Brussels, 27/11/2012 (Agence Europe) - In Case C-385/11 on 22 November, the European Court of Justice rules that Spanish legislation on contributory retirement pensions for part-time workers discriminates indirectly against women because in order to be entitled to a contributory pension, part-time workers (most of whom are women) are required to contribute for a longer time, proportionately speaking, than full-time workers despite the fact that the former receiving a smaller pension. The European judges ruled that this introduces a different in treatment that is not allowed under the EU directive on sexual equality for social security (Directive 79/7/EEC).
In Spain, in order to qualify for a contributory retirement pension, an applicant must be aged at least 65 years and have completed a minimum contribution period of 15 years. In order to determine the contribution periods required, the Spanish legislation takes into account only the hours actually worked, by calculating the equivalent number of theoretical days of contribution. That rule is attenuated by two correcting rules designed to facilitate access by part-time workers to social security protection. First, a general concept of “theoretical day of contribution”, equivalent to five hours a day of actual work, or to 1,826 hours a year, is established. Secondly, in order to give entitlement to retirement pensions, a multiplier of 1.5 is applied to the number of theoretical days of contribution. The latter are thus increased, thereby facilitating access to protection. The Barcelona Social Security Tribunal points out that a longer qualifying period is required from the part-time worker in inverse proportion to the reduction in her working hours in order to obtain a pension that is directly and proportionately lower owing to the part-time nature of the work. The Tribunal asked the Court of Justice to decide whether this was legal.
The Court ruled that indirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men. As it is, the legislation at issue works to the disadvantage of part-time workers who have worked part-time for a long time, since, in practice, such legislation excludes those workers from any possibility of obtaining a retirement pension because of the method used to calculate the requisite contribution period. Also, that national legislation affects women far more than men, given that in Spain at least 80% of part-time workers are women.
The Court says there is no evidence to support the conclusion that the exclusion of part-time workers from any possibility of obtaining a retirement pension is a measure genuinely necessary to achieve the Spanish government's objective of protecting the contributory social security system, and that no other measure less onerous for those workers is capable of achieving the same objective. The Court adds that the two corrective measures do not seem to have had any positive effect whatsoever on the situation of part-time workers. (FG/transl.fl)