European Court of Justice challenges “subsidiary” role of men to women in the exercise of parental duties

European Court of Justice

Photo: Cédric Puisney. Creative Commons.

Guest blog by Eugenia Caracciolo di Torella, School of Law, University of Leicester.

In 2015 the European Court of Justice considered the case of a male civil servant wanting to take parental leave even though his wife did not work. (C-222/14 Maistrellis [2015]). The judgement challenged the traditional distribution of caring roles and the subsidiary role of men in this regard:

“A national provision under which a civil servant is not entitled to parental leave in a situation where his wife does not work or exercise any profession (…) far from ensuring full equality in practice between men and women in working life, 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.”

A few years earlier the Court made a similar judgement, stating that “the position of a male and female worker, father and mother of a young child, are comparable with regard to their possible need (…) to look after the child” (Case C-104/09 Roca Álvarez [2011]).

These judgements represent a U-turn after earlier judgements by the Court. In 1984 it advocated the need to protect and cherish “the special relations between mother and child” (Case 184/83 Hofmann [1984]), In 1999, it emphasised the need to protect women, rather than parents, from the disadvantages inherent in maternity leave, dismissing the possibility that fathers could take some sort of leave to look after their children (Case C-218/98 Abdoulaye [1999]). And in 2002, it sent a powerful message that childcare is a woman responsibility (Case C-476/99 Lommers [2002]).

Meanwhile, European legislation remains behind

Whilst the Court seems now ready to promote a new and dynamic concept of parenthood where fathers play an active role, the legislation remains anchored to outdated stereotypes. The EU legislator is reluctant to confer clear and specific entitlements: fathers’ rights are perceived as an afterthought, a luxury that is difficult to afford especially at times of economic crisis.

In EU law, there are three instruments that, in principle, acknowledge the role of fathers: the Parental Leave Directive (Council Directive 2010/18/EU), the Equal Treatment Directive (Council Directive 002/73/EC) and the Recast Directive (Council Directive 2006/54/EC).

By granting each parent an individual right to four months leave to look after a young child, the first expresses a clear commitment towards supporting gender-neutral parenthood. But the leave is unpaid and, unsurprisingly, in a context where women still earn less than men, its up-take amongst fathers remains very low (Eurobarameter 2004; Eurofund 2015).

The other two Directives provide specific entitlements for fathers.  These, however, fall short of granting positive rights, merely providing that the same level of protection as applies to maternity leave must be extended to paternity leave, if Member States have already introduced such rules into national law. Yet, there is no obligation on the Member States to grant paternity rights to workers. As a result fathers’ rights are an option for Member States to consider, rather than an individual right to protect and promote. This highlights the secondary role that men continue to have in the reconciliation debate.

Caracciolo di Torella E, Men in the work/family reconciliation discourse: the swallows that did not make a summer? Journal of Social Welfare and Family Law, 37.3, 2015