- On 14 September the Court of Justice ruled in case C-113/22 on the maternity supplement to pensions, claimed by a male pensioner.
- If the authorities keep applying a rule already declared discriminatory, they must grant the supplement and repair the harm, including the costs of the proceedings.
- The ruling affects pending claims and the way to defend pension rights against the authorities.
On 14 September 2023 the Court of Justice of the European Union delivered its judgment in case C-113/22, referred by the High Court of Justice of Galicia in a dispute between a male pensioner and the National Social Security Institute and the General Treasury. It concerned the maternity supplement to pensions, which Spanish law reserved for women for years and which the Court itself had already found discriminatory against men in 2019.
The novelty of this judgment lies not in declaring discrimination again, but in its consequences. The Court answers a practical question: if the authorities kept refusing the supplement to men after that first judgment, is it enough to grant it later, or must the harm caused by having to go to court also be repaired? Its answer is that all the harm must be repaired.
From the supplement to the gender gap
The demographic contribution supplement was introduced, with effect from 2016, as an increase in the pension of women with two or more children: 5%, 10% or 15%, depending on their number. Its purpose was to offset the effect of motherhood on contribution careers. In December 2019 the Court of Justice, in case C-450/18, concluded that reserving it for women was discriminatory against men in the same situation.
Spain changed the rule in 2021: for new pensions, the maternity supplement was replaced by a supplement to reduce the gender gap, with a fixed amount per child, which may go to mothers and fathers. However, pensions granted before the reform were left in the air, and numerous claims have arisen from men asking for the old supplement.
What the Court said
In this case, the applicant asked for the supplement and the INSS refused it, applying the rule that reserved it for women, even though the Court of Justice had already declared it discriminatory. For the Court, that refusal, kept up as an administrative practice after a clear judgment, is in itself a discrimination that is not remedied merely by granting the supplement late.
That is why the national court must order the authority to grant the supplement and to pay compensation fully covering the losses, including the lawyers’ and court agents’ fees the person had to bear. Procedural rules that prevent costs being awarded against the authorities cannot obstruct that redress. Another question referred, on the date from which the supplement is recognised, went unanswered because the Spanish Supreme Court had meanwhile settled it.
What to review
Male pensioners with two or more children who were refused the supplement, or who did not apply believing they were not entitled, can review their situation with a lawyer: whether there was a final decision, which time limits apply and which case law is relevant. Not every situation will be claimable, and the amount, deadlines and retroactive effects depend on each case.
Beyond this issue, the judgment reinforces a general principle: once a rule has been declared contrary to Union law, the authorities cannot keep applying it and, if they do, they answer for the consequences. For families managing pensions, inheritances or benefits, it is advisable to keep documentation of applications and the replies received and to consult your adviser before taking decisions.
A right granted late remains an incomplete right if whoever claims it has had to pay to obtain it.
This article is general information. It is not legal, tax or investment advice, and it does not take anyone’s particular circumstances into account.
