Spain: Paid Parental Leave of Eight Weeks: Can It Be Offset Against Other Types of Leave Related to Childcare?

It is well known among Spanish legal practitioners that the Spanish State often transposes European Directives amid considerable controversy—either because such transpositions are delayed or because they deviate from the Directive’s literal wording, thereby generating significant legal uncertainty.

The matter under analysis in this note concerns EU Directive 2019/1158, which obliges Member States to guarantee employees a parental leave of four months, at least two of which (eight weeks) must be paid, for the purpose of caring for a child until the age of eight.

In this instance, Spain committed all possible errors:
(i) considering that the deadline was 2 August 2022, Spain transposed the Directive after the deadline; and
(ii) when it finally did so through Royal Decree-Law 9/2025, the controversy was immediate, as the literal content of the Directive was, without a doubt, diluted.

The amendment introduced by Spain through Royal Decree-Law 9/2025 essentially provides for the following measures:

• Extension of birth and childcare leave (maternity and paternity leave) from 16 to 19 weeks.
• Extension of birth and childcare leave for single-parent families up to 32 weeks.
• Recognition of 8 weeks of parental leave to be taken until the child reaches 8 years of age; however, this leave is not established as paid leave.

Where does the controversy lie?
The majority of legal scholars criticize the fact that Spain has not provided for the 8-week parental leave to be paid, arguing that this omission is contrary to EU law.

This doctrinal criticism has been reinforced by several court rulings across Spain declaring that the leave must be remunerated. Moreover, the Labour Court of Barcelona went as far as to award €30,000 in compensation to an employee for the violation of her fundamental right to non-discrimination on grounds of gender.

However, this matter has now reached, for the first time, a higher court—specifically, the National Court (Audiencia Nacional)—which has had the opportunity to issue a decision in Judgement No. 128/2025 of 30 September 2025.

Contrary to what most commentators expected, the National Court held that Spanish legislation already fully complies with EU Directive 2019/1158, finding no error in its transposition.

The Court reasoned that Spanish law already includes a variety of paid leave entitlements, such as birth and childcare leave or breastfeeding leave, which together ensure two months of paid suspension of the employment contract for the care of a child before the age of eight, thereby rendering no further legislative action necessary.

Although the decision of the National Court is not final—as it must still be reviewed by the Spanish Supreme Court—it undoubtedly represents progress in terms of legal certainty and, for the time being, provides employers with a solid legal basis not to grant additional paid leave beyond what is expressly recognized under Spanish law.