A Member State may not require a parent to have been in employment at the time of the birth or adoption of their child in order to be entitled to parental leave, but it may require that the person concerned has been in employment for at least 12 months, without interruption, immediately before the start of that leave, ruled the Court of Justice of the European Union in a judgment delivered on Thursday 25 February (Case C-129/20).
The Court was responding to a request from the Luxembourg Court of Cassation, which was referred the refusal by the Caisse nationale pour l’avenir des enfants to grant parental leave to a post-primary education officer three years after the birth of twin children, on the grounds that at that time the person concerned was not in paid employment.
The Luxembourg court therefore questioned the European judges on the conformity with the Directive (2010/18/EU) implementing the revised framework agreement on parental leave of a Luxembourg law which makes the right of the parent to parental leave subject to the double condition that the worker is legally employed in a workplace and affiliated to social security for at least 12 continuous months immediately preceding the start of the parental leave and at the time of the birth or placement of the child or children to be adopted.
This last requirement applies even if the birth or placement took place more than 12 months before the start of parental leave.
On the first condition, the European judges conclude that Member States may make the granting of parental leave subject to a period of continuous employment not exceeding one year, immediately before the start of the parental leave, where the parental leave is intended to obtain the suspension of the employment relationship.
On the other hand, according to the judges, Member States cannot require that, in order to benefit from parental leave, the parent must be employed at the time of birth or adoption. According to the Court, although the birth or adoption of a child and the working status of the parents are conditions constituting a right to parental leave, it cannot be inferred from this that the parents must be workers at the time of the birth or adoption of the child.
Secondly, while the right to parental leave is an individual right granted to all workers, male or female, until the child is eight years old, the requirement cited would amount to limiting the possibility for parents not working at the time of birth or adoption to take parental leave at a later stage in their lives when they are employed and would need parental leave to reconcile their parental and professional responsibilities.
Thirdly, the double condition imposed by Luxembourg legislation leads, in fact, when the birth or placement took place more than 12 months before the start of parental leave, to an extension of the condition relating to the period of work and/or seniority, which may not exceed one year.
See the judgment: http://bit.ly/2MoOT5Y (Original version in French by Francesco Gariazzo)