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The Court of Justice of the European Union (TUE) has endorsed this Thursday the Spanish regulations that require a minimum amount in the pension to obtain an early retirement despite the fact that doing so harms women more as they are the majority in the sector of employees of the home.The court based in Luxembourg thus responds to the Superior Court of Justice of Catalonia, which had raised a preliminary ruling to the European Justice before ruling on a case that confronts a worker with the National Institute of Social Security (INSS)

After having always contributed to the old Spatial Regime of the Domestic Service, current Special System for Household Employees, he requested a voluntary early retirement pension from the INSS from the moment he turned 63 years old. The INSS denied his application because the amount of the pension he would receive is less than the minimum pension that would correspond to him when he turns 65.

At first, Court number 10 of Barcelona agreed with the worker because it understood that the criteria followed by the INSS constitutes direct discrimination against women, who occupy most of the jobs in the domestic workers sector . The INSS filed an appeal with the Superior Court of Justice of Catalonia.

In its ruling this Thursday, the TEU has ruled that European legislation “does not oppose” a regulation such as the Spanish one that makes the right of a worker to an early retirement pension subject to the requirement that this pension be “at least the same to the amount of the pension “that would correspond to the age of 65 years and” although this regulation harms in particular to the workers with respect to the workers.

First, the Luxembourg court argues that the Spanish regime “does not involve discrimination based directly on the sixth” because “it applies without distinction to male and female workers.”

Regarding the possible existence of indirect discrimination, a task that the TEU entrusts to the Superior Court of Justice of Catalonia, the ruling explains that “it can be manifested taking into consideration, for the same year, the number of new retirees who meet the requirement of having contributed for more than 35 years and who receive a supplement to the pension, with respect to the total number of new retirees throughout that same year “.

In the particular matter resolved by the TEU, there would be indirect discrimination if it were shown through statistics that the percentage of new retirees subject to the social security scheme who have contributed more than 35 years and receive a supplement to the pension is “considerably higher “than that registered among new retirees.

Once it is resolved whether there is indirect discrimination, the TEU warns that it could be justified by “objective factors” unrelated to sex discrimination, in particular if it responds to a “legitimate objective of social policy”.

In this regard, the INSS and the Government have argued that requiring a minimum amount in the pension to grant an early retirement is intended to “maintain the viability of the Social Security system” and “achieve a sustainable balance between active and elapsed life time. in retirement situation “.

On this issue, the TEU considers that these objectives “are consistent” with those of the EU and can be considered as “legitimate social policy”. Therefore, “they can, in principle, justify a possible difference in treatment to the detriment of the workers” derived “indirectly” from the application of the contested regime.

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