Social Policy – use of the preliminary reference procedure

Use of the Preliminary Reference Procedure

Tribunal de Justicia de la Unión Europea

Court of Justice of the European Union

C-473/22

16 of May of 2024

ECLI:EU:C:2024:407

No

No

Leave for a mother in a single parent family – social policy – extension of maternity leave – inadmissibility of the request for a preliminary reference

The case addresses the compatibility of the maternity leave recognized in Spanish law with Directive 2019/1158. The appellant claims that single-parent families in Spain are discriminated against because the sole parent is only entitled to 16 weeks of leave. In contrast, in two-parent families a total of 32 weeks of leave is granted. Finally, the CJEU declared the preliminary reference inadmissible.

NO

NO

Article 48.4 of the Workers Statute; article 178 of the General Law on Social Security

The appellant had a child on November 5, 2021, thus forming a single-parent family. Once the child was born, she requested maternity leave from the Social Security Institute (INSS), which granted her leave from November 5, 2021, to February 24, 2022.

Two days before her maternity leave was set to end, the appellant requested an extension of her leave for 16 weeks, claiming that single-parent families were being discriminated compared to two-parent families. Specifically, the claimant argues that in two-parent families, each parent has 16 weeks of leave (32 weeks in total).

The Social Security Institute and the General Treasury of Social Security (TGSS) denied the extension request, specifying that the right to maternity leave is individual and not automatic. The claimant decided to file a lawsuit before the Social Court No. 1 of Seville.

The Social Court had doubts about the compatibility of Spanish law with Directive 2019/1158 regarding parental leave. In particular, the court considered that the specific situation of single-parent families had been overlooked. These families are at a disadvantage compared to parents in two-parent families, at least concerning the reconciliation of family and work life.

Therefore, the Social Court raises a preliminary question for the CJEU to determine whether Spanish laws (Workers' Statute and General Social Security Law) are incompatible with Union law for failing to provide a flexible legal framework that prevents discrimination between single-parent and two-parent families regarding family leave.

First of all, the CJEU recalls that preliminary questions enjoy a "presumption of relevance," but must be necessary to issue a ruling on the matter at hand. The CJEU warns that the referring court must justify this "necessity" and must not pose hypothetical questions.

The CJEU clarifies that a distinction must be made between parental leave (Article 5 Directive 2019/1158), paternity leave (Article 4), and maternity leave (Article 8). Each of these leaves serves a different purpose.

In fact, the CJEU addresses the referring body to clarify its question. The CJEU expresses confusion because the referring court refers to the article (which discusses parental leave) when asking for a ruling on the extension of maternity leave (which is actually regulated in Article 8 of the Directive).

The referring body responds by stating that the "parental leave" in Article 5 of the Directive is actually similar to the "maternity leave" provided for in Article 177 of the General Social Security Law. Additionally, it specifies that its intention is to determine whether Spanish law is compliant with Directive 2019/1158, as the former does not regulate the particular situation of single-parent families. Furthermore, the court asserts that it is necessary to answer the question so that the strict application of Spanish law does not disadvantage single-parent families.

However, the CJEU rejects the request and states that Article 5 of the Directive is not applicable to the main dispute ratione materiae. Thus, the Luxembourg Court specifies that Article 5 of the Directive does not regulate the extension of maternity leave in the case of single-parent families.

Temporally, the CJEU points out that the deadline for transposing the Directive 2019/1158 expired on August 2, 2022. Therefore, the claimant raised the issue before the transposition deadline (on February 22, 2022). Consequently, the Union law provisions requested in the dispute are not applicable ratione temporis.

In short, since Union law is not applicable ratione materiae or ratione temporis to the dispute, the preliminary question raised is of a hypothetical nature and, consequently, must be declared inadmissible.

N/A

N/A

consistent interpretation

N/A

N/A

N/A

N/A

In Spain, many single-parent families have requested an extension of maternity leave using the same arguments as the appellant from Seville. Some first-instance judges have denied the extension, while others have granted it, citing the best interests of the child. The discrepancies between the rulings of different courts have been resolved by the Supreme Court.

The Supreme Court has unified the criteria and ruled that the best interests of the child do not justify extending maternity leave for single-parent families. Furthermore, in its rulings, the Supreme Court noted that the CJEU dismissed the preliminary question raised by the Social Court No. 1 of Seville. (Spanish Supreme Court: Judgment of June 4, 2024, No. 844/2024, ECLI:ES:TS:2024:3485; Judgment of June 5, 2024, No. 888/2024, ECLI:ES:TS:2024:3488; Resolution of July 17, 2024, ECLI:ES:2024:10426A; Supreme Court of Justice of Madrid, Judgment of June 13, 2024, No. 569/2024, ECLI:TS:TSJM:2024:8044).

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

David Mier Galera, Pompeu Fabra’s University