Judgment of the Court of Justice of the European Union Case


The Court of Justice of the European Union (CJEU) was called upon to state its opinion on the interpretation of the second subparagraph of Article 11(4) 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 employees and employees who have recently given birth or are breastfeeding.

The question raised was whether Belgian law, in failing to provide for an exemption from the minimum contribution period for a public servant assigned non-active status  for personal reasons who is on maternity leave, was in breach of Directive 92/85/EC, by allowing a Member State to refuse to grant a employee a maternity allowance on the ground that she has not completed, in the context of her work as an employee, the minimum contribution period required under national law in order to be eligible to receive that maternity allowance, even if she has worked for over twelve months immediately prior to the presumed date of confinement.

The Directive determines that Member States take necessary measures to ensure that employees are entitled to a continuous period of maternity leave of a least 14 weeks allocated before and/or after confinement in accordance with national legislation and practice.

For the CJEU, the right of pregnant employees to maternity leave must be regarded as a particularly important mechanism of protection.

Given that the domestic legislation in question does not comply with these requirements, the Court concluded that the Member State may not refuse to grant an employee a maternity allowance, since this would infringe Community legislation.

Judgment of the Court of Appeal of Porto of 2015-05-11

Leave in a situation of clinical risk during pregnancy and parental leave – Vacation allowance

The Porto Appeal Court was called upon to decide on entitlement to accrued vacation leave following leave in a situation of clinical risk during pregnancy, followed by parental leave, as well as the payment of the corresponding vacation allowance.

The employee in question was on leave in a situation of clinical risk during pregnancy from

10 October 2012 to 29 May 2013 and then on parental leave from 30 May 2013 to 20 January 2014. Given that these absences were safeguarded by the protection of parenthood rules, this did not entail the loss of any rights of the employee, with the exception of her salary, during the period from 10 October 2012 to 20 January 2014.

The employee reported for work on 21 January 2014 and began her vacation leave on the same date.

The Court emphasised that the leave regime in question does not interfere with the employees’ vacation and the period of leave is regarded as a period of actual work. Indeed, the parenthood regime is intended to prevent the employee from being penalised by the fact that she did not work as a result of absences caused by the periods of leave. Hence everything is the same as if the employee was effectively working.

With regard to the vacation allowance, the Court understood that its payment, intrinsically associated with the vacation leave, was the responsibility of the employer.

Also the fact that vacation accrued while the employee was still on parental leave does not change the solution for the case, since this right is not conditional on attendance or effective work. In this case the law makes it possible to proceed as if the vacation period represents effective work.

The Court concluded that the employer was therefore responsible for paying the vacation allowance for the vacation taken by the employee during the period from 21 January 2014 to 19 February 2014 and, not having made that payment, it committed an administrative offence having been duly sanctioned for this omission.

Judgment of the Constitutional Court no. 296/2015

The Constitutional Court was called upon to decide on the legality and constitutionality of the rules set out in Article 6 (1)(a) and (b) and (4) of Law 13/2003, of 21 May, as amended by Article 5 of Decree-Law 133/2012, of 27 June that stipulated the requirements and general terms and conditions for granting income support supplements to foreign citizens.

First of all, the Constitutional Court ruled on paragraph (a), to see whether, by requiring at least one year of legal residence in Portugal, in the case of a Portuguese citizen or citizen of a Member State or of a State in the European Economic Area that has entered into an agreement on the free movement of persons and goods with the European Union, it was unlawful by infringement of a law of superior force.

The Constitutional Court decided not to state its position since it considered that the Basic Law on Social Security was not sufficient grounds for unlawfulness with regard to citizens of the European Union and other equivalent foreigners. Admitting the lack of uniform treatment of Portuguese and foreign citizens, the Court understood that the regime under consideration, despite differentiating between citizens of the European Union and citizens of a host Member State, is not incompatible with the Basic Law on Social Security.

With regard to the issue of compatibility of Article 6 (1)(b) and 6(44) of Law no. 13/2003, of 21 May, with the Constitution - by imposing on foreign citizens a period of three years of legal residence in the country to be entitled to income support supplements - the Court declared this unconstitutional through infringement of the principle of proportionality. According to the Court, the period of three years is excessive, clashing “intolerably, with the right to remuneration that guarantees the basic means of survival”. Indeed, this would represent a disproportionate or excessively onerous sacrifice in view of the advantage associated with the aims of public interest that are to be achieved by its award, in other words, to guarantee the sustainability of Social Security.