France, Prud’hommes Council , 15 May 2019

Identification of the case

• Equality before the law (art. 20 CFREU)
• Non-discrimination (art. 21 CFREU)
• Equality between women and men (art. 23 CFREU)

• Article 46 of the French National Collective Agreement for social security bodies
• Article L1134-2 of the French Labour Code

• Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.

Summary of the case

The applicant is an employee of a CPAM (the French public sickness insurance fund) regional branch. He is the father of a child and was not eligible for educational leave under Article 46 of the French National Collective Agreement for social security bodies on the grounds that this benefit would be reserved for women.

On the occasion of a trade union's request for the extension of this text to male employees, the CPAM management stated that "the legal application of Article 46 implies that the agreement is only granted to the mother (female employee). The father cannot therefore benefit from it. This section is not discriminatory to the extent that section 46 is an adjunct to section 45 which is granted only to women. Since a man cannot benefit from section 45, he cannot benefit from section 46". The trade union said that this answer was based on a misinterpretation of the texts and that the discrimination was based on prohibition provided from European Union law (Articles 20, 21(1) and 23 of the Charter and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation) as well as the one from the French Labour Code (article L1134-2).

The trade union asked the Council to rule that the refusal of the CPAM to allow the applicant to benefit from the provisions of article 46 of the National collective agreement for social security bodies which provides for child educational leave, is not enforceable because it is discriminatory. Firstly, with regard to employees, because male and female employees, fathers and mothers are equal in the burden of education of their children. Male employees should thus enjoy the same benefits. Secondly, against children because Article 46 refers to the legitimate or natural child while Article 46 bis refers to the adopted child. The two texts then treat the child differently depending on his or her filiation.

Therefore, the trade union asked to condemn the CPAM to allow him to benefit from the said provisions.

The Prud'hommes Council of Metz declares the union's request admissible and grants the request of the CPAM fund for a preliminary ruling.

• Civil judicial enforcement

Extending the benefit of legal provisions reserved for women to men.

Should Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation read in conjunction with Articles 8 and 157 TFEU, the general EU law principles of equal treatment and of the prohibition of discrimination, and Articles 20, 21(1) and 23 of the Charter be interpreted as meaning that the provisions of Article 46 of the French national collective agreement for social security bodies, which grant female employees of social security organisations raising children on their own three months leave with half pay, one and a half months leave with full pay and unpaid leave of up to a year after maternity leave, are excluded from the scope of application of that directive?

The French Government and the CPAM have submitted, relying on the findings of the Court in its judgment in Hofmann (Judgment of 12 July 1984, Hofmann, 184/83) that Article 46 of the National collective agreement falls within the exception of Article 28(1) of Directive 2006/54. In particular, the French Government argues that the leave provided for in Article 46 has been conceived by social partners as additional maternity leave and not as leave destined to ensure the education of children which could be taken by either parent.

Second, the French Government has submitted that the provisions of the National collective agreement make a clear difference between the different types of leave (maternity, paternity, adoption) and that Article 46 is placed under a chapter entitled ‘maternity leave’. Finally, that government emphasizes that this conclusion has been confirmed by a judgment of the Court de cassation (Court of Cassation, 21 September 2017, No 16-16246). In that judgment, it is stated that the leave under Article 46 aims to protect the particular relationship between the woman and her child during the period following pregnancy and birth.

Third, the French Government also notes that, albeit in a different context, in Thibault (Judgment of 30 April 1998, Thibault C 136/95) the Court has already considered this to be maternity leave.

Conversely, the trade union, the Portuguese Government and the Commission have pleaded in essence that Directive 2006/54 is to be interpreted in the sense that a provision such as Article 46 is discriminatory.

Therefore, the question is whether the additional leave at issue is genuinely connected with the objective of establishing protective measures related to the biological condition of the woman after birth and her special relationship with the child, so as to be (fully) covered by the exception of Article 28(1) of Directive 2006/54.

Role of the Charter and role of the general principles on enforcement

• Equivalence
• Proportionality

Elements of judicial dialogue

• Direct dialogue between CJEU and National court (preliminary reference)

Preliminary reference.