The jurisprudential doctrine, established in the judgments of November 16, 2016 and November 30, 2018, establishes that to determine the regulatory bases of the pension of an official who has contributed under the passive class regime and during some periods also by the general regime, by making the performance of a job in the Administration compatible with another in the private sector "there is no convincing argument for not allowing them to choose, in the case of simultaneous contributions, those most favorable to the official, if it is integrate the regulatory base with contributions made to different pension regimes if these were made successively ".
The basis of these three judgments comes from the resolution of the Central Economic Administrative Court (Teac), of March 10, 2010, which maintains that article 31.6 of the consolidated text of the Law of Passive Classes of the State (Trlcpe) allows calculate the pension and determine from the regulatory base, do not count the periods quoted in Passive Classes simultaneously with those quoted to Social Security if it is favorable.
The contested resolutions in the three cases denied the calculation of the amount of the pension, taking into account that article 4.1 of RD 691/1991 prevents overlapping contribution periods from being taken into account.
Retirees from Passive Classes cannot reconcile their pay with a position in the public sector
In the responses to the claims, the State Bar objected that this article of RD 691/1991 only allowed that, at the request of the interested party, successive or alternative contribution periods be totaled in more than one pension scheme, but not with respect to those that overlap. And it considered that article 31.6 of the Trlcpe refers to the assumptions of contributions in various groups of the Passive Classes regime, but did not allow excluding years of contributions in this regime to take into account contributions made to Social Security.
On the other hand, the National Court, in a ruling of March 23, 2021, recognizes the incompatibility of civil servants with pensions to develop other paid work in the public sector, as established in article 33 of the Trlcpe.
On the contrary, it recognizes that, with prior authorization, an activity can be carried out in the private sector, as long as it is different from that carried out in the service of the State and with a pension reduction of 75% of the amount, with more than 20 years effective services to the State; or 55% if fewer years have been covered.
