By Jonas Thorsdalen Wik, Claude Lenth. Firm:  Hjort

The EFTA court has held that Norway’s parental leave policies set out in its National Insurance Act (the ‘Act) comply with the Equal Treatment Directive.

Background

In Norway, parents qualifying under Section 14-6 of the National Insurance Act are entitled to either 49 or 59 weeks of parental benefits. Of the total period, 15 weeks are reserved to each parent. The remaining 16 weeks can be shared between them, but the father’s entitlement during this period is dependent on whether the mother fulfils the conditions in Section 14-13 of the Act.

Under Section 14-13, a father is only entitled to parental benefits during this period if, after birth or adoption, the mother:

'a) starts working,

b) takes officially approved full-time education,

c) takes officially approved education combined with work that together

provides full-time occupation,

d) due to illness or injury is dependent on help to look after the child,

e) is hospitalised,

f) attends a full-time introductory programme pursuant to Chapter 2 of the

Introduction Act,

g) attends a full-time qualification programme under the Act of 18

December 2009 No 131 on Social Services in the Welfare Administration.’

If the mother works part-time, the father’s benefits are reduced to accordingly.

The EFTA Surveillance Authority (ESA) concluded that these provisions did not comply with the rules in the Equal Treatment Directive because a father’s entitlement to parental benefits depends on the mother’s situation, whereas the mother’s right to benefits does not depend on the father’s situation. It brought a case against Norway before the EFTA Court.

The Court’s ruling

The Court noted that although a scheme of benefits can fall within the remit of the Equal Treatment Directive, it will only do so if its subject matter is ‘employment and working conditions’ and there is a link to the employment relationship.

The purpose of the Norwegian parental benefits scheme is to provide parents with income in relation to the birth or adoption of a child, to ensure they can meet their needs when caring for the child. They provide income support and do not affect the right to parental leave. The right to these benefits can accrue on bases other than employment, such as receipt of unemployment benefit and military service. This means the benefits are not linked to the employment relationship.

The Court also noted that while the amount of parental benefits is calculated based on parents’ income, that income can derive from sources other than employment, such as self-employment or other benefits payments.

Finally the Court found that the parental benefits described in the Act did not constitute ‘pay’ within the meaning of the Equal Treatment Directive, because they are established by statute as a matter of public policy and not negotiated at an organisation or sectoral level. As a result, the parental benefits scheme in the Act did not relate to ‘employment and working conditions’ within the meaning of that expression in the Equal Treatment Directive.

The ESA’s claim that Norway had failed to comply with its obligations under the Directive was therefore dismissed.