The Pension complement granted by Spain to mothers who are recipients of an invalidity pension where they have two or more children must also be awarded to fathers in a comparable situation

In January 2017, the Instituto Nacional de la Seguridad Social (National Institute of Social Security, Spain) (INSS) awarded WA a permanent absolute incapacity pension of 100% of the basic amount. WA brought an appeal against that decision, claiming that, as the father of two daughters, he should, on the basis of Spanish law, be entitled to receive a pension supplement representing 5% of the initial amount of his pension. That supplement is granted to women who are the mothers of at least two children and who are in receipt of contributory pensions, namely permanent incapacity, under a scheme within the Spanish social security system. His appeal was dismissed by the INSS, which stated that the pension supplement at issue is granted exclusively to those women because of their demographic contribution to social security.

WA challenged that decision of the INSS before the Juzgado de lo Social No 3 de Gerona (Social Court No 3, Gerona, Spain), claiming that his right to receive the pension complement at issue should be recognised. That court states that national law grants that right to women who have had at least two biological or adopted children, whereas men in an identical situation do not have that right. Having doubts whether such a provision is compatible with EU law, the Juzgado de lo Social No 3 de Gerona submitted a question to the Court of Justice for a preliminary ruling.

By today’s judgment, the Court declares that the directive on equal treatment for men and women in matters of social security1 precludes that Spanish Law, because men in an identical situation to that of women, who are entitled to the pension supplement at issue, do not have that right.

The Court observes that the Spanish Law treats men who have had at least two biological or adopted children less favourably. That less favourable treatment constitutes direct discrimination on grounds of sex which is prohibited by the directive.

Indeed, the Court finds that, since the demographic contribution of men is as necessary as that of women, the ground of demographic contribution to social security alone annot justify men and women not being in a comparable situation with regard to the award of the supplement at issue.

The Spanish authorities argue that the supplement was also conceived as a measure to reduce the gap between the pension payments of men and those of women whose career paths have been
interrupted or shortened due to the fact that they have had at least two children. Those differences are based on numerous statistical data.

The Spanish authorities argue that the supplement was also conceived as a measure to reduce the gap between the pension payments of men and those of women whose career paths have been interrupted or shortened due to the fact that they have had at least two children. Those differences are based on numerous statistical data.

With regard to that objective, the Court points out that the Spanish Law is intended, at least in part, to protect women in their capacity as parents. First, this is a quality which both men and women may have and, secondly, the situation of a father and that of a mother may be comparable as regards the bringing-up of children. In those circumstances, the existence of statistical data highlighting structural differences between the pension payments of women and those of men is not sufficient to reach the conclusion that, as regards the pension supplement at issue, women and men are not in a comparable situation as parents.

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