In 1998, the Netherlands established mandatory insurance for self-employed workers (and certain other categories of workers). The scheme insured against the risk of loss of income due to inability to work and, inter alia, entitled insured women to a maternity allowance.
In August 2004, the insurance scheme ceased to exist. Self-employed women were therefore no longer entitled to maternity benefits and had to take out private insurance to be covered against loss of income resulting from maternity. Such insurance often came with restrictions, including a two-year waiting period for new customers during which no benefits could be paid for maternity leave. These restrictions have been challenged without success in Dutch courts.
Following community objections, the Netherlands reintroduced maternity benefits for self-employed women. However, as the new law was not applied retrospectively, self-employed women who gave birth before 4 June 2008 were not entitled to claim such benefits.
Six self-employed women, who gave birth between June 2005 and March 2006, were ineligible for public maternity benefits. One of the women had taken out private insurance, but could not access compensation until she threatened to take the insurer to court. The remaining women did not take out insurance because the premiums were prohibitively expensive and, for some of the women, also because of the waiting period.
In 2005, the six women sought a declaratory decision from the District Court of The Hague. They claimed that the failure to provide self-employed women maternity benefits violated article 11(2)(b) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), among other obligations. Article 11(2)(b) provides:
In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances.
In 2007, the Court rejected their claim. It found that article 11(2)(b) was not directly applicable in the Netherlands and therefore could not form the basis of their claim. It reasoned that the provision merely contained “an instruction” for State Parties to introduce maternity leave and, as such, the Netherlands was afforded a “margin of appreciation” to determine how it would comply with the provision in practice.
In 2009, the Court of Appeal upheld the ruling. It found that article 11(2)(b) was too general to be applied by a court, given that it requires States Parties to take “appropriate measures”, but does not prescribe the measures to be taken. In its view, article 11(2)(b) was therefore unsuitable for direct application by national courts.
In 2010, the Supreme Court upheld the ruling of the Court of Appeal.
The six women subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). They claimed that the Netherlands violated article 11(2)(b) of CEDAW by failing to provide self-employed women maternity benefits during the period 1 August 2004 to 4 June 2008.
CEDAW Committee’s admissibility decision
As the State Party did not contest admissibility and there were no grounds upon which to declare the communication inadmissible, the CEDAW Committee declared it admissible.
State Party’s observations
The State Party claimed that it had not violated article 11(2)(b) of CEDAW. Among other things, it argued that:
- it was within its margin of appreciation to decide how it would apply its maternity leave scheme
- an adequate maternity scheme existed, given that some self-employed women could access insurance under the Sickness Benefits Act
- self-employed women can address the risk of loss of income by saving or taking out private insurance
- it had facilitated access to private insurance by making the payments tax deductible and that insurers were free to impose lawful restrictions on insurance policies
- article 11(2)(b) of CEDAW is not sufficiently specific to be applied by its national courts and is a “best-efforts” obligation because it does not prescribe how to pursue its objectives and, accordingly, has no direct effect
- article 11(2)(b) applies to women in paid employment only and does not extend to women who are self-employed.
CEDAW Committee’s views
The CEDAW Committee concluded that the State Party had directly discriminated against women, in violation of articles 11 and 11(2)(b) of CEDAW. In its views, the Committee criticised, inter alia, the State Party’s failure to introduce transitory measures, the cost of private insurance (especially for women on low incomes), and the two-year waiting period for insurance.
In reaching its views, the CEDAW Committee affirmed that:
- the obligations in article 11 of CEDAW, including article 11(2)(b), extend to women who are self-employed and do not apply only to female employees
- States Parties are required under article 18 to give effect to, fulfil, or ensure the application of, CEDAW provisions
- the direct applicability of CEDAW at the national level is a question of constitutional law and depends on the status of treaties in the domestic legal order
- States Parties cannot seek to avoid their article 11(2)(b) obligations by claiming that the provision is not directly applicable at the national level or citing qualifications such as “instructions” or “best-efforts” obligations.
The CEDAW Committee recommended that the State Party provide reparation to the authors for the loss of maternity benefits. It also urged the State Party to take steps to ensure compensation for loss of maternity benefits is available for self-employed women who gave birth between 1 August 2004 and 4 June 2008.
Communication No. 36/2012, UN Doc. CEDAW/C/57/D/36/2012 (2014)