BVerwG Refers Questions on Paternity Leave to the CJEU

BVerwG, Decision of 29 April 2026 – Case No. 1 WB 27.25

Why is an administrative court deciding on an employment law issue? The applicant is a staff officer in the German Armed Forces (Bundeswehr). For claims brought by soldiers of this rank, the Military Service Senates located at the Federal Administrative Court (BVerwG) have first and final instance jurisdiction, meaning the case went directly to the Federal Administrative Court, pursuant to Sections 21(1) and 22 of the Military Complaints Regulation (WBO). On the occasion of the birth of his daughter in January 2024, the officer applied for ten working days of special leave with continued payment of salary, relying on Articles 4(1) and 8(2) of Directive (EU) 2019/1158 (the Work-Life Balance Directive). The authority denied the request and instead granted annual leave. The Federal Government takes the position that Germany fully transposed the Directive through the Work-Life Balance Directive Implementation Act (Vereinbarkeitsrichtlinienumsetzungsgesetz) of 19 December 2022. A separate paternity leave entitlement was not necessary, since the derogation provisions of Articles 20(6) and 20(7) of the Directive applied: Germany already had parental leave and parental allowance regulations providing each parent with at least six months of parental leave at adequate remuneration.

Decision

The BVerwG stayed the proceedings and referred several questions to the CJEU. In essence, the questions concern (1) whether Article 8(2) of the Work-Life Balance Directive is directly applicable where the State itself is the employer, (2) whether Germany may combine the derogation provisions of Articles 20(6) and 20(7) in order to treat both the temporal requirements (via parental leave) and the remuneration requirements (via parental allowance) as fulfilled, and (3) whether reliance on Article 20(7) is even possible where the parental allowance is not paid in certain cases, particularly in the case of high incomes or where the minimum two-month reference period is not met.

The existing lower court case law is divided: the Administrative Court of Cologne (judgment of 11 September 2025, Case No. 15 K 1556/24) affirmed a direct entitlement under the Directive against the State as employer. The Regional Court of Berlin II (judgment of 1 April 2025, Case No. 26 O 133/24), by contrast, denied a State liability claim and held the German regulations to be compatible with EU law.

Practical Note

Politically, the issue is at an impasse: the previous “traffic light” coalition had already agreed on a two-week paid leave (“Familienstartzeit”, or family start time) in its 2021 coalition agreement but failed due to internal disagreements over funding. In the current coalition agreement of the 21st legislative period, the family start time is no longer included. For employers in the private sector, the following applies: a direct entitlement to paternity leave under the Directive is not available due to the lack of vertical direct effect against private employers. However, if the CJEU rules that the Directive has not been properly transposed, the legislature will be compelled to act. Employers should closely monitor the proceedings: in the event of a CJEU ruling in favour of the applicant, the statutory introduction of paid paternity leave of ten working days can be expected, likely financed through the U2 levy procedure.