I- THE APPEALED SENTENCE.
The Social Court dismissed the lawsuit filed against the resolution of the National Institute of Social Security (INSS) that denied benefits in favor of family members, requested by the daughter of a female retiree of the SOVI (Compulsory Old Age and Disability Insurance) system, because she did not meet the requirement of being a pensioner of the current Social Security System.
II- OBJECT OF THE APPEAL.
Faced with the unfavorable judgment, an appeal for reversal is filed by the plaintiff, alleging that the exclusion of the SOVI retirement pension received by the deceased is discrimination based on gender, since the majority of recipients of pensions derived from this extinct system are women. The INSS expressed its opposition in its statement of defense, emphasizing that this is not discrimination based on sex, since the analysis should not focus on SOVI pensions but on the beneficiaries of benefits in favor of family members, who, whether men or women, will not be able to access this right (equally) when the deceased is a SOVI retirement pensioner.
III- SOVI REGIME AND ITS GENDER IMPACT.
The Chamber revokes the judgment, highlighting that cases such as the present one must be judged with a gender perspective, as mandated by Article 4 of Organic Law 3/2007 of March 22 on Effective Equality of Women and Men, which represents the realization of the principle and fundamental right to effective equality[1].
This must be the case, starting from the unquestionable gender impact that the SOVI Regime has (in force in Spain between 1947 and 1967). The typical profile of a person with the right to a SOVI pension is mostly that of women who worked before 1967 and subsequently left their jobs after getting married to assume the domestic role and family care (lacking any labor recognition), this being the only social destiny for which women in Francoist Spain were educated. SOVI pensions are also the lowest in the contributory modality.
It should also be added that there is a set of undeniably discriminatory laws that, during the period after the Spanish Civil War (1936-1939) and well into the seventies, significantly restricted the rights of Spanish women, especially married women, such as the Labor Charter of 1938, which was one of the eight fundamental laws of Francoism in force until 1958, in whose Second Declaration the paid work of married women was euphemistically prohibited:
"The State undertakes to exercise a constant and effective action in defense of the worker, their life, and their work. It will conveniently limit the duration of the working day so that it is not excessive, and will grant work all kinds of defensive and humanitarian guarantees. In particular, it will prohibit night work for women and children, regulate work at home, and free married women from the workshop and the factory."
This fundamental law brutally closed the path of women towards emancipation, equality, and citizenship, and under a protectionist slogan, legislatively forced a change in the situation of women:
- Through a differentiated education for men and women, in which they were prepared for the institution of Christian marriage and motherhood.
- And increasing their economic dependence on the husband, through labor prohibitions and pay restrictions for married women.
Thus, married women in Francoist Spain had fewer rights than our minors today and severe limitations on their capacity to act and also to work, becoming dependent on the guardianship of the father to that of the husband to carry out essential acts for the person, among others, those detailed below:
- A married woman could not open a current account without "marital license," that is, express authorization from the husband.
- A woman could not engage in commerce or work or travel without "marital license."
- A woman could not leave home or travel without "marital license"...
The marital license was not repealed until Law 14/1975, of May 2, on the reform of certain articles of the Civil Code and the Commercial Code, was enacted. Furthermore, in our country, divorce was not legalized until the enactment of Law 30/1981, of July 7, which modifies the regulation of marriage in the Civil Code and determines the procedure to be followed in cases of nullity, separation, and divorce. The previous limitations prevented a large number of married Spanish women from continuing in the labor market and achieving a substantial career of contributions beyond the emergence of the current Social Security System (1967).
Thus, since the majority of SOVI retirement pensions are received by women, it is clear that there is a gender impact in the exclusionary interpretation analyzed, which affects women mostly, so we can speak of a decision that has an effect of "indirect discrimination."
IV- ADMINISTRATION OF JUSTICE WITH A GENDER PERSPECTIVE.
The principle of integrating the gender dimension into legal activity binds all State Powers: the Legislative, the Executive, and the Judicial. This statement is linked to the existence of a broad anti-discrimination law, with constitutional protection in Article 14 of the CE, which must be deployed in three specific judicial phases:
a)- In the processing of the procedure.
b)- In the assessment of evidence.
c)- In the application of substantive rules. Prohibition of direct and indirect discrimination, affirmative action measures, parity democracy and equal opportunities, maternity and conciliation rights, protection against gender violence.
Judging with a Gender perspective should be a judicial task that involves:
- Use of substitution or hypothetical comparison criteria to verify whether, in a given situation, a man would have been treated in the same way as a woman.
- Consideration of the situation of real or potential marginalization, or secondary victimization, in which the woman may find herself when assessing her conduct.
- Integration of the value of gender equality in the application of a rule that, while it should consider it, has not considered that value, or axiological gap, avoiding certain perverse effects.
Therefore, the interpretation of the Law with a gender perspective requires contextualization and action in accordance with the pro persona principle, which obliges jurisdictional bodies to adopt legal interpretations that guarantee the greatest protection of human rights.
V- RESOLUTION OF THE APPEAL. The gender perspective must necessarily be integrated into the resolution of the case at hand, because objectively, the majority of SOVI retirement pensions are received by women. This shows that an exclusionary legal interpretation in access to benefits would have an effect of "indirect discrimination," in accordance with the provisions of Article 2 of Directive 2006/54/EC of the European Parliament and of the Council of July 5, 2006, on the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation [2], in relation to Article 6.2 of Organic Law 3/2007[3]. The case of SOVI pensions, whose recipients are mostly women, bears some similarity to a contractual tool that has also been historically used by women, due to its versatility and compatibility with the reconciliation of work and family life: The part-time contract.[4]
In this regard, Judgment No. 253/2004 of the Constitutional Court also clarifies that: "(...) when indirect discrimination is denounced, it is not required to provide as a term of comparison the existence of a more beneficial treatment attributed solely and exclusively to men; it is enough...that there is...a rule or an interpretation or application of it that produces unfavorable effects for a group formed mostly, although not necessarily exclusively, by female workers (...) there must be a different and detrimental treatment of a social group formed in a clearly majority way by women, with respect to relevant goods and without there being sufficient constitutional justification that can be contemplated as a possible limit to the aforementioned right."
The Judgment of the Supreme Court (General Chamber) of December 21, 2009 (RJ 2010/446), analyzed the restrictions of SOVI pension recipients, with a gender perspective. In this judgment, on the accreditation of contributions in the SOVI, for the purpose of completing the minimum period of deficiency that was required for the acquisition of the right to a pension, the 112 days of bonus were computed as contributed, assimilated by childbirth, in accordance with the reform introduced in the LGSS, by Organic Law 3/2007. Thus, the right is extended beyond the current Social Security system, also including women recipients of SOVI, through an integrating interpretive analysis that seeks to implement the real equality that has not been achieved with formal equality.[5]
The exclusion of the SOVI retirement pension, for the purpose of accessing benefits in favor of family members, implies a disadvantage for women in relation to people of the other sex, who did not suffer the legal limitations or have to assume the social roles established in the last century and during the period of validity of the SOVI.
The aforementioned gender impact is not invalidated, as stated by the INSS, by the fact that the claimed benefit may fall equally on men and women, since the beneficiaries (men and women) would no longer be affected by the SOVI System, as the benefits in favor of family members are included within the current Social Security system. In the opinion of the Canary Islands Chamber, there is still discrimination in relation to people receiving SOVI retirement pensions (mostly women), as their family members (in this case, the daughter) would be deprived of access to benefits, through discrimination by association or by linkage, that is, a transferred or reflected discrimination suffered by people linked to the person belonging to the vulnerable group. This has been recognized by the Court of Justice of the European Union in its judgment of July 17, 2008, C-303/06 (Coleman Case), in which it is stated:
"We are faced with discrimination in which the personal or social circumstance that motivates the pejorative treatment does not occur in the worker, but in one of their relatives or "associated" person. The personal factor (disability) of an individual has been "transferred" or "reflected" to the worker, who is the one who suffers the discriminatory treatment by the company. Thus, to appreciate the discrimination, attention is no longer paid only to one subject but to two, the one belonging to the vulnerable group and the one retaliated against. (...)"
To the above, another element must be added, since among the requirements to access the benefit in favor of family members is included "accrediting prolonged dedication to the care of the deceased." The link between the prolonged care of the deceased and access to the benefit at hand would place people receiving SOVI retirement pensions in a worse situation if they are excluded from benefits in favor of family members, discouraging them from dedicating "a prolonged time to their care."
VI- CONCLUSIONS.
The novelty of the Canary Islands judgment lies substantially in the new analysis or legal approach that is carried out around the extinct SOVI system, from a gender and fundamental rights perspective (Article 14 CE), as its recipients are mostly women and these are the lowest contributory pensions in the system. Therefore, its unconditional exclusion in access to benefits in favor of family members mostly harms women, without such disadvantage being justified by objective factors and a legitimate purpose unrelated to any discrimination based on sex.
Therefore, an interpretation must be made in accordance with Article 4 of Organic Law 3/2007 and Article 2.b) of Directive 2006/54 of the EU, contextual and integrating of the gender dimension and in light of the unjustified negative impact existing among people receiving the SOVI retirement pension (mostly women), it must be equated with the contributory retirement pensions derived from the current Social Security System, for the purposes of considering the requirement established in Article 226.2 of the LGSS to be met.
In addition, the concept of "discrimination by association or by linkage" coined by the Court of Justice of the EU (Coleman Case) is applied to the specific case, in which the applicant for benefits was the daughter of the SOVI pensioner, that is, a transferred or reflected discrimination suffered by people linked to the person belonging to the vulnerable group.
In gender matters, there are two ways to administer justice: doing it mechanically and doing it with a gender perspective. The first perpetuates formal equality, the second, on the other hand, moves towards real equality (which never arrives) between men and women. A Justice without a gender perspective is not Justice, it is something else...
[1] Article 4 of Organic Law 3/2007 of March 22 on Effective Equality of Women and Men, which represents the realization of the principle and fundamental right to effective equality, provides: "Equality of treatment and opportunities between women and men is an informing principle of the legal system and, as such, will be integrated and observed in the interpretation and application of legal norms."
[2] The aforementioned Directive (recast) repealed, among others, Council Directive 79/7/EEC of December 19, 1978, on the progressive implementation of the principle of equal treatment between men and women in matters of social security, transferring the concept of indirect discrimination contained in Article 2 of the repealed directive (and before 2002 in its Article 4), to the current Article 2.b) of the current text of Directive 2006/54, with the following wording: "indirect discrimination: the situation in which an apparently neutral provision, criterion or practice puts persons of a particular sex at a particular disadvantage compared to persons of the other sex, unless that provision, criterion or practice can be objectively justified by a legitimate aim and the means to achieve that aim are appropriate and necessary."
[3] Article 6.2 of Organic Law 3/2007 of March 22, for the effective equality of women and men, defines the concept of indirect discrimination: "Indirect discrimination based on sex is considered to be the situation in which an apparently neutral provision, criterion or practice puts persons of one sex at a particular disadvantage compared to persons of the other sex, unless that provision, criterion or practice can be objectively justified in view of a legitimate aim and the means to achieve that aim are necessary and appropriate."
[4] The judgment of the Court of Justice (Eighth Chamber) of November 22, 2012 (Case C-385/11 - Isabel Elbal Moreno Case), in relation to the contributory retirement pension derived from part-time contracts used mostly by women, states the following: "(...) it should be recalled that, according to the Court of Justice's settled case law, there is indirect discrimination within the meaning of Article 4 of Directive 79/7 when the application of a national measure, although formulated in a neutral manner, de facto prejudices a much larger number of women than men (...)"
[5] The legal basis of the judgment states: "The Law serves the objective of mitigating the effects of the situation of discrimination already produced and that may arise, it is in this sense a measure of positive action desired by the legislator that cannot ignore the fact that the affected group (SOVI pensioners) is fundamentally composed of women and that, moreover, if they do not accredit further work and contributions under the validity of the Social Security system, it is also mostly because they abandoned the labor market as a result of their marriage and subsequent motherhood. Denying the benefit to SOVI pensioners implies a denial that will fundamentally affect women who, in addition, abandoned their work and insurance careers due to the biological circumstance of femininity."