Action brought on 7 May 2013 – European Commission v Kingdom of the Netherlands
(Case C-252/13)
Language of the case: Dutch
Parties
Applicant: European Commission (represented by: D. Martin and M. van Beek, Agents)
Defendant: Kingdom of the Netherlands
Form of order sought
The applicant claims that the Court should:
declare that, by maintaining in force provisions of Netherlands legislation contrary to Article 1(2)(a) and (b), Article 15 and Article 28(2) of Directive 2006/54/EC 1 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), the Kingdom of the Netherlands has failed to fulfil its obligations under that directive;
order the Kingdom of the Netherlands to pay the costs of the proceedings.
Pleas in law and main arguments
The Commission takes the view that Netherlands employment law does not establish sufficiently clearly that, if female workers returning after the end of the period of maternity leave are confronted with less favourable employment conditions, this is contrary to the prohibition on discrimination on the grounds of pregnancy, childbirth and motherhood.
In its view, that prohibition is not established sufficiently clearly by the mere fact that an employer who unilaterally alters the duties and employment conditions agreed in the employment contract fails to fulfil his obligations.
The Commission regards as insufficient the argument that, when a legal right to leave is recognised, that automatically implies that that any less favourable treatment is unlawful. Equally, the possibility of bringing an action on the basis of the general prohibition of discrimination and the principle of sound employer practice, which are contained in the Burgerlijk Wetboek (Civil Code), does not amount to a sufficiently clear and precise transposition of those provisions of the Directive. Those general principles of Netherlands law do not constitute sufficiently clear transposition of the provisions of the Directive.
That state of affairs does not fulfil the requirements relating to transparency and legal certainty laid down by the Court of Justice for the transposition of a directive in the national legal order.
____________1 OJ 2006 L 204, p. 23.