Dr Kate Shaw

An exception is made in European Union sex equality law in Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions for national legislation which permits the giving of maternity leave to mothers only (hereinafter referred to as the Equal Treatment Directive). This Directive has been recast as Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L 204/2. The refusal by the Court of Justice of the European Union (CJEU) in Case 184/83 Hofmann v Barmer Ersatzkasse [1988] ECR 3047and Case C-218/98 Abdoulaye and Others v Renault [1999] IRLR 811 to accept that fathers are able to apply for maternity leave specifically given to women under national legislation on the grounds that it falls within the EU law maternity exemption, has been the subject of some considerable academic debate for some time (McGlynn 2000: 654-662) The recent CJEU decision in Case C-104/09 Roca Alvarez ECR [2010] 1-08661 is important in that it concerns another application by a father challenging a national law which gives maternity leave specifically to mothers as being contrary to Council Directive 76/207/. However, unlike the cases of Case 184/83 Hofmann v Barmer Ersatzkasse [1988] ECR 3047 and Case C-218/98 Abdoulaye and Others v Renault [1999] IRLR 811, in this case the CJEU pointed out how such leave had been detached from the question of breastfeeding. Thus, in Case C-104/09 Roca Alvarez [2010] ECR 1-0108661 the CJEU adopted a formalistic approach to the interpretation of the EU law maternity exemption and concluded that such national law fell outside of the scope of the exemption for maternity in the Equal Treatment Directive. The more recent recast of the Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L 204/23 was not considered by the CJEU as it was not in force at the time the claim was brought. This case note explains the CJEU’s ruling at a supranational level and discusses the impact of the CJEU’s findings in relation to its interpretation of the Equal Treatment Directive and what has been termed the boomerang effect of maternity protection at national level, namely the risks to young women of childbearing age when seeking employment in Member States that have legislation which permits maternity leave provisions only for women.

In the Court of Justice of the European Union, Subsidiarity and Proportionality Kate Shaw sets out how a subsidiarity and proportionality review applied to competences could be anchored by the Court of Justice in areas of shared competence.