Pension Supplement for Moms, Not Dads, Ruled Unfair

(CN) — Spanish men with two or more children are just as entitled as are mothers to a supplement that the country applies to pension awards, the European Court of Justice ruled Thursday.

Under Spanish social security law, women who have two children and who are receive a pension for permanent incapacity get a 5% supplement. The supplement for mothers of three children is 10%, and mothers of four or more get 15%.

The father who brought the challenge at issue is identified in the ruling only as WA. It says he was awarded an incapacity pension in January 2017 of about 1,600 euros a month, and that the INSS, short for Instituto Nacional de la Seguridad Social, rejected his demand for a 5% supplement.

WA, who was the father of two daughters, died while his challenge was pending, but his wife, DC, carried on the appeal. It went to the European Court of Justice for resolution on referral from the Social Court in Gerona.

The Spanish government argued that the objective of pension supplement is more than a reward for “demographic contribution” that mothers make to social security.

“That supplement was also conceived as a measure to reduce the gap between the pension payments of men and those of women arising from differences in career paths,” Spain argued, as summarized in Thursday’s ruling. “The aim pursued is to ensure the award of adequate pensions to women whose contribution capacity and therefore the amount of the pension have been reduced where their professional careers have been interrupted or shortened due to the fact that they have had at least two children.

Spain’s social security office also defended the supplement on policy grounds, To providing “numerous statistical data which reveal a difference between the pension payments of men and those of women, and, on the one hand, between the pension payments of childless women or those who have had one child and, on the other, the payments of women who have had at least two children.”

But the court concluded Thursday that “the fact that women are more affected by the occupational disadvantages entailed in bringing up children, because it is they who generally carry out that task, does not prevent their situation from being comparable to that of a man who has assumed the task of bringing up his children and has thereby been exposed to the same career-related disadvantages.”

The court highlighted in particular the fact that Spain grants the supplement “to women who have adopted children, which means that the national legislature did not intend to limit the application of [the law] to protecting the biological condition of women who have given birth.”

“In order to ensure full equality in practice between men and women in working life, the principle of equal treatment must not prevent any member state from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers,” the court added.

“Consequently, it must be stated that national legislation such as that at issue in the main proceedings constitutes direct discrimination on grounds of sex and is, therefore, prohibited by Directive 79/7,” the ruling concludes.

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