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European Parliament Vote to Reform Maternity Leave Directive
On 20 October, the European Parliament voted on the European Commission’s proposal to reform the 1992 Maternity Leave Directive (Directive 92/85/EEC). Whilst the Commission had recommended 18 weeks’ maternity leave, either on full pay or at a rate at or above the level of sick pay, the European Parliament voted by a large majority to go beyond this, seeking to extend the minimum period of maternity leave from 14 to 20 weeks fully paid. The European Parliament also approved an entitlement to paid paternity leave of two weeks.
Under Irish law, women are entitled to 26 weeks of maternity leave and are paid maternity benefit of between €225.80 and €270 per week by the State through the Department of Social Protection. Under the Maternity Protection Acts 1994 and 2004, women are also entitled to an additional 16 weeks maternity leave which is unpaid. There is no statutory provision for paternity leave, paid or unpaid.
Approximately half of Irish employers, including the public service top up maternity benefit to full pay. The European Parliament is now considering it a legal requirement that all employers fully pay employees while on maternity leave.
A conciliation procedure will now commence to find a compromise between the two positions. In the current climate of budgetary constraints, there has been strong opposition from governments and employers’ groups. The Council of Ministers, which represents the interests of the 27 EU Member States, will now need to address some form of compromise before it is returned to the European Parliament for a vote. As yet, no time-frame has been set out as to when this will take place.
In-house Lawyers and Legal Privilege
In September, the European Court of Justice (ECJ) gave its adjudication in the appeal case of Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission (C-550/07 P) that communications between in-house lawyers and colleagues do not enjoy legal professional privilege.
Akzo Nobel submitted that the criterion that a lawyer must be independent cannot be interpreted to exclude in-house lawyers. It argued that an in-house lawyer, enrolled at a Bar or Law Society is, simply on account of his obligations of professional conduct and discipline, just as independent as an external lawyer. It also outlined that the rules of professional ethics and discipline make the employment relationship fully compatible with the concept of an independent lawyer.
However the ECJ decided, inter alia, that in order for legal professional privilege to apply, a lawyer must be independent. Despite Akzo being supported by the United Kingdom, Ireland and the Netherlands, the ECJ ruled that due to an in-house lawyer’s economic dependence and close ties with his employer, this means that he/she does not enjoy a level of professional independence comparable to that of an external lawyer.
Notwithstanding the above, the national laws of privilege in each Member State remain unaltered. The Irish Courts have previously afforded in-house counsel the benefit of legal professional privilege in certain circumstances. Given that the ECJ judgment is in conflict with the position under Irish law, it is important to be clear as to which set of rules apply. The opinion of the Advocate General in the Akzo case indicates that the position is as follows: the EU rules apply when the European Commission carries out an investigation in a Member State. Where a national authority (e.g. for example the Irish Competition Authority) assists the Commission with its investigation, the EU rules will still be applicable. However, where a national competition authority undertakes its own investigation under its national legislation or under Article 101 or 102 of the Treaty on the Functioning of the European Union, the national rules on privilege will apply.
Danish Law’s Attempt to Prevent ‘Double Payments’ Held to be Discriminatory
In Ingeniorforeningen in Danmark v Region Syddanmark (C-499/08), the European Court of Justice (ECJ) investigated whether a Danish law excluding workers who are entitled to an old age pension from a severance allowance was discriminatory on grounds of age.
Danish law grants a severance allowance to salaried workers who have worked for the same undertaking for at least 12 years. However, that payment was not available to workers who, on termination of the employment relationship, may draw an old age pension under an occupational pension scheme, even if the person concerned intends to continue to work.
Øle Andersen had worked for the Region of Southern Denmark from 1979 to 2006 when he was dismissed at the age of 63. He did not wish to retire at this time, and registered as a job seeker. Mr Andersen also attempted to claim the severance allowance but was unsuccessful as he was entitled to draw on his pension. His trade union took a case on his behalf claiming the legislation was discriminatory and contrary to EU law.
On a preliminary reference, the ECJ held that the legislation operated a difference of treatment which is based directly on grounds of age as it prevented certain workers claiming an entitlement to a severance allowance on the grounds that they are entitled to an old age pension.
The ECJ then considered whether or not that difference in treatment was capable of justification. The Court acknowledged that the severance allowance aims to facilitate the move to new employment for workers who have a long period of service with one employer and who may find it more difficult to get new employment. The ECJ also noted that the restriction is based on the general rule that persons entitled to a pension leave the labour market and that the restriction ensures that such persons do not receive a double payment of the severance allowance and an old age pension.
The ECJ held that the Equal Treatment Framework Directive applied in this situation and that this provision could not be justified as a proportionate means to achieve a legitimate aim. Although the Danish Government had a legitimate aim of preventing older workers from receiving both a severance payment and a pension, the law took no account of those workers who, although they were of pensionable age, did not wish to retire. This made it difficult for such workers to exercise their right to work as they may be forced to accept a lower pension than they would otherwise have got if they had continued working.
This case illustrates that while the Member States enjoy a broad discretion in the choice of measures capable of achieving their objectives in the field of social and employment policy, as outlined in Palacios de la villa (C 411/05), that discretion cannot have the effect of frustrating the implementation of the principle of non-discrimination on grounds of age.