Age at which it is appropriate to declare the forced retirement of an official who is covered by the General Social Security System and the Special Social Security System for Civil Servants of the State

The question raised concerns the age at which the forced retirement of an official who is covered by the General Social Security Scheme and the Special Social Security Scheme for Civil Servants of the State is to be declared.

To this end, it is necessary to analyze the provisions of the Consolidated Text of the Law of the Basic Statute of the Public Employee, approved by Royal Legislative Decree 5/2015, of 30 October, (hereinafter, TRLEBEP) and the regulations in the field of Social Security, in particular the Consolidated Text of the General Law of Social Security, approved by Royal Legislative Decree 1/1994, of 20 June (TRLGSS, hereinafter), and Royal Decree 691/1991, of 12 April, on reciprocal computation of quotas between Social Security Regimes, in 1991.

The art. 67 of the TRLEBEP regulates forced retirement with this literal text:

“1. The retirement of civil servants may be:

b) Forced, upon reaching the legally established age.

(…)

3. Compulsory retirement shall be declared ex officio when the official reaches the age of sixty-five years.

However, in the terms of the Civil Service Laws that are issued in the development of this Statute, it may be requested to extend the stay in active service at most until the age of seventy is reached. The competent Public Administration must resolve in a motivated manner the acceptance or refusal of the prolongation.

Staff members who have specific State pension rules will be excluded from the provisions of the preceding two paragraphs.

4. Irrespective of the statutory age of compulsory retirement set out in paragraph 3, the age of compulsory retirement for civil servants covered by the General Social Security Scheme shall, in any event, be that provided for in the rules of that scheme for access to the retirement pension in its contributory form without a reduction coefficient on the basis of age.”

Therefore, this article proposes a dual regime with respect to the age of forced retirement depending on the framework of the civil servant in one or another regime, without prejudice to the existence of specific retirement laws and without prejudice to the regulation regarding the extension of active service. With regard to this last paragraph, it should be recalled that officials may request the extension of their active service up to the age of 70 in those Public Administrations that have not established temporary measures to suspend this extension.

For staff covered by the Special Social Security Regime of State Civil Servants, the age of forced retirement is sixty-five years.

For the staff included in the Social Security System, the current wording comes from the modification operated by Royal Decree-Law 20/2012, July 14, whose purpose was to align the current regulation with the reform of public pensions that was carried out through Law 27/2011, of August 1, through which a calendar of progressive application of the new retirement age from 65 to 67 years in 2027 was introduced (currently, Transitory Provision seventh of the TRLGSS).

This ensured that the age of compulsory retirement for civil servants covered by the General Social Security Scheme would at all times coincide with the age provided for in the General Social Security Scheme for access to the ordinary retirement pension, without any loss of remuneration.

Thus, depending on the progressive application of the retirement age, if in 2013, the forced retirement age of civil servants included in the General Social Security System was 65 years and 1 month, in 2025 the age is 66 years and 8 months and from 2027 it will be 67 years.

What the expression means “retirement in its contributory mode without reducing coefficient due to age”it is that the age at which civil servants may have access to forced retirement will be that provided for ordinary contributory retirement, that is to say, for retirement in which no reduction coefficients are applied, thus avoiding confusing such retirement with early retirement, in which reduction coefficients are applied.

Once this has been pointed out, it is appropriate to analyze the age of forced retirement of an official who is simultaneously covered by the General Social Security System and the Special Social Security System for Civil Servants of the State.

In accordance with the above, the legislative reforms carried out with regard to the General Social Security System ensure that the forced retirement age for officials included in the General Social Security System at all times coincides with the age for access to the regular retirement pension.

Article 4.2 of RD 1991 states that “the pension shall be recognised by the body or entity managing the scheme to which the deceased has made the last contributions. In the event that it is simultaneous, the competence for the resolution shall lie with the regime in respect of which it had the highest quoted period accredited. This Body or Entity shall decide by applying its own rules but taking into account the totalization of periods referred to in the previous number.

However, if in such a scheme the person concerned does not fulfil the conditions required to obtain the right to a pension, he or she shall resolve the other scheme in accordance with his or her own rules and also taking into account the expressed totalization.”

In accordance with the aforementioned precept, the pension of civil servants who accredit a dual career of contribution and service in the General Social Security System and in the Special Social Security System of Civil Servants of the State must be recognized by the body or entity managing the system to which they have made the last contributions. In the event that it is simultaneous, the competence for the resolution shall lie with the regime in respect of which it had the highest quoted period accredited. Said Body or Entity shall decide according to its own rules, but taking into account the totalization of quotation periods.

It also provides that, if in such a scheme the person concerned does not meet the conditions required to obtain the right to a pension, he or she shall resolve the other scheme in accordance with his or her own rules and also taking into account the expressed totalization.

Since there is a tendency in the General Social Security System to bring the minimum age of compulsory retirement into line with the minimum age of entitlement to the ordinary retirement pension, it can be interpreted as meaning that a staff member under two Social Security schemes may be forcibly retired at the age established in one of the schemes in which he or she is covered, provided that the other requirements established for that purpose are met, in the event that he or she does not meet the requirements for retirement established in the other scheme in which he or she is covered.

Retirement by either of the two Social Security systems will in any case imply the loss of the status of civil servant and the recognition of the right to pension of these civil servants must be carried out, after totaling the periods of contribution where appropriate, in accordance with the provisions of Royal Decree 691/1991, of 12 April.

All of the foregoing is without prejudice to recalling that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, are not of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The responses to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that such responses may be affected by subsequent legislative changes or judicial decisions.