The Court of Justice of the European Union (CJEU) has ruled in favor of parents who have resorted to the courts to report their situation when they consider that they are being discriminated against. In their argument, they state that when they requested the child pension supplement they were denied.
The European Court considers in a ruling against Spain that “an administrative practice consisting of systematically denying the granting of this supplement to parents and thus ignoring the consequences that must be drawn from the ruling handed down in 2019, in which the CJEU declared that “The concession reserved only for mothers is discriminatory, it subjects fathers to double discrimination.”
For this reason, in its ruling today, the CJEU has recalled that, once the existence of discrimination contrary to Union Law has been established, and until measures are adopted to restore equal treatment, the national courts and National administrative authorities must leave any “discriminatory” rule unenforced, without waiting for it to be repealed by the legislator. For this reason, it considers that the same regime as mothers should be applied to fathers.
The Court of Justice considers that the refusal resolution, adopted in application of the aforementioned administrative practice, generates, apart from the discrimination already recognized in the ruling of December 12, 2019, new discrimination for male members, since only Men have to assert their right to the disputed pension supplement in court, which exposes them to a longer period of time to obtain it, as well as additional expenses.
Consequently, the TSJE understands that the national court hearing a claim filed against said denial resolution cannot limit itself to “recognizing the male member in question’s right to the disputed pension supplement with retroactive effects, considering “That this would not remedy the damages derived from the new discrimination.” Consequently, it understands that the CJEU must “also grant the male member adequate financial compensation, which allows full compensation for the damages actually suffered as a consequence of the discrimination.” This remedy must take into account the expenses incurred by the member, including costs and attorney’s fees.
Right to compensation
In the ruling of the CJEU of December 12, 2019, the pension supplement granted in Spain only to mothers who are beneficiaries of a permanent disability pension and who have two or more children was declared discriminatory and contrary to the European directive on equal treatment. (biological or adopted), excluding parents who are in a comparable situation.
Based on that ruling, a father of two children asked the Spanish Social Security in November 2020 to recognize his right to the complement of the absolute permanent disability benefit that he had received since November 2018. Given the denial of his request, he went or to the courts. Through a first ruling, his right to the disputed pension supplement was recognized, but the compensation claim that he had presented in parallel was rejected. Both the father and the Spanish authorities have appealed this sentence before the Superior Court of Justice of Galicia.
Given these facts, the CJEU has asked itself whether a practice consisting of systematically denying – pending the adaptation of the discriminatory Spanish regulations to the ruling of the Court of Justice of December 12, 2019 – the controversial pension supplement to men s, which forces them to claim it judicially, must consider discrimination different from the discrimination declared in that ruling of the Court of Justice. He has also had doubts about the possibility of granting the father additional compensation and about the scope of this.
