Case C‑363/12

Z.

v

A Government department
and
The Board of management of a community school

(Request for a preliminary ruling from the Equality Tribunal)

(Reference for a preliminary ruling — Social policy — Directive 2006/54/EC — Equal treatment of male and female workers — Commissioning mother who has had a baby through a surrogacy arrangement — Refusal to grant her paid leave equivalent to maternity leave or adoptive leave — United Nations Convention on the Rights of Persons with Disabilities − Directive 2000/78/EC — Equal treatment in employment and occupation — Prohibition of any discrimination on the ground of disability — Commissioning mother unable to bear a child — Existence of a disability — Validity of Directives 2006/54 and 2000/78)

Summary — Judgment of the Court (Grand Chamber), 18 March 2014

1.        Social policy — Male and female workers — Access to employment and working conditions — Equal treatment — Directive 2006/54 — Refusal to grant maternity leave to a commissioning mother — Less favourable treatment related to pregnancy or maternity leave — None

(European Parliament and Council Directive 2006/54, Arts 2(1)(a) and (b) and (2)(c), 4 and 14; Council Directive 92/85, Art. 8)

2.        Social policy — Male and female workers — Access to employment and working conditions — Equal treatment — Directive 2006/54 — Scope — Grant and conditions for implementation of adoption leave — Not included

(European Parliament and Council Directive 2006/54, Recital 27 and Art. 16; Council Directive 92/85)

3.        Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Question manifestly without relevance

(Art. 267, first para., TFEU)

4.        International agreements — Agreements of the Union — Primacy over secondary legislation of the Union — Obligation to interpret secondary legislation in the light of international agreements — Interpretation of Directive 2000/78 in the light of the United Nations Convention on the Rights of Persons with Disabilities

(Art. 216, second para., TFEU; Council Directive 2000/78)

5.        Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on the ground of disability — Concept of disability

(Council Directive 2000/78)

6.        Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on the ground of disability — Inability to have a child by conventional means — Condition not preventing a commissioning mother from having access to, participating in or advancing in employment — No discrimination

(Council Directive 2000/78)

7.        Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — International convention binding the Union — Examination of the validity of a directive in the light of an international convention — United Nations Convention on the Rights of Persons with Disabilities — Assessment of the validity of Directive 2000/78 in the light of certain provisions of that Convention — Not included

(Art. 267, first para., point (b) TFEU; Council Directive 2000/78)

1.        Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, in particular Articles 4 and 14 thereof, must be interpreted as meaning that a refusal to provide paid leave equivalent to maternity leave to a female worker who as a commissioning mother has had a baby through a surrogacy arrangement does not constitute discrimination on grounds of sex.

In the first place, as regards direct discrimination as referred to in Article 2(1)(a) and (b) of that directive, that refusal is not based on a reason that applies exclusively to workers of one sex. In the second place, in the light of Article 2(2)(c) of that directive, a commissioning mother who has had a baby through a surrogacy arrangement cannot, by definition, be subject to less favourable treatment related to her pregnancy, given that she has not been pregnant with that baby. In the third place, given that Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding must be interpreted as meaning that Member States are not required to provide maternity leave pursuant to Article 8 of that directive to a female worker who as a commissioning mother has had a baby through a surrogacy arrangement, even in circumstances where she may breastfeed the baby following the birth or where she does breastfeed the baby, such a mother is not subject to less favourable treatment related to the taking of maternity leave within the meaning of Directive 92/85, and, consequently, she cannot be regarded as having been subject to discrimination on grounds of sex, within the meaning of Article 2(2)(c) of Directive 2006/54.

(see paras 51, 52, 57-60, 67, operative part 1)

2.        It is clear from Article 16 of Directive 2006/54 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 recital 27 in the preamble thereto, that the directive preserves the freedom of the Member States to grant or not to grant adoption leave, and that the conditions for the implementation of such leave, other than dismissal and return to work, are outside the scope of that directive. It follows from this that, as regards the grant of adoption leave, the situation of a commissioning mother who has had a baby through a surrogacy arrangement is not within the scope of that directive.

(see paras 63, 65, 67, operative part 1)

3.        See the text of the decision.

(see para. 64)

4.        See the text of the decision.

(see paras 71-75)

5.        The concept of ‘disability’ within the meaning of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers. This concept refers not only to the impossibility of exercising a professional activity, but also to a hindrance to the exercise of such an activity.

(see paras 76, 77)

6.        Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that a refusal to provide paid leave equivalent to maternity leave or adoptive leave to a female worker who is unable to bear a child and who has availed of a surrogacy arrangement does not constitute discrimination on the ground of disability. The inability to have a child by conventional means does not in itself, in principle, prevent the commissioning mother from having access to, participating in or advancing in employment.

(see paras 80-82, 91, operative part 2)

7.        The validity of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation cannot be assessed in the light of the United Nations Convention on the Rights of Persons with Disabilities, but that directive must, as far as possible, be interpreted in a manner that is consistent with that Convention.

In so far as the obligations imposed by that Convention are addressed to Contracting Parties, that international agreement is ‘programmatic’. Consequently, the provisions of the United Nations Convention are subject, in their implementation or effects, to the adoption of subsequent measures which are the responsibility of the Contracting Parties. In those circumstances, the provisions of that Convention are not, as regards their content, provisions that are unconditional and sufficiently precise, and they therefore do not have direct effect in EU law.

(see paras 87-91, operative part 2)