The Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) considered a complaint concerning the right to exercise paternity leave under the Parental Care and Family Benefits Act (ZSDP-1). The complainant stated that he had become the father of quadruplets who had been in the maternity hospital for just under three months since their birth. Therefore, the complainant was unable to use the paternity leave that he was otherwise entitled to in the case of the birth of quadruplets until the children were three months old, after their arrival home from the maternity hospital. The complainant could therefore use paternity leave while the children were in the maternity hospital and would not be providing care for the children, but in accordance with the regulations of the Republic of Slovenia, he could not use paternity leave after the children had already reached the age of three months.

The Ombudsman addressed an inquiry to the Ministry of Labour, Family, Social Affairs and Equal Opportunities (MDDSZ) regarding the application of the provision of Article 27 of the ZSDP-1 in the event that a child is hospitalised for the first three months after birth, in light of the fact that paternity leave is intended for fathers to participate in the care and protection of the child together with the mother, even at the most tender age of the child. The purpose of paternity leave is to encourage a more equal distribution of care responsibilities between women and men and to enable the early creation of bonds between fathers and children. The Ombudsman asked the MDDSZ for an explanation as to why, in exceptional cases, which is certainly the case when a child stays in hospital for three months after birth, paternity leave is not available even after three months have passed since the birth of the child. In the Ombudsman's opinion, this would best follow the purpose of paternity leave and the objective of Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on the reconciliation of work and private life of parents and carers and repealing Council Directive 2010/18/EU (the Directive), that paternity leave must be taken around the birth of the child and must be clearly linked to the birth of the child for the purposes of providing care, thereby promoting a more equal distribution of care responsibilities between women and men and enabling the early creation of bonds between fathers and children. At the same time, in the Ombudsman's opinion, the existing regulation of the ZSDP-1, which allows the father to take paternity leave even if the child is in hospital, when a large, if not all, part of the care is taken over by the hospital staff, and not even after the parents start to provide full care and protection to the child, i.e. after the child is discharged from the hospital, seems to be contrary to the objective of the Directive. In this way, part of the objective of the Directive, that paternity leave must be taken around the birth of the child, is, in the Ombudsman's opinion, treated as an absolute priority over part of the objective of the Directive, that paternity leave must be granted for the purposes of providing care. Only after discharge from the hospital does the Ombudsman consider that the period begins when the purpose of paternity leave can be adequately achieved in the best interests of the child and in support of the mother.

It is precisely in connection with the stated purpose that, in the Ombudsman's opinion, the warnings of the European Commission, to which the MDDSZ also referred, that the father must take paternity leave upon the birth of the child or very close to this event, should be understood. In relation to the stated warnings, the MDDSZ did not submit documentation from which the exact content of these warnings would be evident; the MDDSZ merely stated that the European Commission had repeatedly emphasised during the negotiations for the adoption of the Directive that the father must take paternity leave upon the birth of the child or very close to this event. In the Ombudsman's opinion, such an emphasis cannot be understood as meaning that the speed of use is more important than achieving the purpose and objective of the right, that paternity leave is granted for the purposes of providing care.

The Ombudsman further warned the MDDSZ that the currently valid legal regulation, the ZSDP-1, treats two groups of fathers who are in different situations equally, namely fathers who can begin providing care and attention immediately after the birth of the child, and fathers who can begin providing care and attention later, in the event that the child is in the care and attention of medical personnel for the first months of life. On the other hand, in the Ombudsman's opinion, the ZSDP-1 gives different treatment to two categories of persons who are essentially in a comparable situation, namely fathers whose child does not yet live in the home environment in the first months of life for objective reasons beyond the father's control, and on the other hand, adoptive parents for whom, in accordance with the provision of Paragraph 2 of Article 27 of the ZSDP-1, the three-month period for using paternity leave only begins to run properly upon the placement of the child in the adoptive family, which could also represent a discrepancy with the right to equality before the law, protected by Article 14 of the Constitution of the Republic of Slovenia, which requires that comparable situations of beneficiaries be treated comparably and different situations be treated differently.

Based on the above, the Ombudsman proposed that the MDDSZ amend the current legislation in a way that would be consistent with the purpose of the Directive and would also enable fathers of children who are hospitalised for the first few months to take paternity leave after the child begins living in their home environment.

The MDDSZ rejected the Ombudsman's proposal, but at the same time did not explain how, in exceptional cases, such as a child's stay in hospital for the first three months of life, the purpose of the right to paternity leave is achieved, namely that fathers should participate in the care and protection of the child together with the mother from the child's earliest years, in order to encourage a more equal distribution of care responsibilities between women and men.

Given the Ombudsman's opinion that the legal regulation in question is not in line with the purpose and objectives of the Directive, the Ombudsman brought the matter to the attention of the European Commission, which, in accordance with the provisions of Article 17 of the Treaty on European Union and Article 258 of the Treaty on the Functioning of the European Union, ensures the appropriateness of the transposition of the Directive into the internal legal order of Member States and, in accordance with the provision of Article 18 of the Directive, prepares a report to the European Parliament and the Council. In accordance with the provision of Article 288 of the Treaty on the Functioning of the European Union, the Directive leaves the choice of form and methods to the national authorities, but is binding as to the aim to be achieved. The Ombudsman has asked the European Commission to inform him of its position on the compatibility of the provisions of the ZSDP-1 with the Directive. 9.0-13/2024