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 impact assessment Report {COM(2008) 637} {SEC(2008) 2596}
Date: 2008-10-03
Institutions: European Commission
Subjects: care of mothers and infants, female work, humanisation of work, job security, motherhood, occupational safety

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COMMISSION OF THE EUROPEAN 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 Impact Assessment Report 

{COM(2008) 637} 
{SEC(2008) 2596} 

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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. Policies to support the reconciliation 
of  professional,  private  and  family  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 participation. Furthermore, there is a positive 
correlation between fertility rates and labour market participation: Member States where the 
fertility rates are higher are also those 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  equal  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 maternity and parental leave3: in its May 2008 proposals to amend 
the Employment Guidelines, it called for the provision 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  Framework  of  Actions  on  gender  equality,  one  of  the  priorities 
being action to support the work-life balance.  

The Commission has prepared this Impact Assessment on the basis of the legislative options 
to  improve  reconciliation  outlined  in  the  2007  second-stage  consultation  of  the  European 
social  partners5.  In  July  2008  the  social  partners  confirmed  their  intention  of  initiating  the 
negotiation  procedure  provided  for  in  Article  139  EC  on  a  revision  of  the  parental  leave 
directive.  The  Commission  has  thus  restricted  the  scope  of  this  proposal  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. EVIDENCE AND CONSULTATION 

The  European social partners were consulted by the Commission 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 European social dialogue to carry out a review 

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Article 2 and Article 3(2) of the EC Treaty. 
COM(2006) 92. 
For example, Resolution 2003/2129(INI), P5_TA(2004)0152), point 26. 
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-
0207+0+DOC+XML+V0//EN&language=EN. 
http://ec.europa.eu/employment_social/social_dialogue/docs/reconciliation2_en.pdf. 
ETUC, BUSINESSEUROPE, CEEP and UEAPME. 

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of the framework agreement on parental leave annexed to Directive 96/34/EC. In July 2008 
they decided to start formal negotiations on parental leave in accordance with Article 138 EC. 

In  December  2007  the  Commission  consulted  the  Member  States  to  gather  information  on 
legislation on all forms of family-related leave 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 20088. The Commission also consulted 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 reconciliation of work, private and family life from 
the ECORYS Group9. The Network of national legal experts on gender equality also delivered 
a report on national measures on Pregnancy, Maternity, Parental and Paternity Rights in the 
Member  States  as  well  as  a  stock-tacking  report  on  national  measures  concerning  flexible 
working patterns10.  

3. PRESENT 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 adopted 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 leave 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 leave nor the right to paternity leave or 'filial' 
leave (leave to care for dependent family members). 

There  are  marked  differences  between  the  Member  States  in  terms  of  policy  on  facilitating 
reconciliation. Maternity leave provisions range roughly from 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 from 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 payment 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 

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Members include representatives of the Member States, equality bodies, social partners and NGOs. 
http://ec.europa.eu/employment_social/gender_equality/docs/2008/opinion_newforms_en.pdf. 
http://ec.europa.eu/employment_social/gender_equality/legislation/new_legislation_en.html. 
Details at: http://ec.europa.eu/employment_social/gender_equality/legislation/bulletin_en.html. 
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 (OJ L 348, 28.11.1992, p. 1). 
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). 

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entitlement to filial leave. The duration varies from 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. PROBLEM DEFINITION 

The  need  is  now  accepted  at  EU  level  for  reconciliation  policies  to  ensure  that  women  and 
men need not make trade-offs between having a fulfilling 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  working  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 200013. This pay 
gap  is  due  to  a  certain  extent  to  the  problems  women  face  in  reconciling  professional  and 
private  obligations.  One  important  factor  influencing  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 childcare 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 dependent 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  responsibilities  mean  that 
women are more likely to work part-time than men. This has negative 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 committed than men to their careers and will less 
likely invest in female career opportunities.  

4. BASE-LINE SCENARIO 

If no new EU action is taken, the current EC Directives would remain applicable and current 
programmes and targets would be maintained. Some  but not  all Member States  would have 
detailed national legal provisions on better reconciliation measures. The Lisbon targets will be 
evaluated in 2010 and new guidelines and targets will be fixed 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. 

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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’. 
See recent report The Provision of Childcare Services by Platenga/Remery, 2008. 

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A marked difference in labour market participation by women with children 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 the problems of an ageing society but also for 
competitiveness  at  global  level.  Greater  participation  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 employment (such as Finland, Sweden, Denmark, 
the Netherlands and the UK) also have fertility rates that are significantly above the average15. 
To a large extent those Member States also have the most effective reconciliation policies. 

5. POSSIBLE EU POLICY RESPONSES 

The objectives  are  to  address  the employment rates of  women  with children and  reduce the 
gender  imbalance  and  discrimination  by  increasing  the  possibilities  on  offer,  improving  the 
conditions for take-up of family-related leave and providing financial support during family-
related leave.  

A number of possibilities were considered before it was concluded that failing to act was not 
an option because the Commission has set better reconciliation facilities as one of its priorities 
in the Roadmap on equality between women and men 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  their  full  potential  and  talents.  Since  large 
discrepancies  remain  between  actual  and  preferred  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  maternity  leave  rules  (Directive  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. ASSESSING THE OPTIONS  

Each option was assessed in terms of how it met the objectives and by comparison with the 
baseline  scenario.  It  emerged  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  meaningful,  valuable  support  in  terms  of  better 
reconciliation. The same applies to a clause providing for a right to ask for flexible working 
hours after returning from maternity leave. The objectives would be met with the exception of 
reducing the gender gap between women and men taking family-related leave. 

As to parental leave, increasing parental leave by one month and providing a payment of 66% 
of former salary was assessed as giving valuable support to reconciliation if both parents took 
at least one month's parental leave. As parental leave would be paid, this would give fathers 

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Ibid. p. 18. 

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an incentive to take at least one month's parental 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 reasons 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 parental 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  link  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 dependent family member (including 
children over eight years) was assessed as useful in terms of helping women (or men) to stay 
in employment while caring for a dependent family member. 

7. CONCLUSION 

The  conclusion  of  the  Impact  Assessment  Report  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  arrangements  assessed  and  introducing  new/other 
forms of leave in combination would form a very useful set of measures for achieving better 
reconciliation.  Nonetheless,  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 partners' negotiations could cover the new formulae for leave. Under 
the  circumstances,  the  only  feasible  measure  for  the  time  being  is  a  proposal  to  amend  the 
maternity leave arrangements. 

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