The Claimant, a male Greek Judge holding the status of a Civil servant, challenged the Greek legislation that provides that a male civil servant is not entitled to paid parental leave if his wife does not work or exercise any profession, unless it is considered that, due to a serious illness or injury, the wife is unable to meet the needs related to the upbringing of the child.
The CJEU, on a reference for a preliminary ruling from The Council of State, ruled that such a prohibition was incompatible with EU law, notably Council Directive 96/75/EC of 3 June 1996 on the framework agreement on parental leave as amended by Council Directive 97/75/EC of 15 December 1997 and Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.
The specific holding was as follows:
“The provisions of Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, as amended by Council Directive 97/75/EC of 15 December 1997, and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, must be interpreted as precluding national provisions under which a civil servant is not entitled to parental leave in a situation where his wife does not work or exercise any profession, unless it is considered that due to a serious illness or injury the wife is unable to meet the needs related to the upbringing of the child.”
The CJEU considered that Parental leave is an individual right which cannot depend on the situation of the spouse. It also noted that the Parental Leave Directive provides an entitlement, individually, to such leave which cannot be derogated from by the Member states by legislation or collective agreements. Accordingly, the employment status of an individual’s spouse cannot prevent the exercise of the right to parental leave.
It went on to observe that such an approach not only complied with the objective of the directive, which is to facilitate the reconciliation of the parental and professional responsibilities of working parents, but also with the status of parent leave entitlement as a fundamental social right recognised by the Charter of Fundamental Rights of the EU.
Mothers, who are Greek civil servants, are always entitled to parental leave under the Greek legislation. Thus, said the Court, “….a provision such as the one at issue in the main proceedings, far from ensuring full equality in practice between men and women in working life, is liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties”
The Greek Civil Service Code in respect of civil servant fathers who want to take parental leave, therefore introduced direct discrimination on grounds of sex contrary to the Employment Equality Directive.
The case is of more general interest than just the specific protection afforded in respect of parental leave. The CJEU emphasised that according to the settled case-law of the Court, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part. Part of the context included the fact that the right to parental leave was included, in Article 33(2) of the Charter of Fundamental Rights of the European Union. Thus this case is yet another example of the Charter’s vital place in EU equality law.
In the UK, mothers’ leave rights associated with birth have always been far more favourable than fathers, stemming from the emphasis in EU law on pregnancy, recovery from birth and breast-feeding. In contrast, UK unpaid parental leave is available on an equal basis to parents of both sexes.
Notably the Greek Claimant here was not claiming a right to maternity leave per se.
Could this CJEU case provide scope for challenging our new Shared Parental Leave (SPL) regime? Under SPL, leave is available only to fathers where the mother is entitled to maternity leave or maternity allowance in her own right. She also must have been economically active before the baby was born. There may be an argument that such conditions perpetuate gender inequality and traditional unequal caring roles. Whether such a challenge would succeed would in part depend on the ability to disentangle the connection between giving birth and the right to leave to care for that child: (see further the 2015 blog by Cloisters barristers at https://www.cloisters.com/latest/shared-parental-rights-and-discrimination)