Pedro Manuel Roca Álvarez v Sesa Start España ETT SA.
Date: 2010-09-30
21. It should be noted that the measure at issue in the main proceedings provides that ‘breastfeeding’ leave specifically takes the form of permission to be absent during the working day or a reduction of its duration. That measure has the effect of changing working hours. It therefore affects ‘working conditions’ within the meaning of Article 5 of Directive 76/207 (see, to that effect, Case C-187/00 Kutz-Bauer  [2003] ECR I-2741, paragraphs 44 and 45).
23. It follows that mothers whose status is that of an employed person are always entitled to ‘breastfeeding’ leave whilst fathers whose status is that of an employed person are only so entitled if the child’s mother is also an employed person. Thus, for men whose status is that of an employed person the fact of being a parent is not sufficient to gain entitlement to leave, whereas it is for women with an identical status.
24. However, the positions of a male and a female worker, father and mother of a young child, are comparable with regard to their possible need to reduce their daily working time in order to look after their child (see by analogy, in relation to the position of male and female workers assuming the upbringing of their children, Case C-366/99 Griesmar  [2001] ECR I-9383, paragraph 56, and, in relation to their position as regards use of nursery services, Case C-476/99 Lommers [2002] ECR I‑2891, paragraph 30).
26. As concerns justification for such a difference in treatment, Article 2(3) and (4) of Directive 76/207 states that its application is without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity, and to measures to promote equal opportunities for men and women, in particular by removing existing inequalities which affect women’s opportunities in respect of working conditions.
27. First of all, as regards the protection of women in connection with pregnancy and maternity, the Court has repeatedly held that, by reserving to Member States the right to retain or introduce provisions which are intended to ensure that protection, Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment of the sexes, first, of protecting a woman’s biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows childbirth (see Case 184/83 Hofmann  [1984] ECR 3047, paragraph 25; Case C-32/93 Webb  [1994] ECR I-3567, paragraph 20; Case C-394/96 Brown  [1998] ECR I-4185, p aragraph 17; and Case C‑203/03 Commission v Austria  [2005] ECR I-935, paragraph 43).
30. This situation can be distinguished from that which gave rise to the judgment in Hofmann  in which the national legislation at issue provided for the granting of additional maternity leave, after the expiry of the protective period, and reserved that leave to the mother, to the exclusion of any other person (see Hofmann , paragraph 26).
33. As the Court has consistently held, Article 2(4) of Directive 76/207 is specifically and exclusively designed to authorise measures which, although discriminatory in appearance, are in fact intended to eliminate or reduce actual instances of inequality which may exist in society. That provision thus authorises national measures relating to access to employment, including promotion, which give a specific advantage to women with a view to improving their ability to compete on the labour market and to pursue a career on an equal footing with men (see Case C-450/93 Kalanke [1995] ECR I-3051, paragraphs 18 and 19; Case C-409/95 Marschall  [1997] ECR I-6363, paragraphs 26 and 27; Case C-158/97 Badeck and Others  [2000] ECR I-1875, paragraph 19; and Lommers , paragraph 32).
34. The aim of Article 2(4) is to achieve substantive, rather than formal, equality by reducing de facto inequalities which may arise in society and, thus, in accordance with Article 157(4) TFEU, to prevent or compensate for disadvantages in the professional career of the relevant persons (see, to that effect, Kalanke , paragraph 19; Case C-407/98 Abrahamsson and Anderson  [2000] ECR I-5539, paragraph 48; and Case C-319/03 Briheche  [2004] ECR I-8807, paragraph 25).
36. However, to hold, as the Spanish Government submits, that only a mother whose status is that of an employed person is the holder of the right to qualify for the leave at issue in the main proceedings, whereas a father with the same status can only enjoy this right but not be the holder of it, is liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties (see, to that effect, Lommers , paragraph 41).