Berlin Anyone applying for parental leave in small businesses can expect an answer from their employer within four weeks. If the company rejects them, a reason must follow. This is provided for in a draft law with which the federal government is following an EU directive to improve the compatibility of work and private life for parents.
But what the new law excludes: a statutory paternity leave. The federal government’s draft law does not mention a right to paternity leave, i.e. paid leave on the occasion of childbirth. An EU directive prescribes exactly that.
It should have been transposed into national law by August 2nd. The directive speaks of a “right to paternity leave for fathers or equivalent second parents” for at least ten days around the time of the child’s birth. The aim is to “promote a more equal division of care and nursing tasks between women and men and to enable the early development of a close bond between fathers and children”.
The Federal Government is of the opinion that the directive has already been fulfilled with the previous Parental Leave Act. There is no mention of a mandatory paternity leave, but at least of a parental leave that “can also be taken pro rata, by each parent alone or by both parents together”.
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This is not enough for the European Commission: it considers the directive to be unimplemented and calls for an explicitly anchored paternity leave of at least ten days around the time of birth. At the end of September, she therefore initiated infringement proceedings and sent a letter of formal notice to which the federal government must respond.
Germany is threatened with proceedings before the European Court of Justice
Germany has “not communicated any national measures to fully transpose the work-life balance directive into national law,” it says. At the end of the process, there could be a lawsuit before the European Court of Justice.
The majority of paternity leave has already been implemented into national law by the member states of the European Union,” says Elke Hannack from the German Federation of Trade Unions, who appeared on Monday as an expert at the public hearing before the family committee of the Bundestag.
Opinions at the hearing differed as to whether Germany was actually making a mistake when it came to paternity protection and had to fear further legal action.
Paternity leave is an “important equality policy instrument,” affirmed trade unionist Hannack. In addition, Germany is legally obliged to implement one. This emerges from a legal report commissioned by her association. The entitlement to paternity leave anchored in the EU directive is not already covered by the Federal Parental Allowance and Parental Leave Act, it says.
The Confederation of German Employers’ Associations, on the other hand, assessed the situation completely differently: according to it, a right to paternity leave is to be classified as “contrary to the system”. It is a “superfluous regulation,” said association representative Kerstin Plack. Paternity leave does not have to be implemented due to a suspension clause in the EU directive.
Employers oppose paternity leave
“Paid leave of significantly longer than 28 days” is already provided for in the Federal Parental Allowance and Parental Leave Act. If this is not used “in a way that is considered socially sensible”, it needs “clarification and best practice”, said Plack. “The wrong way, on the other hand, is to create further legal claims.”
The parliamentary group of the Left recently submitted a motion to the Bundestag to enshrine 28-day paternity leave in law. According to the parliamentary group, other European countries have already “set a good example”.
In Switzerland, for example, since 2020 fathers have been able to take two weeks of paid leave within six months of the birth of a child. And in France, fathers have been entitled to 28 days of paid paternity leave since last year.
In a hearing of the Family Committee in the past electoral term, the majority of the experts “spoke in favor of the introduction of such parental protection in order to implement the EU directive in Germany,” according to the motion of the left parliamentary group. The federal government must now submit a corresponding draft law “immediately”. She has until the end of November to respond to the EU Commission’s request.
More: EU Commission launches proceedings against Germany over paternity leave.