The European Court of Justice rules that gender gap pension supplements discriminate against men

The Court of Justice of the European Union considers the so-called gender gap supplement to be discriminatory towards men, and the Supreme Court supports this ruling. In this article, we explain what the gender gap pension supplement consists of and what the European Court of Justice and the Supreme Court have to say about it.

What is the gender gap supplement?

It is a supplement that was created in 2021 to replace the previous maternity supplement, which only women were eligible to receive. The supplement is a financial benefit that is added to the corresponding contributory pension, which may be a retirement, permanent disability or widowhood pension, with the aim of reducing the difference between men's and women's pensions, resulting from the impact that motherhood and childcare may have had on women's professional careers.

Where is the gender gap pension supplement regulated?

Article 60 of the General Social Security Law establishes the following:

• Women who have had one or more children and are beneficiaries of a contributory retirement, permanent disability or widow's pension shall be entitled to a supplement for each child.
• In order for men to be entitled to the supplement, they must meet the following requirements:
       o Be recognised as entitled to a widow's pension due to the death of the other parent of their children, provided  that one of the children is entitled to an orphan's pension.
       o They must be entitled to a contributory retirement or permanent disability pension and have interrupted or seen their professional career affected by the birth or adoption of a child:
             In the case of children born or adopted up to 31 December 1994, they must have contributed for more than 120 days between the nine months prior to the birth and the three years following that date or, in the case of adoption, between the date of the court decision and the following three years.
            In the case of children born or adopted since 1 January 1995, the sum of the contribution bases for the 24 months following the birth or the court ruling must not exceed by more than 15% that of the previous 24 months.

The Supreme Court ruling on pension supplements for men

In mid-July, the Supreme Court issued a ruling that adopted the interpretation of the Court of Justice of the European Union in May, which declared Article 60 of the General Social Security Law to be discriminatory, as it requires men to meet additional requirements to receive pension supplements that do not apply to women.

What effects will the Supreme Court ruling have?

In principle, the effect of the Supreme Court ruling will be that the supplement will automatically be granted to men who request it without any additional requirements compared to women, i.e. it will be granted under the same conditions.

But what happens in cases where the supplement has already been denied to a man by the National Social Security Institute (INSS)? In this case, retroactive payment could be claimed from the date of application to the INSS.

However, it is important to remember the provisions of section 2 of article 60 of the General Social Security Law, which regulates the possibility of terminating the gender gap supplement for mothers, as only one of the parents is entitled to receive it. The Court of Justice of the European Union has examined this issue and ruled that it does not oppose the withdrawal of the supplement from one of the parents, but that it is up to the courts of each country to interpret national law.

However, an amendment to Article 60 of the General Social Security Law will be necessary in order to comply with the provisions of the Constitution regarding equality between women and men, and with EU law, in order to avoid a multitude of proceedings before the social courts by men who are required to meet the traditional requirements we have seen.

How much is the supplement?

The amount of the supplement is established in the annual general state budget law. For 2025, the amount is €35.90 per month for each child, with a limit of four times that amount. The supplement is paid monthly, and there will be two extra payments in June and November.

The supplement, therefore, depending on the number of children, will be as follows:

• One child: €35.90 per month.
• Two children: €71.80 per month.
• Three children: €107.70 per month.
• Four or more children: €143.60 per month.

How do you apply for the supplement?

To apply for the supplement, you simply need to submit a pension application to the National Social Security Institute. To do so, you will need to identify yourself with your cl@ve, electronic ID card, digital certificate or via the Social Security portal. You also have the option of applying in person at the Social Security offices by appointment. On the application form, you will need to tick the specific box to request the supplement and fill in all the information requested.

The supplement will be terminated for the same reasons as the pension from which it derives, for example, the death of the person who applied for it, or, as we have seen, when the other parent applies for the supplement and meets the requirements.

If you wish to apply for this supplement or have been denied it and wish to claim it retroactively, please contact us so that we can analyse your case and take the appropriate steps.