Case C‑527/13

Lourdes Cachaldora Fernández

v

Instituto Nacional de la Seguridad Social (INSS)

and

Tesorería General de la Seguridad Social (TGSS)

(Request for a preliminary ruling from the Tribunal Superior de Justicia de Galicia)

‛Reference for a preliminary ruling — Male and female workers — Equal treatment in matters of social security — Directive 79/7/EEC — Article 4 — Directive 97/81/EC — UNICE, CEEP and ETUC Framework Agreement on part-time work — Calculation of benefit — System for inclusion of contribution gaps — Part-time workers and full-time workers’

Summary — Judgment of the Court (Grand Chamber), 14 April 2015

1. Social policy — Equal treatment for men and women in matters of social security — Directive 79/7 — National legislation which provides that, when calculating a contributory invalidity pension, a reduction coefficient is to be applied in respect of contribution gaps after a period of part-time employment — Absence of equivalent reduction for contribution gaps after a period of full-time employment — No discrimination — Whether such legislation is permissible

   (Council Directive 79/7, Art. 4(1))

2. Social policy — Framework Agreement on part-time work concluded by UNICE, CEEP and ETUC — Directive 97/81 — Scope — Conditions of employment — Concept — Conditions relating to pensions arising from a statutory social security system — Not included — Obstacles of a legal nature which may limit the opportunities for part-time work — Concept

   (Council Directive 97/81, as amended by Directive 98/23, Annex, Clauses 4(1) and 5(1)(a))

1.  Article 4(1) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as not precluding a provision of national law which provides that the contribution gaps existing within the reference period for calculating a contributory invalidity pension, after a period of part-time employment, are taken into account by using the minimum contribution bases applicable at any time, reduced as a result of the reduction coefficient of that employment, whereas, if those gaps follow full-time employment, there is no provision for such a reduction.

   Such a provision cannot be regarded as placing at a disadvantage predominantly a particular category of workers, in this case those working part-time and, in particular, women. It cannot, therefore be regarded as being an indirectly discriminatory measure within the meaning of Article 4(1) of Directive 79/7.

   (see paras 33, 34, operative part 1)

2.  The Framework Agreement on part-time work set out in the Annex to Directive 97/81 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and ETUC, as amended by Directive 98/23, must be interpreted as not applying to legislation of a Member State which provides that the contribution gaps existing within the reference period for calculating a contributory invalidity pension, after a period of part-time employment, are taken into account by using the minimum contribution bases applicable at any time, reduced as a result of the reduction coefficient of that employment, whereas, if those gaps follow full-time employment, there is no provision for such a reduction.

   That pension is a statutory social security pension which cannot be regarded as constituting an employment condition. Accordingly, it does not fall within the scope of the Framework Agreement.

   In addition, an interpretation of ‘obstacles of a legal … nature’, as referred to in Clause 5(1)(a) of the Framework Agreement, under which Member States would be forced to adopt, outside the area of employment conditions, measures relating to such a pension would amount to imposing on those Member States general social policy obligations concerning measures that fall outside the scope of that Framework Agreement.

   Furthermore, in view of the random nature of the impact of such a provision on part-time workers, such national legislation cannot be regarded as a legal obstacle likely to limit the opportunities for part-time work. First, that provision does not affect all part-time workers, but only workers who have had a gap in their contributions immediately after a period of part-time work. Secondly, that provision benefits workers who, even though employed part-time for much of their working lives, were employed full-time immediately before a contribution gap.

   (see paras 38-41, operative part 2)

Case C‑527/13

Lourdes Cachaldora Fernández

v

Instituto Nacional de la Seguridad Social (INSS)

and

Tesorería General de la Seguridad Social (TGSS)

(Request for a preliminary ruling from the Tribunal Superior de Justicia de Galicia)

‛Reference for a preliminary ruling — Male and female workers — Equal treatment in matters of social security — Directive 79/7/EEC — Article 4 — Directive 97/81/EC — UNICE, CEEP and ETUC Framework Agreement on part-time work — Calculation of benefit — System for inclusion of contribution gaps — Part-time workers and full-time workers’

Summary — Judgment of the Court (Grand Chamber), 14 April 2015

1. Social policy — Equal treatment for men and women in matters of social security — Directive 79/7 — National legislation which provides that, when calculating a contributory invalidity pension, a reduction coefficient is to be applied in respect of contribution gaps after a period of part-time employment — Absence of equivalent reduction for contribution gaps after a period of full-time employment — No discrimination — Whether such legislation is permissible

   (Council Directive 79/7, Art. 4(1))

2. Social policy — Framework Agreement on part-time work concluded by UNICE, CEEP and ETUC — Directive 97/81 — Scope — Conditions of employment — Concept — Conditions relating to pensions arising from a statutory social security system — Not included — Obstacles of a legal nature which may limit the opportunities for part-time work — Concept

   (Council Directive 97/81, as amended by Directive 98/23, Annex, Clauses 4(1) and 5(1)(a))

1.  Article 4(1) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as not precluding a provision of national law which provides that the contribution gaps existing within the reference period for calculating a contributory invalidity pension, after a period of part-time employment, are taken into account by using the minimum contribution bases applicable at any time, reduced as a result of the reduction coefficient of that employment, whereas, if those gaps follow full-time employment, there is no provision for such a reduction.

   Such a provision cannot be regarded as placing at a disadvantage predominantly a particular category of workers, in this case those working part-time and, in particular, women. It cannot, therefore be regarded as being an indirectly discriminatory measure within the meaning of Article 4(1) of Directive 79/7.

   (see paras 33, 34, operative part 1)

2.  The Framework Agreement on part-time work set out in the Annex to Directive 97/81 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and ETUC, as amended by Directive 98/23, must be interpreted as not applying to legislation of a Member State which provides that the contribution gaps existing within the reference period for calculating a contributory invalidity pension, after a period of part-time employment, are taken into account by using the minimum contribution bases applicable at any time, reduced as a result of the reduction coefficient of that employment, whereas, if those gaps follow full-time employment, there is no provision for such a reduction.

   That pension is a statutory social security pension which cannot be regarded as constituting an employment condition. Accordingly, it does not fall within the scope of the Framework Agreement.

   In addition, an interpretation of ‘obstacles of a legal … nature’, as referred to in Clause 5(1)(a) of the Framework Agreement, under which Member States would be forced to adopt, outside the area of employment conditions, measures relating to such a pension would amount to imposing on those Member States general social policy obligations concerning measures that fall outside the scope of that Framework Agreement.

   Furthermore, in view of the random nature of the impact of such a provision on part-time workers, such national legislation cannot be regarded as a legal obstacle likely to limit the opportunities for part-time work. First, that provision does not affect all part-time workers, but only workers who have had a gap in their contributions immediately after a period of part-time work. Secondly, that provision benefits workers who, even though employed part-time for much of their working lives, were employed full-time immediately before a contribution gap.

   (see paras 38-41, operative part 2)