Legitimidad de las acciones positivas para corregir las brechas de género en pensiones: ¿qué hacer cuando la primacía jurídica comunitaria es el mayor obstáculo?

Abstract

To accelerate the verifiable and unjustified gender gap in public pensions, Spanish law has thoroughly reformed art. 60 TRLGSS, to configure it as a genuine positive action. However, as already happened with its —disastrous— precedent, the courts consider that the supplement for reducing the gender gap in pensions is also discriminatory, against the —more pretended than real— man (male pensioner). Various preliminary questions have been submitted to the CJEU and the Supreme Court has suspended the appeal for cassation for unification, which is pending, until the CJEU rules. This study exposes the normative figure, the judicial criticism and, at the same time, several arguments are developed in favor of the legal validity of the new supplement, as a due guarantee for equality of result, without prejudice to highlighting some deficiencies that should be corrected as soon as possible by law.