To access the retirement pension, it is important to have a minimum of 15 years of contributions throughout your working life and that, of the total number of years, at least two are within the last 15 years (730 days), which is known as a “specific deficiency.” Lacking the latter means denial by Social Security, even if we have more than 40 years of contributions. This is what has happened to Pedro Miguel, a worker who has been denied his retirement pension despite having more than 26 years of contributions and where the Supreme Court has denied it.
As explained by the Supreme Court ruling (available in the Judiciary) Pedro Miguel requested his retirement pension from Social Security on April 1, 2022, which was denied. Although he had more than 26 years of contributions throughout his life, Social Security denied him for having only 22 days of contributions in the last 15 years, explaining that it is necessary to have 730 days, as stated in article 205.1 b) of the General Social Security Law.
After his time as a worker of the General Regime, Pedro Miguel had been registered as self-employed (RETA) until December 31, 2003. From that date, more than four years passed in which he did not record any type of work activity or registration as a job seeker. It was not until January 2008 when he began to register for unemployment, chaining periods of job demand with various interruptions, one of them lasting more than a year.
Faced with the refusal of Social Security, Pedro Miguel went to court. In the first instance, the Social Court No. 3 of Alicante agreed with the Social Security and dismissed its claim. However, Pedro Miguel appealed to the Superior Court of Justice (TSJ) of the Valencian Community, which revoked the initial ruling and recognized his right to a lifetime pension of 442.87 euros per month at 78.91% of his regulatory base.
To agree with him, the Valencian TSJ applied what is known as the “parenthesis doctrine.” This legal principle allows time to be “frozen” and to exclude from the calculation those periods in which the worker could not contribute due to circumstances beyond his control (such as involuntary unemployment), as long as he demonstrates “animus laborandi”, that is, the intention to remain linked to the labor market. The regional court considered that “the parenthesis can be applied to two temporally separated periods”, allowing the four-year gap to be skipped without signing up for unemployment and counting back 15 years from 2008.
The Supreme Court rejects the “strategic” use of legal loopholes
Social Security, dissatisfied with this interpretation, decided to go to the Supreme Court to unify doctrine. The High Court has been categorical in agreeing with Social Security, annulling the ruling of the Valencian TSJ and definitively denying the worker the pension.
In its ruling, the Supreme Court clarifies that the parenthesis doctrine requires clearly demonstrating “the will not to deviate from the world of work.” The magistrates warn that “this Chamber has never admitted that the parenthesis can be placed in a fragmented manner in different periods, nor can it be used strategically at the time that best suits the applicant.” Doing so, they point out, would distort the legal requirement of the specific deficiency.
The Court concludes that this benefit cannot be applied to a worker who spent four years without activity or demand for employment, and who subsequently had significant interruptions (such as the one that lasted more than a year between 2018 and 2019). For the judges, these pauses show “a patent inattention or disaffection of availability in the labor market.”
For all that has been explained, Pedro Miguel does not have the right to the contributory retirement pension, setting a precedent in which it must be known that the flexibility of the system has limits and requires a real and continued commitment to actively search for employment when one is not contributing.