The CJEU answered that EU law must be interpreted as precluding national provisions under which a civil servant is not entitled to parental leave in a situation where his wife does not work or exercise any profession, unless it is considered that due to a serious illness or injury the wife is unable to meet the needs related to the upbringing of the child (para 53). “The provision at issue in the main proceedings constitutes direct discrimination on grounds of sex, within the meaning of Article 14(1) of Directive 2006/54, read in conjunction with Article 2(1)(a) of that directive, in respect of fathers who are civil servants, as regards the granting of parental leave.” (para 52).
It constitutes direct discrimination because:
- The parental leave agreement states that parental leave is an “individual right” which is “non-transferable”, applied to each parent (see, to that effect, judgment in Commission v Luxembourg, C?519/03, EU:C:2005:234, paragraph 33) (para 32 and 33). The possible limits referred to in the Directive make no provision for denying parental leave based on the employment status of the spouse. This literal interpretation is reinforced by the overall context of the agreement: “enable men and women to reconcile their occupational and family obligations”; Men should be encouraged to assume an “equal share of family responsibilities”, inter alia by taking parental leave (para 40). “It was with the same objective” that the right to parental leave was included in Article 33 (2) of the Charter (para 39).
- Secondly, the Greek rule also violated the Directive because parental leave was a working condition, and the position of men and women was “comparable” as regards bringing up children (see judgments in Commission v France, 312/86, EU:C:1988:485, paragraph 14; Griesmar, C?366/99, EU:C:2001:648, paragraph 56; and Commission v Greece, C?559/07, EU:C:2009:198, paragraph 69).The Greek law attached a condition to fathers that it did not attach to mothers, so constituted sex discrimination.
This distinction “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, judgments in Lommers, C?476/99, EU:C:2002:183, paragraph 41, and Roca Álvarez, C?104/09, EU:C:2010:561, paragraph 36)” (para 50). While the Directive does provide that it is “without prejudice” to the parental leave agreement and the pregnant workers’ Directive, the “deprivation’ of a father’s parental leave “in no way” helps the health and safety of pregnant workers or new mothers, which is the purpose of the latter Directive.