OPINION OF ADVOCATE GENERAL
BOBEK
delivered on 9 July 2020(1)
Case C‑463/19
Syndicat CFTC du personnel de la Caisse primaire d’assurance maladie de la Moselle
v
Caisse primaire d’assurance maladie de la Moselle,
joined parties:
Mission nationale de contrôle et d’audit des organismes de sécurité sociale
(Request for a preliminary ruling from the Conseil de prud’hommes de Metz (Labour Tribunal, Metz, France))
(Reference for a preliminary ruling — Social policy — Directive 2006/54/EC — Equal treatment for male and female workers — Additional leave accorded by collective agreement after the statutory period of maternity leave — No right to the additional leave for male workers — Provisions concerning the protection of women, particularly as regards pregnancy and maternity)
I.      Introduction
1.        Under the French collective agreement for the employees of social security bodies, the duration of statutory maternity leave may be extended for an additional period. This additional leave, exclusively reserved for women, can be for a period of one and a half months, with full pay; of three months, with half pay; or of one year without pay. There is also the possibility to renew the additional leave, under certain circumstances, for an additional year without pay.
2.        In the main proceedings, a trade union has introduced an action on behalf of one male employee of a social security body. That employee, who is the father of a little girl, applied for the additional leave. He was refused on the grounds that he is a man. The trade union is now claiming before the national court that such refusal is discriminatory.
3.        In 1984, the Court ruled in Hofmann that a Member State may, after the statutory period of maternity leave has expired, reserve an additional period of maternity leave for women. (2) However, in view of substantial social and legal changes over the past 40 years, including major developments in neighbouring areas of EU social law and policy, this Opinion suggests that there is a need to add limits to the initial opening made in Hofmann. It is time for an update.
II.    Legal framework
A.      EU law
4.        Recital 24 of Directive 2006/54/EC, (3) reads as follows: ‘The Court of Justice has consistently recognised the legitimacy, as regards the principle of equal treatment, of protecting a woman’s biological condition during pregnancy and maternity and of introducing maternity protection measures as a means to achieve substantive equality. This Directive should therefore be without prejudice to Council Directive 92/85/EEC of 19 October 1992 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. (4) This Directive should further be without prejudice to Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC (5).’
5.        According to Article 1 of Directive 2006/54:
‘The purpose of this Directive is to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.
To that end, it contains provisions to implement the principle of equal treatment in relation to:
…
(b)      working conditions, including pay;
…’
6.        Article 2(1)(a) of Directive 2006/54 defines direct discrimination, for the purposes of that directive, as the situation ‘where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation’.
7.        Pursuant to Article 14(1) of Directive 2006/54, ‘there shall be no direct discrimination on grounds of sex in the public or private sectors, including public bodies, in relation to:
…
(c)      employment and working conditions, including dismissals, as well as pay as provided for in Article 141 of the Treaty;
…’
8.        According to Article 28 of Directive 2006/54:
‘1.      This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.
2.      This Directive shall be without prejudice to the provisions of Directive 96/34/EC and Directive 92/85/EEC.’
B.      French law
1.      The Labour Code
9.        Article L 1225-17 of the Code du travail (Labour Code) lays down the statutory provisions applicable to maternity leave under ordinary circumstances:
‘A female employee shall be entitled to maternity leave for a period which shall begin 6 weeks before the expected date of confinement and end 10 weeks after that date.
On request by the female employee and subject to the favourable opinion of the healthcare professional monitoring the pregnancy, the period of suspension of the employment contract which shall begin before the expected date of confinement may be reduced by a maximum period of three weeks. The period subsequent to the expected date of confinement shall then be increased by the same amount of time.
Where the female employee has deferred part of the maternity leave until after the birth of the child, and is signed off work by a doctor during the period prior to the expected date of confinement, that deferral shall be cancelled and the period of suspension of the employment contract shall be reduced as from the first day on which the employee is signed off. The period initially deferred shall be reduced by the same amount of time.’
10.      Articles L 1225-18 to L 1225-23 of the Labour Code adapt the duration of the maternity leave to different specific circumstances.
2.      Collective national labour agreement for the staff of social security institutions
11.      Section L of the Convention collective nationale de travail du personnel des organismes de sécurité sociale of 8 February 1957 (National collective labour agreement for the staff of social security institutions, ‘the CCN’) is entitled ‘maternity leave’. Articles 45 and 46 are included in that section.
12.      According to Article 45 CCN ‘for the duration of the statutory maternity leave, salary shall be maintained for staff members who have at least six months’ seniority. This cannot be combined with daily allowances payable to staff members as insured persons.
Such leave shall not be taken into account for the right to sick leave and cannot give rise to any reduction in the duration of annual leave.’
13.      Article 46 CCN reads as follows:
‘On expiry of the leave provided for in the preceding article, a female staff member who is raising her child herself shall be entitled successively to:
–        three months’ leave on half pay, or one and a half month’s leave on full pay;
–        one year’s unpaid leave.
However, where the staff member is a single woman or where her spouse or partner is deprived of his or her usual resources (invalidity, long-term illness, military service), she shall be entitled to three months’ leave on full pay.
On expiry of the leave provided for above, the beneficiary shall be fully reinstated in her job.
Exceptionally, the management board may grant a further year’s unpaid leave. In the latter case, the staff member shall only be reinstated subject to available posts, in respect of which she shall have priority, either within her organisation or within a sister organisation, subject to the provisions of Article 16 above.
When the said leave is renewed, the management board may, in specific cases, give a formal undertaking as to immediate reinstatement.
Unpaid leave, covered by the present article, shall have the same effects as the leave provided for in Article 40 above with regard to the provisions of the present Agreement and the pension scheme.’
III. Facts, national proceedings and the question referred
14.      By application of 27 December 2017, the Confédération française des travailleurs chrétiens (French Confederation of Christian Workers, ‘the CFTC’) of the Caisse primaire d’assurance maladie de la Moselle (local sickness insurance fund, Moselle, ‘the CPAM’) brought legal proceedings before the Conseil de prud’hommes de Metz (Labour Tribunal, Metz, France, ‘the Labour Court’) against the CPAM.
15.      The CFTC is acting on behalf of one employee of the CPAM, a male worker who is the father of a little girl. He had applied for the additional leave (6) provided for by Article 46 CCN. That benefit was refused to him by the CPAM because such an entitlement is reserved for women only.
16.      The CFTC requested the CPAM to extend Article 46 CCN to include male employees. The CPAM replied that ‘the literal application of Article 46 implies that contractual maternity leave is granted only to the mother (the word “employee” is in the feminine form). The father is therefore not entitled to maternity leave. That article is not discriminatory, in so far as Article 46 is ancillary to Article 45 which is granted only to women. Since a man is not entitled to benefit from Article 45, he cannot benefit from Article 46.’
17.      Before the Labour Court, the CFTC requested that the refusal of the CPAM to grant its employee leave under Article 46 CCN be declared unenforceable because it is discriminatory; order the CPAM to pay compensation in the amount of EUR 4 661.83 to its employee; and to order the CPAM to provide for a salary catch-up in respect of the 2016 financial year in the same way as that applies to employees of the organisation benefiting from Article 46 CCN.
18.      The CPAM replied that the Labour Court should declare all the claims of the CFTC inadmissible and, in the alternative, declare that the refusal of the CPAM to grant its employee the leave provided for in Article 46 CCN is by no means discriminatory and reject the other claims formulated by the CFTC.
19.      In those circumstances, the Conseil de prud’hommes de Metz (Labour Tribunal, Metz) decided to stay proceedings and refer the following question to the Court for a preliminary ruling:
‘Should Directive 2006/54, read in conjunction with Articles 8 and 157 TFEU, the general EU law principles of equal treatment and of the prohibition of discrimination, and Articles 20, 21(1) and 23 of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that the provisions of Article 46 [CCN], which grant female employees of social security organisations raising children themselves three months leave with half pay, one and a half months leave with full pay or unpaid leave of up to a year after maternity leave, are excluded from the scope of application of that directive?’
20.      Written observations have been submitted by the CFTC, the CPAM, the French and Portuguese Governments, as well as the European Commission.
IV.    Analysis
21.      In this Opinion, I shall first address the objections to the jurisdiction of the Court and to the admissibility of the preliminary question raised by the interested parties (A). Second, I shall proceed to the interpretation of Articles 14(1) and 28(1) of Directive 2006/54, in order to enable the national court to assess the compatibility of Article 46 CCN with those provisions of EU law (B).
A.      Jurisdiction and admissibility
22.      The CPAM has pleaded that the Court lacks jurisdiction in the present case. It suggested that the referring court aims in fact to obtain a ‘supranational invalidation’ of the national provisions at issue and that the preliminary reference does not concern either the interpretation or the validity of EU law rules. It claims that the Court lacks jurisdiction to verify the compatibility of national provisions with EU law and to interpret national law.
23.      Certainly, the (potential) formal finding of incompatibility of national rules with EU law in the individual case before the referring court belongs to that court. However, this Court has and always has had jurisdiction to provide the national court with all the guidance as to the interpretation of EU law necessary to enable national courts to rule on the compatibility of national rules with EU law. (7)
24.      Regarding the admissibility of the preliminary question, the French Government has pointed out that the order for reference does not comply with some of the requirements of Article 94 of the Rules of Procedure. That is because the order for reference does not contain the reasons leading the referring court to pose the question, since that court limited itself to reproducing the observations of the parties in the main proceedings. Moreover, the referring court has cited a number of EU law provisions in the preliminary question without providing any explanation as to their connection with the case at hand. That is the case for Articles 8 and 157 TFEU, as well as for Articles 20, 21 and 23 of the Charter.
25.      I agree with the French Government that the order for reference is rather succinct. However, both the elements reproached by that Government clearly emerge from the order for reference itself. First, as the French Government admits, the reference to and the reproduction of the arguments of the CFTC regarding Article 46 CCN and its compatibility with Directive 2006/54 make the reasons why the referring court considered it necessary to refer a preliminary question quite clear. Furthermore, the main object of the preliminary question is the interpretation of the relevant provisions of Directive 2006/54. Articles 8 and 157 TFEU, as well as Articles 20, 21 and 23 of the Charter, are only cited as provisions in the light of which the national court invites the Court to potentially interpret that directive. That is, in a way, a common practice which hardly needs much of a separate argumentative elaboration.
26.      Thus, in my view, the Court is in possession, in the present case, of all the necessary elements in order to give a useful answer to the referring court. The objections raised regarding the jurisdiction of the Court and the admissibility of the preliminary question ought to be rejected.
B.      The merits
27.      The Labour Court asks whether Directive 2006/54 should be interpreted as meaning that the additional leave provided for by Article 46 CCN is excluded
from the scope of application of that directive.
28.      If that question were to be understood as asking whether or not the additional leave under Article 46 CCN falls within the (material) scope of application of the directive, then I agree with the Commission that that question can be answered in a rather straightforward manner. Article 46 CCN regulates additional leave to be taken after the period of statutory maternity leave. It is therefore apparent that the conditions for granting such leave fall within the employment and working conditions referred to in Articles 1(b) and 14(1)(c) of Directive 2006/54. (8)
29.      However, from the context of the order for reference, as also clearly understood by all the interested parties having presented observations before the Court, what the referring court wishes to know is whether Directive 2006/54 and, in particular, its Articles 14(1) and 28(1), are to be interpreted as precluding a national provision such as Article 46 CCN, which reserves for female employees, after the legal period of maternity leave, an additional leave period of one and a half months with full pay, of three months with half pay, or of a year with no pay. Thus, in agreement with the Commission, I also consider the reformulation of the preliminary question to be necessary in the present case.
30.      In answering the accordingly reformulated question, I will start with setting out the applicable EU legal framework (1). I will then examine the Hofmann judgment (2) and the social and legislative evolution after Hofmann (3). Taking those elements on board, I shall then propose some limiting criteria for determining whether a national measure is covered by the ‘pregnancy and maternity exception’ of Article 28(1) of Directive 2006/54 (4). Finally, I will offer some indications concerning the application of those criteria in the circumstances of the present case, which is indeed ultimately for the national court to adjudicate on (5).
1.      The EU legal framework
31.      Article 14(1)(c) of Directive 2006/54 prohibits direct discrimination on grounds of sex in the public or private sectors, including public bodies, in relation to employment and working conditions. Those working conditions include a period of leave granted on the occasion of the birth of a child.
32.      Article 2(1)(a) of Directive 2006/54 defines direct discrimination, for the purposes of that directive, as the situation ‘where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation’.
33.      It is not disputed that, in the present case, Article 46 CCN establishes a less favourable treatment for male workers. The additional leave granted by that provision is expressly and exclusively reserved to female employees.
34.      Since the present case concerns an instance of direct discrimination, no justification is permissible, as is the case with regard to indirect discrimination according to Article 2(1)(b) of Directive 2006/54. It remains, therefore, to be established whether male and female workers can be considered to be in a comparable situation for the purposes of the leave at issue.
35.      Pregnancy, birth and the period following birth have been recognised by the Court as situations in which men and women are not comparable. In particular, with regard to maternity leave, the Court has ruled that ‘pregnant workers and workers who have recently given birth or who are breastfeeding are in an especially vulnerable situation which makes it necessary for the right to maternity leave to be granted to them …’ and, as a consequence, it has concluded that women during that leave cannot be compared to men or women on sick leave, (9) or to men or women who actually work. (10)
36.      It is in that context that Article 28 of Directive 2006/54 states, in its first paragraph, that the directive is without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity. Furthermore, Article 28(2) also states that the directive is without prejudice to the provisions of Directive 96/34 (11) and Directive 92/85, which regulate, respectively, the right to parental leave, and the different measures for the protection of workers who are pregnant, who have recently given birth or who are breastfeeding. Moreover, the legitimacy of protecting a woman’s biological condition during pregnancy and maternity and of introducing maternity protection measures is singled out in recital 24 of Directive 2006/54 as a means to achieve substantive equality.
37.      Against that background, it seems to be undisputed that Member States are entitled to reserve the period of maternity leave of at least 14 weeks, as governed by Article 8 of Directive 92/85, to women.
2.      Hofmann
38.      The present case concerns a period of leave which supplements the statutory maternity leave established by national legislation. In the present case, that additional leave can range from one and a half months to a year. It is even extendable to a second year.
39.      The issue of additional periods of leave granted after the (statutory) maternity leave has lapsed has already come before this Court in 1983 in Hofmann. (12) Both the CPAM and the French Government have relied on that case. The centrality of Hofmann for the purposes of the present case is undisputed. A detailed analysis of that judgment is therefore warranted at this point.
40.      Mr Hofmann was a male employee who obtained unpaid leave from his employer in order to take care of his child. The legislation at the time in Germany accorded a statutory protective period of eight weeks to the mother, after which there was the possibility to opt for an additional maternity leave period until the child reached six months, covered by an allowance. Mr Hofmann took unpaid leave from his employer during a period equivalent to the one covered by that additional leave — starting after the end of the eight weeks of statutory maternity leave, and up to the day on which the child reached the age of six months — while the mother continued her employment. Mr Hofmann submitted a claim for payment of the allowances that were available to mothers during that period. That payment was refused on the ground that only mothers could claim that maternity leave.
41.      The Court’s decision was taken on the basis of Article 2(3) of Directive 76/207/EEC, (13) the precursor of the current Article 28(1) of Directive 2006/54, containing the ‘pregnancy and maternity exception’. After having set out the then applicable legislation, the Court started by noting that the directive ‘is not designed to settle questions concerned with the organisation of the family, or to alter the division of responsibility between the parents’. (14)
42.      The Court went on stating that ‘by reserving to Member States the right to retain, or introduce provisions which are intended to protect women in connection with pregnancy and maternity, the directive recognises the legitimacy, in terms of the principle of equal treatment, of protecting a woman’s needs in two respects. First, it is legitimate to ensure the protection of a woman’s biological condition during pregnancy and thereafter until such time as her physiological and mental functions have returned to normal after childbirth; secondly, it is legitimate to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment’. (15)
43.      In the light of that two-fold criterion (‘the Hofmann test’), the Court held that, in principle, ‘a measure such as maternity leave granted to a woman on expiry of the statutory protective period falls within the scope of Article 2(3) of Directive 76/207, inasmuch as it seeks to protect a woman in connection with the effects of pregnancy and motherhood. That being so, such leave may legitimately be reserved to the mother to the exclusion of any other person, in view of the fact that it is only the mother who may find herself subject to undesirable pressures to return to work prematurely’. (16) Furthermore, the Court stressed the discretion of the Member States, left by the directive, with regard to the nature and detailed arrangements of the protective measures to be adopted in connection with pregnancy and maternity. (17)
3.      Hofmann’s progeny
44.      Hofmann has been reflected in a number of the Court’s subsequent cases. Indeed, the Hofmann test, linking the ‘pregnancy and maternity exception’ to the biological condition of women and to the special relationship which exists between a woman and her child, continues to also feature in contemporary case-law. (18) For instance, the Hofmann criteria have played a crucial role in the case-law by helping to establish the difference between parental leave and maternity leave. (19)
45.      However, this does not mean, to my mind, that additional leave periods granted to women after the statutory period of maternity leave are to be considered as automatically covered by Article 28 of Directive 2006/54 without further ado.
46.      Hofmann is silent on any limiting criteria concerning the length of the justified additional leave. It just sets out the two reasons justifying such additional leave, apparently without any explicit limits. But, does that silence mean that any and every additional leave period, of whatever length and design, will be justified?
47.      The national provisions at issue in Hofmann established a statutory protective period of leave of only eight weeks. The additional maternity leave was limited to the period until the child reached six months. In the present case for instance, the established statutory period of maternity leave is 16 weeks. The additional leave may extend up to two years.
48.      Thus, on a certain level of analysis, those two different frameworks could be, perhaps somewhat mechanically, distinguished. 8 weeks plus 6 months (or in reality rather less) is different to 16 weeks plus up to, potentially, 2 years. Such an approach to the present case would, however, hardly do justice to the changed legal and social landscape in the Union today.
49.      First, the judgment in Hofmann was delivered at a time when there was no harmonisation at the EU level regarding maternity leave and parental leave whatsoever. The legal developments undergone by EU law in this field since then can hardly be overstated. The broad discretion enjoyed by the Member States regarding the protective measures to be adopted with regard to pregnancy and maternity, which certainly played a crucial role in the analysis of the Court in Hofmann, (20) has been considerably reduced since the adoption of Directive 92/85. That directive has established a right to maternity leave during a period of at least 14 weeks before and/or after confinement, with a compulsory period of 2 weeks; a prohibition of dismissal during maternity leave; and specific employment rights, including the maintenance of payment and/or entitlement to an adequate allowance. (21)
50.      Those rights have been enhanced further by Directive 2006/54, which provides in its Article 15 that a woman on maternity leave shall be entitled, after the end of that leave, ‘to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled during her absence’.
51.      Second, the EU legislation and the case-law of the Court have considerably evolved towards recognising the equality of men and women in their role as parents.
52.      Since the 1990s, the case-law of the Court has often repeated that the position of working mothers and fathers is comparable with regard to parenthood and childcare. (22) Those situations include, for example, the need of male and female workers to reduce their daily working time in order to look after their children, (23) or their need to use nursery facilities when they are in employment. (24)
53.      That development towards equality between male and female workers in their parental role has been progressively enhanced by the EU legislature through, in particular, the rules concerning the right to parental leave. That right, distinct from maternity leave, which may be enjoyed by both men and women without distinction, was introduced by Directive 96/34, with the aim, inter alia, to promote women’s participation in the labour force (25) and to encourage men to assume an equal share of family responsibilities. (26) Moreover, the right to parental leave has been progressively modified, in order to incentivise men to use that possibility, by Directive 2010/18 as well as by the recent Directive 2019/1158, with the EU legislature consistently and repeatedly stressing the need to enhance the role of men in taking parental responsibilities. (27) That last directive, emphasising the fact that the imbalance in the design of work-life balances between women and men reinforces gender stereotypes, (28) has also introduced a right to paternity leave of 10 working days. (29)
54.      Finally, the fundamental character of the protection of workers during periods of leave connected with the birth and care of their children has been ‘constitutionalised’, since Article 33(2) of the Charter states that ‘to reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child’.
55.      In the light of all those developments, I find it difficult to maintain that the bulk of EU social legislation and case-law outlined above, partially reflecting profound social changes in Europe and partially fuelling such social changes themselves, does not have the ambition of somewhat altering the (traditional) division of responsibility between the parents. (30) This is perhaps not by replacing one tradition with another, but rather by seeking to provide at least some degree of choice for parents in making such type of decisions, and removing, as far as possible, the economic incentives petrifying certain established social conventions into law.
56.      Viewed within such a changed context, the logic and spirit of Hofmann, certainly if taken verbatim without any further limits and clarification, reminds one somewhat of a grandfather invited to a social event with his progeny where all the participants, albeit liking each other in principle, feel oddly disconnected and without much to really talk about.
4.      Hofmann’s coming of age
57.      I therefore believe that a considerable update in the form of limiting the reach of Hofmann is called for. Without calling into question the core of the Hofmann test, if that core were to be defined as a narrowly construed maternity exception, it cannot be maintained that that test should be understood as meaning that any period of leave granted subsequently to the statutory period of maternity leave is to be automatically considered a period of maternity leave itself that will justify the complete exclusion of male workers.
58.      The Hofmann test ought to be clarified in two respects. First, the relationship between the two criteria of the test needs to be explained (a). Second, further guidance should be provided concerning the elements which ought to be taken into account by national courts in order to determine whether an additional period of leave constitutes a ‘protective measure’ in relation to maternity so as to fall within Article 28(1) of Directive 2006/54 (b).
(a)    Two criteria, or just one?
59.      The Hofmann test relies on the legitimacy of the protective aim of a given measure. That aim is said to be twofold: first, ‘it is legitimate to ensure the protection of a woman’s biological condition during pregnancy and thereafter until such time as her physiological and mental functions have returned to normal after childbirth’. Second, it is equally legitimate ‘to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment’. (31)
60.      When it comes to additional periods of maternity leave going beyond the statutory period of maternity leave, the protection of the biological condition of women seems to lose relative relevance, whereas the criterion of the ‘special relationship between a woman and her child’ comes to the fore as suitable to justify almost any supplementary period of leave that can be exclusively reserved for women.
61.      However, in my view, in particular that second element of the Hofmann test needs to be read with caution and applied restrictively so that it does not become a self-fulfilling prophecy. In particular, when applying the maternity and pregnancy exception of Article 28(1) of Directive 2006/54 to leave of absence, the longer children are allowed to remain exclusively with their mother, the stronger that ‘special’ relationship will grow, further justifying the legal exclusion of fathers from additional periods of leave. (32) Two further elements ought to be underlined in this regard.
62.      First, the ‘maternity exception’ of Article 28(1) of Directive 2006/54 is an exception. It must, therefore, be strictly construed. (33) As I have noted elsewhere, the concept of maternity relates to the specific biological reality which makes women and men non-comparable, and this circumscribes the object of that special protection not only ratione materiae: maternity must be understood in a narrow manner and cannot be equated with the more general concepts of motherhood or parenthood. (34)
63.      Second, recent case-law has made apparent that the two criteria of the Hofmann test cannot be considered separately as two different and disconnected instances justifying the application of Article 28(1) of Directive 2006/54. Rather, they go hand in hand. Moreover, that case-law seems to give a certain prevalence to the protective aim related to the biological condition of women.
64.      Roca Álvarez already indicated that the protection of the special relationship between the mother and her child is not to be taken for granted as a justification for the application of the ‘maternity exception’ when it comes to assessing measures concerning leave of absence shortly after the birth of a child. That case concerned leave that could be taken, in various ways, during the first nine months after the birth of a child, by employed mothers, or by employed fathers, but only if the mother was also an employed person herself.
65.      The Court found that last criterion discriminatory. It held that the fact that the evolution of the national legislation had detached that leave (popularly known in Spain as ‘breastfeeding leave’) from the biological fact of breastfeeding precluded a finding that the measure ensured the protection of a woman’s biological condition following pregnancy. It also held that the fact that the leave had been opened to fathers (even though under different conditions than for mothers) precluded the finding that the leave sought to ensure the protection of the special relationship between mother and child. (35)
66.      Another example which demonstrates that the criterion relating to the protection of the special connection between the mother and her child cannot be detached from the protection of the condition of the woman after birth is the judgment in D. In that judgment, the Court found that ‘a female worker who as a commissioning mother has had a baby through a surrogacy arrangement does not fall within the scope of Article 8 of Directive 92/85, even in circumstances where she may breastfeed the baby following the birth or where she does breastfeed the baby’. (36) Therefore, the right to maternity leave, under Directive 92/85, seems to be, most of all, attached to the objective of protecting ‘the health of the mother of the child in the especially vulnerable situation arising from her pregnancy’ and that even though the Court has held that maternity leave is also intended to ensure that the special relationship between a woman and her child is protected, ‘that objective … concerns only the period after “pregnancy and childbirth”’. (37)
67.      In sum, a twofold clarification of Hofmann is thus suggested. First, the two elements mentioned in Hofmann should not be read as two independent ‘criteria’, but rather as two sides of the same coin. The protection of the special relationship between mother and child cannot justify, in itself and independently from the objective needs attached to the biological condition of women, any extended period of leave supplementary to statutory maternity leave. Second, any additional leave granted beyond the statutory maternity leave should be, as any other invocation of the ‘maternity exception’, subject to strict interpretation.
68.      All that is said without casting doubt on the fact that small children need special care and protection, and that there generally exists a particular bond with their mother. However, the equal treatment principle requires that the law allows every family to choose how the responsibilities and care of raising a child are going to be shared beyond the period of maternity leave. In other words, ‘it is possible for the law to protect a mother and child while conceding that, after a certain period of time, maternal care in the post-birth period can and should evolve into a simple case of parenting by one or other parent’. (38)
(b)    The elements to consider
69.      The objective of protecting the biological condition of women and the special relationship between mother and child, as interpreted in the previous section of this Opinion, thus remains the starting point. What elements should then be taken into account when assessing whether a measure is indeed a protective measure genuinely connected with such an objective?
70.      When national courts examine whether periods of additional leave granted after the birth of a child can be reserved for women on the basis of Article 28(1) of Directive 2006/54, they ought to go beyond the mere denomination. Not just any additional period of leave nominally labelled ‘extended maternity leave’ can legitimately be reserved exclusively for women by invoking, in general, the special bond between mother and child. National courts must therefore consider all the objective elements of such additional leave, relating, in particular, to (i) the conditions for entitlement to the leave, (ii) its length and modalities of enjoyment, and (iii) the legal protection that attaches to that period of leave.
71.      First, regarding the conditions for entitlement, the elements which might be taken into account by national courts under this heading are, for example, whether the leave is granted without any previous requirements regarding periods of service; whether the leave is accorded by default to all women or whether it has to be asked for in advance through notification to the employer and is subject to approval; or whether there are further conditions related with obligations to return to work. Conditions of this kind introduce considerations which are unrelated to the protective purpose of the supplementary leave. They suggest that the additional period of leave is not linked per se to the aim of protecting the biological condition of women and the special relationship between mother and child, since the failure to meet such conditions may deprive women, whose biological condition and special relationship with their children is equally worthy of protection, of the enjoyment of the leave.
72.      Second, as far as the length and the modalities of enjoyment
of a period of leave are concerned, some criteria which could be taken into account include, for example, the flexibility in the way the leave can be taken (after a period of having been back to work, or on a part-time basis); or the possibility to opt for periods of leave of different duration. In particular, such possibilities for flexibility would indicate a lesser connection with the aim mentioned above, as would a relative duration of the leave that exceeds considerably the statutory period of maternity leave generally applicable.
73.      The key element under this heading is naturally the length itself. The EU legislature has acknowledged that the Member States enjoy a margin of appreciation in the determination of the length of maternity leave. According to Article 8 of Directive 92/85, the period of leave to be granted before and after confinement is of at least 14 weeks. As the French Government has rightly noted, the fact that legislation grants women maternity leave of more than 14 weeks does not preclude that leave from being considered to be maternity leave as referred to in Article 8 of Directive 92/85. (39) On that basis, the Court has found that periods which go beyond the compulsory 14 weeks, such as a period of 16 weeks in Spain, as was at issue in Betriu Montull, are also ‘intended to protect a woman’s biological condition during and after pregnancy’. (40)
74.      It is naturally not a task for this Court to establish a fixed number of weeks or months. After all, the issue of the length of maternity leave is indeed a complex policy issue where enormous national disparity reigns, (41) and where even EU institutions have considered that a period of 14 weeks is too short. (42) However, that should not mean that any period of leave can be reserved to mothers, to the exclusion of fathers, merely on the basis of the special relationship between mother and child when the objective need for biological protection of women has disappeared. As a rule of thumb therefore, the longer the period, the more difficult it will be to justify reserving the access to that additional leave only for women.
75.      Third, regarding the legal protection attached to the leave, the question is essentially whether that protection matches the minimum protection guaranteed by EU law during the statutory period of maternity leave.
76.      Indeed, measures covered by Article 28(1) of Directive 2006/54 must imperatively be ‘provisions concerning the protection of women’. In that regard, I note that the protection of women through maternity leave has been the object of harmonisation in Directives 92/85 and 2006/54. (43) Therefore, regardless of the margin of appreciation of the Member States to provide for longer periods of maternity leave, those longer periods can only be exclusively reserved to women, by virtue of Article 28(1) of Directive 2006/54, if, in addition to the consideration of the elements outlined above, the rights accorded to women during those periods comply with the minimum protection required by EU law in the field of maternity leave.
77.      Indeed, maternity leave, far from being acknowledged as a mere exception to the principle of equal treatment, is recognised as a right, and therefore, is said to constitute an element of substantive equality. For that purpose, Directive 92/85 (together with Article 15 of Directive 2006/54) establishes minimum requirements which a measure, such as a maternity leave period, must fulfil in order to be considered such a ‘protective measure’.
78.      Thus, additional periods of leave which go beyond the duration of the statutory maternity leave, but do not guarantee that minimum protection, can hardly be considered as ‘protective measures’ of maternity. Instead, extended periods of leave exclusively reserved for women that are not accompanied with the right to maintain pay or an adequate allowance, or which do not offer protection against dismissal or the guarantee of being reincorporated into a position similar to the one held before the leave, would place on women a double burden. First, since only mothers would be able to benefit from such leave, generally in more favorable conditions than the parental leave eventually at the disposal of fathers, they may feel constrained to further postpone their return to work. Second, extended leave, unaccompanied by the minimum guarantees mentioned above, not only leads to a deterioration of the financial position of female workers, but also endangers their rights and protection in their return to the labour market, thus undermining the principle of equal treatment.
79.      Finally, beyond the discussion on Article 28(1) of Directive 2006/54, Article 3 of that directive which, in line with Article 157(4) TFEU allows Member States to adopt positive action measures, cannot lead to a different conclusion. One may but recall the case-law of the Court in similar matters: reserving extended periods of leave for women with the purpose of allowing them to bring up their children (even without denying the special relationship between mother and child), 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 which keeps men in a role subsidiary to that of women in relation to the exercise of their parental duties. (44)
80.      In sum, in order to be covered by Article 28(1) of Directive 2006/54, an additional period of leave must be genuinely connected with the joint objective of establishing protective measures related to the biological condition of the woman after birth and her special relationship with the child, having due regard to, inter alia, (i) the conditions for the entitlement to the leave; (ii) the length and the modalities of enjoyment of such leave; and (iii) the legal protection attached to it.
5.      The present case
81.      The French Government and the CPAM have submitted, relying on the findings of the Court in its judgment in Hofmann, (45) that Article 46 CCN falls within the exception of Article 28(1) of Directive 2006/54. In particular, the French Government argues that the leave provided for in Article 46 CCN has been conceived by social partners as additional maternity leave and not as leave destined to ensure the education of children which could be taken by either parent.
82.      First, that results from the wording of Article 46 CCN, which is conceived as the extension of the maternity leave regulated in Article 45 CCN. The French Government argues that both Articles 45 and 46 CCN could be considered a sole period of leave, of a longer length, more favourable for female employees, and which is in line with the requirements of Directive 92/85. From the complementary nature of the two periods of leave it can be deduced that social partners have aimed at protecting the biological condition of women in the period following pregnancy for a duration longer than the legal period of leave, so as to allow them to come back to work once their situation of vulnerability has definitively ceased.
83.      Second, the French Government has submitted that the provisions of the CCN make a clear difference between the different types of leave (maternity, paternity, adoption) and that Article 46 is placed under a chapter entitled ‘maternity leave’. Finally, that government emphasises that this conclusion has been confirmed by a judgment of the Cour de cassation (Court of Cassation, France). (46) In that judgment, it is stated that the leave under Article CCN 46 aims to protect the particular relationship between the woman and her child during the period following pregnancy and birth.
84.      Third, the French Government also notes that, albeit in a different context, in Thibault, the Court has already considered this to be maternity leave. (47)
85.      Conversely, the CFTC, the Portuguese Government and the Commission have pleaded in essence that Directive 2006/54 is to be interpreted in the sense that a provision such as Article 46 CCN is discriminatory.
86.      In particular, the CFTC claims that Article 46 CCN is not linked to physiological considerations related to the mother, contrary to Article 45 CCN, which refers to the 16 weeks of statutory maternity leave. Rather, the CFTC claims that the leave under Article 46 CCN has as its objective to allow the mother to bring up the child. Furthermore, the CFCT emphasises that Article 46 CCN provides three months of full pay so long as the mother brings up the child by herself or so long as her partner is deprived of resources. These considerations are not linked with the physiological condition of women either. The CFCT therefore considers that the application of Article 46 of the CCN by the CPAM amounts to discrimination, since male and female employees, fathers or mothers, are equally responsible for educating their children. (48)
87.      The Commission has submitted that the leave governed by Article 46 CCN corresponds to parental leave. It has further pointed out that provisions reserving parental leave to women have a double perverse effect. On the one hand, they place the burden on women to interrupt their professional career for a long duration to take care of their children, with the well-known consequences (slower professional progress, lower salaries, and in turn, lower pension rights). On the other hand, they prevent fathers from taking a role in the upbringing of their children, thus perpetuating traditional roles.
88.      If the Court were to follow the approach suggested in this Opinion, it would be for the referring court to carry out the analysis with regard to the criteria outlined above in points 69 to 80 of this Opinion, in order to assess whether the additional leave at issue is genuinely connected with the objective of establishing protective measures related to the biological condition of the woman after birth and her special relationship with the child, so as to be (fully) covered by the exception of Article 28(1) of Directive 2006/54.
89.      With regard to the arguments presented to this Court in the course of the present proceedings, I would just observe the following.
90.      First, the textual and rather formal arguments on which the French Government and the CPAM rely, stressing that the name of the chapter of the collective agreement under which both Article 45 and Article 46 CCN are placed is entitled ‘maternity leave’, and the connection there is between those provisions, carry little weight under EU law. The entire examination is one of substance, not one of formal labels. If such an argument were to be of any relevance, it would suffice for any legal instrument or collective agreement to simply label any kind of leave as maternity leave for it to be covered by Article 28(1) of Directive 2006/54, rendering the social choices made in 1950s virtually untouchable.
91.      Second, the argument of the French Government invoking Thibault
as the confirmation that this Court has already qualified Article 46 CCN as maternity leave carries even less weight. The paragraph of the judgment cited by the French Government appertains to the facts described in the judgment, not to the legal reasoning and evaluation of the Court. (49) Moreover, bearing in mind that the issues of law with which the judgment of the Court was concerned were different, and the nature of Article 46 CCN was not discussed by the Court, such reference does not add anything for the purpose of the present case. (50)
92.      Third and final, regarding the criteria outlined in the previous section, from the limited information there is before this Court, it can be noted that Article 46 CCN, when considered as a whole, allows for additional leave of quite a variable duration. It can range from one and a half months to a year, with the possibility to be extended for another year. That provision therefore allows for leave that, in its more extended modality, considerable exceeds the period of statutory leave governed by Article L 1225-17 of the Labour Code, to which Article 45 CCN refers. Moreover, even though the right to be reinstated in her previous job is guaranteed during the first year of extended leave, full pay is only guaranteed during the first month and a half, with the possibility that full pay is retained for three months depending on the mother being single or on the resources of her partner.
93.      Those elements would suggest that Article 46 CCN, considered as a whole and in the light of, in particular, the modalities of enjoyment of the leave, the rather long period to which it may be extended, and the limited legal protection attached to it, might encounter some difficulties in fitting under the ‘maternity exception’ of Article 28(1) of Directive 2006/54. But that assessment is indeed ultimately for the national court to make.
V.      Conclusion
94.      I propose that the Court answer the question referred by the Conseil de prud’hommes de Metz (Labour Tribunal, Metz, France) as follows:
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, is to be interpreted in the sense that in order to be covered by Article 28(1) of Directive 2006/54, an additional period of leave after the statutory period of maternity leave, reserved under national law for female workers only, must be genuinely connected with the joint objective of establishing protective measures related to the biological condition of the woman after birth and her special relationship with the child, having due regard to, inter alia, the conditions for the entitlement to the leave; the length and the modalities of enjoyment of such leave; and the legal protection attached to it.
1      Original language: English.
2      Judgment of 12 July 1984, Hofmann (184/83, EU:C:1984:273).
3      Directive 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) (OJ 2006 L 204, p. 23).
4      OJ 1992 L 348, p. 1.
5      OJ 1996 L 145, p. 4. Directive as amended by Directive 97/75/EC (OJ 1998 L 10, p. 24).
6      A note on terminology: the French Government and the CPAM refer to the leave granted under Article 46 CCN as additional ‘maternity leave’. The CFCT refers to it as a ‘congé d’éducation’ (educational leave). Since such a terminological choice has implications for the merits of this case, I refer to the leave granted under Article 46 CCN in neutral terms, calling it ‘additional leave’ throughout this Opinion.
7      See, for example, judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria (C‑83/14, EU:C:2015:480, paragraph 62 and the case-law cited).
8      See, similarly, regarding the qualification of parental leave as a ‘working condition’ within the meaning of Article 14(1)(c) of Directive 2006/54, since its granting ‘which enables new parents to interrupt their professional activities to devote themselves to their family responsibilities, has consequences on the exercise of the professional activities of the civil servants concerned’, judgment of 16 July 2015, Maïstrellis (C‑222/14, EU:C:2015:473, paragraph 45).
9      Judgment of 27 October 1998, Boyle and Others (C‑411/96, EU:C:1998:506, paragraph 40).
10      Judgments of 13 February 1996, Gillespie and Others (C‑342/93, EU:C:1996:46, paragraph 17), and of 14 July 2016, Ornano (C‑335/15, EU:C:2016:564, paragraph 39).
11      That directive was repealed and replaced by Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34 (OJ 2010 L 68, p. 13). The latter directive was also repealed and replaced by Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Directive 2010/18 (OJ 2019 L 188, p. 79). The transposition period of the latter directive is still running and that directive is not applicable to the circumstances of the present case.
12      Judgment of 12 July 1984, Hofmann (184/83, EU:C:1984:273).
13      Council Directive 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 (OJ 1976 L 39, p. 40). Article 2(3) became Article 2(7) after being amended by Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 (OJ 2002 L 269, p. 15).
14      Judgment of 12 July 1984, Hofmann (184/83, EU:C:1984:273, paragraph 24).
15      Judgment of 12 July 1984, Hofmann (184/83, EU:C:1984:273, paragraph 25).
16      Judgment of 12 July 1984, Hofmann (184/83, EU:C:1984:273, paragraph 26).
17      Judgment of 12 July 1984, Hofmann (184/83, EU:C:1984:273, paragraph 27).
18      See, for example, judgments of 18 March 2014, D.
(C‑167/12, EU:C:2014:169, paragraph 34); of 19 October 2017, Otero Ramos (C‑531/15, EU:C:2017:789, paragraph 61); or of 12 December 2019, Instituto Nacional de la Seguridad Social (Pension supplement for mothers) (C‑450/18, EU:C:2019:1075, paragraph 56).
19      Judgment of 16 June 2016, Rodríguez Sánchez (C‑351/14, EU:C:2016:447, paragraph 44). See also judgments of 14 April 2005, Commission v Luxembourg (C‑519/03, EU:C:2005:234, paragraph 32), and of 4 October 2018, Dicu (C‑12/17, EU:C:2018:799, paragraph 34).
20      Judgment of 12 July 1984, Hofmann (184/83, EU:C:1984:273, paragraph 27).
21      Articles 8 to 11 of Directive 92/85. See also, with regard to the right to maternity benefits for female self-employed workers, Article 8 of Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC (OJ 2010 L 180, p. 1), which also contemplates a duration of at least 14 weeks.
22      As noted in my Opinion in Instituto Nacional de la Seguridad Social (Pension supplement for mothers) (C‑450/18, EU:C:2019:696, points 37 and 38), by reference, in particular, to judgments of 25 October 1988, Commission v France (312/86, EU:C:1988:485, paragraph 14); of 29 November 2001, Griesmar (C‑366/99, EU:C:2001:648, paragraph 56); of 26 March 2009, Commission v Greece (C‑559/07, not published, EU:C:2009:198, paragraph 69); and of 16 July 2015, Maïstrellis (C‑222/14, EU:C:2015:473, paragraph 47).
23      Judgment of 30 September 2010, Roca Álvarez (C‑104/09, EU:C:2010:561, paragraph 24).
24      Judgment of 19 March 2002, Lommers (C‑476/99, EU:C:2002:183, paragraph 30).
25      General consideration 7 to the Framework Agreement on Parental Leave, annexed to the Directive 96/34.
26      General consideration 8 to the Framework Agreement on Parental Leave, annexed to the Directive 96/34.
27      See recital 12 of Directive 2010/18 and recitals 6 and 12 of Directive 2019/1158.
28      Recital 11.
29      Recital 19 and Article 4.
30      Contrast above, point 41.
31      Judgment of 12 July 1984, Hofmann (184/83, EU:C:1984:273, paragraph 25).
32      See, for a critical view of the judgment in Hofmann, E. Ellis and P. Watson, EU Anti-Discrimination Law, 2nd Edition, Oxford University Press, Oxford, at p. 398. For an account of the scholarly criticism of the judgment in Hofmann in this regard, see also De la Corte-Rodríguez, M., EU Law on Maternity and Other Child Related Leaves: Impact on Gender Equality, Kluwer Law International, Alphen aan den Rijn, 2019, p. 236.
33      Judgment of 15 May 1986, Johnston (222/84, EU:C:1986:206, paragraph 44).
34      See my Opinion in Instituto Nacional de la Seguridad Social (Pension supplement for mothers) (C‑450/18, EU:C:2019:696, point 48).
35      It might be added that the argument of the Spanish Government advanced in that case, according to which the mother was the only holder of the right to the leave, and that the father could only ‘enjoy’ it (without being the holder of such right on his own), was also rejected by the Court. The Court stated that such an argument was liable to perpetuate the 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. Judgment of 30 September 2010, Roca Álvarez (C‑104/09, EU:C:2010:561, paragraphs 29 to 31 and 36).
36      Judgment of 18 March 2014, D. (C‑167/12, EU:C:2014:169, paragraph 40). The philosophy underlying that judgment seems to depart from older judgments, where the condition of being a woman was given a particular weight. See, in a different context, judgment of 26 October 1983, Commission v Italy (163/82, EU:C:1983:295, paragraph 16).
37      Judgment of 18 March 2014, D. (C‑167/12, EU:C:2014:169, paragraphs 35 and 36).
38      O’Leary, S., Employment Law at the European Court of Justice. Judicial Structures, Policies and Processes, Hart Publishing, Oxford — Portland Oregon, 2002, p. 219.
39      Judgment of 16 June 2016, Rodríguez Sánchez (C‑351/14, EU:C:2016:447, paragraph 46), referring to judgment of 19 September 2013 in Betriu Montull
(C‑5/12, EU:C:2013:571, paragraphs 45 and 46).
40      Judgment of 19 September 2013, Betriu Montull (C‑5/12, EU:C:2013:571, paragraphs 63 and 64). But see Opinion of Advocate General Wathelet in Betriu Montull (C‑5/12, EU:C:2013:230, points 71 and 72).
41      For an illustration, see for example Koslowski, A., Blum, S., Dobrotić, I., Macht, A., and Moss, P., (2019) International Review of Leave Policies and Related Research 2019. Available at: https://www.leavenetwork.org/annual-review-reports/
42      See, for example, the (abandoned) Proposal for a Directive of the European Parliament and of the Council amending Council Directive 92/85/EEC (COM(2008)600/4), where the Commission proposed to extend the minimum length of maternity leave from 14 to 18 weeks.
43      With the rights set out above in points 49 and 50 of this Opinion attached to that period.
44      See, to that effect, judgments of 19 March 2002, Lommers (C‑476/99, EU:C:2002:183, paragraph 41), and Roca Álvarez (C‑104/09, EU:C:2010:561, paragraph 36); and judgment of 16 July 2015, Maïstrellis (C‑222/14, EU:C:2015:473, paragraph 50).
45      Judgment of 12 July 1984, Hofmann (184/83, EU:C:1984:273).
46      Judgment of 21 September 2017 No 16-16246, FR:CCASS:2017:SO01962.
47      Judgment of 30 April 1998, Thibault (C‑136/95, EU:C:1998:178, paragraph 12).
48      For the sake of completeness, it might be noted that the CFTC has also argued that Article 46 CCN introduces discrimination on the basis of filiation, because Article 46a CCN, which grants similar leave to that of Article 46 to both fathers or mothers of adoptive children. Thus, the adoptive child may benefit from the presence of their father or mother, whereas the legitimate or natural child may not benefit from the presence of their father. However, I do not consider necessary, in view of the factual scope of this case and the analysis carried out above with regard to the Directive 2006/54, to discuss this particular point.
49      Judgment of 30 April 1998, Thibault (C‑136/95, EU:C:1998:178, paragraph 12). That paragraph reads: ‘Mrs Thibault … took maternity leave from 13 June to 1 October 1983, under Article 45 of the collective agreement, followed by maternity leave on half pay from 3 October to 16 November 1983 under Article 46 of the collective agreement.’ The case concerned the right of employees to have performance assessed each year in order to qualify for promotion provided under national law, which was refused to Mrs Thibault with regard to the period under which she was on maternity leave under Articles 45 and 46 CCN. Moreover, Article 46 CCN, as cited in paragraph 7 of that judgment, referred only to ‘leave of three months on half pay or leave of one and a half months on full pay’.
50      By contrast, the argument of the French Government would be better served by a reference to point 21 of the Opinion of Advocate General Ruiz-Jarabo Colomer in Thibault (C‑136/95, EU:C:1997:2), who, in passing and relying on Hofmann, noted that maternity leave under the French collective agreement was indeed split between both Article 45 and Article 46 CCN. However, the learned Advocate General also noted that that case indeed concerned a different matter, to which he then turned.