Additional (maternity) leave for women only? The Court of Justice refines its Hofmann test in Syndicat CFTC (C-463/19) yet forgets about the children

Abstract

Syndicat CFTC v. CPAM provided an excellent opportunity for the Court of Justice of the European Union ('CJEU') to reconsider its position taken in the Hofmann case, regarding the question to what extent additional maternity leave can be exclusively reserved for female workers without infringing Directive 2006/54. Whilst the CJEU has narrowed the grey zone, it refrains from clearly indicating the boundaries between 'maternity' and 'parenthood' and leaves that for the Member States to decide. Against this backdrop, this case note argues that the CJEU should cease to conflate both concepts, as it cements women into their traditional role as primary caregivers and keeps men in a role subsidiary to that of women with respect to the exercise of parental responsibilities. Ultimately, childcare related leave should be approached from a rights perspective, taking into account the best interests of the child.