The case of Elisabeth de Blok and Others v. the Netherlands. Opinions of the Committee on the Elimination of Discrimination against Women dated February 17, 2014. Communication No. 36/2012.
In 2012, the author of the communication was assisted in the preparation of complaints. Subsequently, the complaint was communicated to the Netherlands.
Despite the existence of a certain margin of appreciation for the States parties regarding the implementation in practice of their obligations under subparagraph "b" of paragraph 1 of article 11 of the Convention on the Elimination of All Forms of Discrimination against Women, the circumstances of the case indicated that after the introduction of an initially mandatory system of maternity leave for all, including for self-employed women (even though in the latter case it was funded by special allocations), in 2004 the State party abolished this system, without introducing any transitional measures, it decided that self-employed women would no longer be covered by the state insurance system, but would instead be able to use a private income loss insurance system. As a result, the authors lost their maternity insurance on August 1, 2004. The Committee considered that the reform introduced by the State party in 2004 had a negative impact on the conditions for granting maternity leave to authors, protected by article 11, paragraph 1 (b), of the Convention, in comparison with the conditions provided by the previously existing State insurance scheme. In the Committee's opinion, the State party has not fulfilled its obligations under article 11, paragraph 1 (b), of the Convention.
According to the text of the Opinions, the authors claimed that their rights under article 11, paragraph 1 (b), of the Convention had been violated because the State party had failed to take measures to introduce maternity leave with compensation for lost income for self-employed women between 1 August 2004 and 4 June 2008 (para. 3.1 Opinions).
Legal positions of the Committee: With regard to the State party's argument regarding the inapplicability of subparagraph (b) of paragraph 1 of article 11 of the Convention to self-employed women, the Committee notes that nothing in the wording of article 11 as a whole or subparagraph (b) of paragraph 1 of article 11 of the Convention supports such a narrow interpretation. On the contrary, the Committee notes that, during a constructive dialogue with representatives of the State party, in its concluding observations and in its legal practice, it systematically dealt with self-employed persons in connection with a number of subparagraphs of article 11 and subparagraph "b" of paragraph 1 of article 11 of the Convention in particular. In addition, the Committee recalls that in the Nguyen case, to which both the authors and the State party refer, it based its conclusions on the clear assumption that, in the context of article 11, paragraph 1 (b), of the Convention, the concept of "all employed women" includes not only women in employment relationships, but also those who are self-employed. Thus, in the opinion of the Committee, subparagraph "b" of paragraph 1 of article 11 of the Convention is also applicable to self-employed women, and not only exclusively to women employed (paragraph 8.4 of the Opinion).
The Committee recalls that the State party, by ratifying the Convention and its Optional Protocol, has undertaken obligations to provide legal protection to persons who have been victims of violations of their rights under the Convention. The Committee refers to General Recommendation No. 28, according to which the issue of the direct operation of the Convention at the national level is a matter of constitutional law and depends on the status of international treaties in the national legal system. In accordance with the Convention, States parties undertake to "comply with the provisions of the Convention" (article 18 of the Convention) or to apply or enforce the provisions of the Convention, which means that the State party does not have the opportunity to refer to the absence of direct effect or to reservations such as "instructions" or "the obligation to make every effort" to abandon fulfillment of its obligations in accordance with subparagraph "b" of paragraph 2 of article 11 of the Convention (paragraph 8.6 of the Opinions).
The Committee's assessment of the factual circumstances of the case: the authors' claims that, since they were not granted benefits in connection with maternity leave as a result of the reform of the social insurance system in 2004, they are entitled to compensation in the amount that would have been provided to them in accordance with the Law previously in force before the reform about insurance for the disabled (self-employed persons). The Committee also took note of the State party's argument that the provisions of article 11, paragraph 1 (b), of the Convention apply to women in paid employment and cannot be interpreted as providing protection to self-employed persons; that self-employed persons can independently insure themselves against the risk of loss of income through savings or private insurance services companies; that the State party's intervention is not required, since self-employed persons can adequately insure against such risk in private companies; That there is an appropriate maternity benefit plan through which self-employed women can voluntarily insure themselves in accordance with the Sickness Benefits Act, which provides for the right to receive maternity benefits for 16 weeks, and that the State party has even assisted self-employed persons in private insurance through the introduction of a system tax deductions from insurance premiums (paragraph 8.2 of the Opinion).
The issue before the Committee was to determine whether the State party violated the authors' rights under article 11, paragraph 1 (b), of the Convention by abolishing the existing system of maternity benefits applied to self-employed women before 2004, taking into account that after the birth of children in 2005 and In 2006, they were effectively left without maternity benefits (paragraph 8.3 of the Opinion).
The Committee took note of the decision of the Hague District Court of 25 July 2007, in which the Court concluded that subparagraph (b) of paragraph 1 of article 11 of the Convention was not directly applicable, since it contained only an "instruction" for States parties to introduce maternity leave, leaving it to the discretion of States-participants, how exactly this will be achieved in practice. In addition, the Committee has taken into account the State party's contention that the obligation to take "appropriate measures" to prevent discrimination against women in connection with pregnancy and childbirth is nothing more than a statement about making "every effort". The Committee recalled that, in its Concluding observations in the context of the State party's fourth periodic report, it was of the view that this provision of the Convention was directly applicable. He reiterated his concern about the status of the Convention in the legal system of the State party and, for example, the fact that the governing bodies continue to consider that not all essential provisions of the Convention are directly applicable (paragraph 8.5 of the Opinions).
The Committee noted that, in this context, the State party was called upon to reconsider its position that not all essential provisions of the Convention are directly applicable in the national legal system and, in particular, to ensure that all provisions of the Convention are fully applied. He also recalled his concern about the repeal by the authorities of the State party in 2004 of the Law on Disability Insurance (Self-employed Persons), as a result of which independent women entrepreneurs lost maternity benefits; At the time, the Committee called on the State party to restore maternity benefits for all women on the basis of article 11, paragraph 1 (b), of the Convention, including the self-employed (paragraph 8.6 of the Opinion).
The Committee further noted that, despite the existence of a certain margin of appreciation for States parties regarding the implementation in practice of their obligations under article 11, paragraph 1 (b), of the Convention, however, the circumstances of the case indicated that, after the introduction of an initially mandatory system of maternity leave for all (including the self-employed women), even though in the latter case it was funded by special allocations, in 2004 the State party abolished this system without introducing any transitional measures, and it decided that self-employed women would no longer be covered by the state insurance system, but would be able to use the private income loss insurance system instead. As a result, the authors lost their maternity insurance on August 1, 2004. The authors tried to use the services of private insurance companies, but all but one were forced to abandon this idea due to the cost of such insurance, given the relatively low level of their income. In addition, and this was also not disputed by the State party, private insurance companies applied a provision for a two-year conditional period for new members, during which maternity benefits due to loss of income could not be paid in the case of appropriate leave (paragraph 8.7 of the Opinion).
The Committee noted that the State party did not refute the authors' statements, but only clarified that the decision on the specific form of application of the maternity leave plan was left to the discretion of national authorities; that payments for such insurance were subject to tax deductions, and also that in any case private insurance companies are free to determine specific financial parameters risk coverage. In these circumstances, the Committee considered that the reform introduced by the State party in 2004 had a real negative impact on the conditions for granting maternity leave to the authors, protected by article 11, paragraph 1 (b), of the Convention, compared with the conditions provided for by the previously existing State insurance scheme (paragraph 8.8 of the Opinion).
The Committee noted that, in these circumstances, the authors did not receive income loss benefits after they had children in 2005 and 2006, with the exception of Ms. de Blok (who used the services of a private insurance company and received a lump sum payment from it, but only after she notified the insurance company the company's intention to refer the case to the court). Thus, the State party's refusal to provide maternity benefits adversely affected the situation of pregnant women and therefore constituted direct discrimination against women on the basis of sex and gender and a violation of the State party's obligation to take all necessary measures to eliminate discrimination in accordance with article 11 of the Convention.
The Committee's conclusions: By abolishing the previously existing maternity leave system without introducing an alternative maternity leave plan to compensate for the loss of income during such leave, which is directly available to self-employed authors after the birth of children, the State party has not fulfilled its obligations under article 11, paragraph 1 (b), of the Convention (paragraph 8.9 of the Opinions).