OPINION OF ADVOCATE GENERAL
delivered on 26 September 2013 (1)
(Request for a preliminary ruling from the Employment Tribunal, Newcastle upon Tyne (United Kingdom))
(Social policy – Directive 92/85/EEC – Scope – Surrogacy – Maternity leave – Directive 2006/54/EC – Equal treatment for men and women – Prohibition of less favourable treatment for reasons of pregnancy)
I – Introduction
1. Does a woman have the right to receive maternity leave where it is not she herself but a surrogate mother (2) who has given birth to a child? This question lies at the heart of the request for a preliminary ruling made by the Employment Tribunal, Newcastle upon Tyne (United Kingdom).
2. In reproductive medicine surrogacy begins with the artificial fertilisation of the surrogate mother or the placing in her of an embryo. The surrogate mother then carries and delivers the child. The child can be genetically related either to the ‘intended parents’, who assume responsibility for the child’s care after it is born, or to the father and the surrogate mother, or to him and a third woman.
3. In the Member States of the European Union national legislation on surrogacy varies greatly. (3) In many Member States there is a prohibition on surrogacy, but in the United Kingdom it is permitted under certain conditions. However, in the United Kingdom there are no specific rules on maternity leave for intended mothers. (4)
4. The question with which this case is concerned is whether the intended mother can derive such a right from EU law, in particular 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. (5)
5. The Court of Justice had already had occasion to rule on a case of artificial fertilisation, (6) which concerned the interpretation of Directive 92/85. It now has an opportunity to develop further its case-law on Directive 92/85.
II – Legislative framework
A – EU law
1. Directive 92/85
6. According to Article 1 thereof, the purpose of Directive 92/85 is ‘to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding’.
7. Article 2 of Directive 92/85 provides:
‘For the purposes of this Directive:
(a) pregnant worker shall mean a pregnant worker who informs her employer of her condition, in accordance with national legislation and/or national practice;
(b) worker who has recently given birth shall mean a worker who has recently given birth within the meaning of national legislation and/or national practice and who informs her employer of her condition, in accordance with that legislation and/or practice;
(c) worker who is breastfeeding shall mean a worker who is breastfeeding within the meaning of national legislation and/or national practice and who informs her employer of her condition, in accordance with that legislation and/or practice.’
8. Article 8 of Directive 92/85 governs maternity leave and provides:
‘(1) Member States shall take the necessary measures to ensure that workers within the meaning of Article 2 are entitled to a continuous period of maternity leave of at least 14 weeks allocated before and/or after confinement in accordance with national legislation and/or practice.
(2) The maternity leave stipulated in paragraph 1 must include compulsory maternity leave of at least two weeks allocated before and/or after confinement in accordance with national legislation and/or practice.’
9. Article 11 of Directive 92/85 provides:
2. in the case referred to in Article 8, the following must be ensured:
(b) maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2. …’
2. Directive 2006/54
10. Article 2 of 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 provides: (7)
‘(1) For the purposes of this Directive the following definitions shall apply:
(a) “direct discrimination”: where one person is treated less favourably on grounds of sex than another is, has been or would be, treated in a comparable situation;
(b) “indirect discrimination”: where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary;
(2) For the purposes of this Directive, discrimination includes:
(c) any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85 ...’
11. Article 14(1) of the directive states:
‘There shall be no direct or indirect discrimination on grounds of sex in the public or private sectors, including public bodies, in relation to:
(c) employment and working conditions, including dismissals, as well as pay as provided for in Article 141 of the Treaty [now Article 157 TFEU];
12. Article 15 of Directive 2006/54 governs ‘Return from maternity leave’ and provides:
‘A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled during her absence.’
B – National law
13. The Human Fertilisation and Embryology Act 2008 (‘the HFEA’) governs who are to be regarded as parents where a surrogate mother gives birth to a child. In principle, it is initially the surrogate mother who gave birth to the child who is regarded in law as the mother of the child, irrespective of whether or not she is genetically its mother. Under Section 54 of the HFEA, a court may however, on an application made by the intended parents, make a parental order providing for a child to be treated in law as the child of the applicants. The preconditions therefor are, inter alia, that the gametes of at least one of the applicants were used to bring about the creation of the embryo, the applicants are husband and wife or in some analogous relationship, they made an application no later than six months following the birth of the child, and the surrogate mother agrees to the making of the order.
14. Under the Maternity and Parental Leave etc. Regulations 1999, maternity leave is reserved for women in connection with their pregnancy. With regard to adoptions, the Paternity and Adoption Leave Regulations 2002 lay down inter alia a right to adoption leave under certain conditions. Persons to whom parental responsibility for a child born to a surrogate mother has been transferred pursuant to a parental order may receive unpaid leave under certain conditions.
15. Under the Equality Act 2010, it is to be concluded that a woman is discriminated against where she is treated unfavourably for reasons of pregnancy or maternity leave.
III – Facts of the case and questions referred for a preliminary ruling
16. The claimant in the main proceedings (‘C.D.’) is employed at a hospital of the defendant in the main proceedings. It is a National Health Service Foundation and thus an emanation of the State.
17. C.D. wanted to fulfil her desire to have a child with the assistance of a surrogate mother. The sperm of her partner, but no ovum from C.D., was used to produce the child.
18. The surrogate mother gave birth to the child on 26 August 2011. C.D. began mothering and breastfeeding the child within an hour of the birth. She breastfed the child for a total of three months. A parental order within the meaning of the HFEA giving C.D. and her partner full and permanent responsibility for the child was granted in the form sought on 19 December 2011.
19. Even before the child was born C.D. unsuccessfully requested paid time off ‘for surrogacy’ (8) from the defendant in the main proceedings under the adoption leave policy – in the absence of specific occupational or legal rules. However, following a further application in June 2011, and thus still before the child was born, the defendant in the main proceedings reconsidered, applied the adoption leave policy accordingly, and granted C.D. paid leave.
20. By her action before the national court C.D. brought claims of unlawful discrimination on the grounds of sex and/or pregnancy and motherhood with regard to the original refusal of her request. In addition, she claimed that she had been subject to detriment by reason of pregnancy and maternity and by reason that she has sought to claim maternity leave.
21. The defendant in the main proceedings contends there has been no infringement of the law since C.D. is not entitled to paid time off, and in particular to either maternity or adoption leave. It contends that these rights are reserved for women who have given birth to, or adopted, a child.
22. The Employment Tribunal, Newcastle upon Tyne, decided to stay the proceedings and to refer to the Court of Justice for a preliminary ruling the following questions:
‘(1) 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/EEC 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:
(a) may breastfeed following birth and/or
(b) does breastfeed following birth?
(3) 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?
(4) 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?
(5) 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?
(6) If the answer to question 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?
(7) 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?’
IV – Procedure before the Court
23. In the proceedings before the Court, written and oral observations have been submitted not only by C.D. and the defendant in the main proceedings but also by the Irish and Greek Governments and by the European Commission. The Spanish and Portuguese Governments and the United Kingdom Government have also taken part in the written procedure.
V – Legal assessment
A – Admissibility
24. The question arises, first of all, whether the request for a preliminary ruling is admissible since C.D. was ultimately granted paid leave in the form sought.
25. When asked about that point at the hearing, the legal representative of C.D. stated that the leave had been granted only at the discretion of her employer and not because she was legally entitled to it. Since she intended to have a further child by a surrogate mother, she had a legal interest in bringing an action in national proceedings to clarify the legal situation for the future. Neither C.D. nor the referring court went into the question of the extent to which the action was admissible in the United Kingdom.
26. It is for the referring court to determine, pursuant to its national law, whether or not there continues to be an interest in bringing an action in the main proceedings. It is not for the Court of Justice to rule on this point.
27. Rather, the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its subject matter, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (9)
28. In the present case there is sufficient relevance to the subject matter of the main proceedings in which C.D. relies specifically on the provisions of EU law cited in the questions referred and the defendant in the main proceedings puts forward arguments to the contrary. The legal issues raised are not hypothetical and can be assessed in the light of detailed information on the facts and law provided by the national court. The request for a preliminary ruling is therefore admissible.
B – Assessment of the questions referred
29. The questions referred concern (i) Directive 92/85, and (ii) Directive 2006/54. In assessing Directive 92/85 it must be determined whether, and if so under what conditions, it confers on an intended mother a right to maternity leave. With regard to Directive 2006/54 it is further necessary to determine whether failure to grant maternity leave constitutes discrimination on grounds of sex in the circumstances of the main proceedings.
1. Questions concerning Directive 92/85
30. By Questions 1, 2 and 7.1, the national court seeks to establish whether a right of the intended mother to paid maternity leave can be derived from Directive 92/85. In that regard it asks in particular whether the fact that the intended mother breastfeeds, or may breastfeed, the child affects the answer to those questions.
31. Under Article 8 of Directive 92/85, ‘workers within the meaning of Article 2’ of that directive are entitled to maternity leave.
32. That directive contains no rules on surrogacy. It does not specify that the directive covers intended mothers, or that it specifically excludes them.
33. Consequently, the question arises, first of all, whether intended mothers fall within the scope of Directive 92/85 at all.
a) Applicability of Directive 92/85 to intended mothers
34. Article 2 of Directive 92/85 must be taken as a basis in determining whether that directive can apply to intended mothers. That article defines the class of persons who, in accordance with the objectives set out in Article 1 thereof, can have a right to maternity leave within the meaning of Article 8 thereof. Accordingly, such entitlement exists for pregnant workers (Article 2(a)), workers who have recently given birth (Article 2(b)), and workers who are breastfeeding (Article 2(c)).
i) Wording of Article 2 of Directive 92/85
35. At no time was the intended mother herself pregnant or consequently a mother who has recently given birth, and therefore according to the wording of Directive 92/85 Article 2(a) and (b) clearly does not apply to her.
36. However, an intended mother who is employed and breastfeeding can readily be subsumed under the term ‘worker who is breastfeeding’ (Article 2(c) of Directive 92/85). On the other hand, the wording of Directive 92/85 does not cover an intended mother who is not breastfeeding.
37. Nonetheless, it is open to question whether the broad logic and objectives of Directive 92/85, which are to be taken into account in interpreting it, (10) preclude application to intended mothers.
ii) Position of Article 2(c) in the regulatory approach adopted by Directive 92/85
38. The defendant in the main proceedings, the Commission, the United Kingdom and the Kingdom of Spain do not regard the ‘workers within the meaning of Article 2’ of Directive 92/85 as different persons with different identities. They contend that they all have a characteristic in common, namely that they themselves have given birth, or will give birth, to a child. Consequently, they are always the biological mother of that child. In that respect, the Commission refers inter alia to Article 8 of Directive 92/85, which excludes intended mothers, according to the Commission, simply because that provision takes as a basis maternity leave ‘before and/or after confinement’ and therefore concerns only women who themselves have given birth to a child. The Irish Government also refers to Article 10 of Directive 92/85, under which there is uninform protection against dismissal ‘during the period from the beginning of their pregnancy to the end of the maternity leave’.
39. The structure and general scheme of Directive 92/85 do in fact suggest that a biological monistic concept of motherhood should be taken as a basis when applying it. The fact that pregnant and breastfeeding workers can be different persons may not have been specifically considered by the legislature. In that respect, however, Directive 92/85 must be viewed in its historical context. In the early 1990s the practice of surrogacy was not as widespread as it is today. It is thus not surprising that the normative structure of Directive 92/85 is based on an approach which takes biological motherhood as the norm.
– Interim conclusion
40. As an interim conclusion it may be stated that only breastfeeding intended mothers are covered by the wording of Article 2 of Directive 92/85 and that the phenomenon of surrogacy appears to be alien to the scheme of that directive.
41. However, that does not mean that an intended mother should be completely denied the protection afforded by Directive 92/85 even if this special case was not specifically taken into account by the legislature. The essential basis must, rather, be the objectives of Directive 92/85 and it must be considered whether it is necessary for intended mothers to be included in the scope of the protection afforded by Directive 92/85.
iii) Inclusion of intended mothers in Article 2 of Directive 92/85 on the basis of the objectives pursued by Directive 92/85
42. As the Irish, Portuguese and Spanish Governments rightly maintain inter alia with reference to Article 1 of Directive 92/85, the directive serves to protect the health of the workers referred to in Article 2 in view of their particular ‘vulnerability’. (11) The workers concerned may be exposed to specific dangers at work on account of their physical state as expectant or young mothers. Directive 92/85 does not indeed require that there be an actual hazard, (12) but rather in a general and abstract manner protects the class of persons referred to in Article 2 thereof, where necessary, from the risk of exposure to dangerous agents or processes (13) and generally against working conditions harmful to their health such as, for example, night work. (14) In addition, as regards particular protection against dismissal, the 15th recital states that it is necessary to avoid harmful effects on ‘the physical and mental state of pregnant workers, workers who have recently given birth or who are breastfeeding’.
43. Not all the potential dangers listed in Directive 92/85 affect intended mothers. Since intended mothers are not pregnant, in their case no pregnancy is put at risk by particular working conditions. Following the birth of the child they are not subject to the same health risks as women who have recently given birth and have no need at all to recover physically from the effects of childbirth.
44. However, the situation of breastfeeding intended mothers is entirely comparable with that of breastfeeding biological mothers. In both cases there are health risks, for example in the case of occupational exposure to chemicals or under certain working conditions. In both cases there are also particular time demands arising from childcare.
45. Furthermore, as the Court has ruled, Directive 92/85, and in particular the maternity leave for which it provides, is not intended solely to protect workers. Maternity leave is also intended to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, a position which is also consistent with Articles 24(3) and 7 of the Charter of Fundamental Rights of the European Union. In the initial stage this relationship should not suffer from the mother simultaneously pursuing employment. (15)
46. This objective of protection based on the mother-child relationship even suggests that Directive 92/85 must apply generally to intended mothers irrespective of whether or not they breastfeed their child. (16) In any event, however, it is relevant to breastfeeding intended mothers such as the claimant in the main proceedings to a particular and possibly even greater degree than to breastfeeding biological mothers. In the same way as a woman who herself has given birth to a child, an intended mother has in her care an infant for whose best interests she is responsible. However, precisely because she herself was not pregnant, she is faced with the challenge of bonding with that child, integrating it into the family and adjusting to her role as a mother. This ‘special relationship between a woman and her child over the period which follows pregnancy and childbirth’ warrants protection in the case of an intended mother in the same way as it does in the case of a biological mother.
47. Therefore, the Commission’s argument, essentially based on considerations relating to the scheme of the law, that in the context of Directive 92/85 motherhood cannot be seen as detached from pregnancy, is unconvincing. Reproductive medicine has since overtaken the legislature’s scheme, but without thereby creating a situation in which the legislative intention has no relevance to intended mothers. As was the case with the employment of a wet nurse in times past, in surrogacy cases the mothering role is shared between two women who must be granted the protection afforded by Directive 92/85 at the times relevant to them. The surrogate mother who carries the child but who does not care for it after the birth requires protection only as a pregnant worker or woman who has recently given birth. In the case of the intended mother, who was not pregnant herself but has an infant in her care and, possibly, also breastfeeds it, there is a need for protection after the birth of the child.
48. Consequently, in view of the possibilities created by medical advances, the objectives pursued by Directive 92/85 mean that the class of persons defined in Article 2 of the directive must be understood in functional rather than monistic biological terms. An intended mother who begins to care like a biological mother for an infant in place of its biological mother directly after it is born, as planned pursuant to an agreement concluded in advance with the surrogate mother, takes the place of its biological mother after the child is born, and from that point onwards she must have the same rights as would otherwise be conferred on the surrogate mother.
49. In this respect, the position differs from adoption, where, as a rule, there is no bond between the intended mother and the child prior to the birth of the latter, created on the basis of an agreement concluded between two women concerning the child’s specific future.
50. The judgment in Mayr (17) does not preclude this approach. Mayr concerned the question of the time from which a worker is to be regarded as pregnant within the meaning of Directive 92/85 in the case of artificial fertilisation. In its judgment the Court, first, did not exclude that Directive 92/85 is applicable also where medically‑assisted reproductive measures are employed and, secondly, took as a basis for the applicability of that directive the time at which pregnancy would be found to begin in the case of natural reproduction. (18)
51. If this idea is applied to the case of surrogacy and the rights conferred on the intended mother by Directive 92/85, it follows that the intended mother can rely on the protection afford by Directive 92/85 only, but in any event, when she has taken the child into her care and thus assumed the role of mother, because from that point onwards she is in a situation comparable with that of a biological mother.
52. On the other hand, if intended mothers were to be excluded from the scope of Directive 92/85, that would ultimately be to the detriment of children born to a surrogate mother and contrary to the basic idea expressed in Article 24 of the Charter of Fundamental Rights of the European Union, under which in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
– Interim conclusion
53. As a further interim conclusion it may be stated that in any event a breastfeeding intended mother is in a situation equivalent to that of a breastfeeding biological mother with regard to the objectives pursued by Directive 92/85. Furthermore, both intended mothers and biological mothers can be subsumed under the term ‘breastfeeding workers’.
54. However, Directive 92/85 could also be applicable to non-breastfeeding intended mothers.
iv) Applicability of Article 2 of Directive 92/85 to non-breastfeeding intended mothers?
55. It is now necessary to determine whether the objective of protection pursued by Directive 92/85 requires that Article 2 thereof must also be applied to intended mothers who mother a child after it is born, even where they do not breastfeed it at the same time.
56. For the purposes of the main proceedings, the premiss is that the intended mother did in fact breastfeed her child. However, by Question 2 the national court expressly asks about the relevance of breastfeeding to the right to maternity leave and therefore it must be investigated. It is settled case-law that it is first of all for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case, the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of EU law, the Court of Justice is, in principle, bound to give a ruling. (19)
57. This applies all the more since the main proceedings are based on a dispute over whether there is a general ‘legal right to paid time off for surrogacy’ equivalent to adoption leave, which may not be dependent on the issue of breastfeeding. Consequently, in the present case the question concerning the relevance of breastfeeding is not hypothetical and must be answered.
58. The idea that the term ‘breastfeeding worker’ is open to an interpretation which covers not only an intended mother who is breastfeeding but also generally any women caring for a child appears initially questionable.
59. For one thing, the wording of the provision, which specifically takes the breastfeeding of the child as a basis, speaks against it. The employer is to be informed so that he can adapt his working conditions to the particular needs of the breastfeeding worker. This obligation to inform is not relevant to women who do not breastfeed their child.
60. However, Article 2 of Directive 92/85 not only affords mothers protection at work but also creates a right to maternity leave pursuant to Article 8 thereof. As regards the question who belongs to the class of persons entitled, it is necessary to take account not only of the wording of Article 2 of Directive 92/85 but also the objective of protection pursued by maternity leave. As stated above, that objective includes the unhindered development of the mother-child relationship in the period following the birth. In that regard maternity leave enjoys the primary-law protection of Articles 7 and 24 of the Charter of Fundamental Rights. The fact that under Article 24(3) of the Charter of Fundamental Rights every child is to have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents applies in particular to an infant and its relationship to its mother caring for it and is one of the essential reasons why Directive 92/85 grants maternity leave.
61. In comparison the question of the specific method of feeding the infant is of lesser significance. Whether a child is breast or bottle-fed depends on circumstances which the mother can influence only in part and should not be decisive in whether the mother caring for the child after it is born is granted or refused maternity leave.
62. In the case of a biological mother who has a right to maternity leave under Article 2(a) and (b) of Directive 92/85 that right to maternity leave after the birth does not cease if she decides to bottle-feed. The same must apply to intended mothers, particularly since they can benefit from maternity leave only after the birth on account of the functional sharing of tasks with the surrogate mother. Insufficient account would be taken of the objective, enshrined as a fundamental right, of ensuring the unhindered development of the mother-child relationship, if the decisive factor in establishing whether an intended mother is to be granted maternity leave were the way in which the child is fed.
63. Therefore, in relation to intended mothers, on the basis of teleological reasoning in the light of primary law, Article 2 of Directive 92/85 must, in so far as the granting of maternity leave is concerned, be understood as capable of including workers who do not actually breastfeed their child. Where a Member State recognises surrogacy and thus the functional sharing of the role of mother between two women, it must act accordingly and confer on the intended mother the relevant rights relating to maternity leave.
64. If this approach based on the acceptance of surrogacy in the Member State concerned is adopted, the question might also arise – although it is not decisive in the present case – as to whether Directive 92/85 can only apply to intended mothers if the provisions of the national law of the Member State in question also accept the concept of surrogacy.
65. In the present case no further discussion of the matter is necessary since under the relevant provisions of national law the surrogacy agreement was valid and parental responsibility for the child had been transferred to the intended mother pursuant to the parental order.
66. Similarly, in view of the circumstances of the main proceedings there is no need to consider, for example, the assessment of cross-border situations in which the law of the intended mother’s country of origin accepts the concept of surrogacy but the law in force at her place of employment does not.
67. At least where the Member State in which rights under Directive 92/85 are being asserted recognises the legal relationship of the intended mother to the child in the specific case, that directive should be applied to an intended mother who replaces the surrogate mother immediately after the birth.
v) Interim conclusion on (a)
68. In the light of the foregoing, in circumstances such as those in the main proceedings, with regard to the grant of maternity leave, an intended mother must be regarded as a ‘worker within the meaning of [Article 2 of Directive 92/85]’ and therefore Directive 92/85 is applicable to her if she takes the child into her care after it is born.
b) Right to maternity leave under Article 8 of Directive 92/85
69. Consequently, as a worker within the meaning of Article 2 of Directive 92/85, an intended mother has the right to maternity leave under Article 8 of Directive 92/85.
70. Although Directive 92/85 proceeds from the basis of continuous maternity leave to which a single person is entitled, this principle must be qualified in the case of surrogacy in order to take account of the particular situation of the women concerned, since they both have an entitlement under Article 8 of Directive 92/85, and in part at the same time.
71. Before the birth only the surrogate mother can have a right to maternity leave as a pregnant worker (Article 2(a) of Directive 92/85). After the birth the right extends to the surrogate mother, as a woman who has recently given birth (Article 2(b) of Directive 92/85), and the intended mother where she takes the child into her care after it is born.
72. The question is, therefore, whether, and if so to what extent, the maternity leave totalling at least 14 weeks should be divided between the women concerned. Since there are no specific rules on surrogacy, the objectives pursued by Directive 92/85 must essentially be taken as a basis and the requirements of the scheme laid down in Directive 92/85 must be satisfied in so far as is possible in relation to surrogacy.
73. Firstly, it should be noted that under Article 8(2) of Directive 92/85 compulsory maternity leave of at least two weeks must be granted in any event. Since both surrogate and intended mothers are ‘workers within the meaning of [Article 2 of Directive 92/85]’, this leave must be granted to both women in full without it being possible to deduct any leave taken by the other.
74. Secondly, it should be noted that the concept of surrogacy, transposed into the scheme of Directive 92/85, cannot result in a doubling of the overall leave entitlement. Rather, the division of roles chosen by the women concerned must be reflected in the maternity leave. Consequently, the leave already taken by the surrogate mother must be deducted from that of the intended mother, and vice versa.
75. It not possible to determine in detail from the objectives and scheme of Directive 92/85 the extent to which each woman has a right to leave, in particular whether the maternity leave is to be divided between them equally, and what procedure is to be followed where it is not possible to reach agreement between them, but parameters to be taken into account in that regard may be inferred from the objectives and scheme of Directive 92/85. The division of the maternity leave must in any event take account of the interests protected by that directive. Before the birth, the protection of the pregnant woman and, after the birth, protection of the woman who has recently given birth and the child’s best interests are the main criteria. Any agreed division of the maternity leave – which in particular may not be detrimental to the child’s best interests – must take account of these legally protected interests. Since Article 8 of Directive 92/85 refers generally to national legislation as regards the detailed rules governing maternity leave, it is reasonable to follow its approach in other respects. The application by analogy of the rules on joint and several creditors might also be conceivable.
c) Conclusion on Questions 1 and 2
76. Consequently, the answer to Questions 1 and 2 must be that in a situation such as that in the main proceedings an intended mother who has a baby through a surrogacy arrangement has a right to receive maternity leave under Articles 2 and 8 of Directive 92/85 after the birth of the child in any event where she takes the child into her care following birth, surrogacy is permitted in the Member State concerned and its national requirements are satisfied, even where the intended mother does not breastfeed the child following birth; the leave must amount to at least two weeks and any other maternity leave taken by the surrogate mother must be deducted.
d) Question 7.1
77. By question 7.1 the national court seeks to ascertain inter alia whether Directive 92/85 is ‘directly effective’. There are certain doubts about maternity leave in this regard because the precise content of the right and the division thereof between the surrogate and the intended mother cannot be deduced with sufficient accuracy from Directive 92/85. However, it can be inferred from that directive that the intended mother is to be granted at least two week’s maternity leave as a minimum standard. If the surrogate and intended mother validly agree on the division of the remaining minimum 10 weeks with due regard to the legally protected interests in question, the right to the remaining leave can also be determined with sufficient precision. In that regard, it must be concluded that Directive 92/85 is directly effective.
78. After Directive 92/85 it is now necessary to examine Directive 2006/54.
2. Questions concerning Directive 2006/54
79. Questions 3, 4, 5, 6 and 7.2 concern the equal treatment of men and women under Directive 2006/54. The national court seeks to ascertain (i) whether Directive 2006/54 precludes an employer from refusing to grant an intended mother maternity leave and (ii) whether it can be concluded that the intended mother has been discriminated against by reason of her association with the surrogate mother.
80. The Commission and the United Kingdom are correct in their view that Directive 2006/54 is not relevant to the issues raised in the main proceedings. The present case does not concern ‘the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation’ within the meaning of Article 1 of Directive 2006/54. I shall now examine those aspects in detail.
a) Questions 3 and 4
81. The conditions under which maternity leave is to be granted – on which Questions 3 and 4 are essentially based – are laid down in Directive 92/85, which I have already considered. Article 15 of Directive 2006/54 concerns only the issue of return from maternity leave and consequently presupposes that rules have been drawn up elsewhere on the relevant conditions.
82. Therefore, Directive 2006/54 should not be invoked in this regard.
b) Question 5
83. By Question 5 the national court essentially asks whether it must be concluded that there has been a breach of Article 14, taken with Article 2, of Directive 2006/54, that is to say discrimination on grounds of sex by reason of the intended mother’s association with the surrogate mother, if the intended mother is subject to ‘less favourable treatment’.
84. This question appears to relate to the unspecified ‘detriment’ to which the claimant in the main proceedings claims to have been subject. The essence of this detriment appears to have consisted in the fact that the claimant in the main proceedings was initially refused maternity leave on that grounds that it was the surrogate mother rather than she herself who was pregnant. In that respect Directive 92/85 is relevant. (20)
85. None the less, it is in any event not possible to discern ‘less favourable treatment [of the claimant in the main proceedings] related to pregnancy or maternity leave within the meaning of Directive 92/85’ for the purposes of Article 2(2) of Directive 2006/54.
86. Firstly, unfavourable treatment of the intended mother related to pregnancy is ruled out because it was not the claimant in the main proceedings herself but the surrogate mother who was pregnant. The claimant in the main proceedings cannot rely on the surrogate mother’s pregnancy in order to be treated herself as a pregnant woman at work. Secondly, it could be concluded that there was unfavourable treatment related to maternity leave only if the claimant in the main proceedings had in fact been granted maternity leave and it had been detrimental to her future career development. This situation is governed by Article 15 of Directive 2006/54 in relation to return from maternity leave. However, the question whether maternity leave is to be granted at all is not covered by Directive 2006/54.
87. In addition, there is no evidence of any direct or indirect discrimination within the meaning of Article 2(1) of Directive 2006/54. In any event the claimant in the main proceedings has not been subject to detriment in comparison with male colleagues by reason of her sex, but at most because she fulfilled her desire to have a child with the assistance of a surrogate mother. However, in that case any disadvantage would be conceivable only in comparison with other women who have not had recourse to a surrogate mother and in any event that would not relate to the equal opportunities and equal treatment of men and women addressed in Directive 2006/54.
88. It must therefore be concluded that there has been no breach of Article 14 of Directive 2006/54.
c) Conclusion on Questions 3, 4, 5, 6 and 7.2
89. Questions 3, 4 and 5 must be answered in the negative. Since Question 6 was asked only in the event that Question 4 were answered in the affirmative, there is no need to examine it. Likewise there is no need to answer Question 7.2.
VI – Conclusion
90. I therefore propose that the Court answer the questions referred as follows:
In a case such as that in the main proceedings, an intended mother who has a baby through a surrogacy arrangement has the right to receive maternity leave under Articles 2 and 8 of 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 after the birth of the child in any event where she takes the child into her care following birth, surrogacy is permitted in the Member State concerned and its national requirements are satisfied, even where the intended mother does not breastfeed the child following birth; the leave must amount to at least two weeks and any other maternity leave taken by the surrogate mother must be deducted.
No breach of Article 14 of 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 can be identified under the circumstances of the main proceedings.