12.

Let us, indeed, review each of the points which the latter have raised in their attempt to demonstrate the incompatibility with the directive of the conditions attaching to the grant of additional leave. The fact that, unlike the compulsory postnatal leave, the additional leave is optional is not inconsistent with the desire to protect the mother's health. It is apparent that the additional leave is a preventive measure underpinned by medical and social considerations. The latter determine the general, impersonal character of the right, as a result of which the only condition attaching to its grant are childbirth and the pursuit of gainful employment, not the presentation of a sickness certificate. That objective of general prevention, together with the concern to avoid any disruption at the place of employment, also explains why the application for leave must be made almost four weeks before expiry of the compulsory leave; the grant of the leave rests on a presumption — namely that the mother's health requires protection — but it is granted independently of her current or foreseeable state of health. Nevertheless, that presumption as to the mother's health is not binding upon her if she wishes to resume work — where the father is unemployed, for example — on account, in particular, of the financial sacrifice which, as the Federal Republic of Germany has emphasized, taking the leave entails. As regards the expiry of the additional leave in the event of the child's death, it is the corollary of the objective which the leave seeks to achieve; once the “burden” of the child has ceased to exist, there is no longer the same need to alleviate the burden caused by the mother's employment in order to protect her health. That stringent logic is, however, tempered by the postponement of the expiry of the leave. It is the same logic which debars foster mothers and adoptive mothers from the entitlement accorded to natural mothers. It further explains why the right to the leave is not transferable to the father, even in the event of the mother's death. No matter how those arrangements are viewed, it is quite clear that they are brought about by the very purpose of the leave instituted. The Commission and Ulrich Hofmann also refer to a change in the legislation which occurred after the events which led to the dispute pending before the national court, but which we shall none the less consider in order to eliminate any ambiguity over the interpretation to be given to the exception contained in Article 2 (3). It appears that it is now only mothers who have been in employment for nine out of the twelve months preceding childbirth who are entitled to the leave. It should, however, be noted that the leave is also available if the applicant has been entitled i;o unemployment or subsistence benefits, which enlarges considerably the class of beneficiaries while preventing abuse. Finally, the same conditions attach to the compulsory leave; they are simply intended to withold leave from mothers who cannot furnish evidence either of a minimum period of employment or of circumstances assimilated thereto. Lastly, it has been argued that the Law fails to attain its objective on two counts. First, the statistics supplied by the German Government disclose that more than one woman in two gives up her employment at the end of the additional leave. Secondly, the Law has the effect of encouraging employers to avoid recruiting women, owing to the risk of their absence from work as a result of the additional leave. That line of argument does not convince me. Although the proportion of female employees giving up their careers after the end of the additional leave has remained constant, the figures none the less do not seem to me to bear the same meaning, because they do not support the inference that the health risk was not a decisive factor at the time when the mothers opted for the additional leave. On the contrary, by promoting the physical and mental recovery of the beneficiary, the additional leave enables a woman to choose more freely, on its expiry, between resuming her career and giving it up. As for the adverse effects of the additional leave on the recruitment of women, they remain a mere possibility since they have not been demonstrated. It should also be noted that, in the absence of such leave, which is financed out of public funds, mothers would be obliged to have recourse to periods of sick leave during which the employer himself would be compelled to pay them a salary without having, in return, the benefit of their labour. Furthermore, it will be observed that, as the Federal Republic of Germany has pointed out, the grant of the leave in question affords a means of mitigating the de facto inequalities suffered by women as a result of the deterioration of their health following childbirth and thus preserves their opportunities on the resumption of work. In that sense, the leave is included amongst the measures referred to by Article 2 (4) of the directive. Thus, the question necessarily arises as to whether the exception in Article 2 (3) is not an illustration, selected by the Community legislature, of the general derogation contained in Article 2 (4). I incline towards that view and see it as confirming the rejection of the restrictive, interpretation placed on the exception in Article 2 (3). I therefore consider that the reply to be given to the first question submitted by the German court is that the additional leave, which is granted to ensure protection in connection with maternity, whose effects on a mother's health it mitigates, is a provision concerning the protection of women within the meaning of Article 2 (3) of Directive 76/207 and hence does not constitute an infringement of Articles 2(1) and 5 (1).