Tue. Oct 22nd, 2019

The European general lawyer believes that the Spanish law of early retirement is contrary to the right not to compute the period of work abroad



The Advocate General of the Court of Justice of the European Union (TEU) considers that the Spanish law with respect to early retirement is contrary to European law for not allowing pensions from other Member States to be assimilated to calculate the minimum amount necessary that gives right to payment of the benefit.

This is confirmed in its conclusions on the case of two Spanish workers who worked for a time in Germany and to whom the Spanish Social Security denied them an early retirement pension for not having reached the minimum amount legally required.

In his report, which is not binding but usually follows the TEU when issuing its judgments, the Advocate General notes that the Spanish legislation is contrary to European law for not counting a pension of the same type from another Member State to calculate the minimum amount necessary to receive a pension for early retirement. He also believes that Spanish law should not discriminate against workers who exercise their right to free movement in other EU countries.

At the request of the High Court of Justice of Galicia, the TEU must clarify whether the Treaty on the Functioning of the European Union is contrary to Spanish legislation, taking into account that the pension to be received is considered to be the effective pension charged only to the State. competent member (in this case Spain), without counting the effective pension that the interested party could receive for another benefit of the same nature by another Member State or States.

In its conclusions, the General Lawyer of the TEU proposes to the Court of Justice of the EU that in its future judgment on the case it declares that Spanish legislation is contrary to European law for not counting a pension of the same type from another Member State to calculate the minimum amount necessary to receive a pension for early retirement.

According to Spanish legislation, the amount of the early retirement pension must be higher than the minimum amount of the pension that would correspond to the interested party according to their family situation at the time of reaching 65 years.

Obstacle to free movement

The Advocate General recalls that, in principle, a Member State is free to establish the right to a minimum retirement pension and to establish requirements for a person to benefit from an early retirement pension, provided that they do not constitute an obstacle to the free circulation of workers.

Thus, the Advocate General considers that, in principle, a Member State has the power to limit the granting of an early retirement pension to persons who reach a certain age, prove a certain number of years of contribution and are entitled to a pension. for an amount exceeding the minimum retirement pension in that Member State.

The problem, he explains, lies in the way in which this third requirement applies to workers who have exercised their right to free movement.

The Advocate General considers that this requirement necessary to obtain an early retirement pension must respect the principle of assimilation of benefits, income and the facts provided for in the Regulation of Coordination of Social Security systems in order not to penalize workers who exercise their right to free movement.

"Consequently, I believe that to satisfy this requirement, retirement pensions in Spain must be added to comparable or equivalent benefits received from another or other member states," he says in his conclusions.

In this regard, it states that the early retirement pension provided for by Spanish legislation and the retirement pensions received by the two workers referred to in this question are comparable or equivalent benefits for the purposes of the aforementioned Regulation.

In his opinion, the provisions of the Spanish regulations are specifically designed to ensure that applicants for retirement pensions are entitled to the amount of the minimum pension applicable and, therefore, do not have to receive certain supplementary benefits or supplements, so that do not become an additional burden for the Spanish Social Security system.

Discriminatory legislation

The Advocate General emphasizes that in the cases examined, this objective in itself is not in any way questioned, but rather the fact that national legislation is applied "in a discriminatory manner", to the detriment of workers who have exercised their fundamental right to free circulation.

In addition, it emphasizes that the Superior Court of Justice of Galicia indicated that, after the sum of their retirement pensions from Spain and Germany, none of the workers in question is entitled to a supplement, so they will not represent a burden for the Spanish Social Security.

"Although the objective of dissuading or discouraging early retirement can be praiseworthy in order to increase national productivity and reduce the burden on the Social Security system, this objective can not be achieved by discriminating against those who have exercised their fundamental right to free movement ", he emphasizes.

On this point, the Advocate General claims to have the impression that the Spanish authorities exercised their legislative power "in a manifestly discriminatory manner" with respect to these workers who exercised their right to free movement.

(tagsToTranslate) Lawyer (t) General (t) TUE (t) early retirement (t)



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