Request for a preliminary ruling from the Tribunal Superior de Justicia de Galicia (Spain) lodged on 17 February 2022 – DX, Instituto Nacional de la Seguridad Social (INSS) v Tesorería General de la Seguridad Social

(Case C-113/22)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Galicia

Parties to the main proceedings

Applicants: DX, Instituto Nacional de la Seguridad Social (INSS)

Defendant: Tesorería General de la Seguridad Social

Questions referred

Must the administrative authority’s practice, set out in administrative position 1/2020 of the INSS’ Subdirectorate-General for Planning and Legal Services of 31 January 2020, of systematically refusing to grant the supplement at issue to men and requiring them to pursue their claims through the courts, as has happened to the applicant in the present case, be regarded, in accordance with Council Directive 79/7/EEC ¹ of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, as an administrative breach of that directive, which is different from the legislative breach found to have been committed in the judgment of the Court of Justice of 12 December 2019 in WA (C-450/18), ² so that, considered in itself, that administrative breach constitutes discrimination on grounds of sex, in view of the fact that, according to Article 4 of that directive, the principle of equal treatment means that there is to be no discrimination whatsoever on ground of sex, either directly, or indirectly, and that, according to Article 5 of that directive, Member States are to take the measures necessary to ensure that any legislative or administrative provisions contrary to the principle of equal treatment are abolished?

In the light of the answer to the previous question, and having regard to Directive 79/7 (in particular Article 6 thereof and the principles of equivalence and effectiveness in relation to the legal consequences of non-compliance with EU law), must the effective date of the judicial recognition of the supplement be the date of the application (backdated by three months), or must the effective date be backdated to the date on which the judgment of the Court of Justice in WA was delivered or published, or to the date of the operative event for the permanent incapacity benefit to which the supplement at issue relates?

In the light of the answer to the previous questions, and having regard to the applicable directive (in particular Article 6 thereof and the principles of equivalence and effectiveness in relation to the legal consequences of non-compliance with EU law), is it appropriate to award compensation by way of reparation for the loss sustained and exemplary damages, on the ground that that loss is not addressed by the determination of the effective date of the judicial recognition of the supplement, and in any event, must the compensation cover the court fees and costs of legal representation before the Juzgado de lo Social (Social Court) and the Sala de lo Social (Social Chamber) of the referring court?

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¹ OJ 1979 L 6, p. 24.

¹ EU:C:2019:1075.