Isabel Elbal Moreno v Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS).
Date: 2012-11-22
20. In that regard, it should be noted that ‘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 (Joined Cases C‑395/08 and C‑396/08 Bruno and Others [2010] ECR I‑5119, paragraph 41 and the case‑law cited). 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 Case C‑366/99 Griesmar [2001] ECR I‑9383, paragraph 27 and the case‑law cited).
21. Similarly, ‘employment conditions’ for the purposes of Clause 4(1) of the Framework Agreement covers pensions which depend on an employment relationship between worker and employer, excluding statutory social security pensions, which are determined less by that relationship than by considerations of social policy ( Bruno and Others , paragraph 42).
23. 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 worker, if it is directly related to the period of service completed or if its amount is calculated by reference to the last salary ( Bruno and Others , paragraph 47).
25. Consequently, as correctly noted by the INSS, the Spanish and Belgian Governments and European Commission, neither Article 157 TFEU nor, in consequence, Article 4 of Directive 2006/54, the purpose of which is to implement Article 157 TFEU, nor Clause 4 of the Framework Agreement can be regarded as applicable to a pension such as that at issue in the main proceedings.
26. On the other hand, a pension of that nature may fall within the scope of Directive 79/7, since it forms part of a statutory scheme providing protection against one of the risks listed in Article 3(1) of that directive – namely, old age – and it is directly and effectively linked to protection against that risk (see, to that effect, Case C‑123/10 Brachner  [2011] ECR I‑10003, paragraph 40).
29. In that respect, it should be noted that, according to the settled case‑law of the Court, indirect discrimination for the purposes of Article 4 of Directive 79/7 arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men (see, inter alia, Brachner , paragraph 56).
32. It follows that such legislation 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 where the measures chosen reflect a legitimate social-policy objective of the Member State whose legislation is at issue, they are appropriate to achieve that aim and they are necessary in order to do so (see, to that effect, Brachner , paragraph 70).
37. As regards the reference made by the Spanish Government to Case C‑537/07 Gómez-Limón Sánchez-Camacho [2009] ECR I‑6525, it is sufficient to state that, as the Commission correctly noted, that judgment concerns in essence – as is clear from paragraph 60 – the interpretation of Article 7(1)(b) of Directive 79/7, by virtue of which Member States may exclude from the scope of that directive the acquisition of entitlements to social security benefits under statutory schemes following periods of interruption of employment owing to the bringing up of children. However, it does not appear from the order for reference that that provision is applicable to the main proceedings.