Reference for a preliminary ruling from Employment Tribunal Newcastle upon Tyne (United Kingdom) made on 3 April 2012 - C.D. v S.T.

(Case C-167/12)

Language of the case: English

Referring court

Employment Tribunal Newcastle upon Tyne

Parties to the main proceedings

Applicant: C.D.

Defendant: S.T.

Questions referred

In each of the following questions:

(a) The phrase "an intended mother who has a baby through a surrogacy arrangement" shall refer to circumstances where the intended mother in question is a worker and has not herself, at any material time, been pregnant, or given birth to the child in question.

(b) The phrase "surrogate mother" shall refer to circumstances where a woman has been pregnant and given birth to a child on behalf of an intended mother.

Do Article 1(1) and/or Article 2(c) and/or Article 8(1) and/or Article 11(2)(b) of the Pregnant Workers Directive 92/85/EEC² provide a right to receive maternity leave to an intended mother who has a baby through a surrogacy arrangement?

2 Does the Pregnant Workers Directive 92/85/EEC provide a right to receive maternity leave to an intended mother who has a baby through a surrogacy arrangement, in circumstances where she:

may breastfeed following birth and/or

does breastfeed following birth?

Is it a breach of Article 14, taken with Article 2(l)(a) and/or (b) and/or 2(2)(c) of the Recast Equal Treatment Directive 2006/54/EC for an employer to refuse to provide maternity leave to an intended mother who has a baby through a surrogacy arrangement?

Is it by reason of the employee's association with the surrogate mother of the baby a potential breach of Article 14, taken with Article 2(l)(a) and/or (b) and/or 2(2)(c) of the Recast Equal Treatment Directive 2006/54/EC to refuse to provide maternity leave to an intended mother who has a baby through a surrogacy arrangement?

Is it by reason of the intended mother's association with the surrogate mother of the baby a potential breach of Article 14, taken with Article 2(l)(a) and/or (b) and/or 2(2)(c) of the Recast Equal Treatment Directive 2006/54/EC to subject an intended mother who has a baby through a surrogacy arrangement to less favourable treatment?

If the answer to questions 4 is 'yes', is the intended mother's status as intended mother sufficient to entitle her to maternity leave on the basis of her association with the surrogate mother of the baby?

If the answer to any of questions 1,2,3 and 4 is "yes":-

7.1    Is the Pregnant Workers Directive 92/85/EEC, in the relevant respects, directly effective; and

7.2    Is the Recast Equal Treatment Directive 2006/54/EC, in the relevant respects directly effective.

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¹ - Council Directive 92/85/EEC of 19 October 1992 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 (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC)OJ L 348, p. 1

² - 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 (recast)OJ L 204, p. 23