Although the equal treatment directive requires member states to ensure equality between the sexes, it also contains provisions to protect pregnant women. In Montull v Instituto Nacional de la Seguridad Social, the Court of Justice of the European Union (CJEU) held that a Spanish law which did not allow employed men the right to take maternity leave, independent of the mother, did not infringe the directive.
Under section 48(4) of the Spanish Workers’ Statute, pregnant women with a contract of employment are entitled to 16 weeks’ maternity leave. They must take six weeks immediately following the birth but if both parents work, the mother can “hand over” the remaining ten weeks to the father, unless it would endanger her health to return to work.
Following the birth of his son on 20 April 2004, Mr Montull applied for maternity benefit for the full 10 weeks. However, his application was refused on the basis that his partner was self-employed and so did not have a primary right to the leave and was not covered by any state social security scheme. As he did not have a separate right independent of the mother, he could not claim either the leave or the benefit.
He appealed, arguing among other things, that his right to equal treatment had been infringed because under Spanish adoption and fostering law, each parent of children under six has a primary right to maternity leave.
Decision of lower courts
The Spanish court hearing the case asked the CJEU to decide whether section 48(4) contravened European law; and whether giving only women the primary right to maternity leave contravened the principle of equal treatment, given that men who adopted had their own autonomous right to leave and benefit under Spanish law.
Decision of CJEU
Under the pregnant workers’ directive, women have the right to at least 14 weeks’ maternity leave (two of which are compulsory) in order to protect their health and to promote the special relationship between them and their newborn child.
As these rights cannot be challenged in any way by public authorities or employers, the maternity leave provided for under the pregnant workers’ directive cannot be withdrawn from the mother against her will and handed over to the child’s father.
However, as pregnant workers may waive their right to the leave (except for the two weeks straight after the birth), European law does not preclude employed mothers from handing over all or part of their leave to the child’s father, as long as he is also employed. Conversely, it does not preclude fathers from being denied the leave if the child’s mother is self-employed and has chosen not to be covered by a State social security scheme which would guarantee her the right to maternity leave.
With regard to the equal treatment directive, the Court acknowledged that the provisions in the Workers’ Statute resulted in a difference on the ground of sex, but also noted that the directive allows for provisions which protect women, particularly in relation to pregnancy and maternity. As the Court has repeatedly held that member states have the right to retain or introduce provisions which are intended to protect women in connection with pregnancy and maternity, it followed that the directive did not preclude the measures set out under Spanish law.
As for the last question in relation to the rights of fathers who adopt, the Court said it did not have jurisdiction to answer the question, as EU law did not prohibit discrimination between adoptive fathers and biological fathers in relation to maternity leave.