Does granting additional maternity leave only to mothers constitute discrimination against an employee on the basis of gender?

For the analysis indicated in the title of the issue of asumpt, see the judgment of the Court of Justice of the European Union of November 18, 2020 (judgment of November 18, 20020, case C-463/19 Syndicat CFTC de la Caisse primaire d’assurance maladie (CPAM) de la Moselle / CPAM de Moselle), in which the CJEU explicitly supported the possibility of „reserving” additional maternity leave for mothers raising children.

The CJEU resolved its considerations following a request for a preliminary ruling from the French labor court, which raised the issue of refusing to grant leave to fathers in order to protect the special relationship between a woman and her child in the period after pregnancy and after childbirth. Doubts were raised by compliance with the principle of non-discrimination in a given state of affairs, often emphasized on the basis of EU law and the jurisprudence of the CJEU. An example of such regulations may be, for example, Art. 18 of the Treaty on the Functioning of the European Union, which prohibits any discrimination, and also the provision of Directive 2006/54 / EC on the implementation of the principle of equal opportunities and equal treatment of men and women in the field of employment and work.

In the opinion of the CJEU, the additional maternity leaves provided for in the law may be dedicated only to mothers, provided that at the same time the condition stipulating that female employees will take the leave not so much as a parent, but due to the consequences of pregnancy and maternity, is met. At the same time, the CJEU emphasized that additional maternity leave cannot be considered to fulfill the above-mentioned objective only because it is obtained just after the basic maternity leave.

In view of the above, it can be concluded that the CJEU requires each time to look at a specific institution of national law through the prism of the goal it is to pursue. Thus, the reasoning of the EU judicature takes on the character of a teleological interpretation, as is often the case with other judgments.