EN    EN EN 
 
EN    EN  COMMISSION OF THE E UROPEAN COMMUNITIES 
Brussels, 3.10.2008 
SEC(2008) 2595  
  
COMMISSION STAFF WORKING DOCUMENT 
accompanying the 
Proposal for a 
 
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 
 
amending Council Directive 92/85/EEC 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 
  
Summary of the Impac t Assessment Report  
{COM(2008) 637} 
{SEC(2008) 2596} 
 
EN 2   EN  
1. INTRODUCTION 
Gender equality is one of the main objectives of the European Union, to be achieved via all 
the Union’s policies1, and the Commission's Roadmap for equality between women and men 
(2006-2010)2 highlights the need for women and men to participate to an equal extent in the 
labour market. Gender equality has also been an objective of the European Employment 
Strategy (EES)  since its inception in November 1997. Po licies to support th e reconciliation 
of professional, private and fa mily life, whose importance is  now widely recognised, have 
become an economic imperative as demographic and competitive pressures increasingly emphasise the need to optimise labour market pa rticipation. Furthermore, there is a positive 
correlation between fertility rates and labour mark et participation: Member States where the 
fertility rates are higher are also t hose with more women in employment. 
The Roadmap for equality between women and men (2006-2010) sets six priorities for 
action, the first of which is achieving e qual economic independence for women and men. 
Another priority — reconciling work, private and family life — contributes directly to the 
latter.  
The European Parliament  has consistently called for improvements to the existing 
Community legislation on ma ternity and parental leave
3: in its May 2008 proposals to amend 
the Employment Guidelines, it called for the pr ovision of parental and other leave schemes4.  
The European social partners  also play an important role in  the area of reconciliation. In 
March 2005 they adopted a Fram ework of Actions on gender e quality, one of the priorities 
being action to support the work-life balance.  
The Commission has prepared this Impact Assess ment on the basis of the legislative options 
to improve reconciliation outli ned in the 2007 second-stage c onsultation of the European 
social partners5. In July 2008 the social partners conf irmed their intention of initiating the 
negotiation procedure provided fo r in Article 139 EC on a revi sion of the parental leave 
directive. The Commission has thus restricted the scope of this propos al to maternity leave 
since the social partners confirmed that they do not intend to cover this in their negotiations. 
However, the Impact Assessment covers all options not just that covering the amending of 
conditions for maternity leave. 
2. E VIDENCE AND CONSULTATION  
The European social partners were consulted by the Commi ssion in two stages in 2006 and 
2007. In response to the second-stage consultation, four social partners6 decided to set up a 
joint working group within the context of the Eu ropean social dialogue to carry out a review 
                                                 
1 Article 2 and Article 3(2) of the EC Treaty. 
2 COM(2006) 92. 
3 For example, Resolution 2003/2129(INI), P5_TA(2004)0152), point 26. 
4 http://www.europarl.europa.eu/sides/getD oc.do?pubRef=-//EP// TEXT+TA+P6-TA-2008-
0207+0+DOC+XML+V0 //EN&language=EN. 
5 http://ec.europa.eu/employment_social/social_dialogue/docs/reconciliation2_en.pdf. 
6 ETUC, BUSINESSEUROPE, CEEP and UEAPME. 
 
EN 3   EN of the framework agreement on parental leave annexed to Directive 96/34/EC. In July 2008 
they decided to start formal negotiations on pa rental leave in accordan ce with Article 138 EC. 
In December 2007 the Commission consulted the Member States to gather information on 
legislation on all forms of family-related leav e arrangements and to ascertain their views on 
options for amending it. 
The Advisory Committee on Equal Opportunities for Women and Men7 adopted an opinion 
on the introduction of new forms of leave (paternity leave, adoption leave and 'filial' leave) by written procedure on 3 July 2008
8. The Commission also consu lted several European NGOs 
by questionnaire on their views on options for amending and supplementing the existing legislation on leave arrangements in connection with reconciliation. 
In December 2007 the Commission commissioned an  external study on the costs and benefits 
of options to improve provisions for the reconcili ation of work, private and family life from 
the ECORYS Group
9. The Network of national legal expert s on gender equality also delivered 
a report on national measures on Pregnancy, Matern ity, Parental and Paternity Rights in the 
Member States as well as a stock-tacking repo rt on national measures concerning flexible 
working patterns10.  
3. P RESENT LEGAL FRAMEWORK  
Two Directives deal with leave for family reasons and related rights, namely Directive 
92/85/EEC11 (hereinafter 'Maternity leave Directive') and Directive 96/34/EC12 (hereinafter 
'Parental Leave Directive'), which were adopt ed in 1992 and 1996 respectively. These provide 
for a minimum entitlement of 14 weeks' maternity leave, paid at least at the rate for sick 
leave, and for three months' unpaid parental le ave for each parent, which may be transferred 
in many Member States to the other parent . The current provisions lay down neither the 
duration of or precise conditions for adoption leav e nor the right to paternity leave or 'filial' 
leave (leave to care for de pendent family members). 
There are marked differences between the Memb er States in terms of policy on facilitating 
reconciliation. Matern ity leave provisions range roughly fr om 14 to 52 weeks, with payments 
ranging from 55% (subject to a ceiling) to 100% (subject to no ceiling). Parental leave 
provisions involve entitlement to leave ranging fr om three months to three years. Payments, 
where granted, are made for a period of from 15 days to two years. Entitlement to adoption leave varies from 10 days to the same period as for parental leave. Some Member States 
provide for no payment, others provide for a paym ent similar to that for parental leave. There 
is no entitlement to paternity leave in a number of Member States. Where such entitlement exists, it covers periods of from  one to 10 days. In some Member States, part of the parental 
leave is earmarked for fathers. Certain Member States provide for no payment at all, others 
for a flat-rate payment of up to 100% pay. Some  Member States make no provision for any 
                                                
 
7 Members include representatives of the Member St ates, equality bodies, social partners and NGOs. 
8 http://ec.europa.eu/employment_social/gender_equality/docs/2008/opinion_newforms_en.pdf. 
9 http://ec.europa.eu/employment_social/gender_equality/legislation/new_legislation_en.html. 
10 Details at: http://ec.europa.eu/employment_social/gender_equality/legislation/bulletin_en.html. 
11 Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage 
improvements in the safety and h ealth at work of pregnant work ers and workers who have recently 
given birth or are breastfeeding (OJ L 348, 28.11.1992, p. 1). 
12 Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded 
by UNICE, CEEP and the ETUC (OJ L 145, 19.6.1996, p. 4). 
 
EN 4   EN entitlement to filial leave. The duration varies fr om two to 10 days for a disabled or sick child 
and in some cases for other relatives too. In some  Member States this leave is paid as a lump 
sum at the rate applying for sickness or another rate. 
3. P ROBLEM DEFINITION  
The need is now accepted at EU level for reco nciliation policies to ensure that women and 
men need not make trade-offs between having a fu lfilling private, family and professional life. 
Such policies may enable both women and men to exercise real choices in this area and, in 
particular, may result in a higher employment rate and lower unemployment rate for women. They may also reduce gender segregation on the labour market and close the gender pay gap. 
However, even where various flexible work ing arrangements have been put in place to 
support reconciliation, they are actually used much more by women than by men for reasons 
of economic necessity rather than free choice.  
Despite the increase in women's participation in the labour market, the pay gap remained 
steady at 15% from 2003 to 2007, and has narrowed by only one point since 2000
13. This pay 
gap is due to a certain extent to the problem s women face in reconciling professional and 
private obligations. One important factor infl uencing woman's participation in the labour 
market is the availability of childcare. Childcare  facilities in the Member States are 
insufficient and are not always adapted to family needs14. Only in Denmark and Portugal is 
more than 30 hours per week of formal childcar e available for over 30% of children under the 
age of three. Women also bear  the main responsibility of caring for the elderly .  
The impact of having children on women's labour market participation  is stark.  As a result, 
the employment rate for women with depende nt children in 2007 was only 65.5%, compared 
with 91.7% for men, a difference of more than  26 points. In 2007, the employment rate of 
women between the age of 20 and 49 fell  by around 12 percentage points once they had 
children, while that of men rose  around seven points. Family re sponsibilities mean that 
women are more likely to work part-time  than men. This has nega tive implications on their 
career prospects and wages.  Furthermore, there is discrimination on the labour market  
against mothers (and fathers) with small children and low take-up of parental leave by 
fathers . But as long as the mothers rather than the fathers forgo participation in the labour 
force when they have children and make use of  parental-leave provisions, employers will in 
general continue to perceive women as less co mmitted than men to their careers and will less 
likely invest in female career opportunities.  
4. B ASE-LINE SCENARIO  
If no new EU action is taken, the current EC Di rectives would remain applicable and current 
programmes and targets would be maintained. So me but not all Member States would have 
detailed national legal provisions  on better reconciliation measur es. The Lisbon targets will be 
evaluated in 2010 and new guideli nes and targets will be fi xed under the EES. The Roadmap 
for equality between women and men will lapse in  2010 but the work of the European social 
partners will go on. 
                                                 
13 Definition used by Eurostat: ‘The gender pay gap is given as the difference between average gross 
hourly earnings of male paid employees and of female paid employees as a percentage of average gross 
hourly earnings of male paid employees’. 
14 See recent report The Provision of Childcare Services by Platenga/Remery, 2008. 
 
EN 5   EN A marked difference in labour market particip ation by women with child ren compared to men 
with children will, however, remain. The Member States will need the participation of more 
women on the labour market, not only to solve th e problems of an ageing society but also for 
competitiveness at global level. Greater part icipation by women is therefore vital. The 
Member States also need a stable birth-rate  if they are to cope with the demographic 
challenge. Those with high rates of female em ployment (such as Finland, Sweden, Denmark, 
the Netherlands and the UK) also  have fertility rates that ar e significantly above the average15. 
To a large extent those Member States also ha ve the most effective reconciliation policies. 
5. P OSSIBLE EU POLICY RESPONSES  
The objectives are to address the employment rates of women with children and reduce the 
gender imbalance and discrimination by increas ing the possibilities on offer, improving the 
conditions for take-up of family-related leav e and providing financial support during family-
related leave.  
A number of possibilities were considered befo re it was concluded that failing to act was not 
an option because the Commission has set better reconciliation faciliti es as one of its priorities 
in the Roadmap on equality between women and me n and major stakeholders have urged it to 
do more in this area. Non-legislative measures  (for example, exchanges of good practice and 
social partners' initiatives) will continue in any case, as will other measures to increase the 
employment rate of women. The EU must take further action to promote women's 
employment and allow them to exploit th eir full potential and talents. Since large 
discrepancies remain between actual and prefer red employment patterns, it seems clear that 
women in general want to work more. There is therefore great potential for increasing female 
labour participation. 
This narrowed down the options to the following:  take no action at EU level, disseminate 
good practice, amend the matern ity leave rules (Dir ective 92/85/EEC), amend the parental 
leave rules (Directive 96/34/EC), make more  specific provision for adoption leave and 
introduce two new forms of leave, paternity and 'filial' leave.  
6. A SSESSING THE OPTIONS  
Each option was assessed in terms of how it met the objectives and by comparison with the 
baseline scenario. It emer ged that the 'no new action ' option would not solve the problems 
identified. The 'dissemination of good practice ' option would be helpful in achieving a better 
work-life balance. 
As to maternity leave , a rate of payment of 100% of the former salary and a four weeks' 
increase in the leave would provide meani ngful, valuable support in terms of better 
reconciliation. The same applies to a clause prov iding for a right to as k for flexible working 
hours after returning from matern ity leave. The objectiv es would be met with  the exception of 
reducing the gender gap between women a nd men taking family-related leave. 
As to parental leave , increasing parental le ave by one month and providing a payment of 66% 
of former salary was assessed as giving valuab le support to reconciliation if both parents took 
at least one month's parental l eave. As parental leave would be  paid, this would give fathers 
                                                 
15 Ibid. p. 18. 
 
EN 6   EN an incentive to take at least one month's parent al leave, which entitlement would otherwise be 
lost. Provisions of this sort have proved to  be very effective in the Nordic countries. 
As to adoption leave , adapting the provisions as far as possible to those governing parental 
leave was assessed as promising for the same re asons as those for amending the parental leave 
arrangements. 
Providing for paternity leave  lasting 10 days was assessed as  being particularly helpful in 
terms of encouraging more fathers to take parent al leave. According to previous experience in 
other Member States, fathers will only take family-related leave if the rate of payment during paternity leave has a close lin k with their salaries. This option therefore provides for a 
payment equal to at least 66% of the salary. 
Providing for filial leave
 lasting one month to care for a de pendent family member (including 
children over eight years) was asse ssed as useful in terms of helping wome n (or men) to stay 
in employment while caring fo r a dependent family member. 
7. C ONCLUSION  
The conclusion of the Impact Assessment Re port is that legally binding measures at 
Community level would be the best instrument  for achieving the objectives set. Changes to 
the maternity leave and parental leave ar rangements assessed and introducing new/other 
forms of leave in combination would form a very  useful set of measures for achieving better 
reconciliation. Nonethele ss, since the social partners will negotiate on parental leave, the 
Commission should refrain from putting forward proposals on parental leave and should bear 
in mind that the social partne rs' negotiations could cover the new formulae for leave. Under 
the circumstances, the only feas ible measure for the time bei ng is a proposal to amend the 
maternity leave arrangements.