Violeta Villar Láiz v Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS).
Date: 2019-05-08
37


As regards whether such a rule of law constitutes indirect discrimination, it must be recalled that that concept must, in the context of Directive 79/7, be understood in the same way as in the context of Directive 2006/54 (see, to that effect, judgment of 26 June 2018, MB (Change of gender and retirement pension), C‑451/16, EU:C:2018:492, paragraph 34). It is apparent from Article 2(1)(b) of Directive 2006/54 that there is discrimination based indirectly on sex in a situation where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.
38


The existence of such a particular disadvantage might be established, for example, if it were proved that legislation such as that at issue in the main proceedings is to the disadvantage of a significantly greater proportion of individuals of one sex as compared with individuals of the other sex (see, to that effect, judgment of 14 April 2015, Cachaldora Fernández, C‑527/13, EU:C:2015:215, paragraph 28 and the case-law cited). It is for the national court to determine whether that is the case in the main proceedings.
39


In the event that, as in this case, the national court has statistical evidence available to it, the Court has previously held that the best approach to the comparison of such evidence is to consider, on the one hand, the respective proportions of workers who are and who are not affected by the rule at issue within the male workforce and, on the other, the same proportions within the female workforce. It is not sufficient to consider the number of persons affected, since that depends on the number of working people active in the Member State as a whole as well as the percentages of men and women employed in that Member State (see, to that effect, judgment of 9 February 1999, Seymour-Smith and Perez, C‑167/97, EU:C:1999:60, paragraph 59).
40


In that regard, it is for the national court to assess to what extent the statistical evidence adduced before it concerning the situation of the workforce is valid and can be taken into account, that is to say, whether, for example, it illustrates purely fortuitous or short-term phenomena, and whether, in general, it appears to be significant (see, to that effect, judgment of 9 February 1999, Seymour-Smith and Perez, C‑167/97, EU:C:1999:60, paragraph 62 and the case-law cited).
46


Further, as is also apparent from recital 30 of Directive 2006/54, the appreciation of the facts from which it may be presumed that there has been indirect discrimination is the task of the national judicial authority, in accordance with national law or national practices which may provide, in particular, that indirect discrimination may be established by any means, and not only on the basis of statistical evidence (see, by analogy, judgment of 19 April 2012, Meister, C‑415/10, EU:C:2012:217, paragraph 43).
48


That would be the case where the measures chosen reflect a legitimate social policy objective of the Member State whose legislation is at issue, they are appropriate to achieve the objective pursued by that Member State and they are necessary for that purpose (see, to that effect, judgment of 22 November 2012, Elbal Moreno, C‑385/11, EU:C:2012:746, paragraph 32 and the case-law cited).
51


However, the Court has also held that a measure which has the effect of reducing a worker’s retirement pension by a proportion greater than that resulting when his periods of part-time work are taken into account cannot be regarded as objectively justified on the ground that the pension is in that case consideration for less work (judgment of 23 October 2003, Schönheit and Becker, C‑4/02 and C‑5/02, EU:C:2003:583, paragraph 93).