Case C-104/09

Pedro Manuel Roca Álvarez

v

Sesa Start España ETT SA

(Reference for a preliminary ruling from the

Tribunal Superior de Justicia de Galicia)

(Social policy – Equal treatment for male and female workers – Directive 76/207/EEC – Articles 2 and 5 – Right to leave for employed mothers – Possible use by an employed mother or an employed father – Mother self‑employed – Exclusion of the right to leave for an employed father)

Summary of the Judgment

Social policy – Male and female workers – Access to employment and working conditions – Equal treatment

(Council Directive 76/207, Arts 2(1), (3) and (4), and 5)

Article 2(1), (3) and (4) and Article 5 of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions must be interpreted as precluding a national measure which provides that female workers who are mothers and whose status is that of an employed person are entitled, in accordance with various rules, to take leave during the first nine months following the child’s birth, whereas male workers who are fathers with that same status are not entitled to the same leave unless the child’s mother is also an employed person.

Given that such leave may be taken by the employed father or the employed mother without distinction, implying that feeding and devoting time to the child can be carried out just as well by the father as by the mother, that leave seems to be accorded to workers in their capacity as parents of the child. It cannot therefore be regarded as ensuring the protection of the biological condition of the woman following pregnancy or the protection of the special relationship between a mother and her child. Moreover, to refuse entitlement to that leave to fathers whose status is that of an employed person, on the sole ground that the child’s mother does not have that status, could have as its effect that a woman who is self‑employed would have to limit her self-employed activity and bear the burden resulting from the birth of her child alone, and could not be helped by the child’s father. Consequently, such a measure cannot be considered to be a measure eliminating or reducing existing inequalities in society within the meaning of Article 2(4) of Directive 76/207, nor as a measure seeking to achieve substantive as opposed to formal equality by reducing the real inequalities that can arise in society and thus, in accordance with Article 157(4) TFEU, to prevent or compensate for disadvantages in the professional careers of the relevant persons.

(see paras 31, 37-39, operative part)