WA v Instituto Nacional de la Seguridad Social (INSS).
Date: 2019-12-12
25


In the context of the procedure established by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court has a duty to interpret all provisions of EU law which national courts require in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court by those courts (judgments of 26 June 2008, Wiedemann and Funk, C‑329/06 and C‑343/06, EU:C:2008:366, paragraph 45, and of 8 May 2019, PI, C‑230/18, EU:C:2019:383, paragraph 42).
26


In the present case, even if formally the referring court has limited its question to the interpretation only of the provisions of Article 157 TFEU and of Directive 2006/54, that does not prevent this Court from providing the referring court with all the elements of interpretation of EU law that may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its question. In that regard, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation in view of the subject matter of the dispute (see, to that effect, judgments of 12 January 2010, Wolf, C‑229/08, EU:C:2010:3, paragraph 32, and of 8 May 2019, PI, C‑230/18, EU:C:2019:383, paragraph 43).
28


In that regard, it should be noted that the term ‘pay’ within the meaning of Article 157(2) TFEU covers pensions which depend on the employment relationship between worker and employer, excluding those deriving from a statutory scheme, to the financing of which workers, employers and possibly the public authorities contribute in a measure determined less by the employment relationship than by considerations of social policy. Accordingly, that concept cannot be extended to encompass social security schemes or benefits — such as retirement pensions — which are directly governed by statute to the exclusion of any element of negotiation within the undertaking or occupational sector concerned and which are obligatorily applicable to general categories of employee (see judgment of 22 November 2012, Elbal Moreno, C‑385/11, EU:C:2012:746, paragraph 20 and the case-law cited).
31


It is true that considerations of social policy, of State organisation, of ethics, or even the budgetary concerns which influenced or may have influenced the establishment by the national legislature of a scheme cannot prevail if the pension concerns only a particular category of workers, if it is directly related to the period of service completed and if its amount is calculated by reference to the last salary (judgments of 28 September 1994, Beune, C‑7/93, EU:C:1994:350, paragraph 45, and of 22 November 2012, Elbal Moreno, C‑385/11, EU:C:2012:746, paragraph 23).
33


Therefore, such a contributory permanent incapacity pension does not come under the notion of ‘pay’ within the meaning of Article 157(1) and (2) TFEU or of Directive 2006/54 (see, to that effect, judgments 13 February 1996, Gillespie and Others, C‑342/93, EU:C:1996:46, paragraph 14; of 22 November 2012, Elbal Moreno, C‑385/11, EU:C:2012:746, paragraph 25; and of 14 July 2016, Ornano, C‑335/15, EU:C:2016:564, paragraph 38).
35


On the other hand, the pension supplement at issue falls within the scope of the latter directive, since it forms part of a statutory scheme providing protection against one of the risks listed in Article 3(1) of Directive 79/7 — namely, invalidity — and it is directly and effectively linked to protection against that risk (see, to that effect, judgments of 16 December 1999, Taylor, C‑382/98, EU:C:1999:623, paragraph 14, and of 22 November 2012, Elbal Moreno, C‑385/11, EU:C:2012:746, paragraph 26).
42


According to the Court’s settled case-law, discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations (judgments of 13 February 1996Gillespie and Others, C‑342/93, EU:C:1996:46, paragraph 16, and of 8 May 2019, Praxair MRC, C‑486/18, EU:C:2019:379, paragraph 73).
44


In that regard, the requirement relating to the comparability of situations does not require those situations to be identical, but only similar (judgment of 26 June 2018, MB(Change of gender and retirement pension), C‑451/16, EU:C:2018:492, paragraph 41 and the case-law cited).
45


The comparability of situations must be assessed not in a global and abstract manner, but in a specific and concrete manner having regard to all the elements which characterise them, in the light, in particular, of the subject matter and purpose of the national legislation which makes the distinction at issue, and, where appropriate, in the light of the principles and objectives pertaining to the field to which that national legislation relates (judgment of 26 June 2018, MB(Change of gender and retirement pension), C‑451/16, EU:C:2018:492, paragraph 42 and the case-law cited).
51


First, this is a quality which both men and women may have and, secondly, the situation of a father and that of a mother may be comparable as regards the bringing-up of children (see, to that effect, judgments of 29 November 2001, Griesmar, C‑366/99, EU:C:2001:648, paragraph 56, and of 26 March 2009, Commission v Greece, C‑559/07, not published, EU:C:2009:198, paragraph 69).
52


In particular, the fact that women are more affected by the occupational disadvantages entailed in bringing up children, because it is they who generally carry out that task, does not prevent their situation from being comparable to that of a man who has assumed the task of bringing up his children and has thereby been exposed to the same career-related disadvantages (see, to that effect, judgment of 29 November 2001, Griesmar, C‑366/99, EU:C:2001:648, paragraph 56).
54


According to the case-law of the Court, a derogation from the prohibition, set out in Article 4(1) of Directive 79/7, of all direct discrimination on grounds of sex is possible only in the situations exhaustively set out in the provisions of that directive (see, to that effect, judgments of 3 September 2014, X, C‑318/13, EU:C:2014:2133, paragraphs 34 and 35, and of 26 June 2018, MB(Change of gender and retirement pension), C‑451/16, EU:C:2018:492, paragraph 50).
56


In that regard, it is clear from the case-law of the Court that, by reserving to the Member States the right to retain or introduce provisions which are intended to ensure that protection, Article 4(2) of Directive 79/7 recognises the legitimacy, in terms of the principle of equal treatment of the sexes, first, of protecting a woman’s biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows childbirth (see, to that effect regarding Directive 76/207, judgments of 12 July 1984, Hofmann, 184/83, EU:C:1984:273, paragraph 25, and of 19 September 2013, BetriuMontull, C‑5/12, EU:C:2013:571, paragraph 62).
65


However, 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 (see, to that effect, judgments of 29 November 2001, Griesmar, C‑366/99, EU:C:2001:648, paragraph 65, and of 17 July 2014, Leone, C‑173/13, EU:C:2014:2090, paragraph 101).