Beskæftigelsesudvalget 2020-21
BEU Alm.del Bilag 384
Offentligt
1. According to Article 8 of Council Directive 92/85 /EEC of 19 October 1992 on the introduction of
measures to encourage improvements in the safety and health at work of pregnant workers and
workers who have recently given birth or are breastfeeding the Member States shall take the
necessary measures to ensure that workers within the meaning of Article 2 are entitled to a
continuous period of maternity leave of a least 14 weeks allocated before and / or after
confinement in accordance with national legislation and / or practice. At least two of those weeks
are compulsory maternity leave allocated before and / or after confinement in accordance with
national legislation and/or practice.
QA: Is it possible within Article 8 on a national level to give the opportunity to postpone part of
the maternity leave to a later time, so that as an example, the two compulsory weeks are held just
after the birth of the child and then the last 12 weeks is to be used at a later time?
Maternity leave under
Article 8 of
Council Directive 92/85 /EEC
p o ides fo a o ti uous pe iod
of a
least 14 weeks allocated before and / or after confinement in accordance with national legislation and /
o p a ti e. Si ila ly, e ital
states that Whe eas the ul e a ility of p eg a
t workers, workers
who have recently given birth or who are breastfeeding makes it necessary for them to be granted the
right to maternity leave of at least 14
continuous
eeks, allo ated efo e a d/o afte o fi e e t… .
The terminology suggests that the weeks cannot be separated and part of the leave postponed to a later
ti e. Fu the o e, a o di g to the ECJ’s judg e t i ase
C‑5/12,
Mo tull . INSS, pa a. , the
o a ’s ight to suspe d he e ploy e t du i g that li ited pe iod of at least
eeks … ay ot
e alled i to uestio , i hate e ay, y the pu li autho ities o y the e ploye .
QB: If so, is it possible for the mother to transfer those postponed weeks of non-mandatory
maternity leave to the father?
According to the ECJ judgment in case C-5/12, Montull v. INSS, it is possible for the (working) mother to
consent to a transfer of her maternity leave rights falling outside of the compulsory maternity leave of
two weeks to the (working) father as long as her health is not at risk. However, as also clarified in this
ase, the ate ity lea e p o ided fo u de Di e ti e /
ay ot e ithd a
f o the othe
agai st he ill so as to e assig ed, i hole o i pa t, to the hild’s fathe pa a.
. Thus,
Member
States can allow mothers to transfer the 12 weeks falling outside of the scope of the compulsory
ate ity lea e of t o eeks u de a t.
, as lo g as this is i li e ith the Cou t’s uli g.
2. According to Article 5 of Directive (EU) 2019/1158 of the European Parliament and of the Council
of 20 June 2019 on work-life balance for parents and carers Member States shall take the
necessary measures to ensure that each worker has an individual right to parental leave of four
months that is to be taken before the child reaches a specified age, up to the age of eight. Further
Member States shall ensure that two months of parental leave cannot be transferred.
QA: Is it possible within Article 5 to decide on a national level that more than two months should
not be transferrable, so that as an example 3 months for both parents cannot be transferred?
QB: Is it possible within the directive and other relevant instruments of EU law to decide on a
national level that the father
–
in light of the leave granted to the mother under directive
 BEU, Alm.del - 2020-21 - Bilag 384: EU-kommissionens svar på Beskæftigelsesministeriets spørgsmål vedr. implementeringen af EU-orlovsdirektivet,
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92/85/EEC
–
is allocated more parental leave that cannot be transferred than the mother, so that
as an example the father is granted 3 months that cannot be transferred whereas the mother is
granted 2 months that cannot be transferred?
The Work-Life Balance Directive only sets minimum requirements and obliges Member States to provide
at least
two months of non-transferable and paid leave for each parent. The Directive does not prohibit
Member States from making more than two months of paid parental leave non-transferable.
The Directive is compatible with a general system that gives each parent the same total period of leave
rights because of the birth of a child
–
even if, within that general system, fathers have more parental
leave rights than mothers. In any event, national law must ensure that directives 92/85 and 2019/1158
are respected, by granting mothers and fathers the period of leave and pay provided by these directives.
3.
It follows from Article 20 (6) of Directive (EU) 2019/1158 of the European Parliament and of the
Council of 20 June 2019 on work-life balance for parents and carers that for the purposes of
complying with Articles 4, 5, 6 and 8 of this Directive and with Directive 92/85/EEC, Member
States may take into account any period of, and payment or allowance with respect to, family-
related time off work, in particular maternity leave, paternity leave, parental leave and carers'
leave, available at national level which is above the minimum standards provided for in this
Directive or in Directive 92/85/EEC, provided that the minimum requirements for such leave are
met and that the general level of protection provided to workers in the areas covered by those
Directives is not reduced.
Furthermore, Recital 46 stipulates that rights that are already acquired on the date of entry into
force of this Directive should continue to apply unless this Directive provides for more favourable
provisions. The implementation of this Directive should neither be used to reduce existing Union
law rights, nor constitute valid grounds for reducing the general level of protection provided to
workers, in the areas covered by this Directive.
QA: Given that the existing Danish framework gives each parent 32 weeks non-transferable
parental leave but a shared right to 32 weeks benefits during parental leave (of which a total of 18
weeks (9 to each parents) will be granted non-transferrable pursuant to directive 2019/1158/EU),
would the non-regression approach in article 16 and 20 (6) and Recital 46 prevent an amendment
of the Danish framework to convert 12 of those shared weeks of benefits to paternity leave or
parental leave for the father with a possibility of transferring those weeks (should both parents
want to) to the mother?
QB: Given that the existing Danish framework gives the parents a shared right to 32 weeks
benefits during parental leave, are the approaches in 2. QA and QB and 3. QA in accordance with
the principle of non-regression as they replace the shared rights to be
efits a d thus the other’s
existing rights under national law?
The
passerelle clause
in Art. 20(6) of the Directive allows Member States to take into account more
generous leave rights, i.e. any period of family-related time off work, in particular maternity leave,
paternity leave and parental leave that exceeds the minimum requirements under the two Directives.
 BEU, Alm.del - 2020-21 - Bilag 384: EU-kommissionens svar på Beskæftigelsesministeriets spørgsmål vedr. implementeringen af EU-orlovsdirektivet,
The non-regression clause in article 16(2) provides that the implementation of the Directive shall not
constitute grounds for lowering the
general level of protection of workers
in the areas covered by it. The
prohibition of such a reduction in the level of protection is without prejudice to the right of Member
States and the social partners to lay down new rules, in light of changing circumstances.
These provisions do not prevent Member States which have been granting mothers more generous
leave rights (such as Denmark), to reallocate (part of) these rights under the Work Life Balance Directive
to fathers, as long as the minimum requirements of both, the Work-Life Balance and the Maternity
Leave Directive are met.
They also do not prevent Member States that provide for leave rights and benefits that are shared
between both parents, from earmarking individual leave rights/benefits for fathers and mothers, as
required by the Directive, while at the same time ensuring that the total amount of leave rights provided
for both parents, considered together, are maintained.
4. The purpose of Directive 92/85 /EEC of 19 October 1992 is to encourage improvements in the
safety and health at work of pregnant workers and workers who have recently given birth or are
breastfeeding whereas the purpose of Dirctive (EU) 2019/1158 s is to promote equality between
men and women with regard to labour market opportunities and treatment at work.
QA: Is it possible to view and interpret the purposes of the two Directives in combination and
make a joint evaluation of the minimum requirements under the two Directives?
The two directives have distinct purposes and the evaluation of their minimum requirements should be
distinct as well. Therefore, it is not possible to make a joint evaluation.
5. According to Article 4 (1) Member States shall take the necessary measures to ensure that fathers
or, where and insofar as recognised by national law, equivalent second parents, have the right to
paternity leave of 10 working days that is to be taken on the occasion of the birth of the worker's
child. Member States may determine whether to allow paternity leave to be taken partly before
or only after the birth of the child and whether to allow such leave to be taken in flexible ways.
QA: Must the paternity leave necessarily be taken in connection with the birth of the child or is it
possible on a national level to decide a longer period of time in which the paternity leave can be
held?
Recital 19 clarifies that it is up to the Member States to determine the timeframe within which paternity
leave is to be taken. However, in doing so, Member States have to bear in mind that the directive
differentiates between two types of leave
–
paternity and parental, so paternity leave must be
distinguishable from parental leave in the national transposition laws.
The timeframe for paternity leave is more restrictive: Paternity leave has to be granted on the occasion
of the birth of the child in order to allow to create an early bond between father and child. Member
States, according to Article 4(1), can even allow an uptake partly before the birth. Therefore, we suggest
that the time period to be close to the birth of the child. A one year period, for example, would seem
reasonable.