(Civil service – Officials – Maternity leave – Sick leave – Probable date of confinement – Date of beginning of maternity leave)

Application: first, for annulment of the Commission’s decision fixing the dates of the beginning and end of the applicant’s maternity leave in accordance with Article 58 of the Staff Regulations of Officials of the European Communities and, second, damages.

Held: The Commission’s decision of 23 October 2003 fixing the dates of the beginning and end of the applicant’s maternity leave is annulled. The remainder of the application is dismissed. The Commission is ordered to pay the costs.

Summary

Officials – Maternity leave – Duration – Point from which time starts to run

(Staff Regulations, Arts 58 and 59)

The Staff Regulations have established a clear and unambiguous system for calculating maternity leave, the purpose of which, in accordance with the principle of legal certainty, is to determine in advance the definite point from which the maternity leave starts to run, in order to enable pregnant women to know their administrative position before they go on maternity leave. Under that system, the appointing authority has no leeway in fixing the dates of the beginning and end of maternity leave. Thus, although it must, admittedly, take account of the actual date of confinement in order to determine the date when the official will return to work, it must, however, take into account only the expected date of confinement, as shown in a medical certificate, when determining the date of the beginning of the official’s maternity leave, and it cannot under any circumstances determine that date a posteriori, on the basis of the actual confinement date. Consequently, where the actual confinement date is earlier than the expected date, it is appropriate to consider that the point from which the maternity leave starts to run is unchanged, and that after the confinement the official concerned should be granted the additional leave needed to give her the minimum required under the Staff Regulations, which is a total of 16 weeks’ maternity leave.

That finding cannot be called into question where the pregnant woman, before her maternity leave begins, is already on sick leave for reasons associated with her pregnancy, since Article 58 of the Staff Regulations does not make any distinction in that regard. A method for applying that article in which, in such a situation, the date from which the maternity leave starts to run is fixed a posteriori on the basis of the actual confinement date, converting the days of sick leave included in the six week period before that date into days of maternity leave, would infringe Articles 58 and 59 of the Staff Regulations. Pregnancy cannot be regarded as constituting an illness, and no provision of the Staff Regulations may be interpreted as authorising the conversion of those two types of leave, which pursue different objectives and are therefore different in nature. Such a method would also have the effect of discriminating between pregnant women who have a problem-free pregnancy and therefore do not need to take sick leave and those who are forced to take sick leave before their maternity leave because they are unfit for work.

(see paras 50-56, 58-61)