An administrative practice of systematically refusing to grant that supplement equally to fathers and thus disregarding the inferences to be drawn from the judgment in 2019, in which the Court of Justice declared the grant of that supplement solely to mothers as discriminatory, makes those fathers subject to twofold discrimination
By judgment of 12 December 2019, the Court of Justice of the European Union declared that the pension supplement granted in Spain only to mothers in receipt of a permanent disability pension and who have two or more children (biological or adopted), to the exclusion of fathers in a comparable situation, constitutes direct discrimination on grounds of sex, contrary to the Equal Treatment Directive.
On the basis of that judgment, a father of two children applied to the Spanish social security authorities in November 2020 for recognition of his entitlement to the supplement to the absolute permanent incapacity benefit which he had been receiving since November 2018. Faced with the refusal of his application, he went to court. In a first judgment, his entitlement to the disputed pension supplement was recognised, but his parallel claim for compensation was rejected. Both the father and the Spanish authorities have appealed against that judgment before the Tribunal Superior de Justicia de Galicia (High Court of Justice of Galicia).
The latter court wonders whether a practice consisting of systematically refusing – pending the adaptation of the discriminatory Spanish legislation to the judgment of the Court of Justice of 12 December 2019 – the disputed pension supplement to men, which obliges them to claim it through the courts, is to be regarded as discrimination distinct from the discrimination found in that judgment of the Court of Justice. It also has doubts, in the event of a finding of an infringement of EU law, as to whether and to what extent additional compensation may be awarded to the father.
In its judgment delivered today, the Court begins by recalling that, once discrimination contrary to EU law has been found to exist, and until such time as measures restoring equal treatment have been adopted, national courts and national administrative authorities must disapply any discriminatory national provision without waiting for it to be repealed by the legislature. They must therefore apply to members of the disadvantaged group – in this case, fathers – the same regime as that enjoyed by persons in the other category – in this case, mothers.
Next, the Court considers that the decision of refusal, adopted pursuant to that administrative practice, gives rise, in addition to the discrimination referred to in the judgment of 12 December 2019, to further discrimination against male members, since only men have to assert their right to the disputed pension supplement in judicial proceedings, which exposes them, in particular, to a longer period in which to obtain it and, where appropriate, to additional costs.
Consequently, the national court hearing an action brought against such a refusal cannot simply grant the male member concerned the right to the disputed pension supplement with retroactive effect. That would not remedy the damage resulting from the new discrimination. Consequently, the male member must also be awarded appropriate financial compensation to compensate him in full for the loss actually suffered as a result of the discrimination. Such compensation should take into account the costs incurred by the male member, including legal fees and cost.
PRESS RELEASE No 141/23
Luxembourg, 14 September 2023
Judgment of the Court in Case C-113/22 | TGSS (Refusal of the maternity supplement)
Source: Press release – CURIA