Selección irrazonable y arbitraria de una norma en proceso de seguridad social sobre eventual discriminación entre mujeres y hombres, que vulnera la tutela judicial efectiva, al negar la primacía del derecho comunitarioComentario a la stc 152/2021 de 13 de septiembre (rec. amparo 1047/2020)

Abstract

Ruling No. 152/2021 of the Constitutional Court is a good example of the still distant perception that some of its main applicators still have of Community law. In this case, the High Court of Justice of Murcia is severely corrected for the repetition of a declaration that does not re-cognise the primacy of that legal system. What is relevant in this case is not the substantive issue (the right of a man to the “maternity” allowance established by art. 60 LGSS/2015) but the “man-ner” in which the appeal court decides to resolve the question put forward, since, being aware of the existence of rulings of the CJEU which, interpreting the Community legislation (Articles 4(1) and 4(2) of Directive 79/7 EEC), they made it possible to assess the discrimination alleged by the appellant, having introduced such elements as an object of debate (including the CJEU on 12 December 2019, which ruled on an identical case), they were not taken into consideration, this disregard and preterition of a rule of EU law, as interpreted by that Court of Justice, constituting a genuine infringement of the “principle of the primacy of EU law”, with the Chamber thereby enga-ging in an unreasonable and arbitrary interpretation of the rule applied to the proceedings which infringed the right to effective judicial protection.