The possibility of bringing forward the retirement age is once again at the center of attention after a Spanish court recognized the right of a public worker to retire at age 60 with a full 100% pension, ruling out a restrictive interpretation of Social Security based on the nature of the employer.
The case was analyzed by the Superior Court of Justice of Madrid, which ruled in favor of a man born in 1963, a worker at the Spanish General Directorate of Traffic (DGT), by recognizing his right to retire at a bonus age, with 100% of the regulatory base.
The worker had worked as a permanent employee since 1987, performing tasks as a flight technician and aircraft mechanic on surveillance and maintenance missions. His work included flight and base operations, involving high risks associated with aerial activity.
Upon turning 60, he requested a retirement pension from Social Security, invoking the regime provided for in Royal Decree 1559/1986, which allows the application of reducing coefficients on the retirement age to technical flight crew members due to the dangerousness and hardship of the role, according to the Spanish digital newspaper Noticias Trabajo.
Refusal of Social Security and recourse to the courts
Social Security refused the request, arguing that the reducing coefficients would only apply to workers covered by the old Labor Ordinance of Airline Work Companies, excluding, in its understanding, Public Administration employees or workers.
According to this interpretation, the fact that the employee works in a public body and not in a private, for-profit company would prevent access to a reduction in the legal retirement age, despite the nature of the functions performed.
Faced with the refusal, the worker filed a complaint, arguing that his activity had exactly the same risks, physical demands and professional exhaustion as that carried out in the private sector. As Social Security’s position remained unchanged, it decided to go to court, says the same source.
Activity above the nature of the employer
Both the Labor Court and the Superior Court of Justice of Madrid ended up finding the worker in favor. The judges considered that the decisive element for the application of reducing coefficients is the activity carried out and its conditions of danger, hardship and toxicity, and not the legal nature of the employer.
The court highlighted that excluding a worker solely for performing duties for a public entity, when performing exactly the same aerial activity as a worker in the private sector, would constitute unjustified discrimination and contrary to the principle of equality.
An updated reading of the law
The decision also highlights that public administration staff are subject to common labor legislation. Therefore, basing exclusion on an old or outdated standard is not legally acceptable.
The ruling recalls, according to the same source, that the objective of reducing the retirement age in these professions is to compensate for premature aging and the progressive loss of psychophysical capabilities required by aerial work, factors that affect all professionals in the sector in the same way, regardless of whether they work for the State or for a private company.
For these reasons, the Superior Court of Justice of Madrid concluded that Social Security’s position violated the principle of equality and confirmed the worker’s right to retire at age 60 with the entire regulatory base.
In practice, the decision allows the worker to receive a monthly pension of 2,862.49 euros, corresponding to 100% of their regulatory base. Furthermore, the right to compensation in the amount of 1,800 euros was recognized, associated with the process, according to the source previously cited.
This ruling, according to , reinforces the jurisprudence that favors the concrete analysis of the functions performed and professional risks, to the detriment of formal interpretations based only on the worker’s administrative framework.
Legal framework in Portugal
In Portugal, the general rule determines that the legal age for access to the old-age pension is set annually based on average life expectancy, in accordance with article 20 of Decree-Law no. 187/2007, which regulates the legal regime of protection in the event of disability and old age of the general Social Security regime. Currently, this age is 66 years and 9 months, being adjusted through ordinances published every year.
However, Portuguese legislation allows exceptions to this general principle, providing for specific schemes for bringing forward the retirement age for professions considered particularly painful, dangerous or exhausting, as long as there is an express legal provision. These special regimes are enshrined in specific diplomas and are not the result of an individual assessment, but rather the legal recognition of the wear and tear associated with certain activities.
Among the best-known examples are mining workers, whose framework is set out in Decree-Law no. 195/95, which recognizes the highly painful and unhealthy nature of the activity, allowing early access to the old-age pension under more favorable conditions. A similar situation applies to maritime workers and fishermen, covered by specific regimes provided for, among other diplomas, in Regulatory Decree no. 40/86, which meets the physical demands and specific risks of working at sea.
In the case of air traffic controllers, the special regime results from legislation specific to civil aviation, provided for in Decree-Law no. 145/2007, which establishes specific age limits for exercising the role and differentiated rules for access to retirement, taking into account the high psychological strain inherent to the profession.
As is the case in other legal systems, in Portugal the determining criterion for bringing forward the retirement age is the nature of the activity carried out and the degree of physical or psychological exhaustion legally recognized, and not the type of employer or the sector in which the worker operates. Even so, access to these regimes is exceptional and restrictive, always depending on express legal provisions and strict compliance with the requirements defined in each applicable diploma.
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