Provisional text

15 May 2025 (*)

( Reference for a preliminary ruling – Social policy – Directive 79/7/EEC – Equal treatment for men and women in matters of social security – Article 4(1) and (2) – Article 7(1) – National legislation providing for a pension supplement awarded to women who are in receipt of contributory retirement pensions and have had one or more biological or adopted children – Possibility of awarding such a supplement to men subject to additional requirements – Direct discrimination on grounds of sex – Article 23 of the Charter of Fundamental Rights of the European Union – Positive action measures )

In Joined Cases C‑623/23 [Melbán] and C‑626/23 [Sergamo], (i)

REQUESTS for a preliminary ruling under Article 267 TFEU from, first, the Juzgado de lo Social No 3 de Pamplona (Social Court No 3, Pamplona, Spain) and, second, the Tribunal Superior de Justicia de Madrid (High Court of Justice, Madrid, Spain), by decisions of 21 September and 13 September 2023, received at the Court on 6 October 2023 and 12 October 2023, respectively, in the proceedings

UV (C‑623/23),

XXX (C‑626/23)

Instituto Nacional de la Seguridad Social (INSS),

intervening parties:

OP (C‑623/23),

Ministerio Fiscal (C‑623/23),

THE COURT (Tenth Chamber),

composed of D. Gratsias, President of the Chamber, E. Regan and B. Smulders (Rapporteur), Judges,

Advocate General: R. Norkus,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–Instituto Nacional de la Seguridad Social (INSS), by A. Álvarez Moreno and A.R. Trillo García, letrados,

–the Spanish Government, by M. Morales Puerta, acting as Agent,

–the European Commission, by I. Galindo Martín and E. Schmidt, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1These requests for a preliminary ruling concern the interpretation of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24), and of Articles 20, 21, 23 and Article 34(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2The requests have been made in the context of two sets of proceedings between, on the one hand, UV (C‑623/23), the father of two children, and XXX (C‑626/23), the father of three children, and, on the other hand, the Instituto Nacional de la Seguridad Social (INSS) (National Institute for Social Security, Spain), concerning the refusal, by the latter, to grant them a pension supplement (‘the pension supplement at issue’) provided for by national law for the benefit of women and men who have had one or more children, the award of which to men is, however, subject to additional requirements.

European Union law

3Article 1 of Directive 79/7 states:

‘The purpose of this Directive is 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”.’

4Article 2 of that directive provides:

‘This Directive shall apply to the working population – including self-employed persons, workers and self-employed persons whose activity is interrupted by illness, accident or involuntary unemployment and persons seeking employment – and to retired or invalided workers and self-employed persons.’

5Article 3(1) of that directive provides:

‘This Directive shall apply to:

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

–sickness,

–invalidity,

–old age,

–accidents at work and occupational diseases,

–unemployment;

…’

6Article 4 of that directive is worded as follows:

‘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 scope of the schemes and the conditions of access thereto,

–the obligation to contribute and the calculation of contributions,

–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.

7Under Article 7 of Directive 79/7:

‘1. This Directive shall be without prejudice to the right of Member States to exclude from its scope:

…

(b)advantages in respect of old-age pension schemes granted to persons who have brought up children; the acquisition of benefit entitlements following periods of interruption of employment due to the bringing up of children;

…

Spanish law

8Headed ‘Maternity supplement for contributory pensions under the social security system’, Article 60 of the Ley General de la Seguridad Social (General Law on Social Security), as approved by Real Decreto Legislativo 8/2015 (Royal Legislative Decree 8/2015), of 30 October 2015 (BOE No 261 of 31 October 2015, p. 103291) (‘the former LGSS’), provided in paragraph 1 thereof:

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

That supplement, which shall have the legal nature of a contributory State pension for all purposes, shall consist in 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 per cent;

(b)in the case of three children: 10 per cent

(c)in the case of four or more children: 15 per cent

…’

9Following the adoption of Real Decreto-Ley 3/2021, por el que se adoptan medidas para la reducción de la brecha de género y otras materias en los ámbitos de la Seguridad Social y économico (Royal Decree-Law 3/2021, adopting measures intended to reduce the gender gap and relating to other matters in the fields of social security and the economy) of 2 February 2021 (BOE No 29, 3 February 2021, p. 12268) (‘Royal Decree-Law 3/2021), the former LGSS was amended (‘the LGSS, as amended’). Article 60 of the LGSS, as amended, headed ‘Supplement to contributory pensions to reduce the gender gap’, provides:

‘1. Women who have had one or more children and who are recipients of a contributory retirement, permanent incapacity or widow’s pension shall be entitled to a supplement for each child, on account of the impact which, in general, the gender gap has on the amount of the contributory pensions received by women from the social security system. The right to the supplement for each child shall be granted to, or maintained for, the woman provided that the supplement is not claimed by and granted to the other parent and, where that other parent is also a woman, it shall be granted to the parent in receipt of public pensions the total amount of which is less.

In order for men to be entitled to receive the supplement, one of the following requirements must be satisfied:

(a)Being granted a widower’s pension on account of the death of the other parent of the children in common, provided that one of those children is entitled to receive an orphan’s pension;

(b)Being entitled to a contributory retirement or permanent incapacity pension and having interrupted their professional career, or had it affected, on account of the birth or adoption, in accordance with the following conditions:

(1)In the case of children born or adopted up to 31 December 1994, having more than 120 days without making contributions in the 9 months prior to the birth and the 3 years following that date or, in the case of adoption, from the date of the court order establishing it and in the 3 subsequent years, provided that the total of the amounts of the pensions granted is less than the total of the pensions to which the woman is entitled;

(2)In the case of children born or adopted since 1 January 1995, that the total of the income on the basis of which contributions are calculated for the 24 months following the birth or the court order establishing the adoption is less, by more than 15 per cent, than that for the immediately preceding 24 months, provided that the total of the amounts of the pensions granted is less than the total of the pensions to which the woman is entitled.

…

(3)Where the two parents are men and they each meet the aforementioned conditions, the supplement shall be granted to the parent in receipt of public pensions the total amount of which is less.

…

Before giving the decision granting the right to the second parent, the parent in receipt of the supplement shall be heard.

The amount of the supplement per child shall be determined in the relevant Ley de Presupuestos Generales del Estado (Law on the General State Budget). The amount to be received shall be limited to four times the fixed monthly amount per child and increased at the beginning of each year by the same percentage as that laid down by the relevant Law on the General State Budget in respect of contributory pensions.’

10Under the 37th supplementary provision of the LGSS, as amended, headed ‘Temporal scope of the supplement to contributory pensions to reduce the gender gap’, provides:

‘1. The right to receive the supplement to contributory pensions to reduce the gender gap, provided for in Article 60, shall remain for as long as gender gap in retirement pensions becoming claimable in the previous year is greater than five (5) per cent.

11The 33rd transitional provision of the LGSS, as amended, headed ‘Provisional retention of the maternity supplement in contributory pensions under the social security system’, states:

‘Persons who, as at the date of entry into force of the amendment laid down in Article 60, were in receipt of the maternity supplement on the basis of the demographic contribution shall continue to receive the same.

Receipt of that maternity supplement shall be incompatible with the supplement to contributory pensions to reduce the gender gap which may be payable, on account of the granting of a new public pension; the persons concerned may choose between one or the other.

Where the other parent of one of the children giving rise to the right to the maternity supplement on the basis of the demographic contribution applies for the supplement to contributory pensions to reduce the gender gap and is entitled to receive that supplement, pursuant to Article 60 of the present Law …, the monthly sum awarded to that parent is to be deducted from the maternity supplement received …’

12Article 3 of the Ley Orgánica 3/2007 para la igualdad efectiva de mujeres y hombres (Organic Law 3/2007 on effective equality between women and men) of 22 March 2007 (BOE No 71 of 23 March 2007, p. 12611) is worded as follows:

‘The principle of equal treatment of women and men means that there must be no discrimination whatsoever, be it direct or indirect, based on sex, in particular that on grounds of motherhood, shouldering family responsibilities, or marital status.’

13Paragraph 11(1) of that law provides:

‘In order render effective the constitutionally guaranteed right to equality, public authorities shall adopt specific measures in favour of women, intended to remedy manifest situations of de facto inequality by comparison with men. Such measures, which shall be applicable for as long as such situations persist, shall in each case be reasonable and proportionate in the light of the objective pursued.’

The disputes in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court of Justice

Case C‑623/23

14UV, the father of two children, was allocated, by the INSS, a retirement pension in the monthly amount of EUR 1 637.08 gross as from 1 July 2021.

15On 16 July 2022, UV asked the INSS to grant him, as of 1 July 2021, the pension supplement to reduce the gender gap, which is provided for in Article 60 of the LGSS, as amended.

16By decision of 14 November 2022, the INSS rejected that request, taking the view that UV did not satisfy the conditions laid down in Article 60.

17Furthermore, by decision of 22 December 2022, with effect from 10 December 2022, the INSS granted the mother of the two children concerned an early retirement pension in the monthly amount of EUR 2 790.99 gross, increased by the pension supplement at issue in the amount of EUR 56 per month.

18UV brought an action against the decision of 14 November before the Juzgado de lo Social No 3 de Pamplona (Social Court No 3, Pamplona, Spain), which is the referring court in Case C‑623/23, claiming that Article 60 of the LGSS, as amended, is contrary to Directive 79/7 in that it discriminates on grounds of sex.

19The INSS recalls that, by its judgment of 12 December 2019, Instituto Nacional de la Seguridad Social (Pension supplement for mothers) (C‑450/18, EU:C:2019:1075), the Court ruled that Article 60 of the former LGSS was discriminatory; the INSS takes the view that Article 60, which was amended in order to take that judgment into account, now complies with the requirements of Directive 79/7.