The Supreme Court (TS) has set at 1,800 euro the compensation to be paid to men who have been denied the paternity supplement in their retirement pension recognised by the Court of Justice of the EU (CJEU).
The Social Chamber has unified doctrine following the case of a man from León who was denied said supplement by the National Social Security Institute (INSS). The affected person appealed to the point that the courts not only recognised this extra in his retirement pension but also compensation of 600 euro for the refusal to include it.
Social Security appealed to the Supreme Court alleging that there was a contradiction between the ruling issued by the Superior Court of Justice (TSJ) of Castilla y León and one of the Valencian TSJ issued in 2022 where compensation was ruled out.
The Fourth Chamber admitted the appeal to determine whether the father “has the right to compensation for damages caused by the violation of the fundamental right not to be discriminated against on the basis of sex” by denying him the complement recognised in article 60 of the General Law of Social Security (LGSS), after the CJEU established in its ruling of December 12, 2019 that denying it represented sex discrimination contrary to community law.
The aforementioned provision establishes that “women who have had one or more sons or daughters and who are beneficiaries of a contributory pension for retirement, permanent disability or widowhood, will have the right to a supplement for each son or daughter, due to the incidence which, in general, has the gender gap in the amount of contributory Social Security pensions for women”.
The CJEU declared it discriminatory and contrary to the European directive on equal treatment that this supplement was given only to mothers, excluding fathers who are in a comparable situation.
In 2021, the aforementioned provision was modified to recognise men that same right as long as they have “a widow’s pension for the death of the other parent of the common sons or daughters” or “a contributory pension for retirement or permanent disability” and have seen “their professional career affected by the birth or adoption.”
Despite this, the European Justice had to reanalyse the issue in the face of “an administrative practice consisting of systematically denying the granting of this supplement to parents.” Thus, in a second ruling on September 14, the CJEU ruled that parents of two or more children who have been forced to go to court to obtain the aforementioned supplement are entitled to additional compensation.
For the Fourth Chamber, there is no doubt that European jurisprudence requires compensation to men who were denied the supplement by Social Security after the CJEU handed down its first ruling, on December 12, 2019, forcing them to go to court to get it.
Thus, it focuses on “setting the same amount of compensation for all of them, without giving rise to comparative grievances derived from possible disparate solutions that could generate an inequality that is difficult to justify.”
“Since the purpose of compensation is to fully compensate for the damages actually suffered as a consequence of the discrimination, including the costs and attorney’s fees incurred by the interested party during the judicial procedure, it is objectively unreasonable to consider that in that “relevant differences may arise in the assessment of these damages,” he reasons.
For the Supreme Court, the “adequate amount” is 1,800 euro, as it is “the one that best suits the demand for reparation for the damage suffered”, “and must, therefore, be applied by the judicial bodies in all those cases in which “There is a dispute regarding the amount of the aforementioned compensation and taking into account – as is the case in the present case – the request of the plaintiff.”
Precisely for the latter, the high court explains that it cannot grant the man 1,800 euro in compensation, because he initially claimed only 1,500 euro, which represents “an insurmountable limit”, and because once he had obtained the 600 euro he did not fight for a higher figure before the Supreme Court itself.