The Full Social Chamber of the Supreme Court has established in a doctrine unification sentence that the pension supplement for reducing the gender pay gap must be paid to men under the same conditions as women.
The Supreme Court applies the doctrine established by the Court of Justice of the EU in a sentence from May 15, which considered that Article 60 of the General Social Security Law – in the version derived from Royal Decree-Law 3/2021 – which establishes additional requirements for men who have one or more children to be eligible for the pension supplement, constitutes direct discrimination based on sex.
Following the CJEU’s ruling, the Chamber concludes that the supplement for reducing the gender pay gap violates a European directive on the progressive application of the principle of equal treatment between men and women in Social Security matters, as well as the CJEU case law that applies it. It adds that, «therefore, it must be paid to men under the same conditions as women.»
In the specific case resolved, the Supreme Court dismissed the appeal of the National Institute of Social Security against the ruling of the High Court of Justice of the Basque Country, which granted the pension supplement to a man with three children, which the managing entity denied in October 2021 for not meeting the additional requirements set for men related to career interruption (in the case of the first two children) and for there not being a difference of more than 15% in contribution bases between two years from the birth of the third child and two years later.
The previous regulation of Article 60 of the General Social Security Law, which granted the pension supplement to women with children «for demographic contribution,» was also declared by the CJEU in a December 2019 judgment to be incompatible with EU law for being discriminatory against men in a similar situation.
Since the CJEU ruling, the Social Chamber has issued numerous judgments stating that this maternity supplement for demographic contribution can be obtained by women or men who meet the requirements of having children and being pension beneficiaries.
FUENTE