Parents who did not receive the child bonus in their pension must be compensated

New slap on the wrist from Europe to Spain over pensions. And, once again, for the defunct maternity supplement that granted mothers who retired or accessed a widow’s or permanent disability benefit a bonus to their pension if they had had two or more children. All with the aim of contributing to reducing the gender gap under the argument that their careers had been harmed as a result of having dedicated themselves to caring for their children.

The Court of Justice of the European Union (CJEU), which already in 2019 denounced that this supplement was discriminatory for fathers, goes a step further and urges Spain to compensate men who would have been entitled to receive this supplement but who have had to go to court to get Social Security to pay it. Considers that it should be granted to this group – made up of men with two or more children – who have accessed a contributory pension for retirement, widowhood or permanent disability during the period it was in force; that is, from January 1, 2016 to February 3, 2021 – an “adequate pecuniary reparation, which allows full compensation for the damages actually suffered as a result of double discrimination”, according to the ruling published this Thursday to which this newspaper has had access. And it clarifies that the compensation must take into account the expenses incurred by the plaintiff, including costs and attorney’s fees.

The CJEU reproaches Spain for not having corrected the legislation more quickly and for having delayed it until February 2021, which was when the Government approved a new gender gap supplement that replaces the maternity supplement and grants in this case to the parent whose contribution career has been more harmed after the birth of children. ‘Once the existence of discrimination contrary to Union law has been established, national courts and national administrative authorities must disapply any discriminatory national provision, without waiting for its repeal by the legislator. Therefore, they must apply to members of the disadvantaged group – in this case, fathers – the same regime enjoyed by people included in the other category – in this case, mothers,” the ruling argues.

Benefit for both parents

And, in the same way, it criticizes the fact that the payment of the bonus that has already been extinguished has not been granted ex officio to the parents who were discriminated against, but is only paid to the victims who have gone to court to request this right as a result of the aforementioned ruling, which generates “a new discrimination, since only men have to assert their right to the pension supplement litigated in court, which, in particular, exposes them to a longer period for its obtaining, as well as, where appropriate, additional expenses,” explains the court.

The European Justice rules again on the maternity supplement following the lawsuit of a father of two children who was denied his right by Social Security to the supplement to the absolute permanent disability benefit that he had received since November 2018. The father appealed to the courts and through a first ruling his right to the disputed pension supplement was recognized, but the right to receive compensation that Brussels now defends was rejected, thus opening the way for other parents to demand it.

This ruling is added to the one issued last May by the Supreme Court, which endorsed that both parents can collect this bonus simultaneously if both meet the requirements. And all the Spanish courts are already recognizing it.

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