The Superior Court of Justice of the Canary Islands has sent an order to the Court of Justice of the European Union (CJEU) to determine if the maternity bonus in the pension, created to reward the contribution to Social Security of working mothers who have made their work career compatible with maternity, violates the principle of equal remuneration of the European Union (EU), some European directives and the Charter of Fundamental Rights community. Or if it should apply to some parents in special circumstances.
Are women exclusively able to benefit from the maternity supplement of contributory pensions? That is the question asked by the Superior Court of Justice of the Canary Islands. The doubt arises from the case of a widowed man with four children who applied to Social Security, after having recognized the right to 74% of the pension (1,271 euros per month), an increase of 15% under the so-called maternity supplement . This supplement was approved by the Government of Rajoy in 2015 and consists of an increase of between 5% and 15% of the retirement benefit according to the number of children.
Social Security was denied arguing that this bonus only contemplates its application for women who have had children, a criterion that was validated by the social court of Las Palmas de Gran Canaria, which dismissed the lawsuit against that resolution.
After that, the widower filed an appeal to the Superior Court of Justice of the Canary Islands (TSJC), which now raises several questions about the law that regulates the maternity supplement. The first one is whether the "absolute and unconditional" exclusion of the working parents from the maternity supplement can be considered a difference of discriminatory treatment based on sex in exceptional cases such as that of the plaintiff, who have devoted time and effort to the upbringing of their children alone since the mother's death, in 2003.
According to the court, the law interprets the concept of maternity broadly, as it refers to biological and adoptive children, and links the supplement to the practice of care for descendants and the loss of job opportunities or lower contributions to the family. Social Security that these carry, which are those that protects or intends to compensate the pension bonus. And that also occur in the case of the plaintiff, who has taken on the sole care of their children, as would also happen in the case of single-parent families of men, homosexual couples or men who have adopted children, according to the judge Glòria Poyatos, speaker of the car.
In the opinion of this judge, the regulations should not presume that care will only fall on mothers; It would have to extend the complement to exceptional situations like these, so as not to fall back on discrimination and prejudice, assuming that only they perform the role of caregivers.
The unconditional exclusion of working parents can encourage the abandonment of the female labor market for the care of children, promoting the segregation of gender roles, says the Canarian court. And he believes that socially promoting the involvement of parents in the upbringing of children is an advance in co-responsibility and, therefore, in the real equality of women and men.
The reference for a preliminary ruling is based on a ruling of the European Court of Justice in 2001, the Griesmar case, which analyzed the discriminatory nature of a French law that granted an automatic pension benefit to female civil servants who had taken care of their children at least nine years at the time of accessing retirement to compensate for their disadvantages in professional life.
The CJEU found the difference in treatment and determined that the measure was not effective to help the working life of the mothers because it was granted upon the cessation of their activity. In another jurisprudence of the European Court, which introduces the concept of co-responsibility and that collects parental leave, far from guaranteeing equality between men and women, can contribute to perpetuate the traditional division of roles between both, by keeping men in a subsidiary function of women regarding the exercise of their parental function.
For the Canarian court, the maternity supplement of the pension is a necessary measure of social policy that tries to compensate "with delay and insufficiency" the systemic discriminations of women in a labor market. This measure should be accompanied by many others during the professional career, not only at the end of it. "It is obvious", says Judge Glòria Poyatos, "that this bonus should be applied, as a general rule, in favor of pensioners, being statistically the most harmed by the labor and pension gap derived from unpaid time spent on care of his sons and daughters "; but it is also necessary to include in the drafting of the supplement a safeguard clause that allows the exceptional extension to parents who can prove the exclusive assumption of the care of their children so as not to incur discrimination based on sex.
"Only then can we move towards a more co-responsible society, leaving behind the assignment of sexist roles and stereotypes, which underpin the status quo of the discriminations of the 21st century," says the judge.