Greek rule also violated the EU Directive on sex discrimination in employment. That was because parental leave was a working condition, and the position of men and women was ‘comparable’ as regards bringing up children. The Greek law attached a condition to fathers that it did not attach to mothers, so constituted sex discrimination.

Furthermore, this distinction ‘is liable to perpetuate a traditional distribution of the roles of men and women by keeping men’ in a ‘subsidiary’ role as regards parenting. While the Directive does provide that it is ‘without prejudice’ to the parental leave agreement and the pregnant workers’ Directive, the ‘deprivation’ of a father’s parental leave ‘in no way’ helps the health and safety of pregnant workers or new mothers, which is the purpose of the latter Directive.

Comments

First of all, it should be noted that Greek law, for at least some workers, far surpasses the minimum rules in the agreement – nine months’ paid leave, rather than three months’ unpaid leave. Very few parents in the EU will have access to this generous a parental leave – even the two weeks of paid leave which I enjoyed for each child is better than many fathers get. Indeed, the EU’s pregnant workers’ Directive only requires new mothers to get 20 weeks’ maternity leave on sickness pay (not full pay) as a minimum (note that parental leave applies in addition to maternity leave). It’s doubtful that the EU economy as a whole could withstand such generosity, and indeed I wonder if the Greek benefit has since become rather less generous due to the demands of the Troika.

So it’s important to emphasise that the CJEU is not requiring all employers to give fathers nine months’ fully paid leave for each child. Rather, whatever the period of parental leave (which need not even be paid), it cannot be subject (for fathers) to conditions relating to the mother’s employment status.

The judgment has several interesting implications. First of all, while the CJEU has traditionally ruled that EU sex discrimination law cannot apply to same-sex couples (see the Grant judgment), it’s arguable that the parental leave agreement can. While that agreement does refer to ‘men’ and ‘women’, the Court’s emphasis on parental leave as an individual right, and the EU Charter ban on discrimination on grounds of sexual orientation, points in favour of it applying to same-sex parents. Although it would be possible to use the EU’s framework equality Directive to challenge a limitation on parental leave based on sexual orientation, it’s possible that parental leave is being limited on a basis other than sexual orientation. In any event, a gay or lesbian parent may prefer to invoke rights as a parent. Having said that, it should be noted that the civil status of same-sex couples (ie access to marriage), is, as EU law currently stands, a matter for Member States to decide (for more on this, see Alina Tryfonidou’s recent blog post). This must equally apply to adoption.

Secondly, the ruling is similarly relevant to any family that does not take the form of two married parents. It must follow from the Court’s ruling that it’s irrelevant whether the parents are unmarried, or whether the parental leave right is being claimed by a single parent. Again, it should be pointed out that EU law doesn’t determine who has custody of a child – at most, it determines which court has jurisdiction to rule on this issue where there is a cross-border element. 

  

Thirdly, while the ruling implicitly extends the parental leave agreement to such non-traditional families, it explicitly confirms its application to the most traditional form of all: families with a stay-at-home mother. As noted above, EU sex discrimination law has its own tradition, constantly aiming to encourage mothers to work. Yet in this case, the Court skipped over the many references to this objective in the relevant EU laws, and asserted instead the father’s individual right to parental leave as well as his right to non-discrimination on grounds of sex.

Reading the case more carefully though, the judgment does challenge the traditional family model in a different way: not by encouraging mothers to return to work (although of course this is still relevant in most other cases), but by encouraging fathers to help them at home. Thirty years ago, the Court was concerned (in its Hofmann judgment) that EU law should not 'alter the division of responsibility between parents', as regards gender roles in the household. Now it’s concerned to make sure that those roles are shaken up.

It’s surely true to say that equality between men and women can’t be achieved without challenging those roles. Yet it’s interesting that in this judgment, the Court wants those roles to be challenged even if there’s no link with the mother’s employment. In this vein, the Court’s assertion that equal treatment as regards parental leave will not undermine the health and safety of new mothers is the understatement of the year: what new mother wouldn’t welcome the assistance of the baby’s father for even a short period, never mind nine months? But this approach subtly alters the purpose of the pregnant workers’ Directive, which is about employed mothers, not those who stay at home. Of course, the Court’s interpretation is entirely justified on social grounds: new mothers can use the help of fathers whether the mothers are employed or not.

Finally, the Court’s ruling implicitly emphasises the value of strengthening both parents’ ties with their children, regardless of any link with the mother’s employment. It’s a good time to reaffirm this link, as parents across EU (including the Court’s staff) brace themselves for the start of summer holidays. For parents, this is an unavoidable and poignant reminder that our babies grow up, our little ones get bigger, and the time we spend with them is always slipping through our fingers.

Barnard & Peers: chapter 20

Photo credit: activebabiessmartkids.com.au

Pregnant workers and EU citizens’ free movement rights

Steve Peers

Jessy Saint Prix, a young French woman, came to live in Britain in 2006, in order to embark on a career as a school teacher. In the event, she has learned rather more than she probably anticipated about EU law and the English legal system.

Having worked for a year in the UK as a teaching assistant, she started a PGCE course, which would qualify her to be a teacher. In the midst of that course, she became pregnant.  So she dropped her course and registered with an agency. She had a few stints working in nurseries, but she found that work too difficult, now that she was nearly six months pregnant. Then she looked for other work, but didn’t find any, and so she gave up work about 12 weeks before the expected date of confinement.

In the meantime, her baby arrived. But despite her previous work as a teaching assistant and her later agency work, the UK government refused her claim for income support, as she was defined not as a worker, but as a  ‘person from abroad’. She challenged this in court, winning at first instance. But the government won at two further levels, and then the Supreme Court referred questions on the case to the Court of Justice of the European Union (CJEU). The CJEU finally ruled in her favour today. 

The main thrust of the Court’s analysis was the circumstances in which EU citizens retain the status of worker, and therefore access to benefits, having previously been employed in the host Member State (like Ms. Saint Prix). The EU’s citizens’ Directive states that a person retains the status of worker if they are ‘temporarily unable to work as a result of an illness or accident’, or in ‘involuntary unemployment’ (subject to certain conditions) or undertaking vocational training, which must be linked to their prior employment (as in Ms. Saint Prix’s case, before she quit her course) unless they are unemployed involuntarily. The relevant provision (Article 7(3) of the Directive) does not state whether this list is exhaustive or not.

But for the Court, that didn’t really matter. It reiterated its established case law that the concept of ‘worker’, referred to in Article 45 TFEU, is a matter of primary law. So the concept couldn’t be narrowed down by secondary law, although the Court confirmed that, in accordance with its sex discrimination case law, pregnancy could not be equated to an ‘illness’ under the Directive.

In this case, the definition of a worker could encompass someone in Ms. Saint Prix’s situation, who had previously been working in the host State, who gave up work less than three months before the birth due to the physical constraints of late pregnancy, and who began work again three months after childbirth, without leaving the Member State in question. Bizarrely, the Court compares her situation to an earlier judgment concerning prisoners who retained ‘worker’ status during their jail time.

However, retaining worker status in such a case is not unlimited. It is conditional upon returning to work or finding another job ‘within a reasonable period after confinement’. But what is a ‘reasonable period’? The CJEU said that this concept must take account of the ‘specific circumstances of the case’ as well as national law on the duration of maternity leave, in accordance with the EU Directive on pregnant workers.

That Directive provides for a minimum period of 14 weeks’ leave, at least two weeks of which must come before confinement. However, national law can set longer periods, and most Member States do. Although the Commission proposed back in 2008 that the Directive should be amended, in order to extend maternity leave to a minimum of 18 months, this proposal has not been agreed, and the Commission is now contemplating withdrawing it.

It should be emphasised that the CJEU made no reference to compliance with national law on the period of leave taken before confinement. Also, while the pregnant worker’s Directive allows Member States to set a qualifying period of work of up to a year before obtaining the right to maternity pay, there is no such condition as regards the right to maternity leave. So for the purposes of free movement law, the only qualification is that the person concerned can be defined as a worker.

The Court’s final point was to note that in order to obtain permanent residence status under the citizens’ Directive, which requires five years’ stay on the territory, a period of up to one year’s interruption of residence due to pregnancy or childbirth does not break continuity of residence. So a fortiori this should mean that worker status is retained during breaks due to pregnancy. However, the Court clearly does not mean by this that worker status would be retained during breaks lasting up to one year, in light of its earlier reference to the limits on the rule.   

Unlike the Advocate-General’s opinion, the Court of Justice made no mention of the Charter of Fundamental Rights or to sex discrimination issues more generally. Nevertheless, its judgment is obviously of great importance to migrant women who are EU citizens. It could also have a knock-on effect on the interpretation of EU law apply to third-country nationals. For instance, the meaning of ‘worker’ under the EU/Turkey association agreement is the same as under EU free movement law.

What are the limits and possibilities of this judgment for migrant women? One limit is that they have to qualify as a worker in the host State in the first place.  The Court’s insistence that it will define the concept of ‘worker’, despite the possible constraints of secondary law, leaves open the possibility that it will also override the limits in the citizens’ Directive relating to job-seekers’ access to benefits. However, the Court will be ruling on this issue separately in the near future (see the opinion in the pending Dano case).

Another limit is that they have to return to work (ie with their employer), or to find fresh work if they were temporarily unemployed at the time of childbirth, as in Ms. Saint Prix’s case. In fact, EU law makes it easy for a pregnant worker to retain her employment, since dismissal on grounds of pregnancy is banned by the pregnant workers’ Directive, except as regards ‘exceptional cases’ not linked to the pregnant worker’s condition. Anyway, pregnant workers would not normally need to apply for income support in such cases, since they can claim maternity pay or allowances under the pregnant workers’ Directive instead. But access to income support might still be relevant for those pregnant workers who have not yet satisfied the qualifying period for maternity pay under that Directive, as discussed above.

It’s obviously more problematic for a new mother who was unemployed by the end of her pregnancy to find work by the end of the national maternity leave period. Although Ms. Saint Prix was fortunately able to do so, not everyone will be able to. This could raise the awkward question of whether income support would have to be repaid in such cases.

There will likely be some unfortunate cases where ongoing medical problems arising from pregnancy and/or childbirth make seeking work impractical, even after the end of the maternity leave period. This issue has led to a mass of complicated and controversial case-law in the context of sex discrimination law. However, it should be recalled that under the citizens’ Directive, ‘worker’ status is retained by those former workers who are too ill to work. So because the CJEU’s sex discrimination case law treats medical problems which initially arose from pregnancy or childbirth as an ordinary illness, once the period of maternity leave is over, any women with such problems will still retain their ‘worker’ status (and therefore access to any relevant benefits) for the purposes of free movement law.  

Also, there will be some cases where the new mother does not find new work by the end of the maternity leave period despite her best efforts, or (more rarely) where her initial employer has become insolvent. For these difficult issues, it should be recalled that the Court refers to an obligation to consider the ‘specific circumstances of the case’, without further explanation. Arguably, this adds to, rather than qualifies, the reference to national law on maternity leave periods. In any event, the more general limits on expelling unemployed EU citizens would apply in such circumstances.  

It should be noted that the judgment logically applies also to those women who have previously worked in the host State, and then stopped work due to accident, involuntary unemployment, or vocational training, subject to the conditions in the Directive, since they all retain the status of ‘worker’. For Ms. Saint Prix, it wasn’t feasible to complete her course at the time she had initially planned, given the timing of her baby’s arrival. But for other women, whose baby is due after the end of their course, this could be of great practical importance.

Finally, today’s judgment should be seen in its broader context. EU law has long encouraged and facilitated the equal treatment of women on the labour market, including those women who are pregnant or who are mothers. It has also long encouraged and facilitated the free movement of workers. This judgment is the first opportunity for the CJEU to bring these two aspects of EU law together, and to confirm that migrant pregnant women also benefit fully from EU free movement law. Indeed, it is self-evident from the facts of this case that Ms. Saint Prix – like migrant workers generally – paid far more into the UK’s tax and benefits system than the benefits which she received from it.

Barnard & Peers: chapter 13, chapter 20

Surrogate Mothers' Day in the Court of Justice: Reflections on EU sex equality law

Steve Peers

Women who would love to give birth to children, but who are unable to do so for medical reasons, have always understandably attracted great public sympathy. Historically, the only option for them was adoption. But in the last few decades, other options have become available, in particular IVF and surrogacy. 

While EU law does not regulate any of these issues as such, it does regulate maternity leave, by means of the pregnant workers' Directive. Moreover, some other aspects of the employment implications of pregnancy are addressed by the Directive on sex discrimination in employment. For instance, the latter Directive bans discrimination against a woman who is undergoing IVF treatment but is not yet carrying an unborn child, according to the judgment of the Court of Justice of the European Union (CJEU) in Mayr.

But what is the position of surrogate mothers as regards maternity leave? Today the CJEU addressed that issue for the first time, in the judgments in CD and Z. The CD case concerns a British woman who is the commissioning mother of a child who was genetically fathered by her partner, while the Z case concerns an Irish woman who is the commissioning mother of a child who is genetically hers and her husband's. In both cases, a surrogate mother carried and gave birth to the child.

The Court took the view that the pregnant workers' Directive, which sets out the right to maternity leave, can only apply where the same woman becomes pregnant, gives birth and then takes maternity leave as regards a newborn baby (or babies), applying the Mayr judgment, which stated that the Directive only applied once a person was pregnant. The sex discrimination directive could not apply either, because a commissioning father would be treated the same as a commissioning mother; there was no evidence of indirect discrimination; and its ban on discrimination against women who have been pregnant or gone on maternity leave could not apply, since the pregnant workers' Directive did not apply. Since the issue fell outside the scope of EU law, the EU Charter could not apply as regards assessing the validity of the sex discrimination Directive.

In the Z judgment, the CJEU reiterated its reasoning, and also added some further points. It noted that the sex discrimination Directive expressly states that adoption leave is an optional matter for Member States. It then answered questions about the framework equality Directive, notably about the ban on discrimination on grounds of disability in that Directive. In the Court's view, since the EU Directive only applied to discrimination relating to employment, the disability in question has to hinder the worker's participation in professional life. But Ms. Z's condition did not affect her access to employment. Finally, the Court ruled that the validity of the framework equality directive could not be reviewed due to incompatibility with the UN Convention on the Rights of Disabled Persons (which the EU has ratified), because that Convention was only 'programmatic'.

These two different cases were the subject of opinions by two different Advocates-General, who expressed two radically opposed viewpoints. The CJEU essentially followed the opinion of Advocate-General Wahl in the Z case. On the other hand, Advocate-General Kokott, giving the opinion in the CD case, took the view that in light of social developments and the EU Charter of Fundamental Rights, the pregnant workers' Directive was capable of applying to cases where one woman carried and gave birth to a child, while another woman then took care of the newborn baby. Inspired perhaps by the judgment of Solomon, she then suggested that the maternity leave should be split between the two women concerned.

Comments

It seems odd that women who undoubtedly consider themselves as being new mothers and who are indisputably looking after a baby who is genetically theirs (or their partner's) fall outside the scope of EU law, given its detailed regulation of maternity leave. Certainly, the key feature of these judgments - the intention that the pregnant workers' Directive apply to the same woman who got pregnant, gave birth and looks after a child - is surely a correct assessment of the legislature's intention. Having said that, the application of the Mayr judgment is a little unconvincing, since it concerned the question of whether the woman concerned had ever got pregnant at all, long before she had a baby to look after.

The EU legislature's decision to treat adoption leave differently from maternity leave and pregnancy in the sex discrimination Directive is undoubtedly clear too. And logically, since the framework equality Directive only applies to employment, it can only be applied to a disability linked to employment. But the CJEU's application of this principle is not fully convincing. In fact, the Z case is difficult to distinguish on this point from the Coleman judgment, where the disablity of the worker's child was in principle connected to her loss of employment, so the Directive applied. If the Directive applies where there is a link between the worker's employment and another person's disability, why does it not apply where there is a link between the worker's employment and the worker's own disability, as long as that disability has an impact, however indirect, upon her employment - in this case, her maternity leave?

As for the UN disability rights Convention, the Court's ruling that it cannot be relied upon to challenge the validity of EU law is, with great respect, clearly wrong. The Convention includes a ban on disability discrimination in its Article 5(2): this is exactly the sort of equality clause that the Court usually accepts can be directly effective, and which therefore provides for a ground for challenging the validity of EU acts. A better approach, leading to the same result, would have been to rule that the application of the Convention to the issues of the Z case falls within the competence of the Member States, not the EU (the Convention is a 'mixed agreement'), given the Court's ruling that EU legislation was not applicable to this case anyway.

There is, of course, direct discrimination in these cases: not between men and women (since men can also be infertile), but between different categories of mothers: those who are looking after a child whom they have given birth to, and those who are looking after a child whom they have not given birth to. The two groups are not similarly situated as regards pregnancy and childbirth, but they are in an identical position as regards childcare. Surely the general obligation to ensure equal treatment set out in Article 21 of the Charter could have been relevant here.

Furthermore, the Court's assertions as regards indirect discrimination are not convincing, as it is surely more likely in practice that women, rather than men, will want to take time off work to look after a newborn. Moreover, in a case involving same-sex couples, it could be arguable that a failure to give them equal treatment with opposite-sex couples as regards maternity or adoption leave would be discriminatory on grounds of sexual orientation, given that it is not possible for same-sex couples to have a child who is genetically the child of both of them.  

The Court's literal approach to the EU legislation has also lost sight of its underlying purpose in two respects. First of all, a woman who wishes to take time off work following the adoption of a child (whether there has been a surrogate mother involved or not) faces the same work/life balance issues as a woman who has given birth to a child. The underlying goal of EU law on sex equality as regards employment is to ensure that women have equal access in practice to the workforce. Women who have adopted a child are bound to face problems in that regard, similar to those facing women who have given birth. Secondly, from the perspective of the best interests of the child (an issue addressed by Advocate-General Kokott), and the objective of ensuring that a mother can bond with her child (referred to expressly by the Court), it should not matter whether that child has been adopted or not.

These points lead us to a more radical question: why should the EU legislature itself facilitate massive inequality as regards the care of newborn children? Advocate-General Kokott, noting that the Charter requires the child to have contact with both its parents, then applies that to the rights of the mother. But if we are going (as she suggests) to sever the link between pregnancy and childbirth, on the one hand, and childcare on the other, then why should we assume that the childcare has to be provided by the mother, by means of granting women maternity leave, but not granting parallel (or transferable) paternity leave to men? Indeed, from this perspective, the more generous the maternity leave, the greater the distinction between the roles of men and women as regards childcare, with a corresponding greater impact upon engagement in the workplace. Simply put, maternity leave is the gilded cage of sex discrimination.

Barnard & Peers: chapter 20