Thanks to John Cook of SAS Daniels LLP for preparing this case summary
Can a member state make provision to exclude an employed father of a child from entitlement to maternity leave and maternity benefit where the mother is not employed?
Yes, says the CJEU in Montull v INSS.
The Spanish national court referred a question to the European Court to ascertain whether Mr Montull was entitled to maternity leave and to receive maternity benefit in respect of the birth of his son. Spanish law provides for the suspension of the mother's contract of employment for a period of 16 weeks which includes a compulsory period of maternity leave of 6 weeks. The mother can return to work after this period and choose to allocate the remaining 10 weeks' leave to the father. Where both parents work the father is entitled to the leave.
In this case the father was employed but the mother was not employed. On the basis that the mother was not employed she did not enjoy any primary right to maternity leave and, therefore, there was no right to leave that could be transferred to the father of the child.