The Supreme denies the active retirement pension to the self-employed who use a community of goods


The Supreme Court has issued two rulings that directly affect the self-employed who seek to take advantage of active retirement: collect 100% of their retirement pension from the age of 65 as long as they continue to be active and have a worker hired. The judges have studied the case of a pharmaceutical company and have established that self-employed workers who have hired a worker but through a community of property of which they are part will not meet these requirements.

The Senate approves the first part of the pension reform, which will be effective from January 1

The Senate approves the first part of the pension reform, which will be effective from January 1

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Active retirement allows a worker, self-employed or employed, to collect 100% of his pension while he continues to work and, in the case of the self-employed, while he has a worker hired, as established in article 214 of the Law General of Social Security. There are no official data on how many people have been welcomed to this possibility in our country but the Organization for Economic Cooperation and Development (OECD) estimated that in 2017 that in 2012 Spain was one of the European Union countries with the least implementation of this active retirement. A later study of FEDEA researchers affirms that it is a much more widespread option among the self-employed than among employed workers and the Active Population Survey reveals that in 2019 the number of people over 65 who were still working had skyrocketed in the last decade.

The social room has studied, among others, the case of a pharmacist from the Valencian town of Sagunto who ran a pharmacy through community property with another person. She requested to be able to collect 100% of the retirement pension while she continued with her job and Social Security refused. She took the case to court and a social court in Valencia agreed with her and recognized her right to collect the pension.

The case has taken a turn in the social chamber of the Supreme Court. The magistrates, with some votes against, share the thesis of Social Security and understand that this pharmacist does not have the right to collect the pension because it does not meet one of the requirements: it does not have an employee hired, as self-employed, but through a community of goods with which it manages the pharmacy. This situation is not assimilable and, after comparing it with the case of another pharmacist in the Murcian town of Campos del Río, he decides to agree with Social Security.

This pharmacist, says the Supreme Court, meets one of the requirements "since she carries out an activity on her own, she is a self-employed pharmacist" but does not meet the second: "She does not have any employee hired. The workers are hired by the community property of which the plaintiff is a part together with another or other community members, but not by the plaintiff", say the judges.

That a self-employed person like this pharmacist has to legally respond for any matter related to community property does not imply that the true employer is the community property, not her personally or the other owner of the pharmacy. Also admitting that this type of self-employed would take advantage of active retirement and receive 100% of the pension would imply, for example, says the Supreme Court, that several community members would retire like this with a single worker. That, says the court, "would mean recognizing all of them their respective pensions with full compatibility, which would be due to a single employment contract signed by a different person, the community of property, which would go against the literal tenor of the rule".

The decision has been reflected in two different sentences and in both cases the social chamber has had the private vote against Concepción Ureste, María Luz García Paredes and Juan Molins. The three magistrates defend that their colleagues have made a very restrictive interpretation of the Law and that if a self-employed person, through a community of property, is legally responsible before the administration, he should be able to take advantage of active retirement with 100% of the pension if the community property has a number of workers proportional to the number of community members.

The dissenting magistrates explain: "If a self-employed owner of a pharmacy has only one employee hired and would be entitled to active retirement receiving 100% of the retirement pension; the fact that two pharmacists are owners of a pharmacy, which, due to their co-ownership of the business, have had to constitute a community of property that has several workers hired, this should not prevent them from recognizing the same right, if we assume that the community of property does not have legal personality".



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