Elisabeth de Blok et al. v. The Netherlands

Elisabeth de Blok and five other nationals of the Netherlands are self-employed women who gave birth between 2005 and 2006. Until 31 July 2004, self-employed persons were compulsorily insured against the risk of loss of income as a result of incapacity for work under the Incapacity Insurance Act. Under the Work and Care Act, self-employed women were also entitled to a State maternity benefits. On August 1, 2004, the Discontinuation of Access to Incapacity Insurance Act entered into force, ending the entitlement of self-employed women to maternity benefits. The six self-employed women complained to the District Court of The Hague, claiming that the State should have ensured an adequate maternity benefit scheme in keeping with article 11(2)(b) of the Convention on the Elimination of All forms of Discrimination against Women. The District Court declared the claim unfounded. The Court of Appeal of The Hague upheld the judgment. The Supreme Court dismissed the appeal, ruling that the provisions of article 11(2)(b) of the Convention were insufficiently precise, thus making them unsuitable for direct application by national courts. In their complaint to the Committee on the Elimination of Discrimination Against Women, the six women argued that the State party violated their rights under article 11(2)(b) of the Convention on the Elimination of All forms of Discrimination Against Women by removing the existing maternity leave scheme applicable to self-employed women up to 2004. The Committee held that article 11(2)(b) is applicable also to self-employed women and not to female employees exclusively. Further, the Committee held that, contrary to the State party’s view, the provision was directly applicable. The Committee concluded that the State party’s failure to provide maternity benefits affected pregnant women adversely and therefore constituted direct sex and gender-based discrimination against women. The Committee recommended that the State party provide reparation, including monetary compensation, for the loss of maternity benefits to the six women. The Committee noted that the Sate party amended its legislation in June 2008 to ensure that a maternity leave scheme is available also to self-employed women. However, the Committee invited the State party to address and redress the situation of women similarly situated to the authors, who are self-employed and gave birth between 1 August 2004 and 4 June 2008, when no compensation scheme for self-employed women was in place.