MATERNITY LEAVE AND DISCRIMINATION AGAINST FATHERS: CURRENT CASE LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION AND THE WAY FORWARD

Abstract

Recent case law of the Court of Justice of the European Union (CJEU) questions whether traditional women’s rights, such as breastfeeding leave and maternity leave, are in line with the principle of non-discrimination between parents (the Roca Álvarez and Betriu Montull cases). This case law triggers a fundamental question: Is maternity leave going beyond biological differences between the sexes and therefore perpetuating the traditional role of women as child carers? The aim of this article is to gain insight into the compatibility of maternity leave with the principle of equal treatment between the delivering mother and the father. On the one hand, it reviews and analyses in depth the case law of the CJEU, which has consistently held since 1984 that maternity leave is a legitimate exception to the principle of equal treatment between men and women and that Member States are not obliged to confer on fathers a similar period of leave. On the other hand, it reflects on a way forward to find a better balance between the recognition of women’s biological specificities and the rights of all parents to spend time with their children.