Opinion of the Advocate General — ECLI:EU:C:2021:777
Date: 2021-09-30
Language of the case: Spanish
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-389/20 — 1 
Case C-389/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
14 August 2020 
Referring court:  
Juzgado de lo Contencioso-Administrativo n.º 2 de Vigo 
(Administrative Court No 2, Vigo, Spain) 
Date of the decision to refer:  
29 July 2020 
Applicant:  
CJ 
Defendant:  
Tesorería General de la Seguridad Social 
  
Subject matter of the main proceedings 
Social security — Special scheme for domestic workers — Female domestic 
workers — Exclusion from the payment of social security contributions in respect 
of unemployment — Exclusion from unemployment benefits 
Subject matter and legal basis of the request for a preliminary ruling 
Request for a preliminary ruling on interpretation — Article 267 TFEU — 
Compatibility of a national provision with Directives 79/7/EEC and 
2006/54/EC — Discrimination on grounds of sex 
Questions referred for a preliminary ruling 
Must Article 4(1) 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, governing equal treatment, which precludes 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-389/20 
 
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any discrimination whatsoever on grounds of sex, either directly or indirectly, as 
regards the obligation to pay social security contributions, and Article 5(b) of 
Directive 2006/54/EC of the European Parliament and of the Council of 5 July 
2006 on the implementation of the principle of equal opportunities and equal 
treatment of men and women in matters of employment and occupation, which 
lays down the same prohibition of direct and indirect discrimination on grounds of 
sex as regards the scope of social security schemes and the conditions of access to 
those schemes and the obligation to contribute, and the calculation of 
contributions, be interpreted as precluding a national provision like Article 251(d) 
LGSS, which provides: 
‘d) The protection afforded by the Special Scheme for Domestic Workers shall not 
include protection in respect of unemployment.’ 
If the answer to that question is affirmative, must that statutory provision be 
regarded as an example of prohibited discrimination under Article 9(1)(e) and/or 
(k) of Directive 2006/54/EC of the European Parliament and of the Council of 
5 July 2006, in so far as the addressees of the provision at issue, Article 251(d) 
LGSS, are almost exclusively women? 
Provisions of EU law relied on 
i. Treaty on the Functioning of the European Union, Article 157. 
ii. Charter of Fundamental Rights of the European Union, Articles 21 and 
23. 
iii. 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, Articles 2, 3(a), 4, 5 and 6. 
iv. Directive 2006/54/EC of the European Parliament and of the Council 
of 5 July 2006 on the implementation of the principle of equal 
opportunities and equal treatment of men and women in matters of 
employment and occupation, Articles 1(c), 5(b), 7(1)(a)(v), and 
9(1)(e). 
Provisions of national law relied on 
i. Constitución Española (Spanish Constitution), Article 41: 
‘The public authorities shall maintain a public social security system for all 
citizens, which will guarantee adequate social assistance and benefits in 
cases of hardship, especially in the event of unemployment.’ 
ii. Real Decreto Legislativo 8/2015, de 30 de octubre, por el que se 
aprueba el texto refundido de la Ley General de la Seguridad Social 
TESORERÍA GENERAL DE LA SEGURIDAD SOCIAL 
 
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(Royal Legislative Decree 8/2015 of 30 October 2015 adopting the 
consolidated text of the General Law on Social Security): 
‘Article 166. Situations equivalent to that of an active contributor 
1. For the purposes set out in Article 165(1), a situation of total unemployment 
in which a worker receives unemployment benefit will be equivalent to that of an 
active contributor. 
…’ 
‘Article 250. Scope: 
1. Workers subject to the special employment relationship referred to in 
Article 2(1)(b) of the consolidated text of the Ley del Estatuto de los Trabajadores 
(Law on the Workers’ Statute) shall be covered by the Special Scheme for 
Domestic Workers. 
… 
2. The legal rules governing that Special Scheme shall be laid down in the 
present Title II and in the provisions for application and implementation thereof, 
together with the specific features laid down therein.’ 
‘Article 251. Protective function 
Workers covered by the Special Scheme for Domestic Workers shall be entitled to 
social security benefits under the terms and conditions laid down in respect of this 
General Social Security Scheme but with the following specific features: 
… 
(d) the protection afforded by the Special Scheme for Domestic Workers shall not 
include protection in respect of unemployment.’ 
‘Article 263. Levels of protection 
1. Unemployment protection is divided into a contributory level and a social 
assistance level, both of which are State-administered and compulsory. 
2. The contributory level is intended to provide benefits to replace the wage 
income no longer received as a result of the loss of a previous job or the 
suspension of the contract or the reduction of working hours. 
3. The social assistance level, which supplements the above, guarantees 
protection for unemployed workers who are in one of the situations referred to in 
Article 274.’ 
‘Article 265. Protective function. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-389/20 
 
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1. Unemployment protection shall include the benefits set out below. 
(a) At the contributory level: 
1. total or partial unemployment benefit; 
2. payment of the employer’s social security contributions during the period of 
receipt of unemployment benefits, with the exception of the cases referred to in 
Article 273(2). 
(b) At the social assistance level: 
1. unemployment allowance; 
2. payment, where appropriate, of the social security contribution in respect of 
retirement during the period of receipt of the unemployment allowance, in the 
cases referred to in Article 280; 
3. entitlement to healthcare benefits and, as the case may be, family benefits, 
under the same conditions as workers covered by any social security scheme. 
2. The protective function shall also include specific activities of training, 
further training, guidance, retraining and vocational reintegration for unemployed 
workers and any other activities aimed at the promotion of stable employment. 
This is without prejudice, where appropriate, to the powers to administer active 
employment policies which shall be implemented by the General State 
Administration or by the relevant autonomous administration, in accordance with 
the applicable legislation. 
…’ 
‘Article 267. Legal situation of unemployment 
1. Workers who come within any of the following cases shall be in a legal 
situation of unemployment: 
a) where the worker’s employment relationship is terminated 
…’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is a domestic worker and she works for her employer, a natural 
person. She has been registered in the Special Social Security Scheme for 
Domestic Workers provided for in Article 250 of the Ley General de la Seguridad 
Social (General Law on Social Security) (‘the LGSS’) since January 2011. 
TESORERÍA GENERAL DE LA SEGURIDAD SOCIAL 
 
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2 On 8 November 2019, the applicant applied to the Tesorería General de la 
Seguridad Social (General Social Security Fund) (‘the TGSS’ or ‘the defendant’) 
to pay contributions in respect of unemployment in order to acquire the right to 
the corresponding unemployment benefit in the event that she became 
unemployed in the future. Her employer’s written agreement to pay the 
[employer’s] contribution in respect of the contribution applied for was attached 
to the application. 
3 By decision of 13 November 2019, the director of the TGSS administration 
rejected her application relying on Article 251(d) of the LGSS, which provides 
that ‘the protection afforded by the Special Scheme for Domestic Workers shall 
not include protection in respect of unemployment.’ The decision concluded that 
‘it is not currently possible for this group of workers to contribute to the social 
security system in respect of unemployment protection.’ 
4 The applicant brought an administrative appeal against that decision before the 
director’s superior, the head of the appeals unit of the TGSS. On 19 December 
2019, the head of the appeals unit issued a decision declaring that the appeal was 
inadmissible. The legal grounds for that decision again quoted Article 251(d) of 
the LGSS and stated that the application could not be granted because 
contributions in respect of unemployment are expressly prohibited by law in this 
case. That decision concluded the administrative procedure. 
5 On 2 March 2020, the applicant brought an administrative law action against that 
decision before the referring court. The applicant claims that the decision should 
be declared unlawful, that the decision should be annulled and overturned, and 
that she should be held to be entitled, as a domestic worker, to pay contributions 
in respect of unemployment, with payment of those contributions being permitted 
with effect from 8 November 2019. 
6 Since the referring court has doubts regarding the compatibility of Article 251(d) 
of the LGSS with Directives 79/7/EEC and 2006/54/EC, it decided to stay the 
proceedings and make the present request for a preliminary ruling to the Court of 
Justice. 
Essential arguments of the parties to the main proceedings 
7 The applicant has produced data which show that, as a group, domestic workers 
consist almost entirely of women and she contends that the contested provision, 
Article 251(d) of the LGSS, constitutes discrimination against women. She relies, 
in support of her contention, on the judgment of 22 November 2012, Elbal 
Moreno (C-385/11, EU:C:2012:746), in particular paragraph 29 thereof, which 
states that ‘indirect discrimination for the purposes of Article 4 of Directive 79/7 
arises where a national measure, albeit formulated in neutral terms, works to the 
disadvantage of far more women than men’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-389/20 
 
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8 The applicant submits that the fact that, as a result of the contested provision, 
domestic workers lack social protection where their employment ends for reasons 
not attributable to themselves, leads directly to ineligibility for unemployment 
benefit and also indirectly to ineligibility for other types of social assistance. Thus, 
in the event of sickness, although domestic workers may be protected in respect of 
temporary incapacity for work, in practice, if the period of incapacity for work is 
longer, this frequently results in the loss of their employment, either by mutual 
agreement or because the employer withdraws from the contract as is permitted by 
law; this leaves domestic workers without protection, unlike the situation in 
relation to the legal status of any other employee. Accordingly, since they cannot 
access unemployment benefit, the law does not treat domestic workers as having a 
status equivalent to that of an active contributor to social security, the effect of 
which is to disqualify them from the right to receive other benefits, such as those 
derived from incapacity, or any of the State allowances which require that 
unemployment benefit must be used up. 
9 The defendant submits that it has no authority to dispute or call into question the 
statutory requirement and that it merely applies the existing legislation. The 
defendant states that domestic workers are a group of employees who, 
quantitatively speaking, are a minority in terms of the overall membership of the 
general scheme, but acknowledges that that group consists mainly of women. The 
defendant cites as a possible justification for the exclusion of domestic workers 
from the right to unemployment benefit the fact that the employer, the head of a 
family in the home who is not an undertaking which operates a traditional 
production unit, is treated differently, subject always to the fact that the aim of the 
national legislature was and is the gradual equalisation of workers in a special 
sector as regards rights and obligations. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 The referring court states that, from the perspective of national law, the resolution 
of the dispute is quick and straightforward, since, as the defendant ruled, the 
applicant is requesting something which the law expressly prohibits or refuses, 
namely the right to pay contributions to cover the risk of unemployment in the 
case of workers covered by the Special Scheme for Domestic Workers. 
11 However, from the perspective of EU law, the resolution of the dispute is not so 
clear, because the contested provision, Article 251(d) of the LGSS, may constitute 
indirect discrimination against women and, accordingly, may infringe, inter alia, 
Article 4(1) of Directive 79/7/EEC and Article 5(b) of Directive 2006/54/EC. 
12 As is apparent from the evidence adduced by the applicant, and as the defendant 
itself acknowledges, the cohort of workers included in the Special Scheme for 
Domestic Workers consists almost entirely of persons of a single sex: women. The 
application provides data about that level of membership of the scheme which is 
damning and which has by no means been disputed by the defendant: nearly the 
TESORERÍA GENERAL DE LA SEGURIDAD SOCIAL 
 
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entire cohort of domestic workers in Spain is made up of women and more than 
one third is made up of foreign citizens. 
13 Therefore, the addressees of the contested provision are almost exclusively female 
and the provision precludes women who are part of that cohort from entitlement to 
the social benefit in respect of unemployment by prohibiting those women from 
paying contributions to cover that risk, thereby excluding that situation from the 
protective function of the social security system. 
14 The contested provision appears to be neutral, in that it is worded in such a way 
that its addressees are indistinguishable; however, in reality, they are not 
indistinguishable because the cohort of domestic workers is clearly female and, to 
a large extent, made up of foreign citizens. That leads to negative discrimination 
on grounds of sex which works to the disadvantage of the female sex as regards 
social protection in relation to employment, which may be prohibited by the EU 
legislation referred to. The special nature of the employment relationship 
applicable to this group of workers cannot lead to the unjustified — owing to a 
complete failure to state reasons — loss of basic rights guaranteed by both EU law 
and the Spanish Constitution.