«Rara avis»: «judicial activism» and «primacy of the person» on «budgetary adjustment» of Social Security

Abstract

The deep crisis we are suffering since 2008 is causing not only devastating economic effects –a long decrease– and social –a general social discomfort– but wider changes in legal system, contributing to expand those. One of these mutations is the subjugation of the public social security system to the imperative, today also constitutionalized, at the state –Spanish Constitution, Article 135– and of the European Community –«Stability Treaty»–, the «balanced budget», corollary austerity policy that dominates everything as an irrefutable creed. On their behalf, the Government, based only on the «law of large numbers», continuously justify suspension or emptying of social rights, including on Social Security, as evidenced by the recent Royal Decree Law 28/2012, of 30 November.

But, despite what they would have us believe, life, and the legal world is sort of a peaceful and civilized, are always much more complex and plural. Although the government, and even the legislative, simplify everything and want to reduce it to numbers, keep other powers and by other sources of law –as the «Live Law»– who show that another reading is possible, even required, rules so that people, their values and reasons prevail over those of the markets. That is the deeper meaning of the Judgment of the Supreme Court, Social, October 18, 2012, which provides an alternative to regulatory settings concerning situations of displacement by the beneficiaries of unemployment benefits abroad for more than 15 days without prior notice, if the space justifiable reasons, such as the reconciliation of work and family life. And that is also the greater scope of the judgment of the Court of Justice of the European Union of 22 November 2012, which requires a different model to calculate the expected waiting period for part-time work when applying for a pension, –retirement or permanent disability–, to understand the current opposite to EU banning on grounds of sex indirect discrimination.

Both lay ahead «government by just laws» regarding the «austere government laws» in the field of Social Security, so that in response to many reasons, especially technical legal policy and law, advise an analysis set, highlighting its «institutional strengths» and legal culture beyond its therefore also presented and should not hide, «technical flaws». Hat is the subject of this article.