31.3.2012

Official Journal of the European Union

C 98/11

(Case C-5/12)

2012/C 98/16

Language of the case: Spanish

Referring court

Parties to the main proceedings

Applicant: Marc Betriu Montull

Defendant: Instituto Nacional de la Seguridad Social (INSS)

Questions referred

1.Does a national law, specifically Article 48(4) of the Estatuto de los Trabajadores, which, in the case of childbirth, recognises employed mothers as holders of a primary and separate right to maternity leave once the six week period following the birth has elapsed, except in cases where the mother’s health is at risk, and employed fathers as holders of a secondary right, which can be enjoyed only where the mother also has the status of an employed person and elects for the father to take a designated part of that leave, contravene Council Directive 76/207/EEC (1) and Council Directive 96/34/EC? (2)

2.Does a national law, specifically Article 48(4) of the Estatuto de los Trabajadores, which, in the case of childbirth, recognises the primary right of mothers, but not of fathers, to suspend their contract of employment and to return to the same job, paid for by the social security system, even once the six week period following the birth has elapsed, except in cases where the mother’s health is at risk, so that the taking of leave by a male employee is dependent on the child’s mother also having the status of an employed person, contravene the principle of equal treatment, which prohibits discrimination on grounds of sex?

3.Does a national law, specifically Article 48(4) of the Estatuto de los Trabajadores, which recognises employed fathers as holders of a primary right to suspend their contract of employment and to return to the same job, paid for by the social security system, when they adopt a child but, by contrast, when they have a child by birth, does not give employed fathers their own separate right, independent of that of the mother, to suspend the contract, recognising only a right deriving from that of the mother, contravene the principle of equal treatment, which prohibits discrimination?

Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40) (Spanish special edition: Chapter 5, Volume 2 p. 70).

Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC (OJ 1996 L 145, p. 4).