Brussels, 30/09/2010 (Agence Europe) - In its ruling on Case C-104/9 delivered on Thursday 30 September, the Court judged that the Spanish legislation whereby only working mothers can benefit from “breastfeeding leave” is unjustified gender discrimination towards working fathers. According to the Court, employed fathers are also entitled to the so-called “breastfeeding” leave quite independently of the professional status of the mother of the child.
The Court's judgement comes in response to a preliminary ruling by the Tribunal Superior de Justicia de Galicia (Spain) regarding the conformity of the Spanish breastfeeding leave with Directive 76/207/EC (equal treatment between men and women). This leave is granted to employed mothers, with various conditions, during the first nine months following the birth of the child, while fathers with the same employed status can only benefit from such leave if the mother also has employed status. The complainant challenged the fact that he could not benefit from this leave because of the professional status of the child's mother, who was self-employed.
The Court first of all notes that this leave, which modifies working hours, affects the conditions of work governed by directives that ban all discrimination on grounds of gender. Secondly, the Spanish legislation establishes a difference in the way mothers and fathers are treated, although they may have the same status as employee as, under the Spanish workers' regime, it is not enough to be a parent to allow men who are employed to be entitled to such leave, while women with the same status are entitled to it. Finally, the Court states, this discrimination is not justified by the objective to protect women (during pregnancy and in the post-natal period, privileged bonding with the child) nor by the promotion of equal opportunities for men and women. The fact that only the employed mother is the holder of the right to qualify for the leave, whereas a father with the same status is not directly entitled to it, is liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties. Furthermore, this could also have the effect that a self-employed woman - the father not being entitled to the leave - would have to limit her self-employed activity and bear the burden resulting from the birth of her child alone, without the child's father being able to ease that burden. The Court therefore concludes that the Spanish legislation is not in line with the directive on equal treatment on access to employment. (F.G./transl.jl)