The Supreme Court has recognized the right to a firefighter to access the early retirement pension with a regulatory base of 2,716.15 euros after rejecting the appeal of the National Social Security Institute (INSS). The plaintiff had applied for the pension when he turned 60, taking advantage of the reduction coefficients applicable to his profession, but his application was initially denied by Social Securityclaiming that he was not discharged at the time of the request.
It all started when this worker, a firefighter from the Vigo Council, requested an early retirement pension in April 2021, at which time he was 60 years old. The worker wanted access this modality, based on Royal Decree 383/2008which allows the retirement age to be advanced for workers in dangerous or arduous professions, like yours. This law allows certain reducing coefficients to be applied to reduce the ordinary age, in this case up to 60 years. Despite this, Social Security denied his request, arguing in the resolution letter that did not meet the requirement to be discharged in the activity or in another work at the time of the causative event.
This denial was motivated, mainly, because the firefighter, in September 2020, was declared in a situation of total permanent disability for his usual profession. Even though his job was reserved, could not opt for a second activitysince this possibility was not provided for in the regulations of the City Council where he worked. Since February 2021, he was registered as a job seeker, which aggravated his economic situation by not receiving income from his previous work.
Given this refusal and after submitting several claims to Social Security, this worker decided to file a lawsuit in the Social Court number 2 of Vigo, which ruled in his favorrecognizing their right to early retirement due to their profession. Social Security appealed the decision to the Superior Court of Justice of Galicia, which revoked the initial ruling and dismissed the claim, so they once again withdrew the pension. This led to plaintiff to appeal in cassation before the Supreme Courtseeking the unification of doctrine and a definitive resolution on their right to a pension.
Had the right to early retirement
In the Supreme Court, the question was to determine whether or not he had the right to early retirement due to his profession as a firefighter, complying with the provisions of Royal Decree 383/2008. The plaintiff stated that this requirement violated the principle of regulatory hierarchy by adding conditions that were not included in the higher legislation.
The court argued that “Royal Decree 383/2008 introduces a requirement that art. 161.bis.1 of the LGSS of 1994 and art. 206.1 of the LGSS of 2015 do not require: that the firefighter remain registered as such or due to a different work activity until the date of the event that caused the retirement pension.”. This statement was key to determining that the regulatory development had exceeded its limits.
The Prosecutor’s Office also supported the plaintiff’s position, noting that “regulatory development cannot limit or restrict rights recognized by higher-ranking legislation”. Furthermore, he said that In cases of interpretive doubt, the resolution had to favor the workerespecially when it came to professions of an exceptionally painful nature.
In its ruling, the Supreme Court concluded that “The circle of those who can be beneficiaries of this pension is more restricted with the development norm than with the developed law. Therefore, the royal decree violates the principle of normative hierarchy of art. 9.3 of the Constitution”. For all these reasons, the High Court annulled the previous ruling and confirmed the plaintiff’s right to access his early retirement pension with an amount of 2,716.15 euros per month.