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Deadlines: Motivation ministry:    18 January 2022
Written observations:                    4 March 2022

Keywords : Maternity/Paternity Leave Fund, domestic labour market, social security

Subject :

Regulation (EC) No 883/2004, on the coordination of social security systems.

Facts of the case:

The plaintiff, who had been pursuing postgraduate studies in medicine in Denmark, and who has been in full-time employment since 01-09-2015, moved to Iceland on 17-09-2019, being pregnant at that time. After arriving in Iceland she began working at the National Hospital. The plaintiff notified the Hospital, as her employer, of the proposed structure of her maternity leave on 15-01-2020. She submitted her application for payments from the Maternity/Paternity Leave Fund on 22-01-2020. The plaintiff’s application was approved and she was informed of the payment schedule by a decision dated 03-03-2020, stating that monthly payments to her would amount to ISK 184 119 for 100% maternity leave; this meant that the fund had not agreed to take account of her income in Denmark. The plaintiff appealed against the decision by the Maternity/Paternity Leave Fund to the Welfare Appeals Committee. The plaintiff brought a case to have the decision on her application for payments during her maternity leave quashed; she regards it as being in violation of the rules on the European Economic Area, with which Iceland has undertaken to comply. The point at issue in the case is whether income earned by the plaintiff through her work in Denmark is to be taken into account when payments to her from the fund are calculated. The dispute between the plaintiff and the defendant concerns whether the provision of the second paragraph of Article 13 of Act No 95/2000, stating that only average aggregate wages on the domestic labour market shall be taken into account, is at variance with the principles of European law, which Iceland has accepted and introduced into its domestic legal order through its enactment of the European Economic Area Act No 2/1993. This case hinges on the interpretation of a Regulation (currently No 883/2004), which forms part of Annex VI to the EEA Agreement, as regards how periods during which parents have worked on the labour markets of other EEA States are to be taken into account when assessing whether they qualify for payments from the Maternity/Paternity Leave Fund. On the other hand, the provisions of the Act are unambiguous in stating that, for the calculation of a parent’s average aggregate wages during the reference period, only the parent’s income on the domestic labour market is to be taken into account.

Request for an advisory opinion:

Does Article 6 of Regulation (EC) No 883/2004, on the coordination of social security systems (cf. also Article 21(3) of the Regulation), oblige an EEA State, when calculating payments in connection with maternity/paternity leave, to calculate reference income on the basis of a person’s aggregate wages on the labour market across the entire European Economic Area? Does it infringe the aforementioned provision and the principles of the EEA Agreement (see, for example, Article 29 EEA) if only a person’s aggregate wages on the domestic labour market are taken into account?

Cited (recent) case-law:

Policy Area: SZW