Summary;Judgment — ECLI:EU:C:2021:381
Date: 2021-05-12
Language of the case: Spanish
Court formation: Sixth Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-130/20 — 1 
Case C-130/20 
Summary of the request for a preliminary ruling under Article 98(1) of the 
Rules of Procedure of the Court of Justice 
Date lodged:  
9 March 2020 
Referring court:  
Juzgado de lo Social n.º 3 de Barcelona (Spain) 
Date of the decision to refer:  
4 March 2020 
Applicant:  
YJ 
Defendant:  
Instituto Nacional de la Seguridad Social (INSS) 
  
Subject matter of the main proceedings 
Claim in respect of retirement against the Instituto Nacional de la Seguridad 
Social, requesting the maternity supplement of 10% of the retirement pension 
granted. 
Subject matter and legal basis of the request for a preliminary ruling 
The request for a preliminary ruling concerns the determination of whether 
exclusion of the maternity supplement for women who voluntarily take early 
retirement, as opposed to those who do not take early retirement and those for 
whom early retirement is not voluntary, is compatible with the EU legislation 
guaranteeing equal treatment in matters relating to social security in its broadest 
sense, in other words, as between men and women but also as between women. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-130/20 
 
2  
Question referred for a preliminary ruling 
‘Can a provision like Article 60(4) of the General Law on Social Security (Ley 
General de la Seguridad Social), which excludes the maternity supplement for 
women who retire [early] voluntarily, as opposed to those who retire, also 
voluntarily, at the normal age provided for, or who retire early but on the basis of 
work performed throughout their working lives, by reason [of] disability, or 
because they ceased employment before taking retirement through no fault of their 
own, be considered to constitute direct discrimination for the purposes of 
Directive 79/7?’ 
Provisions of EU law relied on 
Articles 21(1) and 34(1) of the Charter of Fundamental Rights of the European 
Union in conjunction with Article 157(4) TFEU. 
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 3(1)(a), 4(1) and (2), and 7(1)(a) and (b). 
Article 2(1)(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. 
Judgment of the Court of Justice of the European Union of 12 December 2019, 
Instituto Nacional de la Seguridad Social, C-450/18, EU:C:2019:1075, 
paragraphs 28, 30, 33, 37, 42, 44, 46 to 50, 57, 58, 60, 62, 63 and 65 and the 
operative part. 
Judgment of the Court of Justice of 5 June 2018, Grupo Norte Facility, C-574/16, 
EU:C:2018:390, paragraph 46. 
Provisions of national law relied on 
1. ― Royal Legislative Decree (Real Decreto Legislativo) 8/2015 of 
30 October 2015 adopting the consolidated text of the General Law on Social 
Security (Ley General de la Seguridad Social; ‘LGSS’) 
Article 60. Maternity supplement for contributory pensions under the social 
security system 
1. Women who have had biological or adopted children and are recipients of a 
contributory retirement, widow’s or permanent incapacity pension under any 
scheme within the social security system shall be granted a pension supplement on 
account of their demographic contribution to social security. 
INSS 
 
3 
That supplement, which shall have the legal nature of a contributory State pension 
for all purposes, shall consist of an amount equivalent to the result of applying to 
the initial amount of the pensions referred to a specified percentage which shall 
be based on the number of children in accordance with the following scale: 
a) in the case of two children: 5 per cent. 
b) in the case of three children: 10 per cent. 
c) in the case of four or more children: 15 per cent. 
… 
2. Where the amount of the pension initially granted exceeds the [statutory 
maximum] limit without application of the supplement, the total of the pension 
and the supplement may not exceed that limit increased by 50 per cent of the 
supplement allocated. 
Additionally, if the amount of the pension granted comes to the [statutory 
maximum] limit as a result of applying the supplement only in part, the woman 
concerned shall also be entitled to receive 50 per cent of the portion of the 
supplement which exceeds the maximum limit in force from time to time. 
[…] 
If the pension to be supplemented is the result of aggregating periods of insurance 
pro rata, in accordance with international legislation, the supplement shall be 
calculated on the basis of the resulting theoretical pension and the appropriate 
proportion shall be applied to the result obtained. 
… 
4. The pension supplement shall not be applicable where the woman concerned 
voluntarily takes early retirement or takes partial retirement … 
Notwithstanding the foregoing, the appropriate pension supplement shall be 
allocated where partial retirement is followed by full retirement, once the relevant 
age in each case is reached. 
… 
Order of the Tribunal Constitucional (Constitutional Court, Spain) No 114/18 of 
16 October 2018 (ECLI:ES:TC:2018:114A) 
That ruling dismissed the question of unconstitutionality referred by a social court 
because, ‘from the point of view of a pension supplement which is intended to 
compensate mothers who, involuntarily and for the reasons set out in Article 207 
LGSS, have their “insurance history” reduced, there is an objective and 
reasonable justification for the distinction inserted by the legislature into 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-130/20 
 
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Article 60(4) of the LGSS … since early retirement shortens the period of 
contribution to the scheme and extends the period during which the pension is 
received, from which it follows that it is logical that the legislature should 
introduce provisions to discourage it’. 
Succinct presentation of the facts and procedure in the main proceedings 
1 Ms YJ, born in 1954, applied for a retirement pension on 2 December 2017 and, 
on 11 December 2017, a decision was given granting the pension based on a 
monthly basic amount of EUR 2 954.05, the proportion of the pension being 86% 
of the maximum monthly pension of EUR 2 573.70 since the pension was reduced 
by 0.50% for each quarter that the ordinary retirement age had been brought 
forward, with the result that the pension was fixed at EUR 2 470.75 per month 
with effect from 4 December 2017. 
2 The applicant lodged a prior administrative complaint in which she claimed that 
she was entitled to the pension maternity supplement as she had had three children 
and therefore the pension should be increased by 10%. The defendant gave its 
decision on 9 May 2018 and, in the light of the refusal of her claim, Ms YJ 
brought an action seeking the award of the so-called maternity supplement 
provided for in Article 60 of the Ley General de la Seguridad Social (General Law 
on Social Security; ‘LGSS’), which consists of an increment of between 5 and 
15% for women in receipt of a permanent incapacity, retirement or widow’s 
pension who have had two or more children.  
Essential arguments of the parties to the main proceedings 
Position and arguments of the applicant 
3 The applicant contends that the justification for the supplement, as framed by the 
legislature, creates discrimination against women who have made a genuine 
contribution to the social security system and who, because they take voluntary 
early retirement, are not eligible for the supplement, unlike women who retire 
with a full pension, and also with the maximum amount of pension, and widows, 
whose professional career path is not checked because they are entitled to the 
supplement on account of the contributions paid by the husband or deceased. 
4 Referring to the order of the Tribunal Constitucional (Constitutional Court) 
No 114/18, the applicant states that the position taken in one of the dissenting 
opinions in that order was based on the view that the gender perspective should 
take priority in the field of interpreting legal provisions, meaning that when 
apparently neutral provisions lead to unfair situations which breach the right to 
equal treatment and create covert or indirect discrimination, the constitutional 
interpreter must perform a task which goes beyond the wording. 
INSS 
 
5 
5 The applicant goes on to argue that the current rules laid down in Article 60 LGSS 
conflict with the Community legislation and are inconsistent with the purpose for 
which that legislation was drafted, which reflected the recommendations of the 
European Commission, the Parliament and the Council aimed at reducing the 
State pension gender gap. In that connection, the applicant relies on Articles 21(1) 
and 34(1) of the Charter of Fundamental Rights of the European in conjunction 
with Article 157(4) TFEU. 
6 Consequently, the applicant submits that women who have had two or more 
children are treated unequally based solely on the manner in which they access 
their retirement pension, regardless of the aim of a provision which is stated to be 
to compensate for the demographic contribution which is made by all female 
workers equally. 
7 The applicant expresses her agreement with the reference for a preliminary ruling 
and she refers in particular to Article 2(1)(b) of Directive 2006/54/EC on the 
implementation of the principle of equal opportunities and equal treatment of men 
and women in matters of employment and occupation, in the sense that there is 
indirect discrimination on grounds of sex since an unjustified and disproportionate 
difference is created between women when they access their retirement pension. 
The applicant cites paragraph 46 of the judgment of the Court of Justice of 5 June 
2018 (Case C-574/16) which states that the principle of non-discrimination 
requires that comparable situations should not be treated differently. 
Position and arguments of the defendant 
8 The INSS refused to grant the maternity supplement in the administrative 
proceedings on the basis that Article 60(4) of the General Law on Social Security 
provides that that pension supplement is not applicable in cases where the woman 
concerned takes early retirement voluntarily. 
9 The defendant contends that the non-application of the maternity supplement to 
voluntary retirement pensions (voluntary early retirement and partial retirement) is 
intended to prevent the encouragement, by businesses or by the persons 
concerned, of early retirement among workers who have basic amounts higher 
than the maximum pension because they are not penalised by the reduction 
coefficients which are absorbed by the basic amount. 
10 On another point, the defendant objects to the reference for a preliminary ruling 
because Article 157(4) TFEU is not applicable to the matter in dispute since the 
action does not concern discrimination on grounds of sex derived from the 
disproportionality of the legislative measure at issue but rather the possible 
inequality before the law of one person vis-à-vis another, both female, on account 
of the amount of retirement pension where that pension is accessed in accordance 
with different rules. 
11 The defendant goes on to adopt as its own the arguments set out in the order of the 
Tribunal Constitucional (Constitutional Court) in relation to this being a case of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-130/20 
 
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inequality before the law rather than discrimination, and the broad discretion of 
the legislature to lay down provisions governing social security benefits. 
12 Lastly, the defendant argues that the measures for positive action to which 
Article 157(4) TFEU refers come within the sphere of substantive equality, unlike 
the prohibition of discrimination which comes within the sphere of formal 
equality, and that the Court of Justice has reasoned that such measures do not 
involve excessive discriminatory treatment of men vis-à-vis women, without 
carrying out an assessment of whether their application to all women is 
appropriate. 
13 In the light of the foregoing, the INSS opposes the reference for a preliminary 
ruling on the ground that the Tribunal Constitucional (Constitutional Court) has 
dispelled any uncertainties regarding the compatibility of Article 60(4) LGSS with 
the principle of equality before the law enshrined by Article 14 of the Spanish 
Constitution (Constitución Española) and by Article 20 of the Charter of 
Fundamental Rights of the European Union, and on the ground that the provisions 
of EU law are not applicable to the circumstances of the case. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
14 In relation to order No 114/18 of the Tribunal Constitucional (Constitutional 
Court), the referring court proceeds on the basis that that court approached the 
issue from the perspective of the review of constitutionality, in other words, an 
examination of whether the maternity supplement is compatible with the criterion 
for interpretation of the fundamental right of equal treatment under the law 
enshrined in Article 14 of the Spanish Constitution. Accordingly, the referring 
court takes the view that it does not impede this reference for a preliminary ruling 
because the issue raised here concerns the application of EU law and not the 
Spanish Constitution. 
15 In that connection, the referring court maintains that since the case before it is not 
concerned with compensating for situations where women have taken maternity 
leave or with reversing the career disadvantages of women who interrupt their 
employment after giving birth, given that it is not possible to link the supplement 
to the biological condition of women who have given birth, and since it does not 
apply to women who have interrupted their careers to bring up their children, on 
which basis it has been acknowledged that Article 60(1) LGSS constitutes direct 
discrimination against men in an identical situation, which is prohibited by 
Directive 79/7, there are no tactical or legal reasons which prevent the application 
of the same reasoning in relation to all women in the same situation, regardless of 
the manner and time of access to the supplemented pension. 
16 In other words, since Article 60(4) LGSS excludes a category of women who 
enter retirement, specifically women who take voluntary early retirement (albeit 
not all such women because in certain situations where the retirement age is 
brought forward that exclusion does not apply), despite the fact that retirement is 
INSS 
 
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in all circumstances and at all times voluntary, it is necessary to ask whether it can 
also be considered to be discriminatory for the purposes of Directive 79/7 to 
exclude women who bring forward the ordinary statutory retirement age, on the 
grounds that that exclusion is unreasonable and unjustified. 
17 As regards the argument that the applicant’s pension exceeds the maximum 
pension provided for in Spain at the material time, the fact is that the maternity 
supplement is applicable, as stipulated by Article 60(2) LGSS, even if the 
resulting amount exceeds the maximum pension, as it does in the present case, 
since the resulting pension would be higher than that maximum pension. 
18 In order to adjudicate on the instant case, it is necessary to ask whether exclusion 
of the maternity supplement for women who voluntarily bring forward their 
retirement age, as opposed to women who retire at the normal age provided for or 
who retire early but on the basis of work performed throughout their working lives 
or in the event of disability, and also women who retire early because their 
employment ceased in the period immediately before retirement through no fault 
of their own, is compatible with the EU legislation guaranteeing equal treatment 
in its broadest sense, in other words, as between men and women but also as 
between women.