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The Committee on
the Elimination of Discrimination against Women, established under article
17 of the Convention on the Elimination of All Forms of Discrimination
against Women,
Meeting on 14 August 2006,
Having concluded its consideration of communication No. 3/2004, submitted to
the Committee on the Elimination of Discrimination against Women by Ms. Dung
Thi Thuy Nguyen under the Optional Protocol to the Convention on the
Elimination of All Forms of Discrimination against Women,
Having taken into account all written information made available to it by
the author of the communication and the State party,
Adopts the following:
Views Under Article 7, Paragraph 3, of the Optional Protocol
1.1 The author of the communication dated 8 December 2003, is Ms. Dung Thi
Thuy Nguyen, born on 24 June 1967 and a resident of the Netherlands
currently living in Breda, the Netherlands. She claims to be a victim of a
violation by the Netherlands of article 11, paragraph 2 (b) of the
Convention on the Elimination of All Forms of Discrimination against Women.
The author is represented by counsel, Mr. G. J. Knotter, and by Ms. E.
Cremers, a self-employed researcher at Leiden, the Netherlands. The
Convention and its Optional Protocol entered into force for the State party
on 22 August 1991 and 22 August 2002, respectively.
The Facts As Presented by the Author
2.1 The author worked as a part-time salaried employee (a temporary
employment agency worker) as well as together with her husband as a
co-working spouse in his enterprise. She gave birth to a child and took
maternity leave as from 17 January 1999. 2.2 The author was insured under
the Sickness Benefits Act (Ziektewet - "ZW") for her salaried employment
and, in accordance with article 29a of this Act, received benefits to
compensate for her loss of income from her salaried employment during her
maternity leave over a period of 16 weeks.
2.3 The author was also insured under the Invalidity Insurance (Self-
Employed Persons) Act (Wet arbeidsongeschiktheidsverzekering zelfstandigen "WAZ")
for her work in her husband's enterprise. On 17 September 1998, prior to the
start of her maternity leave, she submitted an application for maternity
benefits under the WAZ. On 19 February 1999, the National Institute for
Social Insurance (Landelijk instituut sociale verzekeringen - "LISV"), the
benefits agency, decided that, despite her entitlement, the author would not
receive benefits during maternity leave for her loss of income stemming from
her work in her husband's enterprise. This was because section 59 (4) of the
WAZ - the so-called "anti-accumulation clause" - allows (in cases of
concurrent claims for maternity benefits) payment of benefits only insofar
as they exceed benefits payable under the ZW. The author's benefits from her
work with her spouse did not exceed those from her salaried employment.
2.4 The author lodged an objection to the decision, which was rejected on 18
May 1999. Thereafter, she applied for a review with the Breda District Court
(rechtbank). Reportedly, this application was dismissed on 19 May 2000. The
author then appealed to the Central Appeals Tribunal (Centrale Raad van
Beroep), reportedly, the highest administrative court in the Netherlands in
social security cases.
2.5 On 25 April 2003, the Central Appeals Tribunal (Centrale Raad van Beroep)
confirmed the contested judgment of the Breda District Court (rechtbank).
The Tribunal found that section 59 (4) of the WAZ does not result in
unfavourable treatment of women as compared to men. The Tribunal also
referred to one of its earlier judgments in which it held that article 11 of
the Convention lacks direct effect.
2.6 On 8 May 2002, the author began a second maternity leave (in connection
with her second pregnancy) and again applied for benefits. On 4 June 2002
the benefits agency decided that the author's entitlement under the ZW would
be supplemented by the difference between her claim under the WAZ and her
entitlement under the ZW. Unlike during the previous period of maternity
leave, her WAZ entitlement exceeded her ZW entitlement.
2.7 The author lodged an appeal against the decision of 4 June 2002, which
she subsequently withdrew after the decision of the Central Appeals Tribunal
(Centrale Raad van Beroep), which heard the appeal regarding benefits for
her maternity leave in 1999, was rendered on 25 April 2003.
The Complaint
3.1 The author complains that she is a victim of a violation by the State
party of article 11, paragraph 2 (b) of the Convention on the Elimination of
All Forms of Discrimination against Women. She contends that this provision
entitles women to maternity leave with full compensation for loss of income
from their work. The author claims that women whose income stems from both
salaried and other forms of employment only receive partial compensation for
their loss of income during their maternity leave. In this respect, the
author submits that pregnancy has a negative effect on the income of this
group of women. She alleges that partial compensation for the loss of income
does not fulfil the requirements of the article 11, paragraph 2 (b) of the
Convention and amounts to direct discrimination of women as a result of
their pregnancy.
3.2 The author asserts that article 11 of the Convention applies to any
conceivable professional activity carried out for payment and refers to
legal literature on the Travaux Pr�paratoires of the Convention to
substantiate her assertion. She believes that this is important in assessing
the compatibility of the provisions of the WAZ in relation to pregnancy and
maternity with article 11 of the Convention. She also considers it important
to establish that the prohibition of discrimination against women means,
inter alia, that pregnancy and maternity may not result in a subordinated
position of women as compared to men.
3.3 As a result of the above, the author requests the Committee to examine
to what extent the so-called "anti-accumulation clause" - i.e. section 59
(4) of the WAZ - as a result of which she did not receive any compensation
for her lost income as a co-working spouse in connection with her maternity
leave - is a discriminatory provision and violates article 11, paragraph 2
(b) of the Convention.
3.4 The author requests the Committee to recommend to the State party, under
article 7 (3) of the Optional Protocol to the Convention, to take
appropriate measures to comply with the requirements of article 11,
paragraph 2 (b) of the Convention so that co-working spouses or selfemployed
women on pregnancy and maternity leave are provided with full compensation
for loss of income. She further requests the Committee to recommend that the
State party award her compensation for loss of income during both periods of
maternity leave.
3.5 The author further asserts that article 11, paragraph 2 (b) provides a
right that is open to tangible judicial review and that, under article 2 of
the Optional Protocol, the Committee has been authorized to decide whether
the violation of a certain Convention right may be judicially reviewed in
actual cases.
3.6 As to the admissibility of the communication, the author maintains that
all domestic remedies have been exhausted in that she ultimately brought
proceedings before the highest administrative court against the refusal to
award benefits under the WAZ. She informs the Committee that she withdrew
her appeal in connection with her second pregnancy after she lost her final
appeal in connection with her first pregnancy.
3.7 The author also states that she has not submitted the communication to
any other international body and thus, the requirement for admissibility in
article 4, paragraph 2 (a) has been fulfilled. The author points out that,
on several occasions, in its comments on the report of the Netherlands to
the Committee of Experts, the Netherlands Trade Union Confederation FNV has
claimed that section 59 (4) of the WAZ is contrary to article 12 (2) of the
European Social Charter. It has reportedly also brought the issue to the
attention of the International Labour Organization (ILO) in its comments on
the report of the Netherlands under ILO Convention 103 on Maternity
Protection. Nonetheless, the author maintains that both procedures differ
from the individual right of complaint and that neither the European Social
Charter nor ILO Convention 103 contain provisions identical to article 11 of
the Convention on the Elimination of All Forms of Discrimination against
Women. She also refers to case law on admissibility in individual complaints
procedures of other international investigation procedures, including the
Optional Protocol to the International Covenant on Civil and Political
Rights. For these reasons, the author argues that there is no impediment as
regards article 4, paragraph 2 (a) of the Optional Protocol.
3.8 The author contends that the communication is admissible under the terms
of article 4, paragraph 2 (e) of the Optional Protocol. Although the
decision not to pay the author benefits under the WAZ were taken before the
Netherlands ratified the Optional Protocol, the decision of the Central
Appeals Tribunal (Centrale Raad van Beroep) was delivered some time after
ratification. The author argues that the decision of the highest court
determines whether the facts should be considered to have occurred after
ratification, as the facts only became final on that date. She maintains
that international case law supports this view. Furthermore, she points out
that part of her communication directly concerns the decision of the Central
Appeals Tribunal (Centrale Raad van Beroep) itself. Additionally, the author
argues that the so-called "anti-accumulation clause" has continued to be
applied (now found in another piece of legislation) after the Optional
Protocol's entry into force for the State party. Lastly, the author argues
that her withdrawal of her appeal in connection with her second pregnancy
after she lost her final appeal in connection with her first pregnancy in
April 2003 also indicates that the facts at issue continue (i.e. the
application of the antiaccumulation clause).
The State Party's Submission on Admissibility
4.1 By submission of 19 March 2004, the State party argues that the
communication is inadmissible ratione temporis pursuant to article 4,
paragraph 2 (e). It argues that the subject of the communication is the
prohibition against receiving pregnancy and maternity benefits under both
the WAZ and the ZW at the same time. This arose in the author's case at the
point in time when the relevant implementing body took the decisions
affecting her, namely on 19 February 1999 and 4 June 2002. Both dates were
prior to the entry into force of the Protocol for the Netherlands on 22
August 2002.
4.2 The State party refers to the author's view that the deciding factor in
determining whether the facts that are the subject of the communication
occurred before the Protocol entered into force for the Netherlands is the
date of the judgment given by the court of last resort, since it is only
then that the facts are definitively established.
4.3 The State party is of the opinion that the author based her views on an
incorrect interpretation of Report No. 73/01, Case No. 12.350, MZ v Bolivia
of the Inter-American Commission on Human Rights. While the petitioner's
complaint in the Bolivian case was declared admissible where it related to a
judgment by a Bolivian court that dated from after the entry into force of
the individual right of complaint in respect of Bolivia, it had nothing to
do with that judgment definitively establishing facts that had occurred
prior to that date. The case concerned the course of the proceedings and the
conduct of the judges involved in the case.
The Author's Comments on the State Party's Observations on Admissibility
5.1 The author reiterates her arguments as to why her communication should
be declared admissible in accordance with article 4, paragraph 2 (e) of the
Optional Protocol to the Convention.
5.2 She explains that her interpretation of article 4, paragraph 2 (e) of
the Optional Protocol cannot be directly inferred from the international
case to which she referred in her initial submission. She wished merely to
refer to judgments in which judicial bodies did not decide restrictively on
the question of admissibility. The author, therefore, considers the
comparison of the facts of her case to the facts in MZ v. Bolivia (IACHR
Report No. 73/01, case No. 12.350 of 10 October 2001) irrelevant.
State Party's Further Submission on Admissibility and Observations on Merits
6.1 The State party states that under article 2 of the Optional Protocol,
communications may be submitted by or on behalf of individuals claiming to
be victims of a violation of any of the rights set forth in the Convention.
It is the State party's opinion that an individual can only be regarded as a
victim under the article at the moment at which there has been some failure
to respect his or her rights. In the author's case, this would be the dates
on which she was notified that all or part of the benefits was to be
withheld. These decisions were taken before 22 August 2002, the date that
the Optional Protocol entered into force for the State party. Ergo, the
communication should be declared inadmissible ratione temporis. A different
view would misconstrue the substance of the Optional Protocol by recognizing
a general rather than an individual right of complaint.
6.2 The State party recalls that lodging an application for review in social
security cases does not suspend legal proceedings in the Netherlands. Only
the final judgment of a court can change (with retroactive effect) the
earlier decisions of the bodies that implement social security legislation.
6.3 In addressing the author's contention that section 59 (4) of the WAZ is
incompatible with article 11, paragraph 2 (b) of the Convention, which, the
author believes, imposes an obligation to ensure full compensation of loss
of income ensuing from childbirth in all cases and constitutes direct sex
discrimination, the State party observes that the word "pay" is used in
general to refer to a salary and not to income from business profits. This
gives rise to whether the word "pay" in article 11, paragraph 2 (b) of the
Convention should include the frequently fluctuating income arising from
self-employment. The State party views its composite system of maternity
benefits as adequately fulfilling the terms of article 11, paragraph 2 (b)
of the Convention.
6.4 Initially, maternity leave and maternity benefits were regulated
exclusively in the ZW, an insurance scheme that provided compulsory coverage
for both male and female employees. Self-employed women or women working in
their husbands' businesses could voluntarily take out insurance under the
scheme. In 1992, a study revealed that only a small proportion of these
women took out insurance - either because they were unaware of the option or
because of the cost involved. It also emerged that the women concerned only
took maternity leave if there were medical complications.
6.5 Subsequently, a compulsory insurance scheme was set up under WAZ for
self-employed women or women who worked in their husbands' businesses, which
resembled the other scheme - but with contributions based on profits. It was
recognized that situations might arise in which women might be
simultaneously entitled to benefits from both schemes and, in order to guard
against giving more entitlements to persons who were insured in respect of
the same risk under two sets of regulations, section 59 (4) was included in
the WAZ.
6.6 To ensure that those who were insured under both schemes would not be
disadvantaged, the principle of equivalence was applied in relation to
contributions. In order to determine contributions, the income from salaried
employment was deducted from other income in certain circumstances. This
meant that the higher the income from salaried employment the lower the
contribution would be to the WAZ. Benefits granted within the framework of
the employees' insurance were deducted from the other benefits.
6.7 The State party shares the views expressed by the Central Appeals
Tribunal (Centrale Raad van Beroep) as to whether the so-called "antiaccumulation
clause" constitutes sex discrimination. It maintains that entitlement to
maternity benefits under section 22 of WAZ, is an advantage exclusively for
women. Furthermore, within the WAZ system as a whole, the basic principle of
anti-accumulation of benefit in respect of the same risk also applies in the
event of concurrence between a WAZ benefit and some form of benefit other
than a maternity benefit - without any distinction according to sex.
6.8 In responding to the author's contention that the Central Appeals
Tribunal (Centrale Raad van Beroep) was wrong to conclude that article 11 of
the Convention was not directly applicable, the State party states that the
crucial point is whether further legislation has to be enacted to implement
rights protected by the provision or whether without the enactment of
further legislation citizens can derive entitlements which they can pursue
before a national court, contrary to national law, if necessary. National
constitutions determine the manner in which provisions of international law
are incorporated into national systems of law. The State party, therefore,
is of the opinion that the Committee cannot be asked to give its opinion on
the matter. The State party considers it self-evident that statutory
regulations that are incompatible with international law must be amended; in
this type of situation the question is not so much whether but how these
obligations must be fulfilled.
6.9 In the State party the courts decide on the basis of the nature,
substance and tenor of a particular provision of international law, whether
it is directly applicable. For a provision to be invoked directly by private
individuals, it must be formulated so precisely that rights necessarily
ensue from it unambiguously and without the need for any further action to
be taken by the national authorities.
6.10 The State party would have it that the only possible conclusion is that
article 11, paragraph 2 (b) of the Convention imposes on the legislature and
Governments of States parties an obligation to pursue, rather than to
achieve, a certain goal (inspanningsverplichting), with States parties being
allowed certain discretionary powers. In the Netherlands, these powers are
exercised by the legislature. The State party therefore concurs with the
Central Appeals Tribunal (Centrale Raad van Beroep) in its view that article
11, paragraph 2 (b) of the Convention is not directly applicable.
6.11 The State party requests the Committee to declare the communication
inadmissible, or alternatively, should it be deemed admissible, to declare
it ill-founded.
The Author's Comments on the State Party's Observations on Admissibility and
Merits
7.1 As to admissibility ratione temporis, the author believes that article
4, paragraph 2 (e) of the Optional Protocol must be read in conjunction with
the other requirements of the article. Paragraph 1 provides that local
remedies must be exhausted before a communication can be submitted. Viewed
together with article 4, paragraph 2 (e), this means that "facts" must be
understood to mean the date of the court decision of the highest instance
(i.e. 25 April 2003). The correctness of the facts cannot be assumed until
such a final decision is reached.
7.2 Furthermore, the complaint concerns the period of the second maternity
leave from 8 May to 28 August 2002, during which the author received
benefits based on the decision of 4 June 2002 decision - that is to say that
the "facts" (the period for which a benefit is received) continued after the
entry into force of the Optional Protocol for the State party.
7.3 The author also points out that the State party does not challenge
admissibility on grounds of non-exhaustion of remedies in respect of
benefits covering the second maternity leave.
7.4 The author further states that "facts" should be understood to mean the
facts to which the entitlement applies in accordance with the WAZ, including
section 59 (4) and the Work and Care Act after 1 December 2001. She
considers the facts to continue because the entitlement continues to exist
and maintains that the right to complain is not limited to individual
occurrences but generally concerns the right of victims of discrimination
against women.
7.5 As to the issue of the definition of "pay" in article 11, paragraph 2
(b) of the Convention, the author maintains her position that all women who
perform paid work should be covered - especially professional women or women
in business. She disagrees with the argument that women who are insured
under two insurance schemes would be unjustifiably accorded favoured
treatment if they were to receive more benefits. Furthermore, referring to
the State party's comments on contributions, the author sees no connection
between the issue of entitlements to benefits and the payment of
contributions - because entitlements exist irrespective of the contributions
paid.
7.6 As to whether section 59 (4) of the WAZ is discriminatory, the author
contends that only women are affected negatively by a loss of income that
can never be experienced by men. That loss of income - an effect of the Act
- constitutes discrimination.
7.7 The author clarifies that she has not requested the Committee to decide
whether or not article 11 of the Convention has direct effect. The author
has only indicated that as a result of the decision of the Central Appeals
Tribunal (Centrale Raad van Beroep), she has been deprived of the right to
have national legislation tested against the provisions of the Convention.
Supplementary Observations of the State Party
8.1 The State party refers to the author's claim that "the Government does
not object to the statement that is not necessary for the admissibility of
the complaint as regards the second period that the complainant should have
exhausted the entire appeal proceedings once more". The State party points
out that this claim was not made in the author's initial submission to the
Committee. The only reference therein to the second period of pregnancy and
maternity leave in 2002 was made to support the claim that the alleged
violation continued after the Optional Protocol entered into force in the
Netherlands. It should not be inferred from the fact that the State party
did not explicitly address the question of whether the author had exhausted
domestic remedies regarding the decision on the benefits payable to her for
the period of her maternity leave in 2002 that the State party believes that
this condition for admissibility has been met regarding that period.
Regarding article 4, paragraph 1 of the Optional Protocol, the State party
believes that the Committee cannot take the communication into
consideration, inasmuch as it must be assumed to apply to the benefit for
the period of leave in 2002, on account of non-exhaustion of domestic
remedies.
8.2 The State party reiterates that it considers the communication in any
event to be inadmissible because the relevant facts took place before the
date that the Optional Protocol entered into force for the Netherlands. It
also wishes to emphasize that the Optional Protocol created an individual
right of complaint that follows from article 2. In order to determine
whether a person is a victim of a violation by a State, it is necessary to
identify an act, legal or otherwise, by the State that can be defined as a
violation, for instance a decision by the State on the application of a
particular rule of law. In the State party's view, the right of complaint
does not stretch to facts that a complainant considers to be discriminatory
in general unless the complainant has been affected personally.
8.3 Concerning the merits of the author's claims, the State party wishes to
clarify that it raised previously- but did not answer - the obvious question
relating to the meaning of the word "pay" in article 11, paragraph 2 (b) of
the Convention. The State party disagrees with the author's interpretation
that the provision prescribes full compensation for loss of income resulting
from pregnancy and childbirth. It views the provision as a general norm that
imposes on States an obligation to make arrangements that enable women to
provide for themselves in the period of pregnancy and childbirth and to
resume work after childbirth without any adverse effects on their career.
The way in which the obligation is fulfilled is left to States to determine.
States may opt between arrangements based on continued payment of salary and
arrangements creating a comparable social provision. That this must involve
full compensation for loss of income cannot automatically be inferred.
8.4 The State party makes a comparison between paragraph 2 (b) of article 11
of the Convention and EC directive 92/85 of 19 October 1992 concerning the
introduction of measures to encourage improvements in the safety and health
at work of pregnant workers and workers who have recently given birth or are
breastfeeding, which provides for a payment to, and/or entitlement to an
adequate allowance. While the State party finds it implausible that the
European legislature envisaged a wholly different norm than the Convention's
norm, it describes the EC directive as being more clearly formulated in that
the term "adequate allowance" is defined.
8.5 The State party elaborates further about the reasoning behind section 59
(4) - the so-called "anti-accumulation clause" - of WAZ. Under this Act a
self-employed woman would be entitled to a benefit of up to 100 per cent of
the statutory minimum wage. Those who worked as a salaried employee as well
would be entitled to a benefit under both this Act and the ZW. If the latter
exceeded 100 per cent of the statutory minimum wage the WAZ benefit would
not be paid and if the ZW entitlement was lower than 100 per cent of the
statutory minimum wage, the WAZ benefit could be paid as long as the two
together would not exceed 100 per cent of the minimum wage. At the same
time, the higher a woman's income would be from salaried employment - the
greater the likelihood that her WAZ benefit would not be paid and the lower
her contribution payable to the WAZ scheme would be.
8.6 As for the author's contention that the so-called "anti-accumulation
clause" constitutes direct discrimination, the State party reiterates that
the entitlement is exclusively given to women and is specifically designed
to give women an advantage in relation to men. It is, therefore, impossible
to see how it can lead to more unfavourable treatment of women in relation
to men - considering that men cannot make any use whatsoever of the clause.
Issues And Proceedings Before The Committee
Consideration of Admissibility
9.1 In accordance with rule 64 of its rules of procedure, the Committee
shall decide whether the communication is admissible or inadmissible under
the Optional Protocol to the Convention. Pursuant to rule 72, paragraph 4,
of its rules of procedure, it shall do so before considering the merits of
the communication.
9.2 The Committee has ascertained that the matter has not already been or is
being examined under another procedure of international investigation or
settlement.
9.3 With respect to article 4, paragraph 1 of the Optional Protocol, the
Committee notes that the State party has not disputed that the author has
exhausted all available domestic remedies concerning benefits for her first
maternity leave in 1999. The issue is not as straightforward regarding the
author's 2002 maternity leave benefits. The Committee is informed by the
author in her initial submission, that she withdrew her appeal in connection
with her second maternity leave after she lost her final appeal in
connection with her first maternity leave. She did not explain her reasons.
In its latest observations, the State party objected to the admissibility of
the author's claim relating to the latter maternity leave on grounds of her
failure to exhaust all available domestic remedies without explaining why.
The Committee notes that in earlier observations in which the State party
challenged the admissibility ratione temporis (see below) of the
communication and in doing so referred to the decisions taken denying
benefits under the WAZ system vis-�-vis both periods of maternity leave, it
did not mention the issue of exhaustion of remedies. In the absence of
particulars from either the State party or the author on which to assess
whether the author should have continued her appeal or whether these
proceedings were unlikely to bring relief, the Committee considers that, on
the face of it and in light of the unambiguous wording of the decision
rendered on 25 April 2003 by the Central Appeals Tribunal (Centrale Raad van
Beroep), the highest administrative court in social security cases,
proceedings regarding the author's 2002 maternity leave benefits were
unlikely to bring relief. The Committee therefore holds that it is not
precluded by article 4, paragraph 1 of the Optional Protocol from
considering the communication as regards claims relating to both periods of
the author's maternity leave.
9.4 In accordance with article 4, paragraph 2 (e), the Committee shall
declare a communication inadmissible where the facts that are the subject of
the communication occurred prior to the entry into force of the present
Protocol for the State party concerned unless those facts continued after
that date. The Committee notes that the State party disputed the author's
contention that article 4, paragraph 2 (e) posed no impediment to
admissibility of the communication. The State party put forward that the
pertinent dates for the Committee to consider in this regard were 19
February 1999 and 4 June 2002 - both dates being prior to the entry into
force of the Protocol for the Netherlands. These dates were the dates on
which decisions were taken to deny the author - the first time to fully deny
her benefits under the WAZ in relation to her first maternity leave and the
second time to partially deny her benefits under the WAZ in relation to her
second maternity leave. The author, for her part, in her initial submission
argued that 25 April 2003, i.e. after the Optional Protocol came into force
for the Netherlands, is the pertinent date in relation to article 4,
paragraph 2 of the Optional Protocol because on that date the Central
Appeals Tribunal (Centrale Raad van Beroep), the highest administrative
court in social security cases, took the final decision vis-�-vis her
dispute with the WAZ authorities regarding her first maternity leave. The
Committee is of the view that the central question to be answered is "when
has the Dutch legislation at issue been applied to the alleged actual
detriment of the author (i.e. what the facts of the case are)?
9.5 The Committee takes into account that the actual leave periods for which
the author applied for benefits spanned two 16-week periods, the first was
in 1999, which clearly predated the entry into force of the Optional
Protocol for the State party. The second 16-week period, according to the
author, was from 8 May to 28 August 2002. This period extended beyond the
entry into force of the Optional Protocol for the State party on 22 August
2002 and justifies admissibility ratione temporis insofar as the
communication relates to the author's maternity leave in 2002.
9.6 The Committee has no reason to find the communication inadmissible on
any other grounds and thus finds the communication insofar as it concerns
the author's later maternity leave in 2002 admissible.
Consideration of the Merits
10.1 The Committee has considered the present communication in light of all
the information made available to it by the author and by the State party,
as provided in article 7, paragraph 1, of the Optional Protocol.
10.2 The question before the Committee is to determine whether the concrete
application of section 59 (4) of the WAZ vis-�-vis the author insofar as it
concerns the author's later maternity leave in 2002 constituted a violation
of her rights under article 11, paragraph 2(b) of the Convention because it
resulted in her receiving less benefits than she would have received had the
provision not been in operation and had she been able to claim benefits as
an employee and as a co-working spouse independently of each other. The aim
of article 11, paragraph 2, is to address discrimination against women
working in gainful employment outside the home on grounds of pregnancy and
childbirth. The Committee considers that the author has not shown that the
application of the 59 (4) of the WAZ was discriminatory towards her as a
woman on the grounds laid down in article 11, paragraph 2 of the Convention,
namely of marriage or maternity. The Committee is of the view that the
grounds for the alleged differential treatment had to do with the fact that
she was a salaried employee and worked as a co-working spouse in her
husband's enterprise at the same time. Article 11, paragraph 2 (b), obliges
States parties in such cases to introduce maternity leave with pay or
comparable social benefits without loss of former employment, seniority or
social allowances. The Committee notes that article 11, paragraph 2 (b),
does not use the term "full" pay, nor does it use "full compensation for
loss of income" resulting from pregnancy and childbirth. In other words, the
Convention leaves to States parties a certain margin of discretion to devise
a system of maternity leave benefits to fulfil Convention requirements. The
Committee notes that the State party's legislation provides that
selfemployed women and co-working spouses as well as salaried women are
entitled to paid maternity leave - albeit under different insurance schemes.
Entitlements under both schemes may be claimed simultaneously and awarded as
long as the two together do not exceed a specified maximum amount. In such
cases, contributions to the scheme covering self-employed women and
co-working spouses are adjusted with income from their salaried employment.
It is within the State party's margin of discretion to determine the
appropriate maternity benefits within the meaning of article 11, paragraph 2
(b) of the Convention for all employed women, with separate rules for
selfemployed women that take into account fluctuating income and related
contributions. It is also within the State party's margin of discretion to
apply those rules in combination to women who are partly self-employed and
partly salaried workers. In light of the foregoing, the Committee concludes
that the application of section 59 (4) of the WAZ did not result in any
discriminatory treatment of the author and does not constitute a violation
of her rights under article 11, paragraph 2 (b), of the Convention.
10.3 Acting under article 7, paragraph 3 of the Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination against Women,
the Committee on the Elimination of Discrimination against Women is of the
view that the facts before it do not reveal a violation of article 11,
paragraph 2 (b) of the Convention.
Individual Opinion of Committee Members, Ms. Naela Mohamed Gabr, Ms. Hanna
Beate Sch�pp-Schilling and Ms. Heisoo Shin (Dissenting)
Consideration of the Merits
10.1 The Committee has considered the present communication in light of all
of the information made available to it by the author and by the State
party, as provided in article 7, paragraph 1, of the Optional Protocol.
10.2 The question before the Committee is to determine whether the concrete
application of section 59 (4) of the WAZ vis-�-vis the author insofar as it
concerns the author's later maternity leave in 2002 constituted a violation
of her rights under article 11, paragraph 2 (b), of the Convention, because
it resulted in her receiving less benefits than she would have received had
the provisions not been in operation and had she been able to claim benefits
as an employee and as a co-working spouse independently of each other.
10.3 The aim of article 11, paragraph 2, in general, and article 11,
paragraph 2 (b), in particular, is to address discrimination against women
working in gainful employment outside the home on grounds of pregnancy and
childbirth. Article 11, paragraph 2 (b), obliges States parties in such
cases to introduce maternity leave with pay or with comparable social
benefits without loss of former employment, seniority or social allowance.
Article 11, paragraph 2 (b), does not use the term "full" pay. A certain
margin of discretion is left to States parties to devise a system of
maternity leave benefits which fulfils the requirements of the Convention.
This interpretation is bolstered by the "travaux pr�paratoires" of the
Convention and by State practice as presented to the Committee in reports
submitted to it under article 18 of the Convention. It can be argued that
the explicit wording of article 11, paragraph 2 (b), read in conjunction
with the other subparagraphs of article 11, paragraph 2, aims primarily at
women as salaried employees in the public or private labour market sectors.
On the other hand, the provision can also be interpreted to mean that States
parties are also obliged to provide for a maternity leave with pay for
self-employed women. We have seen that the State party has made some
provision for this category of women. The manner in which States parties do
so is left to their discretion - subject to their obligations under the
Convention to achieve results.
10.4 Acting under article 7, paragraph 3, of the Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination against Women,
we are of the following view: Based on the reasoning set forth above, we
conclude that the law of the Netherlands which provides for a financially
compensated maternity leave for women who are both salaried women and
self-employed, albeit with the restriction of the socalled anti-accumulation
clause in article 59WAZ, is compatible with the obligations of the State
party under article 11, paragraph 2 (b), of the Convention in the sense that
it does not reveal a violation of the author's rights under this article as
concerns a direct form of discrimination based on sex.
10.5 At the same time, we are concerned at the fact that the so-called
"equivalence" principle does not seem to take into account the potential
situation of a women working in a situation of both salaried part-time and
self-employment, in which the number of her working hours in both categories
of work equal or even may go beyond the hours of a full-time salaried female
employee, who, in the Netherlands, to our knowledge, receives a maternity
benefit which equals full pay for a certain period of time. In addition, the
1996 Equal Treatment (Full-time and Part-time Workers) (WOA) requires
full-time and part-time employees to be treated equally. Therefore, we are
of the view that the so-called antiaccumulation clause in article 59WAZ may
constitute a form of indirect discrimination based on sex. This view is
based on the assumption that an employment situation in which salaried
part-time work and selfemployment is combined, as described by the
complainant, is one which mainly women experience in the Netherlands, since,
in general, it is mainly women who work part-time as salaried workers in
addition to working as family helpers in their husbands' enterprises.
However, no information was requested by the Committee or given by the State
party under this communication procedure to substantiate this assumption
with facts, although in the State party's fourth report under the CEDAW
Convention, which has been in general distribution since 10 February 2005
and which is to be discussed at the thirty-seventh session of the Committee,
in 2007, the State party admits that part-time work is particularly common
among women (see CEDAW/C/NLD/4). In addition, in the same report the State
party refers to the fact that in 2001, under a new Invalidity Insurance Act
(WAO) for self-employed persons, 55 per cent of the applicants were women.
10.6 Acting under article 7, paragraph 3, of the Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination against Women,
we, therefore, made the following recommendation to the State party:
(a) Collect data on the number of women working in the combination of
part-time salaried employment and as self-employed persons as compared to
men in order to assess the percentage of women versus men in this situation;
and, if this data shows a preponderance of women in such situations of
employment;
(b) Review the "anti-accumulation clause" (section 59 (4) of the WAZ), in
particular its principle of "equivalence", which does not seem to take into
account the overall amount of hours of work in such combined employment
situations and constitutes a possible form of indirect discrimination for
women in such employment situations when pregnant and giving birth;
(c) Accordingly amend the WAZ; or, (d) Consider in the design of any new
insurance scheme for selfemployed persons, which includes maternity benefits
and which covers those who combine self-employment with part-time salaried
employment, as referred to in the State party's fourth report
(CEDAW/C/NLD/4, p. 61), that the integration of provisions ensures full
harmony of the law of the Netherlands with the Convention on the Elimination
of All Forms of Discrimination against Women in the area of maternity leave
benefits for all women working in various forms of employment in the
Netherlands.
* The following members of the Committee participated in the examination of
the present communication: Ms. Magalys Arocha Dominguez, Ms. Meriem
Belmihoub-Zerdani, Ms. Huguette Bokpe Gnacadja, Ms. Dorcas Coker-Appiah, Ms.
Mary Shanthi Dairiam, Ms. Naela Mohamed Gabr, Ms. Fran�oise Gaspard, Ms.
Rosario Manalo, Ms. Krisztina Morvai, Ms. Pramila Patten, Ms. Fumiko Saiga,
Ms. Hanna Beate Sch�pp-Schilling, Ms. Heisoo Shin, Ms. Glenda P. Simms, Ms.
Dubravka Simonovic, Ms. Anamah Tan, Ms. Maria Regina Tavares da Silva and
Ms. Zou Xiaoqiao. Pursuant to rule 60 (1) (c) of the Committee's rules of
procedure, Mr. Cees Flinterman did not participate in the examination of
this communication, as he is a national of the State party concerned.
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