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EU Commission puts forward an enhanced minimum standard for maternity leave

On Friday 3 October, the European Commission published a proposal on the extension and the improvement of the EU law framework on maternity leave (COM(2008) 600/4).

The proposal forms part of a package of measures aimed at helping women to align their work with their family life. More specifically, according to Social Affairs Commissioner Vladimir Spidla, the purpose of the new proposal is to improve the life quality of the families and to encourage women to return to work after their pregnancy.   

The proposal builds on Council Directive 92/85/EEC which provides in Article 8 for a period of maternity leave of at least 14 weeks, including 2 weeks of compulsory leave to be taken immediately before or after confinement.

The new proposal extends the minimum period of statutory maternity leave to 18 weeks and introduces a compulsory leave of six weeks after confinement (Article 1 Point 2 of the Proposal). It also recommends that workers on maternity leave are paid an allowance equivalent to their former salary and obliges Member States to provide at least an allowance at the level of the national sick pay.

Furthermore, the proposed regulation would improve the protection of pregnant employees against dismissal. In particular, an employer intending to lay off a pregnant worker during the period of maternity leave must cite valid reasons for dismissal. The same applies during the first six months after confinement if the worker so requests (Article 1 Point 2 of the Proposal).

A similar framework for maternity leave, though on a more flexible basis, has been proposed for self-employed workers (see the proposal of the Commission in this respect). The two proposals will be submitted to the European Parliament and to the Council of Ministers for discussion. An agreement on these proposals is, however, not to be expected before the second half of 2009. Once the regulation is adopted, member states will have two years to implement the new directive into their national legal systems.

As one would expect, the proposal on an enhanced maternity leave for employees has immediately been subject to criticism which mainly suggests that the proposal imposes an unreasonable burden on the employers’ shoulders. Some also fear that this might discourage employers to hire young women out of a fear of higher wage costs. It seems, however, that this risk can easily be avoided by an intelligent design of the respective national labour regulation. National law may, for example, provide that all employers have to contribute to a maternity leave fund through which the individual maternity leave allowances will be financed. This regulatory approach has successfully been taken in Germany. This way, there would be no incentive for employers to refrain from hiring young women.

The Commission’s proposal comes at a time where EU law has hit the headlines for bashing national labour and social regulation. Earlier this year, the European Court of Justice (ECJ) decided that trade unions only have a limited right to take collective actions against relocation of undertakings (the Viking case). Also, in the Laval case, the ECJ strikes for conditions of employment of posted workers which exceed absolute minimum standards were declared illicit. Finally, the labour clause of the German public procurement regulation providing for the application of local collective agreements to all public contractors was quashed (the Rüffert case). These developments significantly shook the confidence in a possible social dimension of the European Union both by employees and social actors. It can thus only be hoped that the Commission’s proposal will find a positive echo by the other European institutions so as to restore at least a part of the confidence in a more “social” Europe that was created by earlier Commission initiatives, for instance on European works councils and in the field of non-discrimination law.



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