Commission challenges Ireland over incorrect transposition of parental leave Directive

The European Commission sent a reasoned opinion to the Irish government on 3 April 2000, informing it that it has not properly fulfilled its obligations related to the transposition of the EU parental leave Directive. The Commission maintains that the cut-off date for parental leave entitlement included in the Irish transposition legislation constitutes an additional condition which is not permitted by the Directive.

The European Commission issued a reasoned opinion to Ireland on 3 April 2000, a move which constitutes the latest step in a long-running legal challenge about that country's transposition of the 1996 EU Directive on parental leave. Reasoned opinions are issued by the Commission, under Article 226 of the European Community Treaty, where it considers that a Member State has failed to fulfil an obligation under the Treaty. If the Member State does not comply with the reasoned opinion, the matter may subsequently be taken to the European Court of Justice.

The Irish Parental Leave Act 1998 came into force on 3 December 1998, on the basis of a draft drawn up earlier that year (IE9806251N), and sought to transpose the provisions of the parental leave Directive. Although this legislation entitles parents with children under the age of five to take parental leave, it contains a cut-off date restricting entitlement to the parents of children born on or after 3 June 1996, which was the date on which the EU Directive was adopted. On 4 December 1998, immediately after the Irish legislation took effect, the Irish Congress of Trade Unions (ICTU) formally lodged a complaint with the Commission, challenging this cut-off date on the grounds that it discriminated against parents of children born before this date and as such contravened the Directive.

On 11 March 1999, the Commission formally issued a letter to the Irish government informing it that it considered that this provision was contrary to the Directive and invited the Irish government to reply within two months. It did so on 5 May 1999, arguing that, in its view, the Directive gave Member States wide discretion in its application, and further that a cut-off date of 3 December 1998 was requested by employer representatives in Ireland and that the date of 3 June 1996 was a compromise between the two sides of industry.

However, in its reasoned opinion, the Commission states that it does not consider that the Irish government's arguments are persuasive and that therefore a violation of Community law is continuing, maintaining that by restricting the right to parental leave in the case of parents with children born or adopted on or after 3 June 1996, the Irish parental leave legislation does not fully comply with the obligations contained in the parental leave Directive.

The Commission maintains that Ireland has incorrectly transposed the Directive, which permits a Member State only to impose an upper age-limit on children in respect of whom parental leave can be claimed or granted. By adding the requirement that children must have been born or adopted after a certain date, Ireland has introduced in its national legislation a new, additional condition which is not permitted by the Directive. The Commission adds that: "Had the Directive permitted Member States to limit the right to take parental leave to parents with children born after the date of the Directive's adoption, a specific legal provision on this point would have been included."

The Irish government is now examining this text and has two months in which to take the measures necessary to comply with the reasoned opinion.