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- European Court of Justice rules that Spain is unjust towards men
- Women-only pension supplement breached EU equal treatment rules
Spanish social security has a rule that people who have a permanent incapacity while caring for children are eligible for a 5% supplementary payment. By ‘people’ they mean women. Only women.
A man known only as WA, who was granted a permanent incapacity pension in January 2017 and had two children, found he was not entitled to it. He complained.
The Spanish social security authority (INSS) said that since he wasn’t female, he could not have the 5% extra. They claimed the supplement was granted to reflect women’s ‘demographic contribution’ (whatever they mean by that: men pay far more in to the government coffers than women do).
WA was having none of this, and took his complaint against INSS to the Gerona Social Court. While still fighting the case for his extra 5%, WA died later in 2017 but his wife picked up the case in his memory and, as his inheritor, continued with 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 decision by the Court of Justice of the European Union, C-450/18; WA v Instituto Nacional de la Seguridad Social (Pension complement for mothers), is that the Spanish government had no good excuse for discriminating against men.
The decision centres around whether the difference in treatment between men and women created by Spain’s national legislation concerns categories of persons who are in comparable situations.
They decided that the notion of ‘demographic contribution to social security’, referred to is equally valid as regards both women and men, since reproduction and responsibility for looking after, feeding and bringing up the children lies with anyone who has the status of a mother or father.
They rejected claims by the INSS that because there are all sorts of other differences, this one is valid. Statistical data on the demographics of men and women generally can not apply to individual cases.
A further point to this was that the legislation makes the award of the pension supplement at issue subject, not to the bringing-up of children or the existence of periods of interruption of employment due to the bringing-up of children, but only to the fact that women recipients have had at least two biological or adopted children and receive a contributory retirement, widow’s or permanent incapacity pension under a scheme within the social security system. Therefore, any data or information about women’s stated disadvantages for being, in general, the child-carers is irrelevant.
Consequently, national legislation such as Spain’s sexist laws on pension supplement constitute direct discrimination on grounds of sex and is, therefore, prohibited.