Positive action for women in European Union pension systems: Prohibition or proportionality?

Abstract

According to long-standing case law of the Court of Justice of the European Union (CJEU), recently confirmed in Melbán and Sergamo, specific advantages for women in pension systems are prohibited. These advantages are usually aimed at compensating for the difficulties women experienced during their past professional life, mostly associated to their caring role. The Court’s position is very controversial since it entails prolonging the inequalities women have suffered in their professional careers into the retirement period. This article challenges the CJEU’s case law, bringing to the table some observations about the neglected but crucial differentiation between direct and indirect positive action, a new legal approach to accept in abstracto positive action after retirement, in line with the case law of the European Court of Human Rights, and an analysis of how the proportionality test could look like. It proposes that, rather than prohibiting positive action upfront, the CJEU should analyse in concreto whether each measure complies with the principle of proportionality.