A retiree must return 59,161.10 euros of his retirement pension to the National Social Security Institute (INSS) after the Supreme Court confirmed that these were improper charges for having received the active retirement pension while continuing to exercise his position as a notary. The high court explains that the notary made an inaccuracy when declaring his activity as private, when in reality it was a public function incompatible with active retirement, as regulated by article 214 of the General Law of Social Security.
According to the ruling, Virgilio, who was a notary, requested a retirement pension on July 25, 2013, informing Social Security of the beginning of his self-employed activity as a “notary holder.” Likewise, he declared that he was not going to hold a job or senior position in the public sector.
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Jeanne (63 years old), retired as a nurse, tells how much she receives as a pension: “my pension is 2,000 euros; it was a real shock to see how much I lost, since I earned 3,380 euros.”
Social Security was approved through the active retirement modality. But, years later, following a database crossing in September 2014, the Administration realized that the notary continued to collect 100% of his pension while performing a function that the General Social Security Law considers incompatible with active retirement.
For this reason, Social Security requested that this retiree return the amounts improperly collected, which were 59,161.10 euros, since the notary had been receiving the full pension without meeting the requirements.
This retiree, since he was not satisfied, decided to go to court. In the Superior Court of Justice (TSJ) of the Valencian Community he agreed, explaining that as four years had passed, the debt had prescribed.
The active pension is incompatible with the notarial public function
After going through the Social Court and the TSJ, the case reached the Supreme Court, which changed its opinion and ruled in favor of Social Security. The Chamber explained that the activity of the notary is a public function, since the notary is a public official authorized to attest. Therefore, the exercise of this function is not compatible with the active retirement pension, since this is limited only to the private sector.
The Court explained that the notary made an “inaccuracy” in his initial statement when requesting the pension. This inaccuracy was the cause of the improper receipt of the pension.
The inaccuracy in the declaration makes the action of the INSS imprescriptible
In this ruling, the main error that the Supreme Court corrected in the TSJ was the application of the prescription. The Chamber recalls that the Law Regulating Social Jurisdiction (LRJS) establishes the general rule of prescription at four years, but excepts reviews motivated by “omissions or inaccuracies in the beneficiary’s statements.”
Although the INSS filed a lawsuit (instead of revoking ex officio), the Supreme Court maintains that the review action was not subject to that four-year prescriptive period. In the words of the resolution, when there is an inaccuracy of the beneficiary, the LRJS “does not establish any review period,” and the beneficiary “should not benefit from the four-year limitation period.”
Therefore, the Court understood that Social Security could correct the right to receive the pension at any time due to the initial inaccuracy. The Supreme Court’s ruling matches that of the TSJ and confirms the obligation to return the 59,161.10 euros, limiting the reimbursement to the four years prior to the review, as established by the General Social Security Law.