Notaries' retirement bonus: when the absence of parental leave blocks the enhancement

Imagine: you are a notary clerk in Saint-Jean-de-Braye, you have raised two children, but you have never been able to take a continuous two-month parental leave. When you retire, you are denied an enhancement of your insurance period that was nevertheless provided for by the 1990 decree. Unfair? The Court of Cassation decided otherwise on 12 July 2012. This decision, which concerns the Caisse de retraite et de prévoyance des clercs et employés de notaires (CRPCEN), raises a crucial question: can a social benefit be linked to a condition of interruption of activity without creating indirect discrimination, when women are more likely to be able to fulfil it?

For property owners, tenants or real estate professionals, retirement law may seem remote. Yet notary clerks, these essential assistants in notarial practices, are directly concerned. And the logic of this decision – which validates a condition that is neutral in appearance but has differentiated effects – could echo other disputes in property law, particularly concerning exclusivity clauses or termination conditions. So, what exactly happened?

An insured person, father of two children, considered that he was entitled to the enhancement of insurance period provided for by Article 92 of Decree No. 90-1215. This provision grants an increase in quarters to those who have interrupted their professional activity for at least two continuous months to care for their children. Problem: he had not interrupted his work. He therefore took legal action, arguing that the condition of interruption was discriminatory against men, since women naturally benefit from maternity leave. The Court of Cassation did not follow him.

The facts: a story like many others

Mr. X, a notary clerk in Pithiviers (Loiret), had two children. At the time, he did not take parental leave, nor paternity leave long enough to reach two months. On his retirement, the CRPCEN refused him the enhancement of insurance period provided for by the 1990 decree. He contested: why do women, who benefit from 16 weeks of maternity leave, automatically obtain the enhancement, while men, who only have 11 days of paternity leave, cannot reach it?

The case was brought before the Court of Appeal of Orléans. Mr. X invoked indirect discrimination based on sex, contrary to Article 14 of the European Convention on Human Rights and Article 157 of the Treaty on the Functioning of the European Union. He argued that the condition of a continuous two-month interruption unfairly penalises fathers. The Court of Appeal rejected his claim: the text is neutral, it applies to everyone, and the fact that women access it more often through maternity leave is not discriminatory. The insured person appealed to the Court of Cassation.

The Court of Cassation upheld the Orléans judgment. It considered that Article 92 of the decree does not create indirect discrimination, because the condition of interruption of activity is justified by a legitimate objective: to encourage parental care of children during a significant period. It does not matter that men fulfil this condition less often: the text does not aim to disadvantage one sex. This was a blow to Mr. X, but also a clear signal to all notary clerks and employees concerned.

The court's reasoning – dissected

The heart of the dispute concerns the concept of indirect discrimination (a measure that is neutral in appearance but particularly disadvantages a protected group). The Court of Cassation recalls that to establish indirect discrimination, the measure must 'particularly' disadvantage persons of one sex compared to the other. However, in this case, the mere fact that a greater number of women benefit from the enhancement is not sufficient to establish discrimination. Why? Because the condition of a two-month interruption of activity is objectively justified: it aims to encourage an actual cessation of work to care for children, which is a legitimate goal of family policy.

The judges rely on Article 14 of the European Convention on Human Rights (which prohibits discrimination) and Article 157 TFEU (which guarantees equal pay between men and women). They consider that the difference in treatment between the sexes is not established, because the condition applies in the same way to everyone. A man can certainly take a two-month parental leave – he did not do so, but nothing prevented him. The Court of Cassation also specifies that maternity leave is not 'compulsory': a woman could choose not to take it, but in practice she does. This does not make it discrimination.

This decision is a confirmation of the previous case law of the Court of Cassation, which is rather reluctant to recognise indirect discrimination when the contested measure is neutral and pursues an objective of general interest. Note that the Court of Cassation also rejects the argument based on Article 1 of Protocol No. 1 to the Convention (right to property), because the enhancement is not an acquired right but a facility offered subject to conditions.

What this changes for you – concretely

For notary clerks and employees, this decision means that you will not be able to obtain the enhancement of insurance period (up to 4 quarters per child) if you have not interrupted your activity for at least two continuous months. It does not matter whether you are a man or a woman: the condition is the same. If you are a father in Pithiviers and you did not take parental leave, you will be in the same situation as Mr. X. However, if you took parental education leave (maximum 12 months), you fulfil the condition.

For employers (notaries), this decision has no direct impact, but it reminds you of the importance of informing your employees about parental leave arrangements. A clerk who wishes to benefit from the enhancement must plan their leave accordingly.

For other real estate professionals (estate agents, property managers), this decision is not directly applicable, but the legal logic may inspire disputes over conditions for accessing certain benefits (e.g., seniority bonus subject to a condition of continuous presence).

A concrete example: if you are a notary clerk in Saint-Jean-de-Braye and you had two children, you can claim an enhancement of 8 quarters (2 children x 4 quarters) if you interrupted your activity for at least 2 months for each child. Without an interruption, you lose this enhancement, which can reduce your retirement pension by several hundred euros per year.

Four tips to avoid this type of dispute

• Plan your parental leave from the birth or adoption: if you intend to benefit from the enhancement, plan an interruption of activity of at least two continuous months. Parental education leave (unpaid by the employer but granting entitlement to the enhancement) is an option.
• Keep evidence of your interruption of activity: employer's certificate, payslip mentioning the leave, or any document proving that you stopped working for at least 60 consecutive days.
• Do not rely solely on paternity leave: its current duration (11 days, increased to 25 days since 2021) is insufficient to reach the two-month threshold. If you are a father, consider additional parental leave.
• If refused, contest within two months: the CRPCEN's decision must be challenged before the Tribunal des affaires de sécurité sociale (TASS) within two months of its notification. Do not delay.

Further reading: related case law and developments

This decision is part of a consistent line of the Court of Cassation. One can cite a judgment of 11 July 2012 (No. 11-20.131) which holds that the condition of two months' interruption for the retirement enhancement of civil servants is not discriminatory. Similarly, the Court of Justice of the European Union (CJEU) validated similar conditions in the Roks case (1997), as long as the measure pursues a legitimate objective.

Since 2012, paternity leave has been extended (25 days in 2021, then 28 days in 2023), but it remains insufficient to reach the required two months. The question of a possible legislative evolution arises, but for now, the condition remains. Courts continue to apply the rule strictly: without a two-month interruption, no enhancement.

For the future, it is possible that the legislature will amend the decree to relax the condition, particularly for fathers, but nothing is on the agenda. In the meantime, the current case law is unfavourable to men who have not taken parental leave.

What you absolutely must remember

FAQ:

• Q: Can I obtain the enhancement if I took parental leave of less than two months? A: No, the condition is strict: a continuous interruption of at least two months is required.
• Q: Does maternity leave count as an interruption? A: Yes, because it is an interruption of activity of at least 16 weeks, therefore more than two months.
• Q: What should I do if the CRPCEN refuses me the enhancement? A: You must contest before the TASS within two months of notification, proving your interruption of activity.
• Q: Does this decision apply to other pension schemes? A: The logic is similar for special schemes with interruption conditions, but each text must be verified.
• Q: Can I combine the enhancement with other benefits? A: Yes, the enhancement is added to the quarters contributed, subject to the caps specific to each scheme.

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