CEDAW/C/36/D/3/2004

United Nations

CEDAW/C/36/D/3/2004

Convention on the Elimination

of All Forms of Discrimination

against Women

Distr.: General

29 August 2006

Original: English

06-48269 (E) 051006

*0648269*

Committee on the Elimination of

Discrimination against Women

Thirty-sixth session

7-25 August 2006

Views

Communication No. 3/2004

Submitted by:

Ms. Dung Thi Thuy Nguyen

Alleged victim:

The author

State party:

The Netherlands

Date of communication:

8 December 2003 (initial submission)

On 14 August 2006, the Committee on the Elimination of Discrimination

against Women adopted the annexed text as the Committee’s Views under article 7,

paragraph 3, of the Optional Protocol in respect of communication No. 3/2004. The

Views are appended to the present document.

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Annex

Views of the Committee on the Elimination of Discrimination

against Women under article 7, paragraph 3, of the Optional

Protocol to the Convention on the Elimination of All Forms

of Discrimination against Women (thirty-sixth session)

Communication No.: 3/2004*

Submitted by:

Ms. Dung Thi Thuy Nguyen

Alleged victim:

The author

State party:

The Netherlands

Date of communication:

8 December 2003 (initial submission)

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

* 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. Françoise Gaspard, Ms. Rosario Manalo, Ms. Krisztina Morvai, Ms. Pramila

Patten, Ms. Fumiko Saiga, Ms. Hanna Beate Schöpp-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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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.

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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 Préparatoires 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 self-

employed 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.

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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 anti-

accumulation clause).

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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

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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.

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6.7 The State party shares the views expressed by the Central Appeals

Tribunal (Centrale Raad van Beroep) as to whether the so-called “anti-

accumulation 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

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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

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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

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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

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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-à-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-à-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.

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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-à-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 self-

employed 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 self-

employed women that take into account fluctuating income and related

contributions. It is also within the State party’s margin of discretion to

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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 Schöpp-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-à-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 préparatoires” 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

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06-48269

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 so-

called 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 anti-

accumulation 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 self-

employment 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

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16

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 self-

employed 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.