Early retirement, the Supreme Court facilitates the access (Norme & Tributi Plus Lavoro de Il Sole 24 Ore, 24 September 2024 – Andrea Di Nino, Giorgia Tosoni) 

The Court of Cassation expresses its opinion on the role of the figurative contribution in achieving the requisite for access to retirement. 

The Court of Cassation, in its recent sentence no. 24916, published on 17 September 2024, has ruled on the subject of pension benefits, expressing its opinion on the role of imputed contributions in achieving the requisite access to retirement. 

The fact 

The case in question concerned an appeal by a worker to the Supreme Court following the decision of the Court of Appeal of Lecce, in judgement no. 39 of 24 January 2002, in favour of a measure taken by the Social Security Institute (i.e. “INPS”) to the detriment of the plaintiff. 

The appellate judges, in sentence no. 39, had in fact considered as correct the rejection of the application for an early retirement pension submitted by the worker pursuant to Law no. 214 of 2011, since she did not meet the actual minimum contribution requirements for access to the pension, in view of the presence of figurative contributions due to periods of sickness and unemployment in the amount of the contributions accrued by the applicant. The Court of Appeal thus pointed out the absence of the 35 years of effective contributions required by the old legislation for early retirement, a provision which, according to the judges, is still in force. 

Against the decision of the second instance, the employee appealed to the Court of Cassation. 

The worker challenged the decision on the grounds of infringement of Article 24, paragraphs 10 and 11, of Decree-Law no. 201 of 6 December 2011, converted into Law no. 214 of 2011, known as the “Monti-Fornero” reform, arguing that what the territorial judges had provided for was not contained in the above-mentioned legal provision and that the reform had modified the conditions for access to the early retirement scheme. 

The reasons of the decision 

Law no. 214 of 2011, as the Court of Cassation’s ruling states, radically changed the old-age and seniority pension systems in force until then and intervened in the second case by introducing stricter limits on access to the pension treatment, which from then on was called “early retirement pension”. 

In this respect, Article 24 (paragraph 10) of Law no. 214 provided that, from 1 January 2012, in the absence of the normal age requirements for access to the old-age pension, the right to an early retirement pension would be granted only if the contribution period was 42 years and one month for men and 41 years and one month for women, regardless the type of contribution accrued, whether as a result of effective payment or merely as a figurative contribution. The provision also provided for a gradual increase in the number of months of pensionable service for the years following the entry into force of the law, as a result of the adjustment of the pension requirements to the increase in life expectancy, pursuant to Article 12 of Decree-Law no. 78 of 31 May 2010, converted into Law no. 122 of 30 July 2010. 

The second provision referred to, i.e. paragraph 11 of Article 24, regulates the new conditions of eligibility for the early retirement pension for workers whose first contribution credit comes into effect after 1 January 1996, recognizing their right either (i) on completion of the contribution period referred to in paragraph 10 above, or (ii) on reaching the age of 63, provided that at least 20 years of effective contributions have been paid and credited to the insured person and that the amount of the first pension instalment is not less than a certain minimum monthly amount, revalued annually, and in any case not less than 2.8 times the monthly amount of the social allowance fixed for the reference year. 

The Supreme Court, after analyzing the legal provisions governing early retirement, found nothing that could lead to the exclusion of the figurative contribution from the contribution requirement for entitlement to a pension and upheld the worker’s arguments, stating that (i) “the exclusion of the figurative contribution within the scope of application of paragraph 10 (as relied on by the “INPS”) would have little justification and would lead to a substantial non-application of the case, (ii) “moreover, on the basis of the literal criterion of interpretation of the provisions in question, the worker’s request for an early retirement pension on the basis of the additional calculation of the notional contribution accrued appears to be well founded, since only paragraph 11 requires the effective contribution, whereas paragraph 10 is silent”. 

The Court of Cassation ruled that the contribution requirement for access to the early retirement pension under Article 24, paragraph 10, of Law no. 214 of 2011, consisting of a contribution period of 42 years and 10 months for men and 41 years and 10 months for women, is also supplemented by the figurative contribution, confirming also that the requirement of 35 years of actual contributions under the previous legislation does not apply to the new system reformed by the so called “Fornero” Law. 

With regard to the judgment under review, nothing has changed relating to the contribution requirements provided for in Article 24 (paragraph 11) in the case of access to early retirement pension by persons with contribution years prior to 1 January 1996, set at 20 years, in this case of actual contributions, and the retirement age now raised to 64 years. 

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