The European Justice endorses the Spanish rule that requires a minimum amount of pension in early retirement even though it harms more to women. In its judgment this Thursday, the Court of Justice of the EU indicates that, although it ends up harming women, "the Spanish legislation does not imply discrimination based directly on sex, since it applies indistinctly to male and female workers" .
Thus, the Court declares that the European standard must be interpreted in the sense that it does not oppose a regulation such as the Spanish one that, in the event that a worker affiliated with the general Social Security regime intends to retire voluntarily and early, makes their right subject to to an early retirement pension to the requirement that the amount of this pension is, at least, equal to the amount of the minimum pension that would correspond to that worker at the age of 65, even if this regulation is particularly detrimental to the workers with respect to of workers, a point that is up to the Superior Court of Justice of Catalonia, the body that submitted the preliminary ruling to Luxembourg, to verify, provided that this consequence is justified by legitimate social policy objectives unrelated to any discrimination based on sex.
As regards the question of whether that regulation entails indirect discrimination, the Court considers that "persons who have been denied an early retirement pension solely for not meeting the requirement regarding the amount of the pension (without taking into account those who do not meet, in addition, the requirements related to age or contribution period also required by the general Social Security law) ".
Thus, "the existence or not of this indirect discrimination can be manifested by taking into consideration, for the same year, the number of new retirees who meet the requirement of having contributed more than 35 years and who receive a supplement to the pension, with respect to the number total number of new retirees throughout the same year ".
In the specific case examined by the Superior Court of Justice of Catalonia, if the statistics available to it show that among the new retirees subject to the general social security scheme, the percentage of those who have contributed more than 35 years and receive A supplement to the pension is considerably higher than that registered among new retirees subject to the same regime, it could be considered that the requirement that the pension that the interested party is going to receive is higher than the amount of the minimum pension constitutes indirect discrimination for reasons of sex contrary to the European directive, unless justified by objective factors unrelated to any discrimination on the grounds of sex.
In particular, "it would be justified if it is proven that it responds to a legitimate objective of social policy, is adequate to achieve this objective and is necessary for this purpose, understanding that it can only be considered suitable to guarantee said objective if it truly responds to the effort to achieve it and if it is applied consistently and systematically. "
The Court of Justice notes that the contested rule supposes that a certain number of workers who wish to voluntarily anticipate their retirement and obtain, for this reason, an early retirement pension, are denied the latter because its amount would be less than the pension minimum, which would give rise to the right to receive a supplement to the pension.
The National Institute of Social Security and the Spanish Government argue that this is intended to maintain the viability of the Spanish social security system and achieve a sustainable balance between active life time and time spent in retirement, since unrestricted access to an early retirement pension would have serious consequences for the financing of that system. The Court of Justice considers that these objectives are in line with those of the Union, consisting of achieving a sustainable balance between the length of professional life and the length of retirement, taking into account, in particular, the evolution of life expectancy, to ensure the adequacy and viability of retirement systems.
The Court recalls that, although budgetary considerations cannot justify discrimination to the detriment of one of the sexes, on the other hand, given the wide margin of appreciation available to the Member States, the objectives of ensuring the Sustainable financing of retirement pensions can be seen as legitimate social policy objectives that are free from any discrimination on the grounds of sex.
Therefore, the objectives invoked by the INSS and the Spanish Government may, in principle, justify a possible difference in treatment to the detriment of female workers that may result indirectly from the application of the disputed rule.
For the rest, the Court considers that national legislation of this type is capable of achieving those objectives, does not go beyond what is necessary to achieve them and is applied consistently and systematically, since it applies to all affiliated workers to the general Spanish social security scheme.