A retiree must return 76,139.63 euros to Social Security after having collected his pension from the General Regime while continuing to collect payroll as an official of the National Police Corps. This is confirmed by the Supreme Court, which agrees with the National Social Security Institute by considering that it incurred an incompatibility provided for in article 213 of the General Law of Social Security and in Law 53/1984 on Incompatibilities of Personnel in the Service of Public Administrations.
As stated in the Supreme Court’s own ruling, it all begins when in February 2014 this official of the National Police Corps requested his retirement pension from the General Social Security Regime, after having left a few months earlier at Banco Santander, where he had worked since 1985. In his application he indicated that he had no other employment income, but he was still in a “second activity” situation within the police force, collecting public salaries and contributing to the State’s Passive Classes.
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The National Social Security Institute (INSS) initially recognized his pension, but two years later, in June 2016, the agency reviewed the file and revoked the right, considering that he had collected the pension improperly, by making it compatible with the civil servant’s salary. In its resolution, the Social Security expressly stated that “the application of Royal Decree 691/1991 was not appropriate, since the person responsible for carrying out the reciprocal calculation of contributions is the regime to which the last contributions are made, this being the Passive Classes”, and claimed 76,139.63 euros in undue charges.
The affected party submitted a prior claim alleging that there was no economic damage, but it was rejected. Subsequently, he went to court, where the Social Court No. 9 of Madrid confirmed the administrative resolution in January 2018. The Superior Court of Justice of Madrid, in November of that same year, ratified the decision, understanding that there had been an absolute incompatibility between the public salary and the General Regime pension.
The pension was incompatible with the second activity
After exhausting the ordinary judicial route, the case reached the Supreme Court, which in its ruling 396/2022, of May 4, once again ruled in favor of Social Security. The high court explained that “the second activity without destination is an administrative situation prior to retirement, in which the police officer continues to receive public remuneration,” which is why it cannot coexist with the contributory retirement pension. He also adds that “during the second activity the official continues to be subject to the disciplinary regime and at the disposal of the minister, which prevents this situation from being assimilated to retirement.”
In this way, the Supreme Court confirmed that the General Regime pension cannot be collected while salaries continue to be received from public budgets, applying the incompatibility provided for in article 213 of the General Social Security Law (which can be consulted in this Official State Gazette) and in article 1.2 of Law 53/1984 (consultable in this BOE), on Incompatibilities of Personnel in the Service of Public Administrations.
The key to the ruling: double perception of public funds
The key to this sentence is that the police officer did not inform in his application that he was still in second activity and, therefore, receiving a public salary. According to the Supreme Court, “accepting the compatibility between the second activity and the retirement pension would mean violating the prohibition of receiving more than one remuneration charged to the budgets of the Public Administrations.”
Consequently, the court concludes that Social Security acted correctly by revoking the pension and demanding the reimbursement of what was collected, noting that “the receipt of the pension should have been suspended while remuneration continued to be received for the second activity.”