Judgment;Summary — ECLI:EU:C:2025:358
Date: 2025-05-15
Language of the case: Spanish
Court formation: Tenth Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-623/23 – 1 
Case C-623/23 [Melbán] i 
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: 
6 October 2023 
Referring court: 
Juzgado de lo Social n.º 3 de Pamplona (Spain) 
Date of the decision to refer: 
21 September 2023 
Applicant: 
UV 
Defendant: 
Instituto Nacional de la Seguridad Social (INSS) 
  
Subject matter of the main proceedings 
Retirement pension – Supplement for pensioners who have had children – Claim 
for supplement made by a male pensioner 
Subject matter and legal basis of the request 
Article 267 TFEU – Request for a preliminary ruling on interpretation – Directive 
79/7/EEC – Equal treatment for men and women in matters of social security – 
Pension supplement for pensioners who have had children – Granting of the 
supplement to all female pensioners – Requirements imposed on male 
pensioners – Direct discrimination – Possible justifications – Consequences of a 
potential court finding of discrimination 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-623/23 
 
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Questions referred for a preliminary ruling 
1) 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, 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? 
2) 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 
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recipient of the retirement pension, where she satisfies the legal 
requirements of being the mother of one or more children? 
Provisions of European Union law relied on 
– Article 157(4) TFEU. 
– Charter of Fundamental Rights of the European Union, Articles 20, 21, 23 and 
34. 
– 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, third recital and Article 1, Article 3(1), Article 4 and 
Article 7(1)(c). 
Provisions of national law relied on 
Constitución española (Spanish Constitution; ‘the Constitution’), Article 9(2) 
(promotion of equality by public authorities) and Article 14 (principle of equality). 
Ley Orgánica 3/2007, de 22 de marzo, para la igualdad efectiva de mujeres y 
hombres (Organic Law 3/2007 of 22 March 2007 on genuine equality between 
women and men; ‘Organic Law 3/2007’), Article 3, Article 4 and Article 11(1). 
Ley General de la Seguridad Social (texto refundido aprobado por el Real Decreto 
Legislativo 8/2015, de 30 de octubre, BOE n.º 261, de 31 de octubre de 2015) 
(General Law on Social Security (recast text approved by Royal Legislative 
Decree 8/2015 of 30 October 2015, Official State Gazette No 261 of 31 October 
2015); ‘the LGSS’), following the reform introduced by Real Decreto-ley 3/2021, 
de 2 de febrero (Royal Decree-law 3/2021 of 2 February 2021). 
Article 60 of the LGSS, which regulates the ‘supplement to contributory pensions 
to reduce the gender gap’, provides as follows: 
‘1. Women who have had one or more children and who are recipients of a 
contributory retirement, permanent incapacity or widow’s pension shall be entitled 
to a supplement for each child, on account of the impact which, in general, the 
gender gap has on the amount of the contributory pensions received by women 
from the social security system. The right to the supplement for each child shall be 
granted to the woman, or maintained, provided that the supplement is not claimed 
by and granted to the other parent and, where that other parent is also a woman, it 
shall be granted to the parent in receipt of public pensions the total amount of 
which is less. 
For men to be entitled to receive the supplement, one of the following 
requirements must be satisfied: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-623/23 
 
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(a) Being granted a widower’s pension on account of the death of the 
other parent of the children in common, provided that one of those 
children is entitled to receive an orphan’s pension. 
(b) Being entitled to a contributory retirement or permanent incapacity 
pension and having interrupted their professional career, or had it 
affected, on account of the birth or adoption, in accordance with the 
following conditions: 
(1) 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. 
(2) 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. 
[…] 
2. The granting of the supplement to the second parent shall imply the 
termination of the supplement already granted to the first parent […]. 
3. This supplement shall, for all relevant purposes, have the legal status of a 
contributory public pension. 
The amount of the supplement per child shall be determined in the relevant 
Ley de Presupuestos Generales del Estado (Law on the General State 
Budget). […]. 
The amount of the supplement shall not be taken into account in applying 
the maximum pension limit […].’ 
The thirty-seventh additional provision of the LGSS states as follows: 
‘Temporal scope of the supplement to contributory pensions to reduce the gender 
gap. 
1. The right to receive the supplement to contributory pensions to reduce 
the gender gap, provided for in Article 60, shall remain for as long as the 
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gender gap in retirement pensions becoming claimable in the previous year 
is greater than five (5) per cent. 
2. For the purposes of this law, the gender gap in retirement pensions 
means the percentage difference between the average amount of the 
contributory retirement pensions becoming claimable in a given year by men 
and by women. 
[…].’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is retired and the father of two children, born in 1991 and 1994. The 
retirement pension he receives is less than the retirement pension received by the 
mother of those children. 
2 The applicant asked the Instituto Nacional de la Seguridad Social (INSS) 
(National Institute for Social Security, Spain) to grant him the supplement to 
contributory pensions to reduce the gender gap (‘the supplement at issue’), 
provided for in Article 60 of the LGSS. 
3 The INSS issued a decision refusing him the supplement at issue, in view of the 
fact that he did not satisfy the requirements laid down in that article. 
4 Subsequent to that decision, the mother of those children was granted the 
supplement at issue. 
5 The applicant has brought a legal challenge to that decision, believing the 
regulation of the supplement at issue to be contrary to EU law and, in particular, 
to the principle of equal treatment for men and women in matters of social 
security. Indeed, the applicant argues that, while that supplement is granted to all 
female pensioners who have had children, additional requirements are imposed on 
male pensioners who have had children in order to be able to obtain it. 
The essential arguments of the parties in the main proceedings 
6 The INSS maintains that the regulation of the supplement complies with the 
requirements of Directive 79/7/EEC, in particular Article 4(1) and Article 7(1)(b) 
of that directive, and that it corrects the deficient regulation of the supplement that 
gave rise to the judgment of the Court of Justice of 12 December 2019, Instituto 
Nacional de la Seguridad Social (Pension supplement for mothers), C-450/18, 
EU:C:2019:1075 (‘judgment C-450/18’). The INSS also refers to the legitimate 
and proportionate aim of the regulation of the supplement at issue and underlines 
the fact that it reflects the subordinate situation of women in the labour market, 
having historically assumed a principal role in the work of looking after children. 
It adds that, nevertheless, the door is left open such that those fathers who can 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-623/23 
 
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prove a detriment to their pension contribution history on account of the birth or 
adoption of a child and the assumption of those care responsibilities are able to 
access the supplement. The INSS also emphasises the temporal scope of the new 
supplementary payment, which is linked to achievement of the objective of 
reducing the gender gap in contributory pensions to below 5%. Lastly, the INSS 
argues that, if the regulation of the supplement at issue were found to constitute 
discrimination on grounds of sex pursuant to Directive 79/7, granting the 
supplement to the applicant would entail terminating the supplement that has 
already been granted to the mother, because the mother’s pension is larger than 
that of the applicant. 
7 The applicant argues that the regulation of the supplement is contrary to EU law, 
in particular the principle of equal treatment for men and women in matters of 
social security, and that the current Article 60 of the LGSS does not correct the 
previous regulation which the Court of Justice found to be contrary to EU law in 
judgment C-450/18. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
First question referred 
8 The applicant, who is the father of two children and receives a pension that is 
smaller than that of the mother of those children, is not entitled to the pension 
supplement, because he cannot provide evidence of 120 days without making 
contributions in the nine months prior to the birth of the children and the three 
years following that date, as required by Article 60 of the LGSS. 
9 The supplement at issue is included in the scope of Directive 79/7, because it 
forms part of a statutory scheme to provide protection against one of the risks 
listed in Article 3(1) of that directive, namely old age or retirement, and it is 
directly and effectively linked to protection against that risk, as stated in judgment 
C-450/18. 
10 There is unquestionably a difference in treatment among individuals receiving the 
supplement according to whether they are men or women. The national legislation 
accords less favourable treatment to male pensioners who have had biological or 
adopted children. Such less favourable treatment on grounds of sex may constitute 
direct discrimination within the meaning of Article 4(1) of Directive 79/7. 
11 It is, therefore, necessary to examine whether that difference in treatment is 
justified. 
(a) Justification based on the gender gap in pensions in general or on caring for 
and attending to children being work mainly done by women 
The question arises of whether the difference in treatment may be regarded as 
justified in view of the well-known fact (on the basis of statistical data accepted 
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by all of the parties and, moreover, in the public domain) that, in Spain, balancing 
work and family life, as well as caring for, attending to and bringing up children, 
mostly falls to women. It is undeniable that there is historical and structural 
discrimination against women in the labour market on account of their assumption 
of the role of carers for children. 
That fact often entails detriment to women’s professional careers and also to the 
amount paid in [to their pensions] by means of their contributions to the social 
security system, which gives rise to gaps in contributions during the periods of 
caring for children who are below the age of majority, or lower contributions in 
comparison with those made by men. That has an ultimate impact on the gender 
gap in the Spanish pension system (a fact that is also well known and accepted by 
the parties). 
In that regard, the Spanish legislature justified the supplement at issue on the basis 
of the historical and structural discrimination against women in the labour market 
on account of their assumption of the role of carers for children. According to that 
legislature, maternity has a decisive impact on a woman’s career path during her 
professional life and that is one – if not the most important – cause of the gender 
gap: the greater the number of children, the smaller the number of years for which 
contributions are made, the smaller the proportion of full-time or equivalent 
contracts and the smaller, ultimately, the pension granted. The Spanish legislature 
adds that it is a question of repairing damage that women who are now accessing 
their pension have suffered throughout their professional career, that is, damage 
caused in the past, and that, therefore, it is perfectly compatible and consistent 
with the implementation of ambitious equality policies that correct the inequalities 
that currently exist in the labour market and the allocation of roles relating to 
caring for children. Consistent with that approach, the temporal scope of the new 
supplementary payment is linked to achievement of the objective of reducing the 
gender gap in contributory retirement pensions to below 5%. 
Nevertheless, an objection to the above justification may be that, according to the 
legislation regulating the supplement at issue, the supplement is granted to women 
regardless of the real impact that maternity or adoption has had on their 
professional career, and also of the amount of their pension and of the amount 
paid in by means of contributions to the social security system. In order to access 
the supplement at issue, women are not required to have gaps in their 
contributions or contributions that are lower than those which men may have 
made during their working life, either in general or during particular periods of 
time close to the birth or adoption. 
Moreover, the supplement at issue is granted to all women who access the 
retirement or permanent incapacity pension, irrespective of the amount of the 
pension they receive. Indeed, the supplement is granted to women even when their 
pension is larger than the average for the social security system or even if they 
have the maximum pension allowed by law. 
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In the present case, the retirement pension received by the mother is larger than 
that of the applicant. The applicant, however, is not entitled to the supplement at 
issue, because he does not have more than 120 days without making contributions 
in the nine months prior to the birth of his children and the three years following 
that date. 
The automatic granting of the supplement at issue to women also does not require 
evidence to be provided of having duly attended to and cared for the biological or 
adopted children, nor of having exercised flexible working rights, such as working 
reduced hours or taking an extended leave of absence, linked to such care, nor of 
any loss of or detriment to their working or professional career. 
According to the statistical data provided by the INSS, since the supplement at 
issue went into effect, 326 593 supplements to retirement and permanent 
incapacity pensions have been granted. Of that total, 279 910 were supplements 
granted to female pensioners and 46 683 were supplements granted to male 
pensioners. Of the total number of female pensioners receiving the supplement, 
8 920 retirement pensions had reached the maximum legal pension, to which 
amount the amount of the supplement is added; in the case of retirement pension 
supplements granted to men, 1 402 had reached the maximum pension. Those data 
highlight the greater difficulties men have in satisfying the requirements for 
accessing the supplement at issue. 
In these circumstances, the question arises of whether the gender gap in pensions 
in general, or the indisputable fact that it is women who, for the most part, do the 
work of attending to and caring for children and make use of flexible working 
rights, may be regarded as legitimate and proportionate reasons to establish a 
statutory scheme benefiting all women, as a positive action measure, which 
involves granting the pension supplement automatically, regardless of the amount 
of the contributions made during the periods of time following the birth of the 
child or the adoption, or even if there are no gaps in contributions (or exit from the 
labour market or decrease in earnings), while, in the case of men, the granting of 
the supplement is conditional on the existence of gaps in contributions or lower 
contributions during periods immediately following the birth or the adoption, even 
if the amount of their pension is lower than the average for the social security 
system 
(b) Justification based on the detriment that women have suffered throughout 
their professional career, even if they are not suffering it at the time when they 
begin to receive their pension 
The question arises of whether the fact that, in the words of the Spanish 
legislature, ‘it is a question of repairing damage that women who are now 
accessing their pension have suffered throughout their professional career, that is, 
damage caused in the past’ may be regarded as justification for the discrimination, 
especially if a judicial interpretation is required which takes into consideration the 
gender perspective, in so far as equal treatment for men and women is a formative 
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principle of the legal system, and which takes account of the cross-cutting nature 
of the principle of equality. 
(c) Justification based on the protection of women in their capacity as parents or 
on the protection of maternity 
As occurred with the previous regulations, which, in judgment C-450/18, the 
Court of Justice found to be contrary to Directive 79/7, there is nothing in the 
current Article 60 of the LGSS that establishes a link between the award of the 
pension supplement at issue and taking maternity leave or the disadvantages 
suffered by a woman in her career as a result of being absent from work during the 
period following the birth of a child. 
In particular, that supplement is granted to women who have adopted children, 
which means that the national legislature did not intend to limit the application of 
Article 60 of the LGSS to protecting the biological condition of women who have 
given birth. 
In addition, that provision does not require women to have actually stopped 
working at the time they had their children, and thus the condition relating to 
maternity leave is absent. That is particularly the case where a woman has given 
birth before entering the job market. 
Therefore, the new pension supplement does not appear to fall within the scope of 
the exception established in Article 4(2) of Directive 79/7. 
(d) Justification based on the exclusion of the pension supplement from the 
scope of Directive 79/7 as an advantage in respect of old-age pension schemes 
granted to persons who have brought up children and the acquisition of 
entitlements following periods of interruption of employment due to the bringing-
up of children 
The question arises of the possible application of the exception provided for in 
Article 7(1)(b) of Directive 79/7, according to which that directive is without 
prejudice to the right of Member States to exclude from its scope advantages in 
respect of old-age pension schemes granted to persons who have brought up 
children and the acquisition of benefit entitlements following periods of 
interruption of employment due to the bringing-up of children. 
However, in judgment C-450/18, the Court of Justice held that Article 7(1)(b) of 
Directive 79/7 does not apply to a benefit such as the pension supplement at issue 
in that judgment and it appears that the same answer may be given in respect of 
the supplement now at issue, set out in the new wording of Article 60 of the 
LGSS. 
(e) Justification as a positive action measure, pursuant to Article 157(4) TFEU 
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The question arises of whether the supplement may be placed among the positive 
action measures allowed under Article 157(4) TFEU. 
However, as was stated in judgment C-450/18, ‘that provision cannot be applied 
to national legislation such as Article 60(1) of the LGSS, given that the pension 
supplement at issue is limited to granting women a surplus at the time when a 
pension is awarded, in particular in the case of permanent invalidity, without 
providing a remedy for the problems which they may encounter in the course of 
their professional career, and that supplement does not appear to compensate for 
the disadvantages to which women are exposed by helping them in that career 
and, thus, to ensure full equality in practice between men and women in working 
life’. 
It appears that the same reasoning could be applied in respect of the supplement at 
issue, [set out] in the new wording of Article 60 of the LGSS. 
Second question referred 
12 In the event that the Court of Justice finds the regulation of the supplement at 
issue not to be consistent with the principle of equal treatment for men and women 
in matters of social security, a further question arises regarding the effects of such 
a finding. 
13 Article 60 of the LGSS provides that the supplement gives rise to a single 
entitlement; that is, it may only be granted to one of the parents. Moreover, if the 
pensioner is a man, obtaining the supplement is conditional on his pension being 
smaller than that received by the mother. 
14 That being the case, the question arises of whether the useful effect of Directive 
79/7 and compliance with the principle of non-discrimination require that the 
supplement at issue also be granted to a male pensioner who claims it, even 
though the national legislation provides that it may only be granted to one of the 
two parents. 
15 At the same time, given that, in the present case, the female pensioner is entitled 
to the supplement because she satisfies the legal requirements, the question arises 
of whether the existence of discrimination against the male pensioner, where that 
is found to be the case by the Court of Justice, would or would not prevent the 
entitlement to the supplement at issue being maintained for both parents, even if 
the national law states that it may only be granted to one of them. 
16 In the present case, if the national provision were applied, granting the supplement 
to the applicant would entail the female pensioner losing the supplement granted 
to her, because her pension is larger than that of the applicant. 
17 However, if the supplement at issue were only granted to the pensioner whose 
pension was lower in amount, the finding of the Court of Justice that 
discriminatory treatment exists would lack any useful effect. Furthermore, the 
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national provision according to which the supplement must be granted solely to 
the person whose pension is lower in amount refers to the situation in which there 
are two parents who satisfy the legal requirements for obtaining it. Accordingly, it 
is not applicable when that supplement is granted to a father who does not satisfy 
the requirements established in that provision.