According to the ECJ, EU law permits a national law providing for shared maternity leave on the basis that the mother must be employed and covered by the state social security system in order for the employed father to share part of her maternity leave.
It is not prohibited to provide that the father's right to take leave is secondary and contingent on the mother's entitlement, so that the partner of a self-employed mother without the primary right to leave also has no right to leave. (Betriu Montull v INSS, C-5/12)
This will be welcome news to the UK Government, given its plans to provide for shared parental leave contingent on the mother's entitlement from 2015. These proposals are included in the Children and Families Bill which starts its Committee stage in the House of Lords today.