Judgment;Summary — ECLI:EU:C:2021:55
Date: 2021-01-21
Language of the case: Spanish
Court formation: Eighth Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-843/19 — 1 
Case C-843/19 
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:  
20 November 2019 
Referring court:  
Tribunal Superior de Justicia de Cataluña (High Court of Justice, 
Catalonia, Spain) 
Date of the decision to refer:  
12 November 2019 
Appellant:  
Instituto Nacional de la Seguridad Social (INSS) (National Social 
Security Institute) 
Respondent:  
BT 
  
Subject matter of the main proceedings 
The granting of early retirement to a worker enrolled under the Special 
Arrangements for Domestic Workers under the Spanish Social Security regime 
(formerly the Special Scheme for Domestic Service, and subsequently the Special 
Scheme for Domestic Workers). 
Subject matter and legal basis of the request for a preliminary ruling 
Whether Article 208(1)(c) of the Ley General de la Seguridad Social (General 
Law on Social Security), which prevents access to early retirement where the 
pension that would be received is less than the minimum pension, is compatible 
with Directives 79/7 and 2006/54. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-843/19 
 
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Question referred 
Does EU law preclude a provision of national law such as Article 208(1)(c) of the 
2015 Ley General de la Seguridad Social (General Law on Social Security), which 
stipulates that, in order for anyone enrolled in the General Scheme to be able to 
take voluntary early retirement, the pension payable, calculated in the standard 
way without any minimum pension supplement, must be at least as much as the 
minimum pension, inasmuch as it indirectly discriminates against women enrolled 
in the General Scheme, since it affects a far greater number of women than men? 
Provisions of EU law cited 
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 (OJ 1979 L 6, p. 24). Article 1 and Articles 3(1) and 4(1). 
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 (recast) 
(OJ 2006 L 204, p. 23). Recital 30, Article 2(1) and Article 19. 
Judgment of 7 May 1991, Commission v Belgium (C-229/89, EU:C:1991:187, 
paragraph 13). 
Judgment of 9 November 1992, Molenbroek v Sociale Verzekeringsbank 
(C-226/91, EU:C:1992:451, paragraph 19). 
Judgment of 14 December 1995, Nolte v Landesversicherungsanstalt Hannover 
(C-317/93, EU:C:1995:438, paragraph 33). 
Judgment of 8 May 2019, Villar Láiz (C-161/18, EU:C:2019:382, paragraphs 37 
to 39). 
Provisions of national law cited 
Texto refundido de la Ley General de la Seguridad Social (consolidated text of the 
General Law on Social Security), approved under Real Decreto Legislativo 
8/2015, de 30 de octubre (Royal Legislative Decree 8/2015 of 30 October 2015) 
(BOE No 261 of 31 October 2015, p. 103291; ‘the LGSS’). Articles 59, 207 and 
208. 
Decreto 825/1976, de 22 de abril, por el que se regula la cotización en el Régimen 
Especial de la Seguridad Social de los Empleados de Hogar (Decree 825/1976 of 
22 April 1976 governing contributions to the Special Social Security Scheme for 
Domestic Workers (BOE No 99 of 24 April 1976, p. 8106). 
INSS 
 
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Ley 27/2011, de 1 de agosto, sobre actualización, adecuación y modernización del 
sistema de Seguridad Social (Law 27/2011 of 1 August 2011 on updating, 
adapting and modernising the social security system) (BOE No 84 of 2 August 
2011, p. 87495). Thirty-ninth additional provision. 
Real Decreto-ley 28/2018, de 28 de diciembre, para la revalorización de las 
pensiones públicas y otras medidas urgentes en materia social, laboral y de 
empleo (Royal Decree-Law 28/2018 of 28 December 2018 to uprate state 
pensions and introduce other urgent social, labour and employment measures 
(BOE No 314 of 29 December 2018, p. 129875). Article 4(2). 
Brief summary of the facts and the main proceedings 
1 On 12 December 2016 the applicant and respondent, BT, applied to the Instituto 
Nacional de la Seguridad Social (National Social Security Institute; ‘the INSS’) 
for a voluntary early retirement pension with effect from 4 January 2017, which 
was the date on which she reached the age of 63, when she would voluntarily 
terminate her employment contract. She has always paid contributions under the 
former Special Scheme for Domestic Service (now the Special Arrangements for 
Domestic Workers), and her contributions cover a period of 14 054 days, with the 
exception of 166 days. 
2 In a decision dated 19 December 2016, in accordance with the requirements in 
Article 208(1)(c) of the LGSS, the INSS refused the pension because the amount 
of the pension she would receive is less than the amount of the minimum pension 
to which she would be entitled on reaching the age of 65, having regard to her 
family situation. 
3 Her administrative appeal was rejected in a decision dated 10 March 2017. The 
reasons given in the decision were that her pension would be EUR 549.30 per 
month, calculated as 85% of reference earning of EUR 646.24, which is less than 
the minimum retirement pension of EUR 637.10, and that therefore it does not 
satisfy the requirements in Article 208(1)(c) of the LGSS. 
4 On 27 April 2017 the worker lodged a claim against the INSS with the Juzgado de 
lo Social n.º 10 de Barcelona (Social Court No 10, Barcelona), seeking the award 
of a voluntary early retirement pension. The court took the view that the provision 
applied by the INSS constitutes indirect discrimination against women, who make 
up the majority of domestic workers, and that therefore, under the case-law of the 
Court of Justice on Directive 79/7, it cannot be applied. 
5 The judgment notes that, according to a report from the INSS, at present, someone 
who has always been enrolled in the Special Scheme for Domestic Workers and 
who paid contributions at a flat rate until 2011 and at the highest possible rate 
from 2012 cannot obtain an early retirement pension at the age of 63, even with 
44½ years of contributions, because the pension will not exceed the minimum 
pension due on reaching the age of 65. The judgment therefore concludes that this 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-843/19 
 
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is indirect discrimination, which is why it directly disapplied the provision of 
national law and granted the voluntary early retirement that had been sought. 
6 The INSS lodged an appeal against the judgment with the referring court. 
Main arguments of the parties to the main proceedings 
7 The INSS states that the statutory requirement that must be satisfied in order to 
obtain voluntary early retirement, namely that the pension payable must be more 
than the amount of the minimum pension to which the applicant would be entitled 
on reaching the age of 65, having regard to the applicant’s family situation, is not 
satisfied. It considers that there is no sex discrimination, because there is an 
objective reason unconnected with any discrimination, namely the need to adopt 
the necessary measures required by the European Union in order to preserve the 
sustainability of the social security system, and in particular to achieve a 
sustainable balance between time spent in work and in retirement. If people were 
able to take voluntary retirement without any restrictions, this would have serious 
consequences for the social security system which the system would be unable to 
withstand, ‘not only because of the larger number of pensions awarded, but 
because of the cost of funding the supplements that would be payable in order to 
bring pensions up to the minimum level’; this would be contrary to the 
recommendations made by the European Union and to the Toledo Pact, which 
implements those recommendations. 
8 BT does not object to a reference for a preliminary ruling; the Ministerio Fiscal 
(Public Prosecutor’s Office), which is not a party to the proceedings, considers 
that a reference is unnecessary, as the provision can be disapplied directly under 
the case-law of the European Court; and the INSS repeats its earlier arguments. 
Brief summary of the reasons for the request for a preliminary ruling 
9 This case concerns the compatibility of Article 208(1)(c) of the LGSS with 
Directives 79/7 and 2006/54 in so far as the article applies to women. The article 
stipulates that ‘Once the general and the specific requirements of the said form of 
retirement have been satisfied, the amount of the pension to be received must be 
greater than the amount of the minimum pension to which the applicant would be 
entitled on reaching the age of 65, having regard to the applicant’s family 
situation. If this requirement is not met, the applicant will not be eligible for early 
retirement under this formula.’ 
10 The minimum pension is set annually in the State Budget, and no pensioner may 
receive a pension that is less than that minimum amount (unless the individual is 
in receipt of income other than social security benefits), even if the individual’s 
entitlement, as assessed under the pension calculation rules, would be less than 
that amount. In those circumstances, a minimum pension supplement, funded 
INSS 
 
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from the State Budget, is added to the pension, so that the individual receives what 
is considered to be the minimum amount needed to live on. 
11 The purpose of the requirement in Article 208(1)(c) of the LGSS is to ensure that 
pensioners receive at least the minimum required to meet their needs, without the 
State having to provide additional funding in the form of the minimum pension 
supplement in order to bring their contributory pensions up to that minimum 
amount. However, the referring court notes that the requirement applies only to 
voluntary early retirement: it does not apply to compulsory early retirement, 
where employment is terminated on objective grounds, which is governed by 
Article 207 of the LGSS. 
12 The referring court notes that, without this requirement for the pension payable to 
be at least as much as the minimum pension, workers would be free to retire early 
without losing any pension, because if their pension was less than the minimum, a 
supplement would be paid in order to bring it up to that minimum amount. This 
would mean that funding would have to be provided from the State Budget, 
because of something the worker had freely chosen to do, which is what the law is 
seeking to avoid. Moreover, as noted by the INSS, the European Union 
recommends that a sustainable balance should be achieved between time spent in 
work and in retirement, as set out in the Green Paper of 7 July 2010, 
COM(2010)365, ‘Towards adequate, sustainable and safe European pension 
systems’, which is a European objective. 
13 Having made these general comments, the referring court turns now to 
consideration of the situation in the case at issue. BT is a worker who is enrolled 
in the former Special Scheme for Domestic Service. One of the characteristics of 
that scheme was that its members (the vast majority of whom were women) paid 
contributions based on a single level of reference earnings (that is, at a flat rate); 
that level equated to the minimum reference earnings for contributions to the 
General Scheme, which was the same as the national minimum wage at any time. 
As a result, the basis used to calculate their contributions was lower than most 
and, consequently, so too were their pensions. 
14 Since 2012 there has been a phased integration into the General Social Security 
Scheme, in the form of Special Arrangements for Domestic Workers, which has 
led to increases in the base amount used to calculate contributions: first, a system 
was introduced under which the base amount increased in line with earnings 
bands, meaning that each earnings band had its own base amount for the purpose 
of calculating contributions; in 2021 the contributions base will be the same as 
actual earnings. In any event, as noted by the INSS, the likelihood of a worker 
achieving the minimum pension through his or her own contributions may vary 
depending on changes to the contribution bases established under these special 
arrangements and on the amount of the minimum pension: increasing the 
contributions bases under the Special Arrangements (or aligning them with the 
general scheme) would make it easier to achieve the minimum pension; by 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-843/19 
 
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contrast, an increase in the minimum pension would make it harder for this group 
of workers to qualify for early retirement. 
15 The referring court notes that the amount of pension currently received by female 
workers enrolled under the former Special Scheme is a consequence of the 
previous contributions system and the low wages in this occupational sector, on 
the one hand, and of the employers’ financial capacity, on the other. In practice, 
these workers are employed in a family rather than a business environment, where 
the role of employer is played by the homemaker, whose financial capacity is 
generally lower than in the various productive business sectors, and where, 
nowadays, the activity takes place in a context in which both members of a couple 
are working and consequently need outside help to enable them to do so. In 
general, therefore, the financial capacity of the sector is lower, and workers pay 
lower contributions and receive lower benefits. 
16 The INSS points out that, collectively, domestic workers have been required to 
contribute less to funding the System and to safeguarding its sustainability, both 
because of their historically lower contributions under the flat-rate system and 
because of the ceilings subsequently imposed under the earnings bands system. It 
considers that this justifies the imposition of restrictions on early retirement 
benefits, in view of the imbalance between the funding contributed and the 
benefits received (where the latter are substantially the same as under the General 
Scheme). 
17 However, the referring court has doubts over whether, by imposing the additional 
requirement in the case of voluntary retirement that the pension payable must be 
at least the minimum pension amount (without any minimum pension 
supplement), Article 208(1)(c) of the LGSS enshrines indirect discrimination 
against women, which is prohibited by Article 4(1) of Directive 79/7. If this 
requirement were to be included in provisions governing the current Special 
Arrangements for Domestic Workers, or were limited to members governed by 
those arrangements, it would clearly be a case of discrimination, inasmuch as the 
overwhelming majority of domestic workers are women: according to the official 
figures, 89% of domestic workers are women. In that case, a provision whose 
scope was restricted to domestic workers would clearly be discriminatory in so far 
as it would impose a qualification requirement for early retirement which they 
could not meet; the provision could therefore be disapplied directly, with no need 
to refer the question for a preliminary ruling, in view of the clear breach. 
18 However, the provision applies to the entire General Scheme, which covers 
14 882 318 male and female workers, as compared with the 406 864 workers who 
are covered by the Special Arrangements for Domestic Workers. The examination 
must therefore be expanded to cover the entire General Scheme. If consideration 
were limited to the former Special Scheme, only women who were members of 
that scheme would be entitled to voluntary early retirement, and other women who 
were in the same position for other reasons would have no such entitlement. The 
same could be said if the issue were considered from the perspective of each 
INSS 
 
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group of women who, whether for historical reasons or for reasons that continue 
to apply today, have paid lower contributions and therefore receive a lower 
pension. If that approach were adopted, an exception would be made for the group 
under examination to which the claimant belonged, but not for other groups. 
19 In this regard, the referring court notes that the provision also applies, amongst 
others, to part-time workers, most of whom are women; to low-skilled (and 
therefore low-paid) workers, given that women used to receive less education and 
training, which impacts on the type of work they do today; to female workers 
who, in the past, gave up employment or self-employment when they got married 
― and who, under some sectoral regulations, were even forced to stop work ― 
and who only restarted work when their children were older, meaning that they 
had only a short period of contributions, with a consequent impact on their 
pension; and to female workers who had to care for disabled or younger members 
of the family. For historical reasons, and in some cases for reasons that continue to 
apply, all of these women have lower contributions or shorter contribution periods 
(or both) than male or female workers who are not in this position. The result is 
that a higher number and percentage of women are in receipt of minimum pension 
supplements and are affected by the provision at issue.  
20 Given this situation, the referring court believes that this also seems to breach the 
principle of non-discrimination, in view of the statistics on people in receipt of the 
minimum wage and minimum wage supplements. The minimum pension is 
currently EUR 677.4 per month for someone without a dependant spouse, and 
EUR 835.75 for someone with a dependant spouse. According to the social 
security system’s own figures, there are 422 112 men in receipt of the minimum 
pension, which represents 15.23% of male retirement pensions, as compared with 
468 822 women, or 31.45% of female retirement pensions. Thus, while women 
account for only 35.55% of all retirement pensions, they make up 53.62% of all 
recipients of the minimum pension supplement (422 112 men, as compared with 
468 822 women). 
21 Moreover, this difference does not seem to narrowing; rather, since 2013 it has 
been increasing. In September 2019 the number of male pensioners on the 
minimum pension is down as compared with December 2018 (having fallen from 
422 112 in December 2018 to 412 931 in September 2019), while the number of 
women on the minimum pension has increased (from 468 822 in December 2018 
to 477 490 in September 2019).