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 {SEC(2008)2595} {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 
COM(2008) 637 final 

2008/0193 (COD) 

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  

{SEC(2008)2595} 
{SEC(2008)2596} 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

The aim of this proposal is to improve the protection offered to pregnant workers and workers 
who  have  recently  given  birth  or  are  breastfeeding.  In  particular,  the  proposal  extends  the 
minimum length of maternity leave from 14 to 18 weeks. This is to help the worker to recover 
from the immediate effects of giving birth, while also making it easier for her to return to the 
labour market at the end of her maternity leave. The Directive also improves the employment 
rights  of  pregnant  workers  and  workers  who  have  recently  given  birth  or  are  breastfeeding. 
The proposal will contribute to better reconciliation of professional, private and family life. 

The  proposal  is  a  priority  initiative1  in  the  Commission's  work  programme  for  20082  (ref. 
2008/EMPL/025). 

General context 
In  the  Roadmap  for  equality  between  women  and  men  2006-20103  adopted  by  the 
Commission in March 2006, the Commission committed itself to reviewing the existing EU 
gender equality legislation that was not included in the 2005 recasting exercise, with a view to 
updating,  modernising  and  recasting  texts  where  necessary.  Directive  92/85/EEC  was  not 
included in the recasting exercise. 

The March 2006 European Council stressed the need for a better balance between work and 
private  life  in  order  to  achieve  economic  growth,  prosperity  and  competitiveness,  and 
approved the European Pact for Gender Equality. In December 20074, the Council called on 
the  Commission  to  evaluate  the  legal  framework  supporting  reconciliation  and  the  possible 
need  for  improvement.  The  March  2008  European  Council  reiterated  that  further  efforts 
should be made to reconcile work with private and family life for both women and men. 

The European Parliament has consistently called for improvements to the existing legislation 
relating  to  the  protection  of  pregnant  workers  and  the  granting  of  parental  leave,  and  for 
measures to improve the reconciliation of professional, private and family life. For example, 
in its resolution of 21 February 2008 on the demographic future of Europe5, Parliament called 
on  the  Member  States  to  adopt  best  practices  as  regards  the  length  of  maternity  leave  and 
pointed  out  that  it  is  possible  to  influence  birth-rate  curves  favourably  through  coordinated 
public policies, by creating a family- and child-friendly material and emotional environment.  

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5 

The roadmap is published at: 
http://ec.europa.eu/atwork/programmes/docs/clwp2008_roadmap_priority_initiatives.pdf  
COM(2007) 640. 
COM(2006) 92. 
SOC 385 Council Conclusions: Balanced roles of women and men for jobs, growth and social cohesion 
2007/2156  (INI),  points  14  and  15,  at:  http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-
//EP//TEXT+TA+P6-TA-2008-0066+0+DOC+XML+V0//EN&language=EN. 

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In  its  resolution  of  27  September  20076,  Parliament  also  urged  the  Member  States  to 
mutualise the costs of maternity and parental leave allowances in order to ensure that women 
no longer represent a more costly source of labour than men and welcomed the consultation 
procedure  on  reconciliation with the  social partners. It also called on the Member States, in 
conjunction with both sides of industry, to combat discrimination against pregnant women on 
the  labour  market  and  to  take  all  necessary  steps  to  ensure  a  high  level  of  protection  for 
mothers, and asked the Commission to make a more detailed assessment of compliance with 
Community law in this area and to determine whether it needed to be revised. 

Existing provisions in the area of the proposal 

Directive  92/85/EEC  (tenth  individual  Directive  within  the  meaning  of  Article  16(1)  of 
Directive 89/391/EEC) provides for a minimum of 14 continuous weeks' maternity leave. The 
Directive  also  lays  down  requirements  on  health  and  safety  at  the  workplace  to  protect 
pregnant workers and workers who have recently given birth or are breastfeeding. A woman 
cannot be dismissed during maternity leave. The rights linked to the employment contract are 
ensured. 

According to Article 2(7) of  Directive 76/207/EEC7, a woman has the right, after maternity 
leave,  to  return  to  the  same  or  an  equivalent  post.  According  to  the  same  provision,  less 
favourable  treatment  of  a  woman  related  to  pregnancy  or  maternity  leave  constitutes 
discrimination.  

Consistency with other policies and objectives of the Union 

The  aim  of  this  proposal  is  consistent  with  EU  policies  and  in  particular  with  the  Lisbon 
Strategy  for  Growth  and  Jobs.  According  to  the  Treaty,  the  Community  aims  to  eliminate 
inequalities  and  promote  equality  between  men  and  women  in  all  its  activities.  Gender 
equality lies at the heart of the Lisbon Strategy: since the gender gap in employment rates of 
women with children and men with children is wide, bridging that gap is vital if the EU target 
for  female  employment  rates  is  to  be  met.  Reducing  the  gap  is  also  crucial  to  achieving 
greater gender equality. 

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

Consultation 

All the consultations mentioned below were conducted on the basis of a number of options to 
improve  legislative  support  for  reconciliation.  For  the  reasons  explained  below,  the 
Commission’s current proposal is limited to amendment of Directive 92/85/EEC.  

In  2006  and  2007,  the  Commission  consulted  the  European  social  partners  on  better 
reconciliation  of  professional,  private  and  family  life  related  to  Directives  92/85/EEC  and 

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2007/2065(INI)) at: 
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P6-TA-2007-
0423, point 13, 28 and 29. 
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 L 39, 14.2.1976, p. 40). Directive as amended by Directive 2002/73/EC of the 
European Parliament and of the Council (OJ L 269, 5.10.2002, p. 15).  

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96/34/EC8 in a two-stage consultation. The Commission looked at ways in which the existing 
legislation  on  maternity  protection  and  on  parental  leave  could  be  improved  and  also 
identified new types of family-related leave (paternity leave, adoption leave, leave to care for 
family members). As regards other measures, the Commission highlighted childcare and care 
facilities for other dependants, new ways of working (including telework), and incentives for 
men to avail themselves of opportunities in this area.  

The replies varied9: some of the social partners welcomed the Commission's initiative while 
others  opposed  any  change  to  the  current  provisions.  However,  in  July  2008,  the  European 
social  partners  notified  the  Commission  of  their  intention  to  start  the  negotiation  process 
under Article 139 of the Treaty in respect of certain family leave arrangements. At the end of 
the  period  of  negotiations  between  the  social  partners  (maximum  nine  months),  the 
Commission will take the necessary action to give legal effect to the new agreement by means 
of  a  Directive  or,  if  the  negotiations  fail,  will  consider  whether  to  make  its  own  legislative 
proposal.  

As  the  social  partners  have  confirmed  that  they  do  not  intend  to  address  maternity  leave  in 
their negotiations, the Commission considers it appropriate to bring forward this proposal now 
so that the social partners know, when reviewing parental leave, what the mother's entitlement 
would be as regards the minimum amount and conditions of the leave.  

In  December  2007  the  Commission  consulted  the  Member  States  on  the  same  range  of 
options  which  had  been  included  in  the  consultation  of  the  social  partners.  As  regards 
maternity  leave,  some  Member  States  were  in  favour  of  (modest)  increases  in  the  duration, 
some  were  in  favour  of  increasing  the  payment  and  some  were  against  any  changes  at  EU 
level. Some other Member States did not reply to the questionnaire. 

The  Commission  has  also  consulted  European  NGOs10  which  are  active  in  this  area.  In 
general they support initiatives to achieve better reconciliation. 

The Advisory Committee on Equal Opportunities for Women and Men11 was also consulted. 
The majority of members believe there is a need for further EU-level legislation to extend the 
length of maternity leave to 24 weeks and to increase the rate of payment to the equivalent of 
a full salary during this leave12.  

Finally,  the  Advisory  Committee  on  Safety  and  Health  at  Work  was  consulted  on  the  draft 
proposal.  

The replies to the consultation process have been taken into account in the formulation of this 
proposal.  Lengthening  the  duration  of  maternity  leave  by  four  weeks  is  a  modest  increase 
which ties in with the current situation in many Member States. A full payment ensures that 
women do not lose out financially when giving birth to a child.  

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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). 
See under: http://ec.europa.eu/employment_social/gender_equality/legislation/new_legislation_en.html. 
See under: http://ec.europa.eu/employment_social/gender_equality/legislation/new_legislation_en.html. 
Including members from the Member States, equality bodies, social partners and NGOs. 
Opinion of 3 July 2008 published at: 
http://ec.europa.eu/employment_social/gender_equality/docs/2008/opinion_newforms_en.pdf. 

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Collection and use of expertise 

In  preparing  this  initiative,  the  Commission  commissioned  a  study  on  costs  and  benefits  of 
reconciliation  measures13.  The  study  came  to  the  conclusion  that  amending  the  maternity 
leave provisions in  the  sense proposed here is  a  promising  option  because  the  provisions  in 
the Member States do not differ much.  

The  Network  of  independent  legal  experts  on  gender  equality  has  delivered  a  report  on 
Pregnancy,  Maternity,  Parental  and  Paternity  Rights14  in  the  Member  States  as  well  as  a 
stocktaking report on national measures as to flexible working patterns15. 

Impact assessment 

The  Commission  prepared  the  Impact  Assessment16  on  the  basis  of  the  legislative  options 
outlined in the 2007 second-stage consultative document sent to the social partners. While the 
Commission is currently limiting its proposal to maternity leave, the assessment of the other 
options may support the social partners in their negotiations, while respecting their autonomy. 

The Impact Assessment Report17 sought to identify the best policy options for achieving the 
objectives  set  and  improving  support  for  reconciliation.  It  looked  at  a  broad  range  of 
measures, including amendments to the existing Directives providing for family-related leave, 
namely  Directives  92/85/EEC  and  96/34/EC,  and  the  introduction  of  new/other  forms  of 
leave, namely adoption leave, paternity leave and filial leave. A number of possibilities were 
looked  at  before  the  options  were  narrowed  to  the  following:  no  action  at  EU  level, 
dissemination  of  good  practice,  amending  the  maternity  leave  rules  (Directive  92/85/EEC), 
amending the parental leave rules (Directive 96/34/EC), making more specific provision for 
adoption leave and introducing two new forms of leave, namely paternity and filial leave. 

The  conclusion  is  that  failing  to  act  would  not  improve  the  effectiveness  of  reconciliation 
measures.  Non-legislative  measures  (for  example,  exchange  of  good  practice  and  social 
partners'  initiatives)  will  continue  in  any  case,  as  will  other  measures  to  increase  the 
employment rate of women.  

Improving the entitlement to family-related leave alongside other measures notably the better 
provision  of  childcare  will  help  women  and  men  to  achieve  better  reconciliation  between 
work  and  private  life.  The  starting  point  is  an  adequate  maternity  leave  provision  for  the 
mother complemented by parental leave to be taken by either parent. The impact assessment 
therefore  concludes  that  a  proposal  for  amending  the  maternity  leave  rules  (Directive 
92/85/EEC) remains at this stage a very useful measure in order to improve reconciliation and 
can be taken into account by the social partners in their negotiations on other forms of family-
related leave.  

In  the  light  of  the  results  of  the  consultation  process  and  of  the  study  commissioned  by  the 
Commission,  the  option  of  extending  the  duration  of  maternity  leave  and  increasing  the 
payment was considered a proportionate way of improving the health and safety of women as 

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See under: http://ec.europa.eu/employment_social/gender_equality/legislation/index_en.html. 
See under: http://ec.europa.eu/employment_social/gender_equality/legislation/bulletin_en.html. 
http://ec.europa.eu/employment_social/gender_equality/docs/reconciliation_final_28_august_en.pdf 
SEC (2008) 2526 
See under: http://ec.europa.eu/employment_social/gender_equality/legislation/new_legislation_en.html. 

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well as allowing women to better reconcile their professional and family obligations, thereby 
fostering equal opportunities between women and men in the labour market.  

Currently, the duration of maternity leave varies from 14 weeks in a small number of Member 
States to 28 weeks in other Member States, and in certain circumstances to up to 52 weeks, 
not all of which is paid.  

Longer leave will have a positive impact on the mother's health. It will help women to recover 
from giving birth and to create a solid relationship with the child. Furthermore, it is easier for 
women to return to work when the child is older and hence it could incite women to have less 
recourse to parental leave. Longer leave and the strengthening of the rights of women when 
returning  from  maternity  leave  will  also  contribute  to  ensure  equality  between  women  and 
men with regard to labour market opportunities and treatment at work. Increasing the payment 
given during maternity leave ensures that the women concerned do not lose out financially.  

From the employer’s point of view, there will be greater certainty as to the length of absence 
of  the  mother,  since  women  are  expected  to  have  less  recourse  to  parental  leave.  This  is 
especially pertinent for smaller organisations for which the impact of family-related leave is 
proportionally greater than for larger organisations. 

The  costs  of  this  option  arise  from  longer  leave  and  higher  compensation  in  those  Member 
States where change is needed as well as from the costs of replacing the absent worker. To 
avoid  that  these  costs  fall  unduly  on  businesses  especially  smaller  ones,  the  Commission 
proposal  allows  Member  States  to  cap  the  maternity  allowance.  Member  States  also  remain 
free, as is the case now, to determine the share of the allowance which is financed by the state. 

3. 

LEGAL ASPECTS 

Legal basis 

The  proposal  is  based on Articles 137(2) and 141  (3) of the EC Treaty. Although Directive 
92/85/EEC is based on Article 118a of the EC Treaty (now Article 137) and is an individual 
Directive under the framework of the Directive on Health and Safety (Directive 89/391/EEC), 
Article 141 EC is added to the legal base of this proposal. Maternity leave is essential for the 
protection of the health and safety of pregnant workers or workers who have recently given 
birth.  The  protection  from  dismissal  or  discrimination  due  to  pregnancy  or  motherhood  is 
instrumental for the protection of women's health and safety, as well as the remuneration of 
maternity leave. But the rules pertaining to maternity leave, its length, remuneration and the 
rights  and  obligations  of  women  taking  maternity  leave  or  returning  from  it  are  also 
intrinsically  linked  to  the  application  of  the  principle  of  equal  opportunities  and  equal 
treatment between women and men as established in Article 141(3). Therefore the legal bases 
for this proposal are combined.  

Subsidiarity and proportionality 

The proposal aims to amend an existing Directive. Such an amendment can only be effected 
by another Directive. 

The overall objectives of this proposal can only be achieved by a Community-wide measure, 
since  the  necessary  level  playing-field  between  the  Member  States  for  the  protection  of 
pregnant workers and workers who have recently given birth or are breastfeeding can only be 

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ensured  by  a  common  minimum  standard.  Besides  protecting  the  health  and  safety  of  the 
women concerned at work, the proposal will also have a beneficial effect on these women's 
ability  to  reconcile  private,  family  and  professional  obligations.  The  importance  of  policies 
and measures to foster better reconciliation has been recognized and emphasised by the other 
European institutions as well as the main stakeholders.  

The  proposal  goes  no  further  than  necessary  to  ensure  that  the  objectives  are  met.  It  is  a 
minimum standards instrument and allows the Member States who wish to go further, to do 
so.  The  proposal  does  not  go  beyond  what  is  absolutely  necessary  at  EU  level  in  order  to 
achieve the objectives set. 

Choice of instrument 

Since the aim is to amend an existing Directive, a further Directive is the only legal act that 
can be envisaged. 

In any case, Article 137(2) of the Treaty states that action by the EU legislator is to involve 
directives establishing minimum requirements for gradual implementation. 

Correlation table 

The  Member  States  are  required  to  communicate  to  the  Commission  the  text  of  national 
provisions  transposing  the  Directive,  together  with  a  correlation  table  between  those 
provisions and the Directive. 

European Economic Area 

This  is  a  text  of  relevance  to  the  European  Economic  Area  and  the  Directive  will  be 
applicable  to  the  non-EU  Member  States  of  the  European  Economic  Area,  following  a 
decision of the EEA Joint Committee.  

4. 

BUDGETARY IMPLICATIONS 

The proposal has no implications for the Community budget.  

5. 

DETAILED EXPLANATION OF THE SPECIFIC PROVISIONS 

Article 1 

The proposed Directive amends the existing 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  (tenth 
individual  Directive  within  the  meaning  of  Article  16  (1)  of  Directive  89/391/EEC,  and  in 
particular its Articles 8 (Maternity leave), 10 (Prohibition of dismissal) and 11 (Employment 
rights).  

Article 8 (Maternity leave) is amended so as to increase the duration of maternity leave to 18 
weeks,  six  of  which  must  be  taken  after  childbirth.  This  corresponds  to  the  length  of  leave 
provided  for  in  the  ILO  Maternity  Protection  Recommendation,  adopted  in  2000,  and  is 
intended  to  generally  improve  the  health  and  safety  of  women  giving  birth  to  a  child.  This 

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increase is designed to allow women to recover from pregnancy and childbirth, to have more 
time  with  their  children,  and  to  be  able  to  breastfeed  for  a  longer  period.  Under  the  current 
Directive  the  duration  is  14  weeks,  two  weeks  of  which  are  compulsory  before  or  after 
confinement. 

National  laws  which  provide  for  an  entitlement  to  the  mother  of  at  least  18  weeks  of  leave 
allocated before and/or after confinement, and remunerated at least at the level provided for in 
this Directive, should be deemed to be maternity leave for the purposes of this Directive.  

Women falling within the scope of the Directive would be able to choose freely the time at 
which the non-compulsory portion of the leave is taken (before or after childbirth), and would 
thus  no  longer  be  obliged  to  take  a  specific  portion  of  the  leave  before  childbirth  as  is 
presently  the  case  in  some  Member  States.  It  is  for  the  Member  States  to  decide  on 
notification periods. 

Where childbirth occurs after the due date, the prenatal portion of the leave is extended to the 
actual date of birth, without any reduction in the post-natal portion of the leave, in order to 
guarantee that women have sufficient time to recover from giving birth and to breastfeed.  

The Member States are to decide on the length of additional leave to be granted in the event 
of premature childbirth, children hospitalised at birth, new-born children with disabilities and 
multiple births. The extra time should allow women to recover from the particular stress that 
premature childbirth, children hospitalised at birth, the birth of children with disabilities and 
multiple births usually cause. 

Any  period  of  sick  leave,  up  to  four  weeks  before  confinement,  in  the  event  of  illness  or 
complications arising out of pregnancy or childbirth shall not shorten the period of maternity 
leave, again in the interest of women's health.  

Points 1 and 2 of Article 10 (Prohibition of dismissal) are amended: in order to take account 
of the case law of the European Court of Justice, it is proposed to prohibit all preparations for 
a  possible  dismissal  not  related  to  exceptional  circumstances,  during  the  maternity  leave. 
Under  the  current  Directive,  the  employer  must  duly  substantiate  the  grounds  for  such 
dismissal in writing only in cases where a woman is dismissed while on maternity leave. The 
proposed amendment extends this duty of the employer to cases where a woman is dismissed 
within  six  months  of  the  end  of  her  maternity  leave,  if  the  woman  requests  such  a  written 
motivation.  The  aim  of  this  provision  is  not  to  amend  any  rules  on  individual  or  collective 
dismissal, but only to provide, in the interest of both the business and the worker concerned, 
that during a certain period after the return from maternity leave, any dismissal should be duly 
motivated in writing if the worker so requests. 

The new point 2(c) of Article 11 (Employment rights) makes it clear that following maternity 
leave, the woman has the right to return to the same job or to an equivalent post on terms and 
conditions  that  are  no  less  favourable,  and  the  right  to  benefit  from  any  improvement  in 
working conditions to which she would have been entitled during her absence. This is taken 
from Directive 2002/73/EC, as recast in Directive 2006/54/EC, because it is highly relevant 
within the context of a proposal to modify Directive 92/85/EEC. 

Point 3 modifies the existing rule on the payment given during maternity leave: it provides for 
the principle of the payment of the full monthly salary received prior to the maternity leave. 
However,  this  is  not  mandatory  since  this  payment  may  be  subject  to  a  ceiling,  to  be 

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determined  by  the  Member  State,  provided  that  it  is  not  set  below  the  rate  for  sick  pay. 
Member States may determine if the level of the payment during maternity leave corresponds 
to the one of the last monthly salary before maternity leave or to an average to be calculated 
over a certain period.  

According to the case-law of the European Court of Justice18, despite the exception provided 
for in Article 137(5) EC, it is acceptable that EC law based on that Article regulates questions 
of  pay  ’otherwise  some  of  the  areas  referred  to  in  Article  137(1)  EC  would  be  deprived  of 
much of their substance’. 

According to new point 5 of Article 11, a worker during maternity leave or when returning 
from maternity leave has a right to ask her employer to adapt her working patterns and hours 
to the new family situation and the employer is obliged to consider such a request. However, 
the employer has no obligation to accept or follow-up on the request. The detailed rules on the 
exercise  of  this  right  are  to  be  laid  down  by  the  Member  States.  This  new  provision  is 
necessary to strengthen the protection of workers' health and could allow, with the consent of 
employers,  for  greater  flexibility  of  working  hours  and  patterns.  A  similar  provision  is 
included in Article 2b of the proposal to amend Directive 2003/88/EC on the organisation of 
working  time.  Should  this  Article  be  adopted,  the  amendment  proposed  here  could  refer  to 
Article 2b of the proposal to amend Directive 2003/88/EC and no further change to Directive 
92/85/EEC would be needed. 

The  provision  on  the  burden  of  proof  is  common  to  most  Directives  on  equal  treatment 
between women and men. In judicial procedures, the general rule is that a person who alleges 
something must prove it. However, in equal treatment cases, it is often extremely difficult to 
obtain the evidence necessary to prove the case, as it is often in the hands of the respondent. 
This  problem  was  recognised  by  the  European  Court  of  Justice19  and  the  Community 
legislator in Directive 97/80/EC20, 2000/4321, 2000/7822, 2004/11323 and 2004/5624. 

The  provision  on  victimisation  is  also  commonly  found  in  equal  treatment  Directives. 
Effective legal protection must include protection against retaliation. Victims may be deterred 
from  exercising  their  rights  on  account  of  the  risk  of  retaliation,  and  individuals  must 
therefore be protected from any adverse treatment where they exercise the rights conferred by 
the Directive.  

In accordance with the case law of the Court of Justice25, the provision on penalties provides 
that there should be no upper limit on the compensation payable in the event of a breach of 
the  principle  of  equal  treatment.  This  provision  does  not  require  criminal  penalties  to  be 
introduced. 

The  proposal  provides  for  the  scope  of  the  existing  equality  bodies  established  pursuant  to 
Directive  2002/73/EC,  as  recast  by  Directive  2006/54/EC,  to  the  issues  covered  by  the 

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Case C/307/05, Del Cerro Alonso. 
Case 109/88 Danfoss [1989] ECR-3199. 
OJ L 14, 20.1.1998. 
OJ L 180, 19.7.2000. 
OJ L 303, 12.12.2000. 
OJ L 373, 21.12.2004. 
OJ L 204, 26.7.2006. 
Cases C-180/95 Draehmpaehl [1997] ECR I-2195 and C-271/91 Marshall [1993] ECR I-4367. 

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Directive,  where  these  issues  pertain  primarily  to  equal  treatment  and  not  to  the  worker's 
health and safety. 

Article 2 

This provision is a standard provision, which allows the Member States to provide a higher 
level of protection than that guaranteed by the Directive and confirms that there should be no 
lowering of the level of protection already afforded by the Member States when implementing 
it. 

Article 3 

This provision gives the Member States a period of two years to transpose the Directive into 
national  law  and  to  communicate  the  relevant  texts  to  the  Commission.  It  also  requires  the 
Commission  to  report  to  Parliament  and  the  Council  on  the  application  of  the  Directive,  on 
the basis of information from the Member States.  

Article 4 

This  is  a  standard  provision  providing  the  obligation  for  Member  States  to  periodically 
communicate  to  the  Commission  information  concerning  the  application  of  the  amended 
Directive  and  for  the  Commission  to  report  to  the  Community  legislator  on  this  point  and, 
where necessary, to join proposals to revise and update the Directive. 

Article 5 

This is a standard provision stipulating that the Directive is to enter into force on the day it is 
published in the Official Journal.  

Article 6 

This is a standard provision on addressees, making it clear that the Directive is addressed to 
the Member States.  

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2008/0193 (COD) 

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  

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Articles 
137(2) and 141(3) thereof, 

Having regard to the proposal from the Commission26, 

Having regard to the opinion of the European Economic and Social Committee27, 

Having regard to the opinion of the Committee of the Regions28, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty, 

Whereas: 

(1) 

(2) 

(3) 

Article  137  of  the  Treaty  provides  that  with  a  view  to  achieving  the  objectives  of 
Article 136 of the Treaty, the Community shall support and complement the activities 
of Member States in improving the working conditions to protect the safety and health 
of  workers  and  in  ensuring  equality  between  women  and  men  with  regard  to  labour 
market opportunities and treatment at work. 

Article  141  of  the  Treaty  provides  that  the  Council,  acting  in  accordance  with  the 
procedure  referred  to  in  Article  251,  and  after  consulting  the  Economic  and  Social 
Committee,  shall  adopt  measures  to  ensure  the  application  of  the  principle  of  equal 
opportunities  and  equal  treatment  of  men  and  women  in  matters  of  employment  and 
occupation.  

Since  this  Directive  addresses  not  only  the  health  and  safety  of  workers  who  are 
pregnant, or have recently given birth or are breastfeeding, but also, inherently, issues 
of  equal  treatment,  such  as  the  right  to  return  to  the  same  or  an  equivalent  working 
place,  the  rules  on  dismissal  and  employment  rights,  or  on  better  financial  support 
during  the  leave,  Article  137  and  141  are  combined  to  form  the  legal  base  for  this 
Directive.  

26 
27 
28 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 

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(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

Equality between men and women is a fundamental principle of the European Union. 
Articles  21  and  23  of  the  Charter  of  Fundamental  Rights  of  the  European  Union 
prohibit any discrimination on grounds of sex and require equality between men and 
women to be ensured in all areas. 

Under Article 2 of the Treaty establishing the European Community, promoting such 
equality is one of the Community's essential tasks. Similarly, under Article 3(2) of the 
Treaty  the  Community  must  aim  to  eliminate  inequalities  and  to  promote  equality 
between men and women in all its activities. 

Directive 92/85/EEC29 implements measures to encourage improvements in the safety 
and health at work of pregnant workers and workers who have recently given birth or 
are breastfeeding. 

One of the six priorities laid down in the Roadmap for equality between women and 
men 2006-201030 is to achieve a better balance between work and private and family 
life. In this connection the Commission undertook to review the existing legislation in 
the  field  of  gender  equality  with  a  view  to  modernising  it,  where  necessary.  The 
Commission also announced that in order to improve governance of gender equality, it 
would  ‘review  the  existing  EU  gender  equality  legislation  not  included  in  the  2005 
recast  exercise  (...)  with  a  view  to  updating,  modernising  and  recasting  where 
necessary’. Directive 92/85/EEC was not included in the recasting exercise. 

In its Communication Renewed Social Agenda: Opportunities, access and solidarity in 
21st century Europe31, the Commission affirmed the need to improve reconciliation of 
private and professional life. 

The vulnerability of pregnant workers and of workers who have recently given birth or 
who are breastfeeding makes it necessary for them to be granted the right to maternity 
leave of at least 18 continuous weeks, allocated before and/or after confinement, and 
renders  necessary  the  compulsory  nature  of  maternity  leave  of  at  least  six  weeks 
allocated after confinement. 

(10)  The International Labour Organization recommends a minimum duration of maternity 
leave of 18 weeks remunerated at the full amount of the woman's previous earnings. 
The ILO Maternity Protection Convention of 2000 provides for a period of six weeks' 
compulsory leave after childbirth.  

(11)  The  Court  of  Justice  of  the  European  Communities  has  consistently  recognised  the 
legitimacy,  in  terms  of  the  principle  of  equal  treatment,  of  protecting  a  woman's 
biological  condition  during  and  after  pregnancy.  It  has,  moreover,  consistently  ruled 
that  any  unfavourable  treatment  of  women  related  to  pregnancy  or  maternity 
constitutes direct sex discrimination.  

29 
30 

31 

OJ L 348, 28.11.92 
Communication  from  the  Commission  to  the  Council,  the  European  Parliament,  the  European 
Economic  and  Social  committee  and  the  Committee  of  the  Regions  A  Roadmap  for  equality  between 
women and men - COM(2006) 92. 
COM(2008) 412. 

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(12)  On  the  basis  of  the  principle  of  equal  treatment,  the  Court  has  also  recognised  the 
protection of employment rights of women, and in particular their right to return to the 
same or an equivalent job, on terms that are no less favourable, as well as to benefit 
from any improvement in working conditions introduced during their absence. 

(13)  Women should therefore be protected from discrimination on grounds of pregnancy or 

maternity leave, and should have adequate means of legal protection. 

(14)  This  Directive  is  without  prejudice  to  Directive  2002/73/EC  of  the  European 
Parliament  and  of  the  Council  of  23  September  2002  amending  Council  Directive 
76/207/EEC  on  the  implementation  of  the  principle  of  equal  treatment  for  men  and 
women  as  regards  access  to  employment,  vocational  training  and  promotion,  and 
working  conditions32,  as  recast  in  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 
occupation33. 

(15)  The  protection  of  the  safety  and  health  of  pregnant  workers,  workers  who  have 
recently  given  birth  or  workers  who  are  breastfeeding  should  be  guaranteed  and  not 
run counter to the principles enshrined in the Directives concerning equal treatment for 
men and women.  

(16) 

In  order  to  improve  the  effective  protection  of  pregnant  workers  and  workers  who 
have recently given birth or are breast feeding, the rules on the burden of proof should 
be adapted where there is a prima facie case of a breach of the rights granted under this 
Directive. For those rights to be applied effectively, the burden of proof should fall on 
the respondent when evidence of such a breach is brought.  

(17)  The  effective  implementation  of  the  principle  of  equal  treatment  requires  adequate 

judicial protection against victimisation. 

(18)  Member States should provide for effective, proportionate and dissuasive penalties in 

the event of any breach of the obligations under this Directive. 

(19)  Experience  shows  that  protection  against  breaches  of  the  rights  guaranteed  by  this 
Directive  would  be  strengthened  by  giving  the  equality  body  or  bodies  in  each 
Member  State  competence  to  analyse  the  problems  involved,  to  consider  possible 
solutions and to provide practical assistance to victims. Therefore, provision should be 
made to this end in this Directive.  

(20)  This  Directive  lays  down  minimum  requirements  and  thus  offers  the  Member  States 
the  option  of 
introducing  or  maintaining  more  favourable  provisions.  The 
implementation of this Directive should not serve to justify any regression in relation 
to the situation prevailing in each Member State. 

(21)  Since the objectives of the action to be taken, namely to improve the minimum level of 
protection  of  pregnant  workers  and  workers  who  have  recently  given  birth  or  are 
breastfeeding  and  to  improve  the  effective  implementation  of  the  principle  of  equal 

32 
33 

OJ L 269, 5.10.2002, p. 15.  
OJ L 204, 26.7.2006, p. 23. 

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treatment  cannot  be  sufficiently  achieved  by  the  Member  States  in  view  of  their 
diverging  levels  of  protection,  and  can  therefore  be  better  achieved  at  Community 
level,  the  Community  may  adopt  measures,  in  accordance  with  the  principle  of 
subsidiarity as set out in Article 5 of the EC Treaty. In accordance with the principle 
of proportionality as set out in that Article, this Directive does not go beyond what is 
necessary in order to achieve the stated objectives.  

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Directive 92/85/EEC is amended as follows: 

1. 

Article 8 is replaced by the following: 

"Article 8 

Maternity leave 

1. Member States shall take the necessary measures to ensure that workers within the 
meaning of Article 2 are entitled to a continuous period of maternity leave of at least 
18 weeks allocated before and/or after confinement.  

2. The maternity leave stipulated in paragraph 1 shall include compulsory leave of at 
least six weeks after childbirth. The Member States shall take the necessary measures 
to ensure that workers within the meaning of Article 2 are entitled to choose freely 
the time at which the non-compulsory portion of the maternity leave is taken, before 
or after childbirth. 

3. The prenatal portion of maternity leave shall be extended by any period elapsing 
between the presumed date and the actual date of childbirth, without the remaining 
portion of leave being reduced.  

4. Member States shall take the necessary measures to ensure that additional leave is 
granted  in  the  case  of  premature  childbirth,  children  hospitalised  at  birth,  children 
with disabilities and multiple births. The duration of the additional leave should be 
proportionate and allow the special needs of the mother and the child/children to be 
accommodated.  

5.  Member  States  shall  ensure  that  any  period  of  sick  leave  due  to  illness  or 
complications  arising  out  of  pregnancy  occurring  four  weeks  or  more  before 
confinement does not impact on the duration of maternity leave." 

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2. 

Article 10 is replaced as follows: 

"Article 10 

Prohibition of dismissal 

In order to guarantee that workers within the meaning of Article 2 can exercise their 
health and safety protection rights as recognised under this Article: 

1. The Member States shall take the necessary measures to prohibit the dismissal and 
all preparations for a dismissal of workers within the meaning of Article 2 during the 
period  from  the  beginning  of  their  pregnancy  to  the  end  of  the  maternity  leave 
provided  for  in  Article  8(1),  save  in  exceptional  cases  not  connected  with  their 
condition which are permitted under national legislation and/or practice and, where 
applicable, provided that the competent authority has given its consent. 

2. If a worker within the meaning of Article 2 is dismissed during the period referred 
to in point 1 the employer must cite duly substantiated grounds for her dismissal in 
writing.  If  the  dismissal  occurs  within  six  months  following  the  end  of  maternity 
leave  as  provided  for  in  Article  8(1),  the  employer  must  cite  duly  substantiated 
grounds for her dismissal in writing at the request of the worker concerned. 

3.  The  Member  States  shall  take  the  necessary  measures  to  protect  workers  within 
the  meaning  of  Article  2  from  the  consequences  of  dismissal  which  is  unlawful  by 
virtue of points 1 and 2.  

4.  Less  favourable  treatment  of  a  woman  related  to  pregnancy  or  maternity  leave 
within the meaning of Article 8 shall constitute discrimination within the meaning of 
Directive 2002/73/EC, as recast by Directive 2006/54/EC." 

3. 

Article 11 is amended as follows:  

(a)  The following point 1a is inserted:  

"1a. workers, within the meaning of Article 2, who are excluded from work by their 
employer  who  considers  them  not  fit  for  work  without  medical  indication  supplied 
by the worker, shall, until the beginning of the maternity leave in the sense of Article 
8(2), receive a payment equivalent to their full salary." 

(b) 

In point 2, the following point (c) is added:  

"(c) the right of workers within the meaning of Article 2 to return to their jobs or to 
equivalent posts on terms and conditions that are no less favourable to them and to 
benefit from any improvement in working conditions to which they would have been 
entitled during their absence;" 

(c)  Point 3 is replaced by the following: 

"3. the allowance referred to in point 2(b) shall be deemed adequate if it guarantees 
income equivalent to the last monthly salary or an average monthly salary, subject to 
any  ceiling  laid  down  under  national  legislation.  Such  a  ceiling  may  not  be  lower 
than the allowance received by workers within the meaning of Article 2 in the event 

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of  a  break  in  activity  on  grounds  connected  with  the  worker's  state  of  health.  The 
Member States may lay down the period over which this average monthly salary is 
calculated."  

(d)  The following point 5 is added: 

"5. Member States shall take the measures necessary to ensure that workers, within 
the  meaning  of  Article  2,  may,  during  maternity  leave  or  when  returning  from 
maternity leave, as provided for in Article 8, request changes to their working hours 
and  patterns,  and  that  employers  shall  be  obliged  to  consider  such  requests,  taking 
employers' and workers' needs into account." 

4. 

The following Article 12a is inserted: 

"Article 12a 

Burden of proof 

1. Member States shall take such measures as are necessary in accordance with their 
national judicial systems to ensure that when persons who consider that their rights 
under this Directive have been breached establish, before a court or other competent 
authority, facts from which it may be presumed that there has been such a breach, it 
shall be for the respondent to prove that there has been no breach of the Directive.  

2.  Paragraph  1  shall  not  prevent  the  Member  States  from  introducing  rules  of 
evidence which are more favourable to plaintiffs.  

3. Paragraph 1 shall not apply to criminal proceedings. 

4.  Member  States  need  not  apply  paragraph  1  to  proceedings  in  which  the  court  or 
competent body investigates the facts of the case.  

5. Paragraphs 1 to 4 shall also apply to any legal proceedings commenced according 
to Article 12." 

5. 

The following Article 12b is inserted: 

"Article 12b 

Victimisation 

Member States shall introduce into their national legal systems such measures as are 
necessary to protect individuals from any adverse treatment or adverse consequence 
resulting from a complaint they have lodged or proceedings they have initiated with 
the aim of enforcing compliance with the rights granted under this Directive." 

6. 

The following Article 12c is inserted: 

"Article 12c  

Penalties 

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Member  States  shall  lay  down  the  rules  on  penalties  applicable  to  breaches  of 
national  provisions  adopted  pursuant  to  this  Directive,  and  shall  take  all  measures 
necessary  to  ensure  that  they  are  applied.  Penalties  may  comprise  payment  of 
compensation,  which  may  not  be  limited  by  the  fixing  of  a  prior  upper  limit,  and 
must be effective, proportionate and dissuasive." 

7. 

The following Article 12d is inserted: 

"Article 12d 

Equality body 

Member  States  shall  ensure  that  the  body  or  bodies  designated  under  Article  20  of 
Directive 2002/73/EC as recast by Directive 2006/54/EC for the promotion, analysis, 
monitoring  and  support  of  equal  treatment  of  all  persons  without  discrimination  on 
grounds of sex shall be competent in addition for issues falling within the scope of 
this Directive, where these issues pertain primarily to equal treatment and not to the 
worker's health and safety." 

Article 2 

1. Member States may introduce or maintain provisions which are more favourable to workers 
than those laid down in this Directive.  

2.  Implementation  of  this  Directive  shall  under  no  circumstances  constitute  grounds  for 
reducing the level of protection in the fields covered by this Directive. 

Article 3 

1.  Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative  provisions 
necessary to comply with this Directive by …. at the latest [two years after adoption]. They 
shall forthwith communicate to the Commission the text of those provisions and a correlation 
table between those provisions and this Directive. 

2. The measures thus adopted by the Member States shall contain a reference to this Directive 
or  be  accompanied  by  such  reference  on  the  occasion  of  their  official  publication.  Member 
States shall determine how such reference is to be made. 

Article 4 

1. Member States and national equality bodies shall communicate to the Commission, by [five 
years after adoption] at the latest and every five years thereafter, all the information necessary 
for the Commission to draw up a report to the European Parliament and the Council on the 
application of Directive 92/85/EEC as amended by this Directive. 

2. The Commission's report shall take account, as appropriate, of the viewpoints of the social 
partners  and  relevant  non-governmental  organisations.  In  accordance  with  the  principle  of 
gender  mainstreaming,  the  report  shall  inter  alia  provide  an  assessment  of  the  impact  on 
women  and  men  of  the  measures  taken.  In  the  light  of  the  information  received,  the  report 

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shall,  where  necessary,  include  proposals  to  revise  and  update  Directive  92/85/EEC  as 
amended by this Directive. 

This Directive shall enter into force on the day of its publication in the Official Journal of the 
European Union. 

Article 5 

Article 6 

This Directive is addressed to the Member States. 

Done at Brussels, 

For the European Parliament For the Council 

The President 

The President 

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