Commission withdraws proposal to extend maternity leave, promising a fresh start – Developments at EU level – Q2 2015

The Commission has decided to withdraw its draft Maternity Leave Directive, which has been stuck in the legislative process since 2008. This article collects key developments and the testimonials of the parties involved, and explores some of the contradictions that were predicted in the Commission’s 2015 Work Programme and the Better Regulation Package.

The European Commission announced on 1 July 2015 that it was finally withdrawing its maternity leave proposals. Although developments in the last few months had led many to expect this, the announcement has still resulted in disappointment. However, there is still some hope: unlike the Gabriel García Márquez novella Chronicle of a Death Foretold where no one tries to stop the predicted death of the main character, the parties involved in the Maternity Leave Directive spared no efforts to break the deadlock. However, in withdrawing the proposal, the Commission stated that it wished to break the current stalemate and to open the way for new initiatives which will lead to real improvements in the lives of working parents and carers.

Background

The European Council and the European Parliament has consistently called for improvements to the legislation to improve protection for pregnant workers and new parents, clarify the granting of parental leave, and to improve work-life balance. In the Roadmap for equality between women and men 2006-2010 adopted by the Commission in March 2006, the Commission committed itself to reviewing existing EU gender equality legislation that had not been included in the 2005 recasting exercise.

Directive 92/85/EEC on pregnant workers and workers who have recently given birth or are breastfeeding was part of this review, and a number of proposed amendments were published in October 2008.  The review focused on:

• Article 8 (increasing the minimum duration of maternity leave from 14 to 18 weeks);
• Article 10 (following the case law of the European Court of Justice, to prevent women being dismissed during maternity leave except in exceptional circumstances);
• Article 11 (giving women the right to return to the same job, or to an equivalent post on the same terms and conditions plus any benefits accruing during their absence).

At the first reading of the proposed amendments, on 20 October 2010, the European Parliament decided on several changes. These included:

• extending the minimum duration of maternity leave to 20 weeks;
• non-transferable paternity leave of at least two weeks;
• protection of domestic workers;
• reinforced protection against dismissal;
• women on maternity leave to get the equivalent of 100% full pay for at least 16 weeks.

The draft revised directive and Parliament’s first reading were discussed in the Council under different EU Presidencies (the Czech Presidency in 2009, the Belgian Presidency in 2010, the Hungarian Presidency in the first semester of 2011 and the Polish Presidency in the second semester 2011), when it finally became clear that the Council would not agree to the suggested 20 weeks minimum maternity leave. The Directive then lay dormant for almost three years.

Evolution of developments

New discussions

The outgoing European Commission announced in its REFIT progress report in June 2014 that it might withdraw the maternity leave directive  (238 KB PDF) and reiterated this in an amendment to this document in September (585 KB PDF). In light of this, the newly elected European Parliament nominated Italian MEP Alessandra Moretti, of the Socialists and Democrats group (S&D, Italy), to report on the situation. When Ms. Moretti resigned this post to become president of the Veneto Region, she was replaced as Rapporteur by Marie Arena (S&D, Belgium). Discussions on the Directive were relaunched at the beginning of the Italian Presidency (July–December 2014). A debate at a plenary session of the European Parliament, on 15 July 2014, highlighted the divisions over the Directive (in Italian). The Italian Presidency confirmed its willingness 'to re-start discussions with the new rapporteur' and the European Commission reaffirmed that the directive was a 'candidate for withdrawal within the REFIT exercise'.

The possibility of re-opening discussions on maternity leave was expressed by Commissioners-designates Marianne Thyssen (Employment, Social Affairs, Skills and Labour Mobility) and Vĕra Jourová (Justice, Consumers and Gender Equality),  when they were questioned at European Parliament hearings on 1 October 2014.

Negotiations gather pace

Employment Ministers discussed 'parental and maternity leave: a way to reconcile work, family and private life' (210 KB PDF) during a meeting of the Council for Employment, Social Policy, Health and Consumer Affairs (EPSCO) on 16 October 2014. According to press reports, at this informal meeting ministers were hesitant about the question of maternity pay but much more flexible regarding the number of weeks' leave entitlement.

In an attempt to reach an agreement with the Council, the Parliament’s Rapporteur prepared to discuss the matter with other political groups at the Parliament and with the Council. Her proposals included:

• 18 weeks statutory leave (a mandatory six weeks fully paid, plus either 12 weeks paid in accordance with current practice in a particular Member State, or a minimum of 85% of previous salary if no scheme in place);
• a commitment to study all means possible of establishing paid paternity leave of at least ten working days;
• promoting parental leave.

The problem was that these proposals could not be officially accepted because the European Parliament's first reading had been adopted in 2010.

However, on 16 December 2014, the new European Commission presented its Work Programme 2015 (89 KB PDF) which set a deadline for passing the maternity directive:

As regards the maternity leave proposal, the Commission will withdraw it within six months if it is not possible to unblock the negotiations. This should allow for a new approach which will look at the issue in its wider context, given the reality of today's societies and the progress in this area at the Member States level.

The annex to the 2015 Work Programme showed that the Maternity Leave Directive was one of 81 proposals earmarked for withdrawal under the REFIT programme (124.9 KB PDF).

Eurofound's study contributes to the debate

In light of this withdrawal, the European Parliament’s Committee for Women’s Rights and Gender Equality (FEMM) requested the Parliament’s Policy Department to update its study on compensation for maternity, paternity and parental leave (5.27 MB PDF) and asked Eurofound to conduct a study on national maternity leave provision. The first findings from Eurofound’s report, Maternity leave provisions in the Member States: Duration and allowances (2.38 MB PDF), based on information from its network of European correspondents, were presented at a FEMM Committee meeting on 26 February 2015 (the report was published subsequently on 13 July). This paved the way for an exchange of views with the Commission and the Council. Rapporteur Maria Arena wished to urge the Latvian presidency to resume negotiations on the Maternity Directive, by setting up an informal working group to propose fresh solutions. However, as reported in daily news service Europolitics, representatives of the Latvian EU Presidency did not attend the discussions.

Final attempt to save the directive

In a last attempt to save the maternity leave directive, FEMM wrote to Commission President Jean-Claude Juncker, Vice-President Frans Timmermans and Commissioner Vĕra Jourová asking them to try to get the Parliament and the Council to resume talks. FEMM also introduced amendments to a range of resolutions, urging Member States to resume negotiations and unblock the maternity leave directive. These amendments were made to the:

• annual progress report on equality between women and men in the EU 2013 (on 10 March 2015);
• question for oral answer to the Commission (6 May 2015);
• question for oral answer to the Council (6 May 2015);
• European parliament resolution on maternity leave (20 May 2015).

During the parliamentary debate on 20 May, Commissioner Jourová argued for a fresh approach:

The EC has facilitated informal talks between EP and the Council, advocated for concrete discussions on the basis of the new EP rapporteur’s proposals in order to move towards an agreement. When the file came back to the Council at political level recently, a solid group of Member States remained opposed to any further negotiations on this file. Overall, there is a majority in favour of a fresh start in the Council.

Her speech heralded the withdrawal of the directive,  announced on 1 July 2015, and was confirmation of the Commission’s decisions as set out in its Better Regulation Package and its second REFIT scoreboard on 19 May 2015.

Commentary

Despite intensive efforts by the European Parliament and the Commission to break the deadlock on the Maternity Directive over the past six months, there was a clear lack of support for it in the Council. This led to the Commission withdrawing its proposal for the directive on maternity leave. However, in withdrawing the proposal, the Commission hoped to break the deadlock and open the way for new initiatives. The Commission has written to the co-legislators, saying a 'new broader initiative' will be included in the Commission Work Programme for 2016

which will use the best mix of available policy tools to deliver results as quickly and effectively as possible, and that takes account of the developments in society in the past decade whilst still promoting the objectives of the previous proposal and providing minimum protection.

The letter also announced a public consultation to allow a wide range of stakeholders, particularly social partners, to contribute their views and ideas in the coming months.

The European Parliament, Trade union organisations (ETUC and IndustriAll Europe) and the European Women’s Lobby (EWL)  have been extremely critical of the Commission’s decision to withdraw the proposal. Members of the European Parliament (mainly the S&D, the Liberal Democrat group (ALDE), the Greens and the Confederal Group of the European United Left/Nordic Green Left (GUE/NGL)) argue that the Parliament’s role as co-legislator is being ignored. The S&D, GUE/NGL and Greens and EWL also see the withdrawal as a step backwards for women's and social rights, whereas ALDE and the ETUC blame the Member States for being unable to negotiate a text.

Rapporteur Maria Arena told Eurofound:

The Commission needs to propose new legislative and non-legislative measures, among which [should be] a new maternity leave directive which really protects pregnant women, women who have given birth and breastfeeding women; a directive creating a paid paternity leave of at least 10 working days; a revision of the parental leave; and measures to develop the child care offer and conciliation between professional and private lives. This is a question of social justice for women in particular and the whole European society in general.