LIU, Alm.del - 2020-21 - Bilag 102: Svar på Beskæftigelsesministeriets spørgsmål til EU-Kommissionen om fortolkningen af orlovsdirektivet, fra beskæftigelsesministeren og ministeren for ligestilling

Ligestillingsudvalget 2020-21
LIU Alm.del Bilag 102
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

LIU, Alm.del - 2020-21 - Bilag 102: Svar på Beskæftigelsesministeriets spørgsmål til EU-Kommissionen om fortolkningen af orlovsdirektivet, fra beskæftigelsesministeren og ministeren for ligestilling

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.

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.

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.