Opinion of Advocate General Bobek delivered on 10 September 2019.

• Jurisdiction: European Union
• Celex Number: 62018CC0450
• ECLI: ECLI:EU:C:2019:696
• Date: 10 September 2019
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 10 September 2019(1)

Case C‑450/18

WA

v

Instituto Nacional de la Seguridad Social

(Request for a preliminary ruling from the Juzgado de lo Social n.º 3 de Gerona (Social Court No 3 of Gerona, Spain))

(Reference for a preliminary ruling — Female and male workers — Equal treatment in matters of social security — Directive 79/7/EEC — Invalidity pension — Pension supplement granted to mothers of two or more children in receipt of a contributory social security pension — Article 157(4) TFEU — Positive action — Measures aimed at compensating for career-related disadvantages of female workers)

I. Introduction

1. Spanish law provides that women who have had two or more biological or adopted children are entitled to a supplement to their contributory social security retirement pension, widow’s pension, or permanent invalidity pension. The applicant in the main proceedings (‘the Applicant’), a father of two daughters, challenged a decision of the national social security authority refusing to grant him a similar supplement to his permanent invalidity pension.

2. The referring court wishes to know whether the national provision establishing the pension supplement for women, which does not grant such a right to men, infringes the EU prohibition of discrimination on grounds of sex.

3. The Court has already had the opportunity to address the issue of pension systems granting advantages linked to motherhood to female workers only. The cases Griesmar (2) and Leone (3) concerned, however, occupational pensions for civil servants, which fell under the principle of equal pay, enshrined in Article 157 TFEU. By the present case, the Court is invited to set out whether a similar approach should also apply to cases concerning benefits which are part of a general social security pension scheme.

II. Legal framework

A. EU law

4. According to the third recital of Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security, (4) ‘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; … in this respect, Member States may adopt specific provisions for women to remove existing instances of unequal treatment’.

5. The purpose of Directive 79/7 is, according to its first article, ‘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”’.

6. Pursuant to Article 3(1), Directive 79/7 shall apply to:

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

…

– invalidity,

…’

7. Article 4 of Directive 79/7 establishes:

‘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 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. According to Article 7(1)(b) of Directive 79/7, that directive shall be without prejudice to the right of Member States to exclude from its scope ‘advantages in respect of old-age pension schemes granted to persons who have brought up children’ and ‘the acquisition of benefit entitlements following periods of interruption of employment due to the bringing up of children’.

B. Spanish law

9. Article 60(1) of the Ley General de la Seguridad Social (General Law on Social Security, ‘LGSS’) (5) provides as follows:

‘Women who have had biological or adopted children and are recipients of a contributory retirement, widow’s or permanent incapacity pension under any scheme within the social security system shall be granted a pension supplement on account of their contribution to social security in terms of the number of children they have had.

That supplement, which shall have the legal nature of a contributory state pension for all purposes, shall consist of an amount equivalent to the result of applying to the initial amount of the pensions referred to a specified percentage which shall be based on the number of children in accordance with the following scale:

(a) In the case of two children: 5%.

(b) In the case of three children: 10%.

(c) In the case of four or more children: 15%.

For the purpose of establishing entitlement to the supplement and the amount thereof, only children born or adopted before the operative event for the pension concerned shall be taken into account.’

III. Facts, procedure and the question referred for a preliminary ruling

10. By decision of the Instituto Nacional de la Seguridad Social (National Social Security Institute, Spain, ‘the INSS’) of 25 January 2017, the Applicant was granted an absolute permanent invalidity pension of 100% of the basic amount, which came to EUR 1 603.43 per month plus revaluations.

11. The Applicant filed an administrative complaint against that decision claiming, essentially, that since he was the father of two daughters, he was entitled to receive a supplement in the amount of 5% of the pension on the same terms as women.

12. By decision of 9 June 2017, the INSS dismissed that administrative complaint and confirmed its decision of 25 January 2017. The INSS stated that the maternity supplement, as its name indicates, is a supplement granted exclusively to women in receipt of a contributory social security benefit who are mothers of two or more children, because of their contribution to social security in terms of demographics.

13. On 23 May 2017, the Applicant brought an action against the decision of the INSS before the Juzgado de lo Social n.º 3 de Gerona (Social Court No 3, Gerona, Spain), the referring court. He sought the recognition of the right to receive an increase in his pension of 5% of the basic amount of his absolute permanent invalidity pension in the form of a supplement equivalent to the maternity supplement granted under Article 60(1) of the LGSS.

14. On 18 May 2018, the referring court was notified that the Applicant had died on 9 December 2017. The Applicant’s wife took over the claim as his legal successor and pursued it further in the main proceedings. (6)

15. According to the referring court, the concept of a contribution in terms of demographics is one that is equally valid as regards both women and men, since reproduction and responsibility for bringing up, looking after, feeding and educating children lies with anyone who has the status of parent, regardless of their gender. Furthermore, a career break following the birth or adoption of children, or in order to bring up natural or adopted children, can be equally detrimental to women and men. The referring court believes that, from that point of view, the rules on the maternity supplement laid down in Article 60(1) of the LGSS introduce an unjustified difference in treatment in favour of women, to the detriment of men who are in an equivalent situation.

16. However, the referring court acknowledges that, from a biological point of view, there is an undeniable differentiating factor, for, when it comes to reproduction, women make a far greater personal sacrifice than men. Women have to deal with a period of pregnancy and with birth, which involves clear biological and physiological sacrifices, together with the disadvantages that that entails for women, not only in physical terms but also in the area of employment. The referring court believes that, from a biological point of view, the maternity supplement governed by Article 60(1) of the LGSS provides for a supplement in favour of women which is justified. No man will be in an equivalent situation. The situation of a male worker is not comparable with that of a female worker who is faced with the professional disadvantages which a career break for pregnancy and the birth of a child involves. That court, however, harbours doubts as to the implications for the present case of the case-law of the Court, in particular the judgment in Griesmar. (7)

17. In those circumstances, the Juzgado de lo Social n.º 3 de Gerona (Social Court No 3, Gerona) stayed the proceedings and referred the following question to the Court for a preliminary ruling:

‘Does a national legislative provision (specifically, Article 60(1) of the [LGSS] which grants the right to receive a pension supplement –– in view of their contribution to social security in terms of demographics –– to women who have had biological or adopted children and are in receipt of a contributory retirement, widow’s or permanent incapacity pension under any scheme within the social security system, but, on the other hand, does not grant that right to men in an identical situation, infringe the principle of equal treatment which prohibits all discrimination on grounds of sex, enshrined in Article 157 [TFEU] and in 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, as amended by Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 and recast by Directive 2006/54/EC 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?’

18. The Applicant, the INSS and the European Commission submitted written observations. Those interested...