The European Court of Justice has held that a Spanish pension supplement paid only to women with two children was direct discrimination against men on the grounds of sex.

On 12 December 2019, the European Court of Justice ruled that Spanish social security rules that granted a pension supplement to women who have had two (biological or adopted) children and who receive a permanent incapacity pension and not to men in the same position breached the EU rules on equal treatment.

Background

A Spanish man, WA, was granted a permanent incapacity pension in 2017. He brought an administrative complaint against this decision to the Spanish social security authority (INSS), on the basis that if he had been a woman he would have been entitled to an additional 5% supplementary payment. Woman in receipt of a permanent incapacity pension who had two (biological or adopted) children received this supplement; WA, who had two children, was not entitled to it. The INSS rejected his complaint, stating the supplement was granted to reflect women’s ‘demographic contribution’ to social security.

WA took his complaint to the Gerona Social Court (WA died in 2018 but his wife succeeded him as the complainant in the case). The Court asked the European Court of Justice for a preliminary reference on the question of whether a pension supplement payable only to women based on their ‘demographic contribution’ to social security infringes the principle of equal treatment in Article 157 of the EU Treaty and in the Directives on Equal Treatment in access to employment (76/207, amended by 2002/73 and recast by 2006/54).

The European Court of Justice findings

The Court found that the Spanish invalidity pension supplement treats men with two children less favourably, then went on to establish whether there was a justification for this.

Firstly, the Court held that ‘the contribution of men to demography is just as necessary as that of women,’ meaning women’s demographic contribution could not justify the unequal treatment.

The INSS also argued that the discrepancy was justified on grounds of social policy: the payment was intended to protect women in their capacity as parents.

In assessing this, the Court stated that both men and women are parents and that their roles in bringing up children can be comparable. The fact that women are more frequently affected by the occupational disadvantages of child rearing does not prevent their positions from being comparable.

The European Court of Justice also held there was no link between the pension supplement and mothers taking maternity leave, or any career disadvantage suffered by women because of absence from work following birth. Nor did the supplement fall within the specific derogation from the principle of equal treatment relating to maternity (either protecting the special relationship between mother and child following childbirth, or relating to the mother’s physical condition during and after pregnancy). This was clear from the fact the supplement was also extended to mothers who had adopted children.

The European Court of Justice further concluded that the supplement did not fall within the derogation from the equal treatment principle for pension schemes designed to compensate individuals who have brought up children or experienced employment interruption as a result of bringing up children. This was because the grant of the supplement was not dependent on the individuals experiencing interrupted employment or bringing up children: it only required them to have at least two children.

Equally, the supplement did not fall within the derogation allowing member states to grant specific advantages in pension schemes for the under-represented sex to pursue work or career-related activities. The supplement was an advantage granted to women when the permanent invalidity pension was awarded (i.e. when the individual’s working life was over), and was therefore not relevant to any obstacles faced by women during their working lives.

As a result the European Court of Justice concluded that the Spanish invalidity pension supplement constituted direct discrimination on the grounds of sex.