Slipping Through Our Fingers: The Cjeu Rules On The Value Of Parenthood Inwards Eu Law

Steve Peers

The vast mass of European Union legislation in addition to illustration constabulary on sexual activity discrimination aims to facilitate women’s access to employment, in addition to their equal handling inside the workplace. Yesterday’s CJEU ruling inwards Maistrellis approaches these issues from an odd angle: the access of a father to parental leave, inwards a illustration where the woman parent of his children was non working or seeking paid function at all. The judgment raises interesting questions virtually the role that European Union work in addition to discriminaton constabulary plays inwards identify unit of measurement life. 

Background

EU rules on parental travel out engagement from an agreement of social partners inwards 1996, which was updated inwards 2010. This illustration concerns the 1996 version of the agreement, which begins yesteryear stating the social partners’ intention: ‘reconciling function in addition to identify unit of measurement life in addition to promoting equal opportunities in addition to equal handling betwixt men in addition to women’. The preamble refers to the work/life remainder indicate (paragraph 4) in addition to the advertisement of ‘women’s participation inwards the labour force’ (paragraph 7). It too states that ‘men should endure encouraged to assume an equal portion of identify unit of measurement responsibilities’. 

  

The head text of the understanding makes clear that it sets out only ‘minimum requirements’. It applies to ‘all workers, men in addition to women’, who direct hold an work contract or human relationship as defined yesteryear national law. It gives ‘men in addition to women workers an private correct to parental leave’ on the nascence or adoption of a child, for at to the lowest degree 3 months, upward to an historic catamenia (up to 8) to endure defined yesteryear Member US or social partners. ‘To promote equal opportunities’, the correct should endure non-transferable.

Detailed rules on parental travel out must endure defined yesteryear national legislation and/or collective agreements, as long as those rules run into the minimum requirements inwards the Directive. These rules can: create upward one's hear if parental travel out is granted on a full-time or part-time basis; laid out a waiting catamenia of upward to ane yr of employment; adjust the rules to the exceptional circumstances of adoption; found break periods to endure given to the employer; define when the employer tin postpone parental leave; in addition to ‘authorise special arrangements’ for small-scale businesses.

Furthermore, the understanding specifies that workers who apply for or accept parental travel out are protected from dismissal on those grounds. They direct hold the correct to render to the same project (or a like job, if that’s non possible) at the cease of the parental leave. Parents too retain whatever rights which they acquired earlier the parental travel out began, although it’s upward to national constabulary or employers to determine whether parents are paid during their travel out period. All social security issues are left to national law. Finally, workers are too entitled to fourth dimension off from function for ‘urgent identify unit of measurement reasons’, although the details in addition to limits on this correct are left to national constabulary in addition to social partners to determine.

Judgment

The begetter inwards this illustration was a Greek judge, who sought to exercise parental travel out for a paid catamenia of ix months. In practise Greek constabulary curtailed this do goodness inwards 2 ways: starting fourth dimension of all yesteryear limiting it to mothers only; in addition to secondly (in a rather contradictory manner) yesteryear attaching strict atmospheric condition as regards fathers, which didn’t apply to mothers. If a woman parent stays at dwelling theatre to expect afterwards the kid (as inwards this case), a begetter could only obtain the travel out if the woman parent was unable to expect afterwards the kid due to affliction or injury. The Greek courts had already ruled that the starting fourth dimension bound was inapplicable, in addition to forthwith asked the CJEU if the minute bound breached European Union law.

According to the CJEU it did, for 2 reasons. First of all, it breached the parental travel out agreement, because that understanding states that parental travel out is an ‘individual right’ which is ‘non-transferable’. Therefore (reiterating prior illustration law) it applied to each parent. The possible limits referred to inwards the Directive brand no provision for denying parental travel out based on the work status of the spouse. This literal interpretation was reinforced yesteryear the overall context of the agreement: obtaining a amend work/life balance, in addition to encouraging men to accept on to a greater extent than identify unit of measurement responsibilities. The correct to parental travel out too appears inwards the European Union Charter of Fundamental Rights.

Secondly, the Greek dominion too violated the European Union Directive on sexual activity discrimination inwards employment. That was because parental travel out was a working condition, in addition to the seat of men in addition to women was ‘comparable’ as regards bringing upward children. The Greek constabulary attached a status to fathers that it did non attach to mothers, thence constituted sexual activity discrimination.

Furthermore, this distinction ‘is liable to perpetuate a traditional distribution of the roles of men in addition to women yesteryear keeping men’ inwards a ‘subsidiary’ role as regards parenting. While the Directive does render that it is ‘without prejudice’ to the parental travel out understanding in addition to the meaning workers’ Directive, the ‘deprivation’ of a father’s parental travel out ‘in no way’ helps the wellness in addition to security of meaning workers or novel mothers, which is the exercise of the latter Directive.

Comments

First of all, it should endure noted that Greek law, for at to the lowest degree around workers, far surpasses the minimum rules inwards the understanding – ix months’ paid leave, rather than 3 months’ unpaid leave. Very few parents inwards the European Union volition direct hold access to this generous a parental travel out – fifty-fifty the 2 weeks of paid travel out which I enjoyed for each kid is amend than many fathers get. Indeed, the EU’s meaning workers’ Directive only requires novel mothers to learn twenty weeks’ motherhood travel out on sickness pay (not total pay) as a minimum (note that parental travel out applies inwards improver to motherhood leave). It’s doubtful that the European Union economic scheme as a whole could withstand such generosity, in addition to indeed I wonder if the Greek do goodness has since croak rather less generous due to the demands of the Troika.

So it’s of import to emphasise that the CJEU is not requiring all employers to give fathers ix months’ fully paid travel out for each child. Rather, whatever the catamenia of parental travel out (which demand non fifty-fifty endure paid), it cannot endure bailiwick (for fathers) to atmospheric condition relating to the mother’s work status.

The judgment has several interesting implications. First of all, spell the CJEU has traditionally ruled that European Union sexual activity discrimination constabulary cannot apply to same-sex couples (see the Grant judgment), it’s arguable that the parental travel out understanding can. While that understanding does advert to ‘men’ in addition to ‘women’, the Court’s emphasis on parental travel out as an individual right, in addition to the European Union Charter ban on discrimination on grounds of sexual orientation, points inwards favour of it applying to same-sex parents. Although it would endure possible to exercise the EU’s framework equality Directive to challenge a limitation on parental travel out based on sexual orientation, it’s possible that parental travel out is beingness express on a Earth other than sexual orientation. In whatever event, a gay or lesbian parent may prefer to invoke rights as a parent. Having said that, it should endure noted that the civil status of same-sex couples (ie access to marriage), is, as European Union constabulary currently stands, a affair for Member US to create upward one's hear (for to a greater extent than on this, reckon Alina Tryfonidou’s recent weblog post). This must as apply to adoption.

Secondly, the ruling is similarly relevant to whatever identify unit of measurement that does non accept the shape of 2 married parents. It must follow from the Court’s ruling that it’s irrelevant whether the parents are unmarried, or whether the parental travel out correct is beingness claimed yesteryear a single parent. Again, it should endure pointed out that European Union constabulary doesn’t determine who has custody of a kid – at most, it determines which courtroom has jurisdiction to dominion on this number where at that spot is a cross-border element. 

  

Thirdly, spell the ruling implicitly extends the parental travel out understanding to such non-traditional families, it explicitly confirms its application to the most traditional shape of all: families amongst a stay-at-home mother. As noted above, European Union sexual activity discrimination constabulary has its ain tradition, constantly aiming to encourage mothers to work. Yet inwards this case, the Court skipped over the many references to this objective inwards the relevant European Union laws, in addition to asserted instead the father’s private correct to parental travel out as good as his correct to non-discrimination on grounds of sex.

Reading the illustration to a greater extent than carefully though, the judgment does challenge the traditional identify unit of measurement model inwards a unlike way: non yesteryear encouraging mothers to render to function (although of course of teaching this is withal relevant inwards most other cases), but yesteryear encouraging fathers to assist them at home. Thirty years ago, the Court was concerned (in its Hofmann judgment) that European Union constabulary should non 'alter the partitioning of responsibleness betwixt parents', as regards gender roles inwards the household. Now it’s concerned to brand certain that those roles are shaken up.

It’s sure enough truthful to say that equality betwixt men in addition to women can’t endure achieved without challenging those roles. Yet it’s interesting that inwards this judgment, the Court wants those roles to endure challenged fifty-fifty if there’s no link amongst the mother’s employment. In this vein, the Court’s assertion that equal handling as regards parental travel out volition non undermine the wellness in addition to security of novel mothers is the understatement of the year: what novel woman parent wouldn’t welcome the assistance of the baby’s begetter for fifty-fifty a small period, never hear ix months? But this approach subtly alters the exercise of the meaning workers’ Directive, which is virtually employed mothers, non those who remain at home. Of course, the Court’s interpretation is solely justified on social grounds: novel mothers tin exercise the assist of fathers whether the mothers are employed or not.

Finally, the Court’s ruling implicitly emphasises the value of strengthening both parents’ ties amongst their children, regardless of whatever link amongst the mother’s employment. It’s a skillful fourth dimension to reaffirm this link, as parents across European Union (including the Court’s staff) brace themselves for the start of summertime holidays. For parents, this is an unavoidable in addition to poignant reminder that our babies grow up, our piddling ones learn bigger, in addition to the fourth dimension nosotros pass amongst them is ever slipping through our fingers.

Barnard & Peers: chapter 20

Photo credit: activebabiessmartkids.com.au

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