Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The Court ruled on the meaning of Article 23 of the Charter (Equality between women and men).
Mr Dalares, a greek judge, submitted an application seeking paid parental leave of nine months for the purpose of bringing up his child. In his capacity as a judge, Mr. Dalares is subject to the specific provisions concerning that occupation, namely the Code on the Status of Judges.
The competent authority rejected Mr. Dalares’ application on the ground that, in accordance with Article 44(21) of that code, the leave applied for is granted to a mother exercising the profession of judge only.
The Court was asked, whether the provisions of Directives 96/34 implementing the Framework Agreement on parental leave and 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) must be interpreted as precluding national provisions under which a male spouse, who is civil servant, is not entitled to parental leave, if his wife does not work or exercise any profession unless it is considered that due to a serious illness or injury the wife is unable to meet the needs related to the upbringing of the child?’
As regards the wording of the Framework Agreement, under clause 2.1 thereof, an ‘individual right’ to parental leave is granted to men and women workers on the grounds of the birth or adoption of a child, to enable them to take care of that child, for at least three months.
Moreover, under clause 2.2 of the Framework Agreement, in order to promote equal opportunities and equal treatment between men and women, that right to parental leave ‘should, in principle, be granted on a non-transferable basis’. It follows from those provisions that each of the child’s parents is entitled, individually, to parental leave for at least three months.
It follows from the wording of the Framework Agreement and from its objectives and context that each parent is entitled to parental leave, which means that Member States cannot adopt provisions under which a father exercising the profession of civil servant is not entitled to parental leave in a situation where his wife does not work or exercise any profession.
According to recital 11 to Directive 2006/54, to enable both men and women to combine family and work commitments more successfully, Member States should adopt ‘appropriate parental leave arrangements which could be taken up by either parent’.
Under national law, mothers who are civil servants are always entitled to parental leave, whereas fathers who are civil servant are entitled to it only if the mother of their child works or exercises a profession.
Thus, the mere fact of being a parent is not sufficient for male civil servants to gain entitlement to that leave, whereas it is for women with an identical status.
Furthermore, having regard to Article 3 of Directive 2006/54, a provision such as the one at issue in the main proceedings, far from ensuring full equality in practice between men and women in working life, 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.
The provision at issue in the main proceedings constitutes direct discrimination on grounds of sex as regards the granting of parental leave.
The answer to the question referred is that the provisions of Directives 96/34 and 2006/54 must be interpreted as precluding directly discriminating national provisions as in the present case.
Case Study - Paid parental leave for a judge with unemployed wife?
Article 23 - Equality between women and men
Article 20 Equality before the law
Article 15 Freedom to chose an occupation and right to engage in work