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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Forty percent Venus, sixty percent Mars? The Commission’s Proposal on gender quotas in corporate boards

Juan Carlos Benito Sánchez, LL.M. Candidate at KU Leuven — Twitter @jcbensan

Economic decision-making in the European Union suffers at the highest corporate echelons from a lack of diversity, particularly in the area of gender diversity: over half of the graduates from European universities today are female, yet men outnumber women in corporate boards by a ratio of nearly four to one. What is more, differences between Member States are vast: female representation among directors ranges from less than five percent in some countries to more than thirty percent in others. The latest statistics can be found at the site of the European Commission’s database on women and men in decision-making.

Acknowledging this reality and within the framework of the Women’s Charter and the Strategy for Equality between Women and Men 2010-2015, the European Commission launched in November 2012 its Proposal for a Directive  of the European Parliament and of the Council on improving the gender balance among non-executive directors of companies listed on stock exchanges and related measures.

The Economic and Social Committee and the Committee of the Regions having both issued opinions, the proposal was adopted by the European Parliament at first reading in November 2013. In December 2014, however, the Council (Employment, Social Policy, Health and Consumer Affairs configuration) rejected  the proposal because of a failure to reach an agreement, inviting the preparatory bodies ‘to continue their work on the file.’ The latest development came in the form of a progress report  issued on 11 June 2015, concluding that

[t]here is a broad consensus among the Member States in favour of taking measures to improve the gender balance on company boards. While a large number of Member States support EU- wide legislation, others continue to prefer national measures (or non-binding measures at the EU level). Thus further work and political reflection will be required before a compromise can be reached.

Main contents of the proposal

The Proposal for a Directive (as considered by the Council), which ‘seeks to achieve a more balanced representation of men and women among the directors of listed companies by establishing measures aimed at accelerated progress,’ only targets publicly listed companies having their registered office in a Member State and excludes SMEs from its scope of application. It is expected that a trickle-down effect will ensue, thereby leading companies not affected by these measures towards more balanced corporate boards.

Targeted companies should attain by the predetermined deadline (31 December 2020) either (a) 40 percent of members of the under-represented sex among non-executive directors or (b) 33 percent of members of the under-represented sex among all directors, both executive and non-executive. The choice of option is in principle open to the implementing Member State, which may also exempt those companies where women represent less than ten percent of the employees from compliance with the numerical aims. An additional obligation is envisaged for targeted companies to set individual quantitative gender balance objectives when the overall thresholds do not directly apply.

A reporting duty to the national equality bodies has been introduced, following the ‘comply-or-explain’ principle. A document must be compiled detailing the ‘gender representation on [companies’] boards, distinguishing between non-executive and executive directors’ as well as ‘the measures taken with a view to attaining the applicable objectives.’ The same information shall be published in an appropriate and accessible manner on the companies’ websites.

The core of the proposal lies on the series of procedural requirements imposed on companies which fall short of the planned numerical objectives. These companies must, when selecting candidates for director positions, undertake a comparative analysis of the qualifications of each candidate by applying clear, neutrally formulated and unambiguous criteria established in advance. They shall, following this analysis, give priority to the candidate of the under-represented sex, unless an objective assessment of all criteria specific to the individuals tilts the balance in favour of the other candidate(s). The wording of these requirements is directly drawn from the case-law of the CJEU regarding gender quotas (see, inter alia, Judgments in Kalanke, in Marschall v Land Nordrhein Westfalen and in Abrahamsson and Anderson v Fogelqvist.)

Upon request from any candidate, all parameters considered when deciding over selection (the qualification criteria, the objective comparative assessment and, where relevant, the considerations tilting the balance) need be disclosed to her or him in a transparent manner. Moreover, if the candidate of the under-represented sex establishes a prima facie instance of discrimination, the burden will shift onto the respondent company to disprove those allegations—as occurs with other discrimination claims under EU law.

Sanctions are to be imposed by the Member States alone for the infringement of the procedural requirements, the reporting obligations or the mandate to set individual quantitative objectives. In other words, non-compliance with the numerical quota objectives by the end of the established deadline is not per se penalised beyond requiring companies to state ‘the reasons for not attaining the objectives and a description of the measures which the company has already taken and/or intends to take in order to meet them.’

The Union’s intervention in the field has an essentially temporary character; the ultimate objective of the proposal being to foster gender diversity within corporate boards to the extent that conditions in society are such as to not guarantee that balance on their own. This interim approach is reflected by the sunset clause contained in the proposal: the directive shall expire in December 2029. As a last point, it is notable that the directive would only effect minimum harmonisation, thus allowing Member States to go beyond these measures ‘provided those provisions do not create unjustified discrimination or hinder the proper functioning of the internal market.’

The flexibility clause: a point de discorde

Article 4b of the revised proposal features the most controversial provision and the reason why progress is only very slowly being made: namely, the so-called equivalent efficacy or flexibilityclause. Following this clause, Member States which have enacted measures to ensure a more balanced representation of men and women on corporate boards would be authorised to suspend application of the procedural requirements, given that those measures are equally effective or have attained progress coming close to the aims set out in the directive.

‘With a view to combining flexibility with maximum legal certainty,’ Article 4b exemplifies three scenarios deemed by law to guarantee equal effectiveness, leaving the door open at the same time to analogous situations existing in the Member States. In this respect, the last version of the proposal allows disconnection as soon as ‘members of the under-represented sex hold at least 25% of the total number of all non-executive director positions or 20% of the total number of all director positions and the level of representation has increased by at least 7.5 percentage points over a recent five-year period.’ Beyond 2020, more stringent conditions will have to be complied with if the Member State wishes to maintain the suspension.

Considering the documents issued by the Working Parties of the Council, the flexibility clause has created a major point of contention between delegations. While agreement broadly exists on the main lines of the proposal, Member States are divided between those pushing for the flexibility clause to be enhanced and those warning against any further softening of the text. The recent progress report consequently acknowledges that ‘[s]ome further fine-tuning of the flexibility clause is likely to be required before an agreement can be reached on the Directive.’

Comments

The proposal should be welcomed as a significant step towards tackling gender imbalance within corporate governance in the European Union. Substantive measures in this respect have been long overdue and much awaited; the question thus remaining is if and when consensus within the Council will be reached. The Luxembourg Presidency in its outlook overview of priority dossiers  refers to the proposal on gender balance, recognising that it ‘[has] been blocked in the Council for a considerable time.’

From the standpoint of Discrimination law, it is regrettable that the rationale of the directive appears to be predominantly economically driven, at the expense of considerations of parity, diversity, legitimacy and democracy. Instead of upholding the claim that gender balance in corporate boards will yield microeconomic growth—an assertion which, on the other hand, risks perpetuating gender stereotypes, as it is based on the assumption that women and men act differently in business contexts—, the proposal should rather build upon dependency with a view to eradicating and correcting structural male dominance in decision-making.

De lege ferenda, it would perhaps be advisable to abandon the understanding of quotas purely on the basis of sex and transitioning to a gender terminology that accommodates at the same time additional genders or gender identities. Following this suggestion, measures could be envisaged that give a soft preference in a similar manner not only to female candidates but to candidates of genders or gender identities which differ from that of over-represented male candidates.

As regards the sanctioning regime, more meaningful enforcement measures could be conceived of within the limits of proportionality that do not leave failure to comply with the numerical targets unpunished, e.g. in the form of fiscal incentives or of penalties within the area of public procurement.

One of the striking points of the proposal is undoubtedly that of the flexibility clause. Despite its stated purpose of allowing more proactive Member States to develop their own equality programmes without conflicting with the substance of the proposal; this possibility permits, in practice, a large derogation by means of national tailor-made gender diversity strategies. Whereas due regard must be had to subsidiarity, it should be noted that the envisaged thresholds for equivalent efficacy are deceptively low as a consequence of the watering down of the proposal during the Council deliberations.

To conclude on a pragmatic note, it can be said that the current prospects of more robust European Union legislation tackling gender imbalance within corporate governance are bleak: the still ongoing difficulties within the Council to reach an agreement foreshadow, if anything, an even more compromised version of the text. For the time being, in the European Union it is more around twenty percent Venus, eighty percent Mars. Surely an imbalance of planetary dimensions.

Barnard & Peers: chapter 20

Photo credit: www.livemint.com

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Does EU law prohibit condoning discrimination against breastfeeding women?

Steve Peers

Yesterday, Nigel Farage, the leader of the UK Independence Party (UKIP) stated that while he had no personal objection to women breastfeeding in public, it should be for businesses to decide on their own rules. Perhaps they could ask breastfeeding women to “sit in a corner”. In any event, it shouldn’t be hard to breastfeed a baby in a way that wasn’t “openly ostentatious”.

He was referring to a case in which a restaurant asked a woman to place a napkin over her baby. Another café has recently suggested that women should breastfeed in the disabled toilets.

There’s an interesting legal dimension to this issue. First of all, is it legal to discriminate against breastfeeding women? Secondly, to what extent is it illegal even to encourage such discrimination, or at least to condone it? The latter is a fair description of Farage’s comments.

Discrimination against breastfeeding women  

As some press articles have pointed out, the Equality Act 2010makes it illegal in the UK to discriminate against breastfeeding women in employment or public places like restaurants, subject to very limited exceptions. There’s an excellent summary of the law here, on the Maternity Action website. So businesses can’t make up their own rules on this issue, as Farage seemed to assume – although perhaps his point was that the law ought to change.

What about EU law? There are separate Directives concerning sex discrimination in employment, and sex discrimination as regards goods and services offered to the public, which would apply to restaurants. Neither of them explicitly bans discrimination as regards breastfeeding. But the Court of Justice of the European Union (CJEU) has long ruled that discrimination against pregnant women is discrimination on grounds of sex. Its reasoning is that even though not all women are, have been, or will become pregnant, only women can be pregnant, and so discrimination on grounds of pregnancy is therefore direct sex discrimination. Logically this reasoning applies by analogy to breastfeeding: even though not all women will become mothers, or breastfeed if they do, only women can breastfeed.

If this is correct, there’s a ban on discrimination against breastfeeding mothers right across the EU, and the UK’s law simply reflects its EU obligations. Of course, leaving the EU (UKIP’s key policy) would mean that the UK no longer had such obligations.

Endorsing or condoning discrimination

Of course, Nigel Farage didn’t himself insist that a breastfeeding mother had to cover herself with a napkin in a restaurant, or actually make a new mum sit in the corner. He merely said that he could accept it if businesses chose to do this – even though (which he didn’t mention) this would be illegal.

There’s an interesting line of case law of the CJEU on the circumstances in which publicly supporting discrimination gives rise to legal liability. First of all, in AGM COS.MET, a Finnish government official disparaged the safety of Italian lifts. Sales of the lifts promptly plummeted (as it were), and the manufacturer sued the Finnish government for damages. The CJEU ruled that the State would be liable for its official’s comments if, on the facts of the case, those comments were attributable to the State. One factor to consider was whether the State distanced itself from those comments. On this point, it’s interesting to note that David Cameron’s office immediately denounced Farage’s remarks yesterday. This is probably not an attempt to reduce the government’s legal liability, but rather a bid to hoover up the female votes that Farage apparently doesn’t really want that much. But the effect is the same.

So can there be liability for discriminatory comments by private individuals? In Feryn, the CJEU said that a business could be liable for stating publicly that it would not hire ethnic minorities, due to objections by its customers. That’s broadly similar to Farage’s point that other restaurant customers might be ‘embarrassed’ by ‘ostentatious’ breastfeeding. Perhaps it would distract their attention too much from gazing at Page 3 of The Sun.

Later on, in the Associatie Accept case, the CJEU ruled that a homophobic rant by the part-owner of a football club could give rise to liability for that club, if there was a perception that he had a significant influence on that club's policies. While Nigel Farage certainly seems to influence government policy generally, in this particular case David Cameron’s response to Farage's comments yesterday would rule that out.

So as things stand, Nigel Farage’s comments would not give rise to personal or state liability – although lawsuits against the restaurants that discriminate against breastfeeding women would be a different matter. And things would also surely change if Farage were the Deputy Prime Minister – although in that case, the UK’s EU membership and the Equality Act would likely not last very long in any event.


Cartoon: Los Angeles Times

Barnard & Peers: chapter 20

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The French ban on public face-veiling: enlarging the margin of appreciation

Ronan McCrea

Senior Lecturer in Law, University College London; author of Religion and the Public Order of the European Union

The Grand Chamber of the European Court of Human Rights has issued its eagerly-anticipated decision in SAS v France, the challenge to the French law of 2010 banning face-veiling in public spaces.

The applicant, a French national represented by British lawyers, had alleged that the law violated no fewer than 6 articles of the ECHR: Article 3 (inhuman and degrading treatment), Article 8 (privacy), Article 9 (freedom of religion and belief), Article 10 (freedom of expression), Article 11 (freedom of association) and Article 14 (non-discrimination in relation to the rights protected by the Convention).

The claims under Articles 3 and 11 were easily dismissed with the Court noting that the applicant’s treatment fell well short of the severe treatment needed to constitute the “inhuman and degrading treatment” prohibited by Article 3 and that no evidence had been provided to substantiate a claim to breach of her freedom of association.

More narrowly and more controversially, it held, by 15 votes to 2, that there had been no violation of Articles 8, 9, 10 or 14. Despite the large majority, the decision was finely balanced. The Court rejected three of the four justifications offered by the French authorities for the law and accepted the fourth only with some hesitancy and with heavy reliance on the need for the Strasbourg Court to defer to the judgment of democratically-legitimated national authorities on these matters.

The Court treated the challenge under Articles 8, 9 and 10 as raising substantially similar issues; namely whether the restriction of the Applicant’s ability to dress in accordance with her beliefs and desires, could be justified by need to protect public order or the rights and freedoms of others.

The judgment reaffirms the Court’s conceptualisation of freedom of religion and belief as an individual right. Rightly shying away from the theologians’ task of adjudicating on what Islam does or does not require, the Court declared that it was “of no relevance” that most Muslim women do not see the face veil as necessary. The fact that the Applicant herself wished to wear the veil for religious reasons was, for the Court, sufficient to bring her actions within the scope of Article 9.

The French authorities put forward four arguments in defence of the prohibition: public safety (related to the need for individuals to be identifiable), the protection of equality between men and women, the protection of human dignity, and the protection of the minimum requirements of life in society.

Three of these four arguments were rejected by the Court. It found that, while public safety could be invoked to require individuals to reveal their faces for identification checks or in certain contexts, a blanket ban on face-veiling could only be sustainable where there was a general threat to public safety, something the French authorities had failed to show.

In relation to the protection of human dignity the Court held that, though it is an important value, a blanket ban could not be justified. It reached this conclusion on the basis that wearing a face veil “is the expression of a cultural identity which contributes to the pluralism that is inherent in democracy”. It further noted the “variability of the notions of virtuousness and decency that are applied to the uncovering of the human body” and that there was no evidence that those wearing the veil express contempt towards others or undermine the dignity of others (para 120).

The invocation of variability of notions of decency in relation to clothing has echoes of the Court’s decision in Vajnai v Hungary where it found a ban on the display of the red star to violate the Convention partly on the basis that the red star had a variety of meanings. The focus on the subjective intentions of veil wearers is interesting in that decisions on dignity have generally focused on objective notions of dignity rather than the perception of the individual carrying out the allegedly undignified act. For example, the Court of Justice of the European Union upheld a German restriction on games that simulated killing in the Omega Spielhallen case without inquiring into whether players of the game intended to violate respect for human life, and the UN Human Rights Committee rejected the complaint of a dwarf rendered unemployed by a French ban on “dwarf tossing” notwithstanding that the applicant felt his dignity was more compromised by unemployment than being thrown around by larger people as part of a performance. If, as the Court’s ruling suggests, it is the subjective intent of the individual that counts then laws seeking to protect collective ideas of dignity are on a much more shaky foundation than before.

The Court’s approach to the claim that the French law sought to protect equality between men and women was equally dismissive. While it accepted that protecting gender equality was a basis on which Convention rights could be restricted it found that “a State Party cannot invoke gender equality in order to ban a practice that is defended by women (…) unless it were to be understood that individuals could be protected on that basis from the exercise of their own fundamental rights and freedoms” (119). As in relation to human dignity, the Court adopts a notably individualistic position, arguing that if women choose to wear the veil, then the equality of men and women cannot be invoked to restrict such a choice.

This seems a little simplistic. Equality laws often restrict the liberty of individual members of a disadvantaged group to ensure the broader fair treatment of the group as a whole. For example, a woman who does not believe in the principle of equal pay for equal work, would not be permitted to take a job at a lower wage than her male colleagues on that basis. The Court might more defensibly have said that the symbolic harm done by the voluntary wearing of clothing that anonymises women in public does not do sufficient damage to the principle of gender equality to justify the restriction on liberty inherent in prohibition of such clothing. Instead it seems to make a balder claim that if women voluntarily carry out an action it can never be legitimate to use the goal of gender equality to restrict such an action. This seems insufficiently thought-through.

The only argument of the French authorities accepted by the Court was that which asserted that the law in question sought to protect “the minimum requirement of civility that is necessary for social interaction” (141). The Court found that “it indeed falls within the powers of the State to secure conditions whereby individuals can live together in their diversity” it held that “the Court is able to accept that a State may find it essential to give particular weight (…) to the interaction between individuals and may consider this to be adversely affected by the fact that some conceal their faces in public places” (141).

The text of Articles 8, 9 and 10 of the ECHR require that measures to restrict privacy, freedom of religion or belief and freedom of expression by justified by a need to protect “the rights and freedoms of others” (or public order and public safety, grounds already rejected by the majority in this case as insufficient to justify a veil ban).

The two dissenting judges sharply questioned whether ideas of civility and ‘living together’ fell within the concept of “rights and freedoms of others” saying that to characterise these ideas in this way was “far-fetched and vague”.

For its part, the majority, though finding that securing conditions for living together did fall within the concept of “rights and freedoms of others”, exhibited significant hesitancy before finding that the French legislation represented a proportionate attempt to protect such rights and freedoms. It noted that the small number of women wearing the veil meant that a blanket ban “may seem excessive” (145), that the ban may have the effect of isolating women (146), that other international bodies had considered the ban disproportionate (147) and that it was concerned by “certain Islamophobic remarks” that featured in the debate on the legislation (149).

Nevertheless, the majority concluded that the ban was proportionate. In so finding it attributed significance to the fact that that the law focused on face-covering rather than the religious connotation of the veil (151) and imposed only a light penalty (a fine of up to 150 Euro). Most significantly it found that the law could be seen as “seeking to protect a principle of interaction between individuals which, in [the State’s] view is essential for the expression not only of pluralism but also of tolerance and broadmindedness without which there is no democratic society” (153) and that the Court “has a duty to exercise a degree of restraint” in assessing the balance struck by the democratic process of a signatory state.

Given the lack of European consensus on this matter and given that this was a matter on which “opinions in a democratic society may reasonably differ” a wide margin of appreciation was called for and no violation of the Convention had been shown. As the law in question represented a proportionate restriction of Convention rights the Court concluded that any indirect discrimination inherent in the ban was justified and that the discrimination (Article 14) claim therefore also failed.

Where does this judgment leave the relationship between the individual, religion, the state and the law in Europe? Given the highly-controversial nature of the law in question and the broad political support for the legislation in question in France, it is unsurprising that the European Court fled to the familiar tools of the margin of appreciation to avoid making a potentially politically-explosive decision. The political firestorm caused by the initial decision in Lautsi v Italy (which held the presence of a crucifix in the classroom of a state school to violate the Convention and which was over-turned on appeal) highlighted the danger for European institutions in seeking to impose Europe-wide solutions on sensitive matters such as religion in public life.

The argument over whether the protection of the principle of ‘living together’ could be a proper basis for the restriction of a fundamental right highlights an important issue for both EU and ECHR law. The framework of rights as a means to adjudicate on disputes can be very problematic. Rights cover only limited aspects of important issues. The Strasbourg Court sees freedom of religion and belief as largely an individual right of choice in one’s beliefs yet this only covers limited aspects of the religious experience of the believer. The secular state is based on a commitment to avoiding religious contestation for political power and a commitment to transcending our religious differences when we come together as citizens in a democracy to make laws that will bind a religiously-diverse population. This is something that cannot readily be translated into a rights claim.

EU Single Market law has struggled to give adequate weight to collective goals such as trade union rights, environmental or public health goals because of the transformation by the CJEU of economic freedoms into fundamental rights. Just as “mandatory requirements” had to be read into the Treaty by the Court of Justice to allow economic free movement rights to be curtailed so as to protect collective goals, the Strasbourg Court has had to adopt an expansive interpretation of “rights and freedoms of others” to ensure adequate protection of broader commitments to religious coexistence.

The dissenting judges are right that the majority’s reading of this term is strained. However, it is necessary to consider whether any other approach is possible. Whether the approach of the French authorities in this case was or was not proportionate, our life together is about more than the rights that we hold against each other and there are important principles that underpin liberal democratic life that are very imperfectly translated into rights terms.

Given that the Court of Justice in Luxembourg tends to defer to Strasbourg on matters of fundamental rights, the decision to uphold the French law will mean that future challenges under EU law are unlikely to succeed. Such challenges could have alleged disproportionate discrimination on grounds of religion or gender in the employment sphere in violation of Directive 2000/78 (the legislation which bans discrimination in employment on grounds of religion, age, sexual orientation or disability) or a disproportionate restriction of free movement rights of a veil-wearing EU national who wished to live in France. The conclusion that the ban is legitimate and proportionate undermines such potential challenges to a significant degree.

The overall impression left by the judgment is of a Court that was uneasy with elements of the French law but was unwilling to intervene in such a controversial area. Indeed, its reasoning contained a number of reaffirmations of its previous case-law upholding less wide-ranging restrictions of religious symbols in particular contexts such as schools, the civil service and identity checks.

The relationship between law and religion is in a state of flux in many EU states. The UK is currently engaged in intense debate on the role of religion in education and the limits of its multicultural model. Sustainable solutions will require trial and error and give and take from each side. Rights will be part of this discussion but so too will more abstract commitments to pluralism and coexistence and communication and compromise. It is therefore perhaps wise of the Strasbourg Court not to seek to impose a Europe-wide solution in such a complex and changing area at this stage.

Barnard & Peers: chapter 9, chapter 20

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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

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Should the EU ratify the Istanbul Convention on violence against women?

Steve Peers

For many years, discussion as regards the EU and human rights has focussed on the growing role of the EU Charter of Fundamental Rights and the EU’s planned accession to the European Convention on Human Rights. This is understandable, given the importance of these developments. However, the EU’s relationship with other international human rights instruments is also worthy of further examination.

The EU is not able to sign up to older UN human rights treaties – such as the two Covenants and the Conventions relating to sex discrimination, race discrimination and migrant workers – because ratification of these instruments is only open to States. Similarly, only States can ratify ILO Conventions, although the EU sometimes coordinates its Member States’ position as regards ILO measures (see the discussion of the proposal to coordinate positions regarding new ILO forced labour measures).

However, more recent international human rights treaties do provide for possible accession by the EU, and indeed the Union has signed up to the UN Convention on the Rights of Disabled Persons (see the recent Z judgment of the CJEU). With the imminent entry into force of the Council of Europe’s Istanbul Convention on violence against women (which will come into force on 1 August 2014, after the deposit of the tenth ratification on April 22nd), the question now arises whether the EU should sign up to another human rights treaty. This post sets out the reasons why the EU should ratify the Convention at the earliest opportunity.

EU competence to ratify the Istanbul Convention

The EU is certainty competent to ratify the Istanbul Convention, if it wishes to do so. First of all, the Convention expressly provides (in Article 75(1)) for ratification by the EU, without setting any special condition in this respect.

Secondly, as a matter of internal EU law, the EU can sign up to any treaties which are (inter alia) ‘likely to affect common rules or alter their scope’ (Article 216 TFEU). Although EU law has not regulated the key substantive criminal law issues dealt with in the Istanbul Convention, the Convention does not limit itself to establishing rules concerning criminal liability, but also addresses a number of other issues. In particular, there are EU law measures concerning the Convention’s rules on: crime victims’ rights, cross-border application of protection orders (both civil and criminal), other forms of cross-border cooperation, and immigration and asylum issues (see the detailed list in the Annex).

It must be pointed out that if the EU ratifies the Istanbul Convention, it would not be replacing its Member States, but ratifying the Convention alongside them. In other words, the Convention would be another ‘mixed agreement’ which both the EU and its Member States have ratified, like the UN Disabilities Convention, (in future) the ECHR and many other treaties. The EU would not be legally obliged to adopt any more legislation affecting the issue of violence against women than it already has done. While I have argued before that there are good reasons (and legal powers) for the EU to adopt legislation establishing substantive criminal law rules in this field, this is a separate question from whether the EU ought to ratify the Convention.

Reasons why the EU should ratify the Istanbul Convention

First of all, the EU’s ratification of the Convention would provide encouragement to its Member States, as well as non-Member States of the EU, to ratify the Convention. It would increase the prominence of the Convention worldwide, perhaps inspiring changes to national law and regional treaty-making outside Europe.

Secondly, ratification would, as regards this Convention at least, address the argument that the EU has ‘double standards’ as regards human rights, insisting that would-be EU Member States and associated countries should uphold human rights standards that the EU does not apply itself. While the double standards argument can be answered as regards human rights treaties which the EU cannot ratify, it cannot so easily be rebutted as regards treaties which it can. If the EU is perfectly able to ratify the Istanbul Convention, but chooses not to, what moral authority does it have to ask non-Member States to do so?

Ratification of the Convention would enhance its role in EU law, because it could more easily be used as a parameter for the interpretation and validity of EU legislation (such as the legislation listed in the Annex, plus any future relevant measures). It would also mean that the Convention would already bind those EU Member States which had not yet ratified it, as regards those provisions within EU competence.

Furthermore, since the CJEU would have jurisdiction to interpret those provisions of the Convention which fall within the scope of EU competence, this would promote a uniform interpretation of those provisions within the EU. 

Next, the relevant provisions of the Convention would be more enforceable if they were enshrined in to EU law. While the CJEU ruled in the Z case that the UN Disabilities Convention did not have direct effect, and might rule the same as regards the Istanbul Convention, at least that Convention would have ‘indirect effect’ (ie the obligation to interpret EU law consistently with it), and the Commission could bring infringement actions against Member States which had not applied the Convention correctly, as regards issues within the scope of EU competence. Ensuring the enforceability of the Convention is all the more important since it does not provide for an individual complaint system.

Finally, ratification would subject the EU to outside monitoring as regards this issue, and avoid the awkward scenario of its Member States being monitored as regards issues within EU competence – meaning that the Convention’s monitoring body would in effect to some extent be monitoring whether EU Member States were complying with EU law.

Annex

EU competence regarding the Istanbul Convention

Articles 18-22, 25-28, 30(1), 50(1), 56, 57: crime victims Directive

Article 47: Framework Decision on recognition of criminal sentences

Article 59(1): family reunion Directive, citizenship directive

Article 59(2): Returns Directive, citizenship Directive

Article 60(1) and (2): Qualification directive

Article 60(3): Reception conditions directive; asylum procedures directive

Article 61: Qualification directive, Returns Directive

Article 62(1)(b) and (3): Crime victims Directive

Article 62(1)(d): protection orders legislation 

Article 62(1)(a) and (c) and (2): legislation on mutual recognition, et al in criminal and civil matters

Article 65: Data protection Directive; Framework Decision on data protection


Barnard & Peers: chapter 20, chapter 24, chapter 25, chapter 26

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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

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