Opinion of the Advocate General — ECLI:EU:C:2013:230
Date: 2013-04-11
Language of the case: Spanish
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (Fourth Chamber), 19 September 2013 1. Social policy — Protection of the safety and health of workers — Pregnant workers and workers who have recently given birth or are breastfeeding — Directive 92/85 — Self-employed worker not affiliated to a State social security scheme — Right to maternity leave — None — Worker not falling within Directive 92/85 (Council Directive 92/85, Art. 8) 2. Social policy — Male and female workers — Access to employment and working conditions — Equal treatment — Directive 76/207 — Protection of the safety and health of workers — Pregnant workers and workers who have recently given birth or are breastfeeding — Directive 92/85 — Maternity leave — National measure allowing a female or male employee to enjoy maternity leave for the period after the mother’s mandatory period of leave — Condition, for granting that leave to a male worker, that the mother of the child have the status of an employee — Lawfulness — Difference of treatment based on sex — Justification (Council Directives 76/207, Art. 2(1) and (3), and 92/85, Art. 8) 1. The mother of a child who is a self-employed person not covered by a State social security scheme does not enjoy the right to maternity leave under Directive 92/85 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 situation of such a self-employed worker does not fall under that directive, which applies only to pregnant workers and workers who have recently given birth or are breastfeeding and who work under the direction of an employer. (see paras 59, 64) 2. Directive 92/85 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 and Directive 76/207 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 must be interpreted as not precluding a national measure which provides that the father of a child, who is an employed person, is entitled, with the consent of the mother, who is also an employed person, to take maternity leave for the period following the compulsory leave of six weeks which the mother must take after childbirth except where the mother’s health would be at risk, whereas a father of a child who is an employed person is not entitled to take such leave where the mother of his child is not an employed person and is not covered by a State social security scheme. With regard to Directive 76/207 in particular, while such a national measure establishes a difference on grounds of sex, within the meaning of Article 2(1) of that directive, it is a measure intended to protect a woman’s biological condition during and after pregnancy and is therefore justified under Article 2(3) of that directive. (see paras 60, 61, 63, 66, operative part)