María Begoña Espadas Recio v Servicio Público de Empleo Estatal (SPEE).
Date: 2017-11-09
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According to the settled case-law of the Court, in respect of employment conditions Clause 4.1 of the Framework Agreement prohibits part-term workers being treated less favourably than comparable full-time workers solely because they work part-time, unless different treatment is justified on objective grounds (judgment of 13 July 2017, Kleinsteuber, C‑354/16, EU:C:2017:539, paragraph 25).
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In addition, the Court has ruled, first, that it is clear from its preamble that the Framework Agreement relates to the ‘employment conditions of part-time workers, recognising that matters concerning statutory social security are for decision by the Member States’ (judgment of 14 April 2015, Cachaldora Fernández, C‑527/13, EU:C:2015:215, paragraph 36).
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It has found, second, that the term ‘employment conditions’, within the meaning of the Framework Agreement, covers pensions that depend on an employment relationship between the worker and the employer, excluding statutory social security pensions, which are determined less by that relationship than by considerations of social policy (judgments of 22 November 2012, Elbal Moreno, C‑385/11, EU:C:2012:746, paragraph 21, and of 14 April 2015, Cachaldora Fernández, C‑527/13, EU:C:2015:215, paragraph 37).
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In answering that question, it must be noted that, if it is not in dispute that EU law does not detract from the power of the Member States to organise their social security systems, and that, failing any harmonisation at EU level, it is for the legislation of each Member State to determine the conditions for the grant of social security benefits, when exercising that power Member States must comply with EU law (see, to that effect, judgments of 16 May 2006, Watts, C‑372/04, EU:C:2006:325, paragraph 92 and the case-law cited, and of 5 November 2014, Somova, C‑103/13, EU:C:2014:2334, paragraphs 33 to 35 and the case-law cited).
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As regards the question whether legislation such as that at issue in the main proceedings constitutes indirect discrimination against women, as the referring court suggests, it is apparent from the settled case-law of the Court that indirect discrimination arises when a national measure, although neutrally formulated, works to the disadvantage of far more women than men (judgments of 20 October 2011, Brachner, C‑123/10, EU:C:2011:675, paragraph 56 and the case-law cited, and of 22 November 2012, Elbal Moreno, C‑385/11, EU:C:2012:746, paragraph 29).
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In that respect, it is important to clarify that the case in the main proceedings can be distinguished from the case that gave rise to the judgment of 14 April 2015, Cachaldora Fernández (C‑527/13, EU:C:2015:215), in which the Court held that the legislation at issue, concerning the determination of the basis for the calculation of a pension for total permanent invalidity, did not involve discrimination within the meaning of Article 4(1) of Directive 79/7. In that judgment, the Court considered, on the one hand, that it did not have irrefutable statistical information regarding the number of part-time workers who had had a gap in their contributions or showing that that group of workers was principally made up of women (see, to that effect, judgment of 14 April 2015, Cachaldora Fernández, C‑527/13, EU:C:2015:215, paragraph 30) and, on the other, that the provision at issue had random effects, since some part-time workers — the group allegedly disadvantaged by the provision — could even benefit from the application of that provision.
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A measure of such a nature is contrary to Article 4(1) of Directive 79/7, unless it is justified by objective factors unrelated to any discrimination on grounds of sex. That will be the case if those measures reflect a legitimate social-policy objective, are appropriate to achieve that aim and are necessary in order to do so (see, to that effect, judgment of 22 November 2012, Elbal Moreno, C‑385/11, EU:C:2012:746, paragraph 32).