WA v Instituto Nacional de la Seguridad Social (INSS).

• Jurisdiction: European Union
• Celex Number: 62018CJ0450
• ECLI: ECLI:EU:C:2019:1075
• Docket Number: C-450/18
• Procedure Type: Reference for a preliminary ruling
• Date: 12 December 2019
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (First Chamber)

12 December 2019 (*)

(Reference for a preliminary ruling — Social policy — Directive 79/7/EEC — Equal treatment for men and women in matters of social security — Article 4(1) and (2) — Article 7(1) — Calculation of benefits — Directive 2006/54/EC — Equal treatment of men and women in matters of employment and occupation — National legislation granting a right to a pension supplement for women who have had at least two biological or adopted children, and who are in receipt of a contributory permanent incapacity pension — Same right not granted to men in an identical situation — Comparable situation — Direct discrimination on grounds of sex — No exceptions)

In Case C‑450/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de lo Social No 3 de Gerona (Social Court No 3, Gerona, Spain), made by decision of 21 June 2018, received at the Court on 9 July 2018, in the proceedings

WA

v

Instituto Nacional de la Seguridad Social (INSS),

THE COURT (First Chamber),

composed of J.-C. Bonichot, President of the Chamber, R. Silva de Lapuerta, Vice-President of the Court, M. Safjan (Rapporteur), L. Bay Larsen and C. Toader, Judges,

Advocate General: M. Bobek,

Registrar: L. Carrasco Marco, administrator,

having regard to the written procedure and further to the hearing on 13 June 2019,

after considering the observations submitted on behalf of

– WA, by F. Casas Corominas, abogado,

– the Instituto Nacional de la Seguridad Social (INSS), initially by A.R. Trillo García, L. Martínez-Sicluna Sepúlveda and P. García Perea, and subsequently by L. Martínez-Sicluna Sepúlveda and P. García Perea, letrados,

– the Spanish Government, by L. Aguilera Ruiz, acting as Agent,

– the European Commission, initially by N. Ruiz García, C. Valero and I. Galindo Martín, and subsequently by N. Ruiz García and C. Valero, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 10 September 2019,

gives the following

Judgment

1 This request for preliminary ruling concerns the interpretation of Article 157 TFEU and of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ 2006 L 204, p. 23).

2 The request has been made in proceedings between WA, a father of two children, and the Instituto Nacional de la Seguridad Social (INSS) (National Institute for Social Security, Spain) concerning the refusal to grant him a pension supplement which is available to women who have had at least two biological or adopted children.

Legal context

EU law

Directive 79/7/EEC

3 The second and third recitals of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24) state:

‘Whereas the principle of equal treatment in matters of social security should be implemented in the first place in the statutory schemes which provide protection against the risks of sickness, invalidity, old age, accidents at work, occupational diseases and unemployment, and in social assistance in so far as it is intended to supplement or replace the abovementioned schemes;

Whereas the implementation of the principle of equal treatment in matters of social security does not prejudice the provisions relating to the protection of women on the ground of maternity; whereas, in this respect, Member States may adopt specific provisions for women to remove existing instances of unequal treatment’.

4 Article 1 of that directive provides:

‘The purpose of this Directive is the progressive implementation, in the field of social security and other elements of social protection provided for in Article 3, of the principle of equal treatment for men and women in matters of social security, hereinafter referred to as “the principle of equal treatment”.’

5 Article 2 of that directive provides:

‘This Directive shall apply to the working population — including self-employed persons, workers and self-employed persons whose activity is interrupted by illness, accident or involuntary unemployment and persons seeking employment — and to retired or invalided workers and self-employed persons.’

6 Article 3(1) of that directive provides:

‘This Directive applies to:

(a) statutory schemes which provide protection against the following risks:

– sickness,

– invalidity,

– old age,

– accidents at work and occupational diseases,

– unemployment;

…’

7Article 4 of Directive 79/7 is worded as follows:

‘1. The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:

– the scope of such schemes and the conditions of access to them;

– the obligation to contribute and the calculation of contributions;

– the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits.

2. The principle of equal treatment shall be without prejudice to the provisions relating to the protection of women on the grounds of maternity.’

8 Article 7 of that directive states:

‘1. This Directive shall be without prejudice to the right of Member States to exclude from its scope:

…

(b) advantages in respect of old-age pension schemes granted to persons who have raised children; the acquisition of benefit entitlements following periods of interruption of employment due to the bringing up of children;

…

2. Member States shall periodically examine matters excluded under paragraph 1 in order to ascertain, in the light of social developments in the matter concerned, whether there is justification for maintaining the exclusions concerned.’

Directive 2006/54

9Directive 2006/54 repealed Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40), as amended by Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 (OJ 2002 L 269, p.15).

10 Recital 13 of Directive 2006/54 states:

‘In its judgment of 17 May 1990 in [Barber (C‑262/88, EU:C:1990:209)], the Court of Justice determined that all forms of occupational pension constitute an element of pay within the meaning of Article 141 [EC].’

11 Article 1 of that directive provides:

‘The purpose of this Directive is to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.

To that end, it contains provisions to implement the principle of equal treatment in relation to:

…

(b) working conditions, including pay;

(c) occupational social security schemes.

…’

12 Article 2(1) of that directive provides:

‘For the purposes of this Directive, the following definitions shall apply:

…

(f) “Occupational social security schemes” means schemes not governed by Directive [79/7] whose purpose is to provide workers, whether employees or self-employed, in an undertaking or group of undertakings, area of economic activity, occupational sector or group of sectors with benefits intended to supplement the benefits provided by statutory social security schemes or to replace them, whether membership of such schemes is compulsory or optional.’

The relevant provisions of Spanish law

13 Under Article 7(1) of the Ley General de la Seguridad Social (General Law on Social Security), in the consolidated version approved by Real Decreto Legislativo 8/2015 (Royal Legislative Decree 8/2015) of 30 October 2015 (BOE No 261 of 31 October 2015, p. 103291) (‘the LGSS’):

‘Regardless of their sex, civil status or profession, Spanish citizens residing in Spain and foreign nationals who reside or are legally present in Spanish territory come under the social security system for the purposes of contributory benefits, provided that, in both situations, they work in the national territory and they come under one of the following subparagraphs:

(a) employees who provide their services on behalf of others under the conditions set out in Article 1(1) of the consolidated text of the Estatuto de los Trabajadores (Workers’ Statute), in the various branches of the economy, or similar employees, whether they are temporary, seasonal, permanent or even “fijos discontinuos” employees, including teleworkers, and in all cases, regardless of the professional category of the employee, or the form or the amount of the remuneration which (s)he receives or the general nature of the employment relationship;

(b) self-employed persons, whether or not they are the owners of individual or family undertakings, over the age of 18 years, who satisfy all the conditions expressly laid down by this law or by legislation adopted for its implementation;

(c) employee-members of workers’ cooperatives;

(d) students;

(e) civil or military...