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 Grantjudgment), 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

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Racial discrimination & collateral damage – Coleman revisited

 

Simon Cox

In Luxembourg yesterday, the Court of Justice Grand Chamber heard arguments that any person who suffers adverse consequences of a racially discriminatory decision is entitled to a remedy under EU law. In a case of anti-Roma discrimination brought by a non-Roma woman, the Court was asked to clarify its Coleman ruling, concerning who has the capacity to invoke EU discrimination law. Detailed questions from the Court showed a close interest in the legal and practical issues.

Case C-83/14 CEZ is a preliminary reference of ten questions under the European Union Directive 2000/43 on race discrimination. The case comes from the Sofia Administrative Court, in an appeal by CEZ, one of Bulgaria’s three electricity companies, from a decision of the Bulgarian National Anti-Discrimination Commission. This commission had a complaint from Ms Nikolova that CEZ unlawfully discriminated against her by putting the meter for the legal supply of electricity to her grocery shop on the top of a 7 metre high pole. CEZ had not singled Ms Nikolova out for this treatment. They had done this to every meter in the district of Gizdova, but nowhere else in her town of Dupnitsa. Unable regularly to inspect her meter, Ms Nikolova considered CEZ had inflated her electricity bill. Since the Gizdova is widely seen as a predominantly ‘Roma’ area, she complained that the district had been chosen for that reason by CEZ. The commission had received numerous such complaints that only Roma districts were subjected to being publicly stigmatised as too dishonest to have access to meters. Armed with material that CEZ had cited Roma ethnicity as a factor for its decision, the Anti-Discrimination Commission agreed with Ms Nikolova and upheld her case. In her case to the CJEU she pressed for an expansive reading of EU anti-discrimination law.

This is the CJEU’s first opportunity to rule on the application of the Race Equality Directive to the Roma, Europe’s most disadvantaged minority. A previous reference to the Court on similar issues (Belov) was inadmissible, although the Advocate-General’s opinion had considered the substance of the issues.

Yesterday, the CJEU Grand Chamber heard argument from CEZ, Ms Nikolova, the Bulgarian Government and the European Commission.

The central issue on which the parties divided was the extent of protection under the Directive. Ms Nikolova argued - as she had in her written submissions -  that Directive 2000/43 bars all discrimination ‘based on race or ethnic origin’ regardless of the actual race or ethnic origin of the victims. The purpose of this law is to eliminate all such discrimination: it does not require the victims or the complainant to have the same race or ethnic origin as the basis for a discriminatory decision. The Commission agreed, pointing to para 50 of the CJEU’s judgment in C-303/06 Coleman where discrimination ‘based on disability’ under Directive 2000/78 was found to include adverse action against an employee on account of her disabled son.

Counsel for CEZ argued that Coleman was a case of discrimination ‘by association’. Directive 2000/43 allows leeway to states to define this term. Ms Nikolova’s shop in Gizdova is not the link to Roma origin required by Bulgarian law. The case was different from Coleman. The Bulgarian Government agreed.

Judge Prechal, rapporteur in the case, invited Nikolova’s comment on she called the ‘restrictive’ Bulgarian definition. Nikolova took a maximalist position: ‘based on’ covers any adverse decision where actual, apparent or perceived origin was in fact taken into account by the decision-maker. Only this way could the Directive eliminate all racial discrimination.

Responding on the question of comparators, Nikolova argued that where only Roma neighbourhoods are subjected to adverse treatment, the burden of proof for direct discrimination shifts under Directive Article 8. Unless CEZ then prove race was not taken into account, there is no need to consider a hypothetical comparator: direct discrimination based on race had already been proved.

CEZ denied any racial motivation: the measures had been adopted due to the problem of illegal connections to the electricity supply. Illegally constructed dwellings cannot legally be connected so users connect illegally. The costs of changing meters would be passed on to customers. No judge could determine whether a measure stigmatises Roma communities, since the notion is too subjective.

Several judges questioned CEZ on their defence. Had CEZ considered adopting the smart meter solution of other Bulgarian companies? CEZ’s counsel was not familiar with the detail but smart meters are expensive. Judge Rodin pressed CEZ:

Rodin: How does CEZ decide whose meters to put out of reach?

CEZ: A technical decision based on their engineers’ assessment.

Rodin: Do the engineers know the payment record of individuals when they make this assessment?

CEZ: No, they look at the situation of the district.

Rodin: Can the electricity consumer appeal?

CEZ: No.

Judge Borg Barthet weighed in by asking whether only Roma districts have the meters on poles. CEZ’s Counsel didn’t know. Judge Lenaerts said he would make it easier:

Lenaerts: Does this happen in many districts?

CEZ: Define “many”.

Lenaerts: In how many districts have you done this?

CEZ: Ten or twenty.

The Court moved to replies. CEZ’s counsel was quick, arguing that CEZ needed flexibility. When Judge Lenaerts invited him to respond to the other parties, he declined.

Nikolova’s counsel replied asking for guidance to the national court on indirect discrimination. The comparator is other districts of Dupnitsa. Differences of illegal connection rates are relevant only to the objective justification stage. They are not relevant to the question of comparator, since that would preclude the Directive addressing grossly disparate consequences in treatment. CEZ say race was no factor in their decision but claim their relevant records have been destroyed. CEZ claim’s costs of change would be too high, but has not assessed them. CEZ confirm their practice is both compulsory - no appeal - and collective – applied to the whole district, not case by case. CEZ demand flexibility but deny that to Ms Nikolova. She cannot disprove the public sign that she is an illegal connector.

Advocate-General Kokott’s opinion will be issued 12 March.

The hearing began in the language of the case: Bulgarian. The CJEU President had refused Ms Nikolova’s request to plead in English as the language of her English lead counsel.  His co-counsel of the Sofia Bar therefore opened in Bulgarian. When questions began, Judge Lenaerts invited Ms Nikolova’s team to respond in English: and her English counsel pleaded the rest of her case.

Ms Nikolova is represented by the Open Society Justice Initiative through Simon Cox of the Bar of England and Wales, Yonko Grozev of the Sofia Bar, and Maxim Ferschtman of the Amsterdam Bar.

 

Barnard & Peers: chapter 20

Photo: Bjorn Steinz, for the Open Society Foundation

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