C-184/83

U L R I C H H O F M A N N , residing in H a m b u r g ,

and

BARMER ERSATZKASSE, W u p p e r t a l ,

o n t h e interpretation of Articles 1, 2 a n d 5 (1) of Council Directive 7 6 / 2 0 7 of 9 February 1976 on the implementation of t h e principle of equal t r e a t m e n t for m e n a n d w o m e n as regards access t o employment, vocational training and p r o m o t i o n , and w o r k i n g conditions,

HOFMANN v BARMER ERSATZKASSE

THE COURT

JUDGMENT OF 12. 7. 1984 — CASE 184/83

The treatment for men and women as regards constitutional objection was declared access to employment, including pro- admissible by the preliminary exam- motion, and to vocational training and as ination committee. The Bundesverfas- regards working conditions and, subject sungsgericht has stated that it is appro- to the conditions referred to in priate to await the outcome of the paragraph (2), social security. Article 2 proceedings before the Court of Justice (1) stipulates that the principle of equal before it delivers judgment. treatment means that there is to be no discrimination whatsoever on grounds of The pension fund refused the claim for

It is apparent main proceedings, Ulrich Hofmann, from the travaux préparatoires that the became the father of an illegitimate legislature deliberately did not create a child, of which he acknowledged period of leave capable of being granted paternity. In the period between the to either parent. The biological expiry of the mother's statutory period differences due to pregnancy and of convalescence and the day on which childbirth, which were still present after the child reached the age of six months, the eight-week period of convalescence he obtained from his employer unpaid had expired, made it justifiable to take leave of absence. During that period he account of the special circumstances of looked after the child, while the mother motherhood. resumed employment as a teacher. The plaintiff in the main proceedings On 1 August 1979 the plaintiff in the lodged an appeal against that judgment, main proceedings submitted to the arguing inter alia that the introduction of competent sickness fund, the Barmer maternity leave was concerned, not with Ersatzkasse, a claim for maternity benefit the protection of the mother's health, but in respect of the period of leave laid exclusively with the care which she gave down by Paragraph 8 a of the Mutter- to the child. In the oral procedure before schutzgesetz. the First Senate of the Landessozial- gericht Hamburg, he sought to have the Previously, on 8 July 1979, he proceedings stayed and to have questions had brought proceedings before the on the interpretation of the Community Bundesverfassungsgericht [Federal Con- directive referred to the Court of Justice.

The First Senate of the Landessozial- The order of the Landessozialgericht gericht Hamburg took the view that the was lodged at the Court Registry oh dispute raised the question whether the 29 August 1983. German legislation was in conformity with the Community directive, and noted the differing views on the application of that text, especially in the light of the In accordance with Anicie 20 of the action which the Commission had Protocol on the Statute of the Court of brought against the Federal Republic of Justice of the EEC, written observations Germany, claiming that the directive were submitted on 11 November 1983 by had been inadequately implemented. the Commission of the European Com- Accordingly, by an order of 9 August munities, represented by M. Beschel, a 1983, the court decided, pursuant to member of its Legal Department, and on Article 177 of the EEC Treaty, to stay 1 December 1983 by the plaintiff in the the proceedings until such time as the main proceedings, Ulrich Hofmann, Court of Justice had given its preliminary represented by K. Bertelsmann, Rechts- ruling on the following two questions : anwalt in Hamburg, by the Barmer Ersatzkasse, and by the Government of the Federal Republic of Germany, represented by M. Seidel, Ministerialrat, and E. Roeder, Regierungsdirektor in " 1 . Are Articles 1, 2 and 5 (1) of the Ministry of Economic Affairs. Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to Upon hearing the report of the Judge- employment, vocational training and Rapporteur and the views of the promotion, and working conditions Advocate General the Court decided to (Official Journal of the European open the oral procedure without any Communities, L 39, pp. 40 to 42) preparatory inquiry. However, it re- infringed if, on the expiry of the quested the parties to the main eight-week protective period for proceedings, as well as the Commission working mothers following child- and the German Government, to reply in birth, a period of leave which the writing to a number of questions; the State encourages by payment of the request was acceded to within the pre- net remuneration of the person scribed periods. concerned, subject to a maximum of DM 25 per calendar day, and which lasts until the day on which the child reaches the age of six months can be claimed solely.by working mothers II — W r i t t e n o b s e r v a t i o n s sub- . and not, by way of alternative, if the mitted to the C o u r t parents so decide, by working fathers?

of maternity leave under German law is for the Rights of Working Women, of contrary to the provisions of Directive the International Confederation of Free 76/207. In resolving that question a Trade Unions), of German trade unions, decisive factor is whether the maternity and of other organizations and parties, leave is to be regarded as a "provision all of which had called for educational concerning the protection of women, leave to be made available either to the particularly as regards pregnancy and mother or to the father, according to maternity" within the meaning of Article their wishes.

from six to eight weeks. From various clear reason for treating fathers and quarters, both political and trade mothers differently, that there was no unionist, demands were heard for the ground specifically identifiable with sex introduction of parental leave. In 1979 which argued in favour of the mother's the Federal Government tabled a draft role being pre-eminent in caring for the Law on the introduction of maternity child, provided that it enjoyed the leave, the main aims of which, as set permanent presence of a person to whom forth in the preamble (Bundesrats- it might relate (Bezugsperson) and that drucksache 4/79), were the reduction of the aim of avoiding a double claim on the double burden imposed on a woman the mother's attention was equally by her employment and her child, the attained if the child was brought up by need to take care of the child in its first the father. phase of life and the extension of the period of rest beyond the existing

alone. The educational leave, which was brought fathers within the scope of such restricted to mothers, had been in- leave would have required the pre- troduced contrary to the opinion of liminary approval of the Bundesrat. international committees (see the Charter However, the latter wished to extend the

parental leave to parents who were not According to the plaintiff, recent legal gainfully employed, an idea which the developments also bear out his con- Government rejected on financial tention. Under the Law of 25 June 1979 grounds. It was only the desire to avoid every mother was entitled to maternity the need to submit the Law for the prior leave, whereas the daily allowance was assent of the Bundesrat which accounted restricted to a mother who was insured for the exclusion of fathers. under the social security scheme or held an employment contract for a certain period before the birth. Since the amendment of the Mutterschutzgesetz by the Law of 22 December 1981 (Bun- It is further apparent from the actual desgesetzblatt I, p. 1523), employees wording of the Law that the true who commence employment less than purpose of the leave is not to afford nine months before the birth are not increased social protection to the mother entitled to the leave. No one could claim on biological grounds, but to reduce the that the health of mothers who started multiple burdens arising from her work only a short time before the birth employment and the bringing up of the needs less protection than that of child. The fact that maternity leave is not mothers who have been working for a granted, or terminates, in the event of longer period of time. In any event, that the child's death proves that it relates to proves that maternity leave is a social the bringing up of the child by the benefit from the State which is intended mother. If the biological or health to assist in the bringing up of the child, reasons put forward by the German and yet is governed by certain qualifying Government were essential, the leave periods on account of its cost. If the would have to be granted to the mother "biological" argument were accepted it irrespective of whether the child would have been possible to prevent the survived. risk of abuse, to which reference was made during the legislative procedure, by disallowing payment of the daily allowance, yet without affecting the basic A recent case illustrates the unfortunate option available to all mothers of consequences to which the fallacious enjoying a period of leave irrespective of arguments based on biological and health the length of their employment. considerations can lead; the applicant, a father, had asked to be awarded maternity leave by way of parental leave, since the mother had died shortly after It is apparent from the foregoing the birth, but the request was rejected by considerations that, in the light of the the social courts on the ground that debates and texts leading up to the maternity leave, having been instituted for biological reasons, was available toadoption of the law and in the light of mothers alone. its meaning, purpose and subsequent development, the intention of the legislature was to institute a period of leave facilitating the bringing up of the child, not to enlarge existing protection The optional nature of the leave also • on biological and health grounds. contradicts the Government's line of argument. If the Law were really based on those reasons, then the extension of maternity leave should have been The present legal provisions give rise compulsory. to two forms of discrimination. First,

fathers who are gainfully employed are restrict the class of persons eligible to discriminated against in an unacceptable those who bear the heaviest burden as a manner · by comparison with working result of pregnancy, childbirth and child- mothers. Secondly, the Law lessens care. Maternity leave does not constitute women's chances on the labour market, a new form of child-care leave. by making it even less attractive, in economic terms, to employ them. Parental leave benefiting either the father or the mother could mitigate that disad- vantageous situation, since the employer The essential question is whether would have to take account of the fact maternity leave must be regarded as a that fathers might also claim leave. special provision for the purposes of Article 2 (3) of the directive, or whether it falls within the scope of the prohibition of discrimination under Article 5 (1). Consideration must also be given to the legal provisions governing maternity leave and child-care leave in various

the Community there is no such option. (3) deals with an area where there is no The Commission has brought an action room for comparison between men and for failure to fulfil a Treaty obligation women, because biological differences against those States which, like the predominate. Special protection for the Federal Republic, have created a longer woman is permissible during pregnancy period of maternity leave, based on and for some time after birth, and also biological grounds, extending beyond the during periods of nursing. Justification

HOFMANN v BARMER ERSATZKASSE

JUDGMENT OF 12. 7. 1984 — CASE 184/83

HOFMANN v BARMER ERSATZKASSE

sex. It is contrary to Article 5 ( 1 ) thereof similar. The Bundessozialgericht took to award, after the birth of a child and the view that the limitation of benefits on expiry of an eight-week protective awarded in connection with maternity period of leave granted to the mother leave to the mother alone was not alone, a period of leave to which the contrary to the Constitution. In order to State contributes by the payment of her care for the mother beyond the statutory net remuneration, subject to a minimum maternity leave of eight weeks following of DM 25 per diem, and which lasts until the birth, and on account of the physical the day on which the child reaches the and psychological changes entailed by age of six months, where such leave is pregnancy and childbirth, the Mutter- available exclusively to mothers in schutzgesetz offers maternity leave so as gainful employment and fathers in to enable her to be free of the special gainful employment are not entitled to burden which her employment represents take the leave instead of the mother, during that period. The Sozialgericht, when the parents so agree. giving judgment at first instance, had held on the basis of a convincing expert opinion that the mother does not recover from the physical and psychological Article 2 (3) of the directive, which changes which she has undergone by the provides that the directive is to be end of the statutory post-natal leave of without prejudice to provisions con- eight weeks, but only some months cerning the protection of women, par- thereafter. It was held that it was not ticularly as regards pregnancy and essential to refer the matter to the Bun- maternity, does not apply to such leave desverfassungsgericht or to the European when it extends beyond the 12 weeks Court of Justice. following the birth of a child.

the plaintiffs opinion, entitlement to The Government of the Federal Republic the leave derives from biological con- submits that the first question is siderations. concerned with whether it is compatible with Articles 1, 2 and 5 (1) of Directive 76/207 to deny a father the right to maternity leave. Article 1 sets out the objective of giving effect to the principle of equal treatment. Under Article 2 (1), that principle entails a prohibition of The same point emerges from a further discrimination on grounds of sex. Article judgment delivered by the Bundes- 5 (1) reiterates that prohibition with sozialgericht on 3 June 1981 in pro- reference to working conditions. ceedings brought by an adoptive mother. According to that court, the intention of the legislature was to confer a right to maternity allowances only in the case of maternity in the physical sense of the The question whether the refusal to word. Adoptive mothers were denied grant - men the right to take maternity both maternity leave and the financial leave contravenes the prohibition which benefits attached to it, because they were Directive 76/207 places on discrimi- not subject to the consequences of nation on grounds of sex should receive pregnancy and childbirth. In that light a negative reply. Reserving to women there can a fortiori be no question of alone the right to take maternity leave is discrimination against fathers on grounds consistent with Article 2 (3) thereof, of sex, within the meaning of Article 2 of since the leave is intended to contribute the directive. Article 2 (3) confirms that solely to the protection of the mother's the directive is without prejudice to physical health. According to the Bun- provisions concerning the protection of desverfassungsgericht, the statutory pro- women, particularly as regards tection is designed to reduce the conflict pregnancy and maternity. It is reasonable between the role of the woman as a to assume that it was provisions such as mother and her status as wage-earner, in those contained in the Mutterschutz- order to preserve her own health and gesetz which induced the Council to that of the child. insert that provision, thereby restricting the scope of Article 2 (1). No contravention of the objective referred to in Article 1 (1) of the directive is in evidence. In drafting the Mutterschutzgesetz and instituting the maternity leave, the legislature was primarily concerned to ensure the protection of the mother's health. As soon as the child is born, the woman must be relieved of her duties at Reserving to mothers in gainful work on account of the physical and employment the financial benefits psychological changes due to pregnancy attaching to maternity leave is not and childbirth. That is an undisputed inconsistent with the implementation of characteristic inherent in a woman's the principle of equal treatment for men nature. Opinions differed over the length and women, either as regards access to of the leave, which by 1965 had been employment, including promotion, and increased from the original period of to vocational training, or as regards three weeks to eight weeks in line not working conditions and social security. only with the current state of medical

knowledge and the views of the legis- is regarded as maternity leave enabling lature on the form and extent of her to recover after childbirth, not protection, but also with the size of the simply as a period of leave for mothers financial resources available. On the (Mutterurlaub). In principle, the leave is occasion of the latest extension of the not granted unless it immediately follows leave, in 1965, medical experts based the period of convalescence, the object themselves on the fact that the reversion being to safeguard a mother's chances of the major organic changes atdbutable of recovery initially offered by the to pregnancy and childbirth takes about convalescent leave. eight weeks, and that a complete cessation of work during that period is indispensable. Since the introduction of the Mutterschutzgesetz in 1952, however, there has been an awareness Entitlement to maternity leave under that, when the period of convalescence Article 8 (a) (1) of the Mutterschutz- expires, a woman has still not regained gesetz is conferred only on mothers who the capacity for work which she has nave just given birth, to the exclusion of prior to pregnancy. According to an adoptive mothers and foster mothers. expert report, she has recovered only The decisive criterion for the entitlement from the most basic organic changes, not therefore lies, not only in the sex of the from the alterations to the hormonal and claimant and the care of the child, but endocrinal systems and to the central also in the fact of pregnancy and nervous system or from the psychological childbirth, with their attendant con- changes. Since a woman's, capacity for sequences for a woman's health. work is diminished beyond the period of convalescence, a cessation of work for several months thereafter was suggested on health grounds. The expert report endorsed the conclusion reached by the Bundesministerium für Arbeit und The provisions of the Law which exclude Sozialordnung [Ministry of Labour and entitlement to the leave in the case of the Social Security], namely that the Mutter- child's death are not, the Federal schutzgesetz did not afford sufficient Government maintains, inconsistent with protection for the female wage-earner. the above viewpoint and do not support Every year about 50% of women who the contention that the leave was created have given birth resign shortly mainly to enable a person to care for the afterwards. 2 0 % of mothers who return child and to bring it up. The legislature to work on expiry of the period of intended to limit the category of mothers convalescence become unfit to work for enjoying maternity leave to those whose varying lengths of time. Cessation of children were alive. That distinction, work for the mother is justified on determined by the need to assist those grounds connected with a woman's mothers on whom the constraints due to biological characteristics. That aim, pregnancy, childbirth and the attention indeed, underlies the Law introducing demanded by the child weighed most maternity leave and is expressed with heavily, does not contravene the prin- sufficient clarity in the Law itself and in ciple of equality. the travaux préparatoires.

understandable that the protection extension by four months of the period should be conferred directly and of exemption from work enables a exclusively upon her by relieving her of mother who is in employment to devote her work. In fulfilling its obligations to herself to her child during the first provide protection and assistance under months following its birth. the Grundgesetz, the Federal Govern- ment did not exceed its discretion by limiting the category of those eligible for the leave. The objective of improving the social protection of the mother is also set out in the report of the competent committee of the Bundestag and was emphasized in the readings of the bill in plenary session. No argument may be derived from the The fact that some of the parliamentary fact that, by contrast with convalescent speeches concentrated on the care of the leave, the mother is relieved of her duties child and that leave was withheld from at work during the maternity leave, not the father in order to avoid the need for as the result of a prohibition on working, the Bundesrate approval is explicable but by virtue of a right to take leave. The mainly in terms of the political debate on effects of pregnancy and childbirth a Federal draft law on family allowances become increasingly diverse as time goes tabled by members of the opposition.

enjoyed by the mother. According to making provision for the care of the Bundestagsdrucksache [Parliamentary child and for its upbringing was an Paper] No 8/2613, the purpose of the objective of prime importance, but one Law is to release the mother from her which entailed new political endeavours duties at work so as to enable her to going beyond the present concept of continue her recovery beyond the period protecting the mother. It was necessary

the period of convalescence. The such legislation. It is therefore apparent

The Law introducing maternity leave further serves to give effect to the principle of equality between the sexes at It is apparent from a study of the content work, by assisting a woman to retain her and purpose of the directive that it seeks employment after childbirth; 50% of to give effect to the principle of equal mothers give up their work after the treatment as regards access to, and birth of their child. The drawbacks pursuance of, employment including which childbirth formerly entailed for a matters of social security. The principle woman with regard to her employment at issue is a particular form of the and under social security law are now general principle of equality and shares reduced. The mother retains her the character, status and importance of a employment and she is covered by the fundamental right at the Community social insurance scheme free of charge. level. By referring to both direct and For the first time, the period spent in indirect discrimination, Article 2 (1) of bringing up the child is taken into the directive emphasizes the broad scope account for old-age pension purposes. of the principle. Articles 3 to 5 extend its ambit to cover access to employment, training, working conditions and dis- missal. In a recent decision of 2 February 1982 the Bundesverfassungsgericht took the view that maternity leave serves to protect the physical health of the mother To take account of the fact that and does not constitute leave intended legislation explicitly based on a person's for bringing up the child. sex may be justified in the case of an objective difference determined by sex, the directive, in Article 2 (2) to (4), provides certain exceptions to the The second question inquires whether principle of equal treatment, which Articles 1, 2 and 5 (1) of the directive are should nevertheless be recognized as

such and accordingly be interpreted constitutes one of the essential reasons restrictively. for the German legislation. That is, indeed, also apparent from the statement of the reasons on which the Law is based. It is equally possible to provide Article 2 (3), which deals with the protection for the mother beyond the protection of women, particularly as period of convalescence by releasing her regards pregnancy and maternity, en- from household chores, assigning them compasses only those provisions referring to the father. Since non-discriminatory to sex which are necessary to ensure legislation would attain the desired such protection. The availability in all purpose, discrimination on grounds of Member States of periods of con- sex is forbidden. valescence for the benefit of mothers after childbirth proves, even if they are not of standard duration, that the The contentions of the Commission are principle is generally acknowledged. borne out by the position in other Member States, where a clear distinction is drawn between maternity leave as such, which is compulsory, and other Ön the other hand, a national rule which measures of family policy. Where on is described as a provision for the expiry of the compulsory protection protection of the mother may not ipso period, which is reserved to the mother facto fall within the scope of that dero- alone, special benefits are made available gation, which encompasses only those on account of changed family circum- provisions which serve objectively to stances, they must be granted to the protect the mother and in which the father or mother of the child, as reference to sex is a necessary condition preferred. The Court itself has dis- for ensuring the desired protection. tinguished clearly between the very difficult period which follows immedi- ately the birth of the child, on the one hand, and the later period, on the other. A distinction based on sex is not permissible, however, in the context of a body of rules also designed to release the The Commission points out that it was mother from her duties at work in order on the basis of those considerations that to enable her to attend to the child's it brought an action against the Federal upbringing. Indeed, the facility thereby Republic of Germany for failure to fulfil granted could equally be provided by a Treaty obligation. In the context of a means of a non-discriminatory measure preliminary ruling, however, the Court allowing the father, too, to attend to the may not, directly and specifically, give child and thus relieve the mother in the judgment on the compatibility of household. national provisions with Community law. With that proviso, it proposes that the first question be answered as follows :

to enable her to take care of her child, is as that does, it is true, require the contrary to the principle of equal national legislature to abstain from any treatment laid down in Directive discriminatory treatment by reference to 76/207/EEC and is not justified in terms sex, but does not require it either to of the derogation provided for by Article introduce any legislation of a specific 2 (3) thereof. content or to offer particular benefits. Where certain legislation is not in conformity with the principle of non- discrimination, the legislature generally The second question, on the direct effect has at its disposal a number of means of of the directive, is concerned with the ensuring equal treatment. The principle interpretation of Article 5 (1), which may possibly have direct effect where the makes provision for the implementation legislature is vested with no such of the principle of equal treatment in discretion and the inclusion of persons of relation to working conditions. The the opposite sex is the only means of disputed legislation is, the Commission creating a situation which is in con- claims, discriminatory in character be- formity with the directive. cause it is only the mother of a child who may enjoy paid leave.

The direct effect of that type of directive The Commission was requested, on the raises special problems. A directive such subject of current legislation governing

JUDGMENT OF 12. 7. 1984 — CASE 184/83

The parties to the main proceedings and the Government of the Federal Republic of Germany were requested to answer the Leave for the purpose of child-care following questions concerning the grant which was available to the mother or of maternity leave and the payment of father, as preferred, would not be the pecuniary allowance which the Law granted unless the person claiming it met attaches to the leave: On the basis of the conditions laid down. As under the whose employment are the leave and the present system, entitlement to child-care allowance awarded? Is the Court right in leave should be indépendant of the other thinking that, under the present law, the parent's social or occupational circum- leave and the allowance are granted on stances. Even if the mother is not in the basis of the mother's employment? If employment, the father should be that is so, what would be the situation if entitled to parental leave. If only one

HOFMANN v BARMER ERSATZKASSE

JUDGMENT OF 12. 7. 1984 — CASE 184/83

whose employment either is lawfully therefrom because it benefits the child, terminated by the employer during received the following answers: pregnancy or comes to an end after the protective period has elapsed, since those mothers must be released from the need to re-enter the labour market before the expiry of the six-month period following childbirth. To award a period of leave and an allowance to the wage-earning father would not contribute to the protection of the mother, which German (a) The plaintiff in the main proceedings law seeks to achieve, if the mother subscribes to the Commission's opinion, herself were not engaged in employment. namely that the protection of the mother As a housewife she would not bear the from a multiple burden may be ensured extra burden of employment. Where without there being discrimination if the both parents are employed, leave taken father attends to the housekeeping and by the mother releases her from the the care of the children. The fact that burdens arising from her employment maternity leave is not granted, or and enables her to recover from the terminates, in cases where the child dies aftermath of pregnancy and childbirth. further demonstrates that it is intended The aim of the maternity leave is thereby to release the mother from a multiple fulfilled. If leave were taken by the burden. The death of the child does father, the mother would be obliged to nothing to change the biological return to work eight weeks after condition of the mother or her health, childbirth. The degree of protection for and has no effect on household the mother would depend on the extent responsibilities; yet the legislature takes to which the father, once released from account of that circumstance and his duties at work, relieved her of the withholds entitlement to maternity leave. tasks of caring for the child and bringing That indicates that the true purpose of it up. In any event, the mother would maternity leave is solely to enable the incur the extra burden of her mother to care for her child. employment. It is only a dispensation from work which makes it possible to improve, without restriction, the protection of the mother in the first six months following childbirth.

of sex, the legislature would be obliged (a) According to the Federal Govern- to take that non-discriminatory course. ment, the rules on maternity leave Protection for the mother and care of are not directly designed to guarantee the child can be ensured if the mother is the mother's employment; rather, its released from her employment and looks retention is a logical consequence of after the child. In a situation such as the maternity leave. The leave presupposes present one it is, for reasons of dis- that the post is available when work is crimination, impermissible to reserve the resumed. The guarantee of employment leave to the mother alone. is also intended to enable the mother to claim the benefit of the leave. If she ran the risk of losing her employment, the mother would hardly ever avail herself of the option of maternity leave. For that reason, protection from dismissal has been extended to two months after expiry of the leave. The German Government produced a table showing (c) According to the Federal Govern- the number of women taking advantages ment, relieving the mother of her duties of maternity leave between 1980 and as an employee during both the period of 1983. It reveals that the percentage of convalescence and the maternity leave is women who did so during the four years of benefit not only to the mother but to under consideration increased from 8 8 % the child as well. The fact that those two to 96%. aspects may not be separated becomes apparent when the question is raised whether it might be beneficial to the infant to require its mother to work during the first months after childbirth. The line of argument which seeks to exclude maternity leave from the ambit of Article 2 (3) of the directive on the ground that it benefits the child as well is mistaken. (b) The plaintiff in the main proceedings points out that, according to the Federal Government, maternity leave was intended to assist women in retaining their employment. However, since the introduction of the leave there has been an increase in the number of women giving up their employment on expiry of The Government of the Federal Republic the first six months following the birth. of Germany, having stated that one of Similarly, the Government's argument the fundamental reasons for the that the Law serves to promote the legislation on maternity leave is that it equality of women at work is a dubious enables the mother to retain her one. The Law has caused employers to employment, was requested to supply the recruit even fewer women, since it is Court with statistics on the number of only female employees who are entitled women who have made use of maternity to maternity leave. By obliging the leave since the introduction of the new mother to look after the child despite the Law, and the influence which it may possibility that the parents might decide have had in keeping women in otherwise, the Law also prevents women employment. from pursuing their careers.

Decision

1 By an o r d e r of 9 August 1983, received at the C o u r t Registry on 29 August 1983, the Landessozialgericht [ H i g h e r Social C o u r t ] H a m b u r g referred to the C o u r t for a preliminary ruling u n d e r Article 177 of the E E C T r e a t y t w o questions concerning the interpretation of Council Directive 7 6 / 2 0 7 / E E C of 9 February 1976 on the implementation of the principle of equal t r e a t m e n t for men and w o m e n as regards access to employment, vocational training and p r o m o t i o n , and w o r k i n g conditions (Official Journal 1976, L 39, p. 40), in o r d e r to determine w h e t h e r P a r a g r a p h 8 a of the Mutterschutzgesetz [Law for the Protection of W o r k i n g M o t h e r s ] of 18 April 1968, as amended by the

HOFMANN v BARMER ERSATZKASSE

Laws of 25 June 1979 and 22 December 1981 (Bundesgesetzblatt I, 1968, p. 315, 1979, p. 797, and 1981, p. 1523), is compatible with Community law.

2 The order making the reference to the Court discloses that Mr Hofmann, the plaintiff in the main proceedings, is the father of an illegitimate child, of which he has acknowledged paternity. H e obtained unpaid leave from his employer for the period between the expiry of the statutory protective period of eight weeks which was available to the mother and the day on which the child reached the age of six months; during that time he took care of the child while the mother continued her employment.

3 At the same time the plaintiff submitted to the Barmer Ērsatzkasse, the defendant in the main proceedings, a claim for payment, during the period of maternity leave provided for by Paragraph 8a of the Mutterschutzgesetz, of an allowance pursuant to the combined provisions of Paragraph 13 thereof and Paragraph 200 (4) of the Reichsversicherungsordnung [German Insurance Regulation].

2. If the answer to Question 1 is in the affirmative, are Articles 1, 2 and 5 (1) of Council Directive 76/207/EEC directly applicable in the Member states?"

7 In its order, the Landessozialgericht points out that the plaintiff, at the same time, lodged a Verfassungsbeschwerde [an objection on a point of constitutional law] with the Bundesverfassungsgericht [Federal Constitutional Court], pleading that some of the provisions of the Law instituting the maternity leave were unconstitutional, on the ground that they infringed the rule of the equality of men and women before the law, enshrined in Article 3 (2) and (3) of the Grundgesetz [Basic Law].

First q u e s t i o n (scope and limits of the principle of equal treatment)

8 It is appropriate first of all to set out the legislative provisions on maternity leave which form the subject-matter of the proceedings pending before the Landessozialgericht.

9 Under Paragraph 6 (1) of the Mutterschutzgesetz, women may not be employed during the eight weeks which follow childbirth. According to Paragraph 8a of that Law, mothers are entitled to maternity leave from the end of the protective period provided for by Paragraph 6 ( 1 ) until the day on which the child attains the age of six months. The leave must be claimed by

HOFMANN v BARMER ERSATZKASSE

(in) Lastly, the requirement that the. woman should have been employed for a minimum period prior to childbirth; this indicates that it was not considered necessary to grant the leave in the interests of the mother, otherwise it ought to have been extended to all women in employment irrespective of the date on which their employment commenced.

Ac " Ç o r d . i n .g to the plaintiff, the protection of the mother against the multiplicity of burdens imposed by motherhood and her employment could be achieved by non-discriminatory measures, such as enabling the father to enjoy the leave or creating a period of parental leave, so as to release the mother from the responsibility of caring for the child and thereby allow her to resume employment as soon as the statutory protective period had expired. The plaintiff further claims that the choice between the options

JUDGMENT OF 12. 7. 1984 — CASE 184/83

thereby created should, in conformity with the principle on non-discrimi- nation between the sexes, be left completely at the discretion of the parents of the child.

M The Government of the Federal Republic of Germany, supporting the viewpoint of the Barmer Ersatzkasse, argues that legal protection afforded to the mother by the disputed legislation aims to reduce the conflict between a woman's role as a mother and her role as a wage-earner, in order to preserve her health and that of the child. It admits that there are differing views on the length of time for which a woman should enjoy special treatment following pregnancy and childbirth, but it argues that the period in question, although varying from woman to woman, extends considerably beyond the end of the statutory eight-week period of protection laid down by the Law. Hence the creation of maternity leave is justified for reasons which are connected with a woman's biological characteristics, since its aim is to avoid placing the mother, on expiry of the statutory protective period, under an

HOFMANN v BARMER ERSATZKASSE

obligation to decide whether or not to resume her employment. Indeed, experience and statistics demonstrate that a considerable number of working women were compelled, under earlier legislation, to give up their employment as a result of motherhood.

i7 For the purpose of answering the question raised by the Landessozialgericht, it is appropriate in the first instance to set out the provisions of Directive 76/207 to which reference has been made.

JUDGMENT OF 12. 7. 1984 — CASE 184/83

is The directive is designed to implement the principle of equal treatment for men and women as regards inter alia "working conditions", with a view to attaining the social policy aims of the EEC Treaty to which the third recital in the preamble to the directive refers.

23 Reference should also be made in the present context to paragraph (4), according to which the directive is to be without prejudice to measures to

HOFMANN v BARMER ERSATZKASSE

promote equal opportunity for men and women, "by removing existing inequalities which affect women's opportunities in the areas referred to in Article 1 (1)", that is to say, as regards access to employment, promotion and other working conditions.

24 It is apparent from the above analysis that the directive is not designed to settle questions concerned with the organization of the family, or to alter the division of responsibility between parents.

25 It should further be added, with particular reference to paragraph (3), that, by reserving to Member States the right to retain, or introduce provisions which are intended to protect women in connection with "pregnancy and maternity", the directive recognizes the legitimacy, in terms of the principle of equal treatment, of protecting a woman's needs in two respects. First, it is legitimate to ensure the protection of a woman's biological condition during pregnancy and thereafter until such time as her physiological and mental functions have returned to normal after childbirth; secondly, it is legitimate to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment.

26 In principle, therefore, a measure such as maternity leave granted to a woman on expiry of the statutory protective period falls within the scope of Article 2 (3) of Directive 76/207, inasmuch as it seeks to protect a woman in connection with the effects of pregnancy and motherhood. That being so, such leave may legitimately be reserved to the mother to the exclusion of any other person, in view of the fact that it is only the mother who may find herself subject to undesirable pressures to return to work prematurely.

Costs

so The costs incurred by the Government of the Federal Republic and by the Commission of the European Communities, which have submitted obser- vations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Landessozialgericht Hamburg, by order dated 9 August 1983, hereby rules:

HOFMANN v BARMER ERSATZKASSE