1. 

The main proceedings relate to what may be the discriminatory nature of the procedure governing the calculation of a permanent invalidity pension as against workers who, during the period immediately preceding an interruption of the payment of their contributions, worked on a part-time basis and, in particular, as against women.

2. 

The Tribunal Superior de Justicia de Galicia (High Court of Justice, Galicia, Spain) has therefore asked the Court to determine the compatibility of such a procedure in the light of the rules laid down, first, in Article 4 of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security ( 2 ) and, second, in Clause 5(1)(a) of Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC. ( 3 )

3. 

The request was made in the course of proceedings brought by Ms Cachaldora Fernández against the Instituto Nacional de la Seguridad Social (National Institute of Social Security, ‘the INSS’) and the Tesorería General de la Seguridad Social (Social Security General Fund, ‘the TGSS’) concerning the determination of the basis for the calculation of the pension which she receives for total permanent invalidity.

4. 

For the purposes of calculating that pension, the national competent authorities included the periods during which Ms Cachaldora Fernández did not pay contributions to the social security scheme, relying on reduced contribution bases, as she had worked on a part-time basis during the period immediately preceding that contribution gap. In the present case, Ms Cachaldora Fernández disputes such a method, in that it has the effect of reducing the amount of her entitlement under her invalidity pension, even though she worked on a full-time basis during the major part of her working life and, accordingly, paid contributions to the social security scheme.

5. 

In this Opinion, I shall set out the reasons why such rules introduce, to my mind, indirect discrimination on the ground of sex, contrary to Article 4(1) of Directive 79/7. I shall also explain why the reason put forward by the Spanish authorities, based on the contributory nature of the social security scheme and the need to observe the principle of proportionality, cannot in my view justify such discrimination.

6.

In accordance with Article 2 thereof, Directive 79/7 is to apply to the working population — including self-employed persons, workers and self-employed persons whose activity is interrupted by illness, accident or involuntary unemployment and persons seeking employment — and to retired or invalided workers and self-employed persons.

7.

Under Article 3(1), Directive 79/7 is to apply, in particular, to statutory schemes which provide protection against invalidity.

8.

Article 4(1) of Directive 79/7 provides as follows:

‘The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:

9.

Article 1 of Directive 97/81 states that the purpose of the directive is to implement the Framework Agreement on part-time work concluded on 6 June 1997 between the general cross-industry organisations, namely the Union of Industrial and Employers’ Confederations (UNICE), the European Centre of Enterprises with Public Participation (CEEP) and the European Trades Union Confederation (ETUC), annexed to the directive (‘the Framework Agreement’).

10.

The provisions of the Framework Agreement which are relevant for the purposes of the main proceedings are the following:

‘Preamble

…

This Agreement relates to employment conditions of part-time workers recognising that matters concerning statutory social security are for decision by the Member States. In the context of the principle of non-discrimination, the parties to this Agreement have noted the Employment Declaration of the Dublin European Council of December 1996, wherein the Council inter alia emphasised the need to make social security systems more employment-friendly by “developing social protection systems capable of adapting to new patterns of work and of providing appropriate protection to people engaged in such work”. The parties to this Agreement consider that effect should be given to this Declaration.

…

Clause 1: Purpose

The purpose of this Framework Agreement is:

…

Clause 2: Scope

…

Clause 4: Principle of non-discrimination

…

Clause 5: Opportunities for part-time work

…’

11.

Article 140(1)(a) of the General Law on social security (ley general de la seguridad social) ( 4 ) states that the basis for the calculation of permanent invalidity pensions arising from a disease other than an occupational disease is to be determined by dividing by 112 the contribution bases paid by the person concerned during the 96 months immediately preceding the month of the triggering event.

12.

Article 140(4) of that law lays down the procedure for the implementation of the corrective mechanism that enables periods during which the person concerned was not required to pay contributions to the social security scheme to be taken into account in the calculation of an invalidity pension. That provisions reads as follows:

‘If, during the period to be taken into account in the calculation of the basis, there are some months during which there was no obligation to pay contributions, the first 48 monthly contributions shall be taken into account on the basis of the lowest of the contribution bases applicable at the specific time, and the rest of the monthly contributions at the rate of 50% of that minimum basis …’

13.

Additional provision 7 of the LGSS sets out the rules applicable to part-time workers.

14.

Rule 3 defines the procedure for the implementation of the corrective mechanism that, in the context of the calculation of the basic amount of the invalidity pension, allows the periods during which the person concerned did not pay contributions to be taken into account. That rule provides as follows:

15.

That provision was implemented in Article 7(2) of Royal Decree No 1131/2002 of 31 October 2002 governing social security for part-time workers and partial retirement. ( 5 ) It provides as follows:

‘For the purposes of calculating pensions for retirement and for permanent invalidity arising from a non-occupational disease or a non-occupational accident, the periods during which there was no obligation to pay contributions shall be included taking into consideration the minimum contribution basis of all those applicable to each period, corresponding to the number of hours worked under the contract on the date on which that obligation to pay contributions was interrupted or expired.’

16.

It is apparent from the decision for reference that Ms Cachaldora Fernández paid contributions to the Spanish social security scheme between 15 September 1971 and 25 April 2010, making a total of 5523 days of employment on a full-time basis except between 1 September 1998 and 23 January 2002, when she was employed on a part-time basis. On the other hand, Ms Cachaldora Fernández did not pursue any occupational activity between 23 January 2002 and 30 November 2005 and therefore paid no contributions to the social security scheme during that period.

17.

On 21 April 2010, Ms Cachaldora Fernández applied to the INSS for an invalidity pension.

18.

By decision of 29 April 2010, she was awarded that pension on the ground of total permanent incapacity to pursue her normal occupation. She therefore obtained a permanent total invalidity pension at the rate of 55% of the monthly basic amount, which was EUR 347.03.

19.

In accordance with the national regulations at issue in the main proceedings, the amount of that pension was calculated on the basis of the contributions which Ms Cachaldora Fernández had paid during the eight years preceding the date of the triggering event, that is to say, between March 2002 and February 2010. It is apparent from the decision for reference that, as regards the period between March 2002 and November 2005, the competent authorities thus took into consideration the minimum bases on the contributions paid during the period immediately preceding the interruption of their payment, to which they applied the coefficient for part-time work.

20.

Ms Cachaldora Fernández lodged a complaint against that decision, claiming that, for the purposes of calculating her pension, for the period between March 2002 and November 2005, the full amount of the minimum contribution bases for each year should be taken into consideration and not the reduced amount thereof resulting from the application of the coefficient for part-time work. According to that calculation method, the basic amount of her pension — which is not disputed by the INSS — would come to EUR 763.76.

21.

The INSS rejected that complaint on the ground that the proposed calculation method is not consistent with Article 7(2) of Royal Decree No 1131/2002. Consequently, Ms Cachaldora Fernández lodged an appeal against that decision before the Juzgado de lo Social No 2 de Ourense. By judgment of 13 October 2010, that court dismissed her application and upheld the administrative decision of the INSS, relying on the wording of additional provision 7 of the LGSS and also on Article 7(2) of Royal Decree No 1131/2002.

22.

Ms Cachaldora Fernández therefore lodged an appeal against that judgment before the Tribunal Superior de Justicia de Galicia. Being uncertain about the compatibility of the legislation at issue with EU law, that court decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

23.

Observations were submitted by the parties in the main proceedings and also by the Spanish Government and the European Commission.

24.

In the present case, the referring court asks the Court to appraise the compatibility of the additional provision 7(1), rule 3(b), of the LGSS in the light of, first, Article 4 of Directive 79/7, which gives rise to the first question referred for a preliminary ruling, and, second, Clause 5(1)(a) of Directive 97/81, which forms the subject-matter of the second question.

25.

I propose that the Court should answer only the first of those two questions.

26.

Like the parties who have submitted observations in this case, I consider that a situation such as that at issue does not fall within the scope ratione materiae of Directive 97/81.

27.

In accordance with Clause 1(a) of the Framework Agreement annexed to that directive, the purpose of that agreement is ‘to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work’. Clause 4(1) is thus intended to ensure respect for the principle of non-discrimination as regards the employment conditions of part-time workers, the framework of that agreement. ( 6 )

28.

Clause 5(1)(a) of the Framework Agreement calls on the Member States to identify and review obstacles of a legal or administrative nature which may limit the opportunities for part-time work and, where appropriate, eliminate them. As the EU legislature expressly states, that clause forms part of ‘the context of Clause 1 of [the Framework Agreement] and of the principle of non-discrimination between part-time and full-time workers’ referred to in Clause 4(1) of that agreement. As I have just stated, Clause 4(1) of the Framework Agreement refers specifically to ‘employment conditions’.

29.

However, in the light of the consistent case-law of the Court, a provision such as that at issue in the main proceedings, which establishes the corrective mechanism applicable to the calculation of entitlement to a permanent invalidity pension, is not an ‘employment condition’ within the meaning of that clause.

30.

The Court considered in Bruno and Others (C‑395/08 and C‑396/08, EU:C:2010:329), that ‘the term “employment conditions” within the meaning of Clause 4(1) of the framework agreement covers pensions which depend on an employment relationship between worker and employer, excluding statutory social security pensions, which are determined less by that relationship than by considerations of social policy’. ( 7 ) The pension at issue in the main proceedings, which is intended to cover a specific risk, namely invalidity, comes under the Spanish statutory protection scheme.

31.

Nor must it be forgotten that, in accordance with the third paragraph in the preamble to the Framework Agreement, the parties undertook to recognise that ‘matters concerning statutory social security are for decision by the Member States’. The parties therefore intended to exclude from the scope of the Framework Agreement matters such as that at issue, relating to the calculation of the entitlement under a permanent invalidity pension.

32.

In the light of those factors, I therefore consider that the provision at issue does not fall within the scope of Regulation No 97/81 and that there is thus no need to answer the second question.

33.

On the other hand, such a pension does come under Directive 79/7 in so far as it comes within the framework of a statutory scheme of protection against one of the risks set out in Article 3(1) of that directive, namely invalidity, and is directly and effectively linked with protection against that risk. ( 8 ) It is therefore appropriate to assess the compatibility of the additional provision 7(1), rule 3(b) of the LGSS against that provision.

34.

By its first question, the referring court asks the Court, in essence, whether Article 4(1) of Directive 79/7 is to be interpreted as meaning that it precludes legislation such as that at issue in the main proceedings, in so far as the latter, in the case of workers who have pursued a part-time activity during the period immediately preceding an interruption of payment of their social security contributions, has the effect of reducing the amount of entitlement under a permanent invalidity pension.

35.

The referring court maintains that that legislation has the effect of introducing an unjustified difference in the amount of entitlement payable between the category of part-time workers, comprising mainly women, and the category of full-time workers.

36.

It is appropriate, in the first place, to consider whether the methodology put in place by the provision at issue is in fact capable, in circumstances such as those at issue in the main proceedings, of placing the category of part-time workers at a disadvantage.

37.

In accordance with Article 140(1) of the LGSS, which establishes a rule applicable to a general category of workers, the amount of the permanent invalidity pension is to be calculated taking into account the contribution bases ( 9 ) which were paid during the eight years preceding the occurrence of the triggering event (‘the reference period’).

38.

Where, during that reference period, there are some months during which the person concerned has not made contributions to the social security scheme, the legislature has made provision in Article 140(4) of the LGSS for a corrective mechanism that enables those periods to be included in the basis for the calculation of the invalidity pension. The competent authorities then take into account what are known as ‘fictional’ contribution bases. For the category of full-time workers, those bases correspond to the lowest of the contribution bases applicable during the first four years and, for the last four years, 50% of that minimum basis.

39.

None the less, that provision does not apply to part-time workers.

40.

In fact, the legislature introduced a separate corrective mechanism, specific to that category of workers, in the context of the additional provision 7(1), rule 3(b) of the LGSS, the compatibility of which with EU law must be appraised here. That provision, it will be recalled, was implemented by Article 7(2) of Royal Decree No 1131/2002.

41.

In accordance with those provisions, if there are, during the reference period, some periods during which the person concerned was not required to make contributions, the competent authorities are to include those periods by taking into account the lowest of the contribution bases, which correspond to the number of hours specified in the contract on the date on which the obligation to make contributions was interrupted or expired.

42.

As is apparent from the decision for referral, the application of the provisions referred to above therefore depends on the nature of the last contract preceding the interruption of the contributions.

43.

Likewise, as the Commission points out in its observations, the periods during which the person concerned did not make contributions are accounted for and included in the same way as the period immediately before the occupational activity ceased.

44.

In other words, where the person concerned ceased his occupational activity immediately after a period of full-time activity, the competent authorities will take account of the contribution basis applicable to the periods of full-time work.

45.

On the other hand, where the person concerned has worked on a part-time basis during the period immediately preceding the interruption of those contributions, the inclusion of the periods during which he did not make contributions is calculated on a reduced contribution basis. Since the part-time worker receives a lower salary because of his reduced working hours, the contributions, which constitute a percentage of his salary, are also reduced.

46.

There is thus a difference in the amount of entitlement under an invalidity pension between workers who pursued a part-time activity during the period immediately preceding the interruption of the contributions and those who pursued a full-time activity and for whom the inclusion of those periods is calculated on a full contribution basis.

47.

Thus, as regards the inclusion of the periods during which payment of Ms Cachaldora Fernández’s contributions was interrupted, that is to say, between March 2002 and November 2005, the competent authorities referred to reduced contribution bases, to which the partiality coefficient was applied, ( 10 ) since she was in a part-time post on the date on which the obligation to make contributions was interrupted.

48.

In other words, the application of the provision at issue had the effect that the period during which Ms Cachaldora Fernández interrupted payment of her contributions was included in the calculation of her invalidity pension on the basis of contribution bases reduced to one eighth, whereas, during the major part of her working life, she pursued a full-time activity and contributed accordingly to the social security scheme.

49.

In circumstances such as those at issue in the main proceedings, that method of calculation therefore had the effect that the amount to which the person concerned was entitled by way of invalidity pension was reduced, in a way that was disproportionate by reference to the contributions which he had paid during his working life and constituted a disadvantage for him.

50.

As it made clear in its written observations and at the hearing, the Commission does not support that analysis.

51.

It maintains that in numerous cases the methodology fixed by the provision at issue can prove very favourable to part-time workers where the last contract preceding a period of occupational inactivity is a full-time contract.

52.

The Commission bases its analysis on the example of a woman who, during the reference period, worked part time for four years and then full time for six months, then ceased her occupational activity for three years and finally resumed a full-time activity for six months. During those eight years, she would therefore have worked part time for four years and full time for one year. In such circumstances, the Commission emphasises that the period of occupational inactivity will be assimilated to the situation in which the person concerned worked full time and the competent authorities will therefore take four years into account on a full-time contribution basis, although the person concerned has worked for only one year under a full-time contract.

53.

I do not share the Commission’s view.

54.

I observed at points 42 and 43 of this Opinion that the application of the provisions at issue depends on the nature of the last contract preceding the interruption of contributions. In its observations, the Commission itself stated that periods of occupational inactivity are assimilated to the immediately preceding period as though equivalent contributions had been payable. Consequently, it seems to me that in a situation such as that to which the Commission refers, where the person concerned pursued a full-time activity during the period immediately preceding an interruption of payment of his contributions, only the general rules referred to in Article 140(1) and (4) of the LGSS are applicable, to the exclusion of the special rules laid down in the provision at issue. I therefore think that it is difficult to maintain that that provision may prove to be very favourable, since it would not be applicable.

55.

At this stage of my analysis, I am therefore of the view that the calculation method established by the additional provision 7(1), rule 3(b) of the LGSS has the effect of placing at a disadvantage those workers who pursued a part-time activity during the period immediately preceding an interruption of payment of their contributions to the social security scheme.

56.

The question which I must now answer is whether that calculation method also has the effect of introducing discrimination to the detriment of women, contrary to Article 4(1) of Directive 79/7.

57.

I note that the provision at issue applies without distinction to male workers and female workers and thus does not establish any direct discrimination on the ground of sex.

58.

It appears, none the less, that the provision introduces indirect discrimination contrary to Article 4(1) of Directive 79/7 in so far as, in the light of the statistics characterising the workforce in Spain, it is capable de facto of placing a much greater number of women than men at a disadvantage. ( 11 )

59.

By way of preliminary point, I would say at the outset that that conclusion does not affect the discretion which the Court recognises to the national court alone. It has consistently been held that it is for the referring court alone to ascertain the existence of indirect discrimination and to consider whether the statistics on which it must rely are sufficient for the resolution of the case and are valid. ( 12 ) That, according to the Court, assumes that that information covers enough individuals, that, in general, it appears to be significant and that it does not illustrate purely fortuitous or short-term phenomena.

60.

In the present case, the referring court bases its appraisal on the statistics compiled by the Instituto Nacional de Estadistica (National Statistics Institution). According to those statistics, the category of part-time workers consisted of more than 80% women at the time of the triggering event in the main proceedings. While 2013 seems to mark a significant entry of male workers into that category, those statistics show that the percentage of female workers in that category none the less remained as high as 73%.

61.

Those statistics indicate that a significantly higher percentage of female workers than of male workers is likely to be affected by the application of the legislation at issue. They show, moreover, that a persistent and constant phenomenon existed over three years, which to my mind cannot be described as fortuitous or merely short term, within the meaning of the Court’s case-law. While the statistics for 2013 show that the gap between male workers and female workers in the category of part-time workers is narrowing, the fact none the less remains that that gap between the numbers of women and men is clearly still very large. Furthermore, and as is apparent from the discussion at the hearing, it is highly possible that on the date of the triggering event, when Spain was not experiencing its present economic crisis, the proportion of men working part time was much smaller.

62.

Those statistics constitute to my mind a reliable and significant indicium on which to conclude — although such conclusion is a matter for the referring court alone — that a significantly higher percentage of female workers than of male workers might be in fact placed at a disadvantage by the implementation of the corrective mechanism at issue.

63.

The Spanish Government does not share that point of view and disputes the existence of indirect discrimination, referring to the figures communicated by the INSS. ( 13 )

64.

In the Spanish Government’s submission, those figures show that the application of the corrective mechanism at issue in reality affects a slightly higher number of men than of women. Thus, in 2010, 5657 men were affected by the implementation of that mechanism, while 5237 women were subject to it; in 2011, the figures were 5566 men and 5129 women; in 2012, 5568 men and 4830 women; and, last, in 2013, 5935 men and 5066 women.

65.

I do not think that those figures can undermine the statistics on which the referring court relies and the conclusions which I propose should be drawn from them.

66.

It is settled case-law that it is not sufficient to consider only the number of male and female workers affected by the application of the legislation at issue. ( 14 ) Such an approach provides a relative figure that depends on the number of workers active in the Member State and does not allow the respective proportions of men and women making up the category of part-time workers to be assessed.

67.

Consequently, and in spite of the figures provided by the Spanish Government in its observations, I still believe that the provision at issue is capable of placing a much higher number of women than of men at a disadvantage and thus constitutes indirect discrimination contrary to Article 4(1) of Directive 79/7.

68.

The question now is whether the grounds on which the competent national authorities rely are capable of justifying such discrimination.

69.

The Court recognises that the Member States enjoy a broad discretion in their choice of the measures capable of attaining their objectives in the field of social and employment policy. None the less, when they enact legislation which is presumed to be discriminatory, they are required to demonstrate that it may be justified by objective factors unrelated to any discrimination on the ground of sex. ( 15 )

70.

The Member States must thus show that the legislation at issue reflects a legitimate aim of their social policy. They must also demonstrate that the means chosen for that purpose are appropriate to achieve the attainment of that objective and that they are implemented in a consistent and systematic manner. ( 16 )

71.

In the present case, the Spanish Government maintains that the legislation at issue is designed to ensure, in accordance with Article 41 of the Spanish Constitution, a public pensions scheme that is fair, balanced and based on the principle of solidarity, while ensuring the viability and financial equilibrium of the social security scheme.

72.

As the INSS had previously maintained before the referring court, the Spanish Government relies on the contributory nature of the scheme and also on the need to observe the principle of proportionality. Thus, it maintains that the protection provided by the scheme can never exceed the amount previously contributed to it, while the persons concerned receive a pension that must be proportionate to their contribution to the scheme. It is therefore in application of that principle that there is a justified difference between the amount of the benefits granted to a full-time worker and those granted to a worker who has pursued a part-time activity.

73.

It is also in accordance with that principle that the competent authorities should include the periods during which the person concerned interrupted payment of those contributions immediately after ceasing a part-time activity. Thus, the Spanish Government considers that, from the time when the person concerned pays a contribution that is proportionate to the time worked, corresponding to a period of part-time activity, observance of the principle of proportionality requires that the competent authorities take into account, for the purposes of applying the corrective mechanism, the contribution that he would have paid if the obligation to make contributions had not been interrupted.

74.

I consider, for the same reasons as those expressed by the referring court, that those grounds cannot justify the indirect discrimination against Ms Cachaldora Fernández.

75.

It is stated in the decision for reference that Ms Cachaldora Fernández made contributions to the social security scheme between 15 September 1971 and 25 April 2010, making a total of 5523 days of employment on a full-time basis except for the following periods: between 1 September 1998 and 28 February 1999, then between 1 March 1999 and 23 March 2001 and, last, between 24 March 2001 and 23 January 2002. As the referring court observes, Ms Cachaldora Fernández worked part time for 3 years and 10 months, which represents a small part of her working life of around 39 years.

76.

The provision at issue has the effect that the period during which Ms Cachaldora Fernández interrupted the payment of her contributions to the social security scheme is included in the calculation of her invalidity pension on the basis of minimum contribution bases reduced to one eighth, although for the major part of her working life she pursued a full-time activity and thus paid contributions to the social security scheme as a full-time worker.

77.

Although the Spanish Government maintains in its observations that such a methodology makes it possible to establish a direct link between the amount of the pension and the total contributions paid by the worker, I have the feeling, on the other hand, that that methodology has the effect that a permanent invalidity pension is calculated on the basis of contributions paid at a ‘time T’ in the working life of the person concerned, which does not necessarily represent the total contributions paid by him.

78.

Consequently, it seems to me that such a methodology has the effect, in circumstances such as those at issue in the main proceedings, of reducing the amount of the entitlement under a permanent invalidity pension, in manner that is disproportionate by reference to the contributions paid by the person concerned during the whole of his working life and cannot therefore be justified by an objective factor based on the contributory nature of the social security scheme and the need to observe the principle of proportionality.

79.

In the light of all of those factors, I am therefore of the view that Article 4(1) of Directive 79/7 must interpreted as meaning that it precludes legislation such as that at issue in the main proceedings, in so far as that legislation, in the case of workers who pursued a part-time activity during the period immediately preceding an interruption of the payment of social security contributions, has the effect of reducing the amount of their entitlement under a permanent invalidity pension.

80.

In the light of the foregoing considerations, I propose that the Court answer the Tribunal Superior de Justicia de Galicia as follows:

Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as meaning that it precludes legislation such as that at issue in the main proceedings, in so far as that legislation, in the case of workers who pursued a part-time activity during the period immediately preceding an interruption of the payment of social security contributions, has the effect of reducing the amount of their entitlement under a permanent invalidity pension.