He was hired for three months in his wife’s company, according to Social Security, to gain access to the contributory retirement pension in Spain and so that the amount was not so low after having worked in Switzerland, but Social Security annulled that period, considering it a simulated contract. The Superior Court of Justice of Galicia confirms this decision of the Social Security, since the company did not even try to prove that the work was real.
The man began working as a first-class manufacturing officer in a company whose sole administrator and majority shareholder was his wife and in which his three sons and daughter-in-law also worked. After three months of working, he applied for a Social Security pension for what he had worked and contributed in both Switzerland and Spain.
The Labor Inspection, given the suspicion, decided to go to the company’s address and did not find any premises. Given the possibility of being a fraud, he concluded that without those three months in which he was discharged he would not have the right to receive the retirement pension calculated under Spanish law, so he would only collect the pro rata, following community laws. For this reason, Social Security canceled the registration in March 2025.
This is so since article 52 of Regulation (EC) 883/2004, which includes several European countries (including Switzerland), requires adding up every year in order to calculate the theoretical pension, of which Spain only pays the part that corresponds to what is quoted here. The other formula calculates the pension only with the years of contributions in Spain, that is, as if you had not worked abroad, and can only be applied if it allows you to meet the requirements to retire. If you are entitled to both, Social Security will always pay the highest one as it is the most beneficial.
Therefore, someone who has 20 of their 30 years of contributions in Spain would collect two-thirds of the theoretical pension from here (this is how collecting the pension works if you have worked in Spain and other countries).
The company only discussed who was competent
In the Superior Court of Justice, the company argued that the Inspection of A Coruña could not be competent, because it had moved to the province of Pontevedra, in addition to the fact that the case should be the responsibility of the Social Institute of the Navy, since the worker had been registered in the sea regime, as he had worked on a son’s boat. Despite the allegations, the court rejects both, on the one hand, because the payrolls continued to list the province of A Coruña as the address, and the change (signed four days before discharge) was not communicated to Social Security, in addition to the fact that the canceled period was from the general regime.
“If no allegations are made regarding the merits of the appeal, it must be dismissed,” states the ruling (available in the Judiciary). Social Security had stated that the company “simulated the hiring of the worker” so that he could access the pension “with express impact on its amount”, and that, if there had been a relationship, due to the family bond, “which was hidden at all times”, he would have been subject to the self-employed regime.
Social Security was able to annul the registration without going through the court, since this is allowed by article 16.5 of the General Social Security Law, which explains that it can review ex officio, “at any time”, the registrations that do not comply with the law. In fact, if we review previous rulings of the Judiciary, we see that the Supreme Court in 2022 was still requiring going to court in these cases (STS 858/2022), but in 2024 (STS 6048/2024) it made it clear that, in the event of a simulated employment relationship situation, Social Security can annul the registration directly.
Maribel Doctor, pensioner with 44 and a half years of contributions: “They unfairly cut my pension every month”
As of January 1, 2027, it will be necessary to be 38 years and six months old to retire at age 65 with 100% of the pension and without cuts by Social Security
In this way, according to the Inspection, the worker would not be left without a retirement pension, but he would lose the complete calculation with what he contributed in Spain, so he would only receive the part proportional to the years he contributed here, a situation similar to what happened to another worker who contributed for 15 years between Spain and Switzerland.