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Luxembourg parental leave rules do not comply with EU law: European Court of Justice ruling

Written by
CASTEGNARO, your partner in labour and employment law in Luxembourg.
Authors
Luxembourg
06.04.21
3
In a judgment of 25 February 2021 the European Court of Justice ruled that Luxembourg legislation on parental leave does not comply with EU law, because it make a parent's right to parental leave conditional on the parent working at the time of the birth or adoption of the child.
Background

In this casestate civil servant (the civil servant) concluded a fixed-term employment contract with the Luxembourg state in September 2011 expiring on 26 January 2012, following which she was de-affiliated from the social security bodies. 

On 4 March 2012, she gave birth to twins while she was not employed.  

On 14 June 2012, she was officially registered as unemployed and was therefore re-affiliated with the social security institutions. 

On 15 September 2014, the official concluded a permanent contract with the Luxembourg state. 

The official requested parental leave from 15 September 2015 to take care of her three-year-old twins. The Fund for the Future of Children (Caisse pour l’avenir des enfants) rejected her request on the grounds that the granting of parental leave is subject to the condition that the worker is legally employed at a workplace and affiliated to the social security scheme at the time of the child’s birth, a condition which the civil servant did not fulfil. 

In this context, the European Court of Justice was asked to determine whether the directive implementing the revised framework agreement on parental leave (Directive 2010 /18/EUthe Directive) precludes the application of a Luxembourg law (the Amended Law of 16 April 1979 laying down the general status of State officials in the version resulting from the Law of 22 December 2006 (Mémorial A n°242)) which makes the granting of parental leave subject to the double condition that the worker be legally employed at a place of work and affiliated to the social security scheme in that capacity: 

  • without interruption for at least twelve continuous months immediately preceding the start of the parental leave; and 
  • at the time of the birth (or reception of the child to be adopted), compliance with this second condition being required even if this took place more than twelve months before the start of the parental leave. 
The ruling

Firstly, the European Court of Justice confirmed that member states may make the granting of a right to parental leave conditional on the parent concerned having been in employment without interruption for a period of at least twelve months immediately before the start of that parental leave.

However, the Court stated that a Member State cannot make a parent’s right to parental leave conditional on the parent working at the time of the birth or adoption of his or her child. 

According to the Court, the double condition imposed by the Luxembourg legislation leads, in reality, to an extension of the condition relating to the period of work and/or the period of seniority when the birth or adoption took place more than twelve months before the start of the parental leave. This condition period cannot be more than one year.  

In this judgment, the European Court of Justice issued a reminder that the right to parental leave is not intended to allow a parent to take care of his or her child only at the time of birth and shortly thereafter, but also later, during his or her childhood (and up to a certain age to be determined by the member states), at a time when the parent would need to reconcile his or her family and professional responsibilities. 

Caisse pour l’avenir des enfants, C-129/20available here.