Case C-385/11

Isabel Elbal Moreno

v

Instituto Nacional de la Seguridad Social (INSS)
and
Tesorería General de la Seguridad Social (TGSS)

(Reference for a preliminary ruling
from the Juzgado de lo Social de Barcelona)

(Article 157 TFEU — Directive 79/7/EEC — Directive 97/81/EC — Framework Agreement on part-time work — Directive 2006/54/EC — Contributory retirement pension — Equal treatment for male and female workers — Indirect discrimination on grounds of sex)

Summary — Judgment of the Court (Eighth Chamber), 22 November 2012

1.        Social policy — Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC — Directive 97/81 — Conditions of employment — Concept — Conditions relating to pensions deriving from a statutory social security scheme — Exclusion

(Art. 157 TFEU; Council Directive 97/81, Annex, Clause 4(1); European Parliament and Council Directive 2006/54, Art. 4)

2.        Social policy — Equal treatment for men and women in matters of social security — Directive 79/7 — Entitlement to a contributory retirement pension — National legislation requiring a part-time worker to pay contributions for a longer period than a full-time worker — Majority of part time workers being women — Not permissible — Justification — None

(Council Directive 79/7, Art. 4)

1.        See the text of the decision.

(see paras 22, 25)

2.        Article 4 of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as precluding legislation of a Member State which requires a proportionally greater contribution period from part-time workers, the vast majority of whom are women, than from full-time workers for the former to qualify, if appropriate, for a contributory retirement pension in an amount reduced in proportion to the part-time nature of their work.

That legislation works to the disadvantage of part-time workers, the majority of whom, according to statistics, are women, who have worked part-time for a long time, since, in practice, such legislation excludes those workers from any possibility of obtaining a retirement pension because of the method used to calculate the requisite contribution period.

In addition, that legislation is not justified by the need to ensure the financial equilibrium of the social security system in the event that the part-time workers concerned have paid contributions designed, in particular, to finance the pension system and that, if they were to receive a pension, the amount of that pension would be reduced in proportion to the time worked and the contributions paid.

(see paras 30-34, 38, operative part)