ATT ASSESSORS Insurance and services Balaguer Lleida

Early retirement. Change of criteria.


The Social Security has issued a new criterion for the interpretation of the rules of early retirement that allows retirement at 61 years of workers who currently have a special agreement and do not come from a collective dismissal.

With the tightening of the requirements for early retirement derived from Royal Decree Law 5/2013 of March 15, measures to promote the continuity of working life of older workers and promote active aging, most Of the affected people signed a special agreement with the Social Security to maintain their rights and avoid a reduction of the future pension.

Article 8 of Royal Decree Law 5/2013 modifies the final provision twelve point two of Law 27/2011, on updating, adaptation and modernization of the Social Security system, which is drafted as follows:

«2. The regulation of the retirement pension will continue to be applied, in its different modalities, access requirements, conditions and rules for the determination of benefits, effective before the entry into force of this Law, to retirement pensions that are Cause before January 1, 2019, in the following cases:

A) People whose employment relationship has expired before April 1, 2013, provided that after that date they will not be included in any of the Social Security system regimes.

B) Persons with a suspended or suspended employment relationship as a result of decisions taken in employment regulation files, or through collective agreements of any scope, collective agreements of the company as well as decisions taken in procedures Insolvent, approved, subscribed or declared before April 1, 2013, provided that the termination or suspension of the employment relationship occurs before January 1, 2019.

C) Those who have acceded to the partial retirement pension prior to April 1, 2013, as well as persons incorporated before this date to partial retirement plans included in collective bargaining agreements of any scope or agreements, Business school members regardless of whether access to partial retirement occurred before or after April 1, 2013.

In those cases referred to in sections b) and c) in which the application of the previous legislation originates in decisions taken or in partial retirement plans included in collective bargaining agreements, it will be indispensable condition that the Indicated collective agreements of company are duly registered in the National Institute of the Social Security or the Social Institute of the Navy, if appropriate, in the term that is determined by regulation ".

If even Social Security understood that the worker that subscribed the special agreement was not included in the system regimes referred to in subsection "a)", later, it was considered as a root of the new regulations that were included, what goes I suppose that the worker would not apply the old legislation but the new one, so that he could not retire at the age of 61 anymore.

To this interpretative criterion another later one, of August 1, was added, in which they are included to the beneficiaries majors of 52/55 years that have a special agreement to improve the amount of their final pension.

In summary, accordingly, retirement in these cases was delayed two years ago, as a general rule, or even four, for workers who completed their employment contract for individual layoffs before 1 December, April 2013, they have subscribed a special agreement for which they assumed the payment of contributions to the Social Security.

This interpretative criterion affects 7,000 people every year, between 2014 and 2018, that is, 35,000, and has generated many doubts and complaints from the social agents, and as a result, since September 4, 2014, a new criterion has been established that allows the Workers over 55 years old dismissed before April 1, 2013 and who signed a special agreement with the same Social Security retire after 61 years.

At the root of this new criterion, the Secretary of State for Social Security, Tomás Burgos, announced the commitment to make it possible and guarantee, through the competent body in the matter, that the people affected can take refuge in early retirement Foreseen before the entry into force of Law 27/2011, of August 1, on updating, adaptation and modernization of the Social Security system.

The decision, which includes the appraisals carried out by the social agents through the participation bodies, offers a response to the interests of these workers, respecting the basic principle of legitimate trust without undermining the spirit of the law in this matter.

In particular, the Directorate General for Ordering shows his agreement with the adoption of the interpretative line proposed by the National Institute of Social Security, in the sense that the conditions stipulated in section 2.a) of the provision Twelfth final of Act 27/2011 are fulfilled in the cases in which, after the employment relationship has expired before April 1, 2013, the interested party is in a situation of contributory or healthcare unemployment or subscribes to an agreement Special with the Social Security or in any other situation of those incorporated in the mentioned criterion.