On Thursday 15 March, the European Court of Justice decided in a judgment (C-431/16) that although the pension supplement granted in Spain to workers suffering from total permanent incapacity and the receipt of a retirement pension from another member state must be regarded as being of the same kind, they are compatible.
José Blanco Marqués is the beneficiary of a Spanish pension for total permanent incapacity. The amount of this pension was taken only on the basis of contributions to the Spanish social security scheme. Given that Blanco Marqués was over the age of 55, he was granted a supplement of 20% under the terms of a provision used to protect vulnerable workers. When he reached the age of 65 in March 2008, he obtained a retirement pension from the Swiss social security system exclusively on the basis of the contributions that he had made to the Swiss compulsory scheme.
In 2015, the National Institute for Social Security, Spain (INSS) withdrew the 20% supplement being paid to Blanco Marqués on the ground that that supplement was incompatible with the receipt of a retirement pension. The INSS also requested that he reimburse the amount of €17,000 corresponding to the amounts paid in respect of the 20% supplement.
Blanco Marqués brought an action challenging that decision before the Social Court in Ponferrada, Spain, which ruled in his favour. The INSS appealed against the judgment to the High Court of Justice, Castilla y León, Spain, which requested the Court of Justice to interpret the regulation (1408/71) on social security systems applicable to employees.
In its judgment, the Court rules that the 20% supplement granted to the worker in Spain and the retirement pension acquired by that same worker in Switzerland must be regarded as being of the same kind within the meaning of the regulation, which might render them incompatible.
The Court holds, however, that the Spanish anti-accumulation rule (reduction clause in the sense of the regulation) is not applicable to the 20% supplement because it is not included in an annex (IV, part D) of the said regulation.
The Court asserts that the provisions on reduction of benefit under the law of a member state apply to a benefit calculated by the national institution on the basis solely of the provisions of the legislation that that institution administers (as was the case for the calculation of the amount of the Spanish total permanent incapacity pension and of the Swiss retirement pension), but only when two cumulative conditions are met: (1) the amount of the benefit must not depend on the length of the periods of insurance or of residence completed (which it is for the High Court of Justice, Castilla y León to ascertain in respect of the 20% supplement) and (2) the benefit must be referred to in the above-mentioned annex to the regulation. (Original version in French by Mathieu Bion)