Denial of two successive IPT pensions under the same scheme and indirect discrimination on grounds of sex

In line with the judgment of the Court of Justice (Second Chamber) of 30 June 2022 (KM v INSS)

Abstract

KM is recognized two successive IPT pensions, both in the General Regime, for not being able to develop, first, the profession of administrative and, 19 years later, the profession of junior housekeeper. The Supreme Court has only admitted the compatibility of two IP pensions if they are caused by different Social Security Regimes, ex. art. 163.1 of the TRLGSS. Applying this doctrine, the INSS denies KM the compatibility of both pensions and KM files suit against the INSS. The Court of Social Affairs no. 26 of Barcelona then asks the Court of Justice of the EU for a preliminary ruling on the understanding that if this disadvantage affects women proportionally more than men, indirect discrimination prohibited by art. 4 of Directive 79/7. Here we analyse the precedents and content of the CJEU Judgment that resolves the aforementioned preliminary ruling question, a pronouncement that does not give a definitive answer to the referring Judge and that is conditional on delimiting more specifically the group injured by such judicial doctrine, an essential preliminary step to be in a position, afterwards, to decide whether, in fact, this disadvantage affects more women than men.