EN Official Journal of the European Union C 344/19

Judgment of the Court (Fourth Chamber) of 19 September 2013 (request for a preliminary ruling from the Juzgado de lo Social no 1 de Lleida — Spain) — Marc Betriu Montull v Instituto Nacional de la Seguridad Social (INSS)

(Case C-5/12) (1)

(Social policy - Directive 92/85/EEC - Protection of the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding - Article 8 - Maternity leave - Directive 76/207/EEC - Equal treatment for male and female workers - Article 2(1) and (3) - Right to leave for employed mothers after the birth of a child - Possible use by an employed mother or an employed father - Non-employed mother who is not covered by a State social security scheme - No right to leave for employed father - Biological father and adoptive father - Principle of equal treatment)

2013/C 344/31

Language of the case: Spanish

Referring court

Juzgado de lo Social no 1 de Lleida

Parties to the main proceedings

Applicant: Marc Betriu Montull

Defendant: Instituto Nacional de la Seguridad Social (INSS)

Re:

Request for a preliminary ruling — Juzgado de lo Social de Lleida — Interpretation of 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 (OJ 1976 L 39, p. 40) and of Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC (OJ 1996 L 145, p. 4) — National legislation granting six weeks of breastfeeding leave to mothers after giving birth — Right to leave of employed fathers — Conditions — National legislation providing for the right of employed fathers who adopt a child, but not those who have a child by birth, to suspend their contract of employment and to return to the same job, paid for by the social security system — Infringement of the principle of equal treatment

Operative part of the judgment

Council Directives 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 (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) and 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 must be interpreted as not precluding a national measure, such as that at issue in the main proceedings, 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 her 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.

(1) OJ C 98, 31.03.2012.