Request for a preliminary ruling from the Juzgado de lo Social No 3 de Pamplona lodged on 6 October 2023 – UV v Instituto Nacional de la Seguridad Social (INSS)
(Case C-623/23, Melbán) 1
Language of the case: Spanish
Referring court
Juzgado de lo Social No 3 de Pamplona
Parties to the main proceedings
Applicant: UV
Defendant: Instituto Nacional de la Seguridad Social (INSS)
Other parties: OP and Ministerio Fiscal
Questions referred
Must 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,1 be interpreted as meaning that a national rule such as that contained in Article 60 of the Ley General de Segurdad Social (General Law on Social Security; ‘the LGSS’) does not comply with the principle of equal treatment preventing any discrimination on grounds of sex, recognised in Articles 1 and 4 of that directive, where that rule, under the heading ‘Supplement to contributory pensions to reduce the gender gap’, in the case of women who have had biological or adopted children and are recipients of such pensions, recognises the right to a supplement to contributory retirement and permanent incapacity pensions, without any other requirement and irrespective of the amount of their pensions, which is not recognised on the same terms in the case of men in an identical situation, in that, in order to access the supplement to their retirement or permanent incapacity pension, certain periods without making contributions, or making lower contributions, following the birth of the children or the adoption, are required, and, in particular, in the case of children born or adopted up to 31 December 1994, having more than one hundred and twenty days without making contributions in the nine months prior to the birth and the three years following that date or, in the case of adoption, from the date of the court order establishing it and in the three 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 and, 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 twenty-four 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 twenty-four 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?
In the case of discrimination on grounds of sex:
Does 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, require, as a consequence of the discrimination resulting from the exclusion of the male pensioner, that he should be granted the supplement to the retirement pension, even though Article 60 of the LGSS provides that the supplement may only by granted to one of the parents, and, at the same time, is it necessary that the granting of the supplement to the male pensioner does not bring about, as an effect of the judgment of the Court of Justice and of the lack of alignment between the national rule and the Directive, the withdrawal of the supplement granted to the female recipient of the retirement pension, where she satisfies the legal requirements of being the mother of one or more children?
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1 The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
1 OJ 1979 L 6