Inps pensions, what the Constitutional Court ruled

12 November 20204 years ago babelfish

All the surprises and ambiguities of the Constitutional Court's decision on the automatic revaluation of large pensions. The speech by Michele Poerio, Federspev national president and Confedir general secretary

The Constitutional Court ruled "that the legislator can slow down the automatic revaluation of high-value pensions and impose a solidarity levy on them, provided that it observes the constitutional principles of reasonableness and proportionality, also with regard to the duration of the measure" (as stated in the press release of 9 November 2020 of the Court itself).

Let's see if the conditions of reasonableness, proportionality, temporariness (the press release forgets adequacy) are present in the social security provisions of the laws that we have recently challenged (laws 145/2018 and law 160/2019, budget laws for 2018 and 2019 respectively ).

The limitation of the automatic equalization of higher-value pensions has intervened periodically from 1998 to today and, continuously, in 11 of the last 14 years, with even zero revaluation in the years 2008, 2012 and 2013.

At the time (judgment 316/2010) the Court had established that, with the frequent repetition of measures aimed at paralyzing the equalization system, even higher pensions "may not be sufficiently defended in relation to changes in the purchasing power of the currency".

With the aggravating circumstance that, due to the "carry-over" effect, even a temporary loss makes it substantially definitive, given that "the subsequent revaluations will, in fact, be calculated not on the original real value, but on the last nominal amount, which from failure to adapt has already been affected ”(Sentence 70/2015), even more so when punitive interventions to the detriment of pensioners are repeated in cascade.

And how can the Court consider that the principles of proportionality, reasonableness, adequacy have been respected when:

some pensions have always been revalued to 100% of the Istat index (those up to 3 or 4 times the minimum INPS) and others only by 40% (for example, those over 9 times the minimum INPS);
when it states that "higher pensions have wider margins of resistance to inflationary erosion". In reality, the opposite occurs because: the tax levy is higher (progressivity), the indexation is already lower in ordinary conditions (regardless of the penalties in question), the calculation of these pensions already contains mechanisms for containing their amount in relation to life work and salary of the individual pensioner concerned;
when, while stating that the adequacy of pensions "is functional to the implementation of the principles of sufficiency and proportionality of remuneration", he then concludes that the pension is linked to remuneration "not in an unfailing and strictly proportional manner" (Sentences 70/2015, 173/2016, 250/2017 with reference to articles 36 and 38 of the Constitution). But in our case, after the Letta law (L. 147/2013), which no longer recognized at least a portion of full revaluation at 100% for pensions of greater amount, the proportion between salary and pension risks being overturned due to the different criteria for the overall revaluation of the different pensions (higher salaries can thus correspond, over time, to lower pensions);
when, even today, it does not recognize that the judgment referred to in Sentence 70/2015 has been evaded, which had censured the provisions of the Fornero law (Law 314/2011) regarding the non-revaluation of higher pensions, a rule that was repeated (in spite of Article 136 of the Constitution) to the detriment of pensioners with a pension over 6 times the minimum INPS through law 109/2015?

With regard to the levy (the so-called "solidarity contribution") on higher pensions for the five-year period 2019-2023 (gradual and increasing levy from 15 to 40% on pension amounts exceeding € 100,000 gross per year), the Court recognized the illegitimacy only for the period 2022-2023, which goes beyond the three-year budget maneuver referred to in law 145/2018, which contains precisely the rule in question.

However, the surprises, the ambiguities and the hypocrisies contained in the Sentence in question are many:

the Court maintains that the purpose of contributing "to the financing costs of an easier early retirement, considered functional to the generational turnover of active workers" (read: quota 100), appears "capable of justifying the sustainable equalization sacrifice imposed on high amount ". This is an affirmation of pure political value, without any constitutional basis;
furthermore, the Court, concerned that what is stolen from pensioners will still remain "in the endo-social security circuit", shows that it believes that these resources flow into a separate and intangible Fund "for the revision of the pension system through the introduction of further forms of early retirement and measures to encourage the hiring of young workers ". And instead the "savings" on the skin of pensioners are still accounted for as income (or lower expenses) in the state budget, proof of this is that the Prime Minister, through the mouth of the State Attorney, is rightly concerned about a declaration of the constitutional illegitimacy of measures contested by us, asks the Court that "the effects are temporally limited, since these are measures to contain social security expenditure having a significant impact on the balance of the public budget". Therefore: other resources are needed to finance “quota 100”; moreover, a bad motivation does not justify the theft of acquired and consolidated rights by pensioners; the Court pretends to believe in the “screen” of the endo-social security destination to soften the bitter reality;
finally, the Court insists on not recognizing that the levy on retired pensions has a substantially fiscal character, which would obviously make it even more illegitimate because it lacks the characteristic of the "universality" of the levy itself (Article 53 of the Constitution), underlining whether the withdrawal is total or partial, but what matters is that the "patrimonial ablation" is authoritarian and not recoverable with respect to a perfect right of the offended citizen. Other than “legitimate reliance” on the State, on recognized and consolidated rights, on agreed rules. And so the pensioners affected by the " cuts " suffer double taxation, even if improper: one directly on the amount of their pension, the other on the total gross income (Irpef in brackets), of which the pension itself is usually an exclusive part or prevalent;
however, what is even more disconcerting is the relativism that permeates the Court's judgments on constitutional and social security rights, given that it "appreciates" that the revaluation of higher pensions "is not zeroed, but only decreased", that the contribution of solidarity operates "only on the portion of the pension that exceeds € 100,000 gross / year" and that the remaining portions of the pension from the levies imposed are also indexed, naturally downwards. On the other hand, the perspective of the Court is terrifying, according to which the legitimacy of extraordinary contributions on high-value pensions must be assessed on the basis of the following criteria: "necessity, sustainability, proportionality, temporariness, endo-social security destination of the levy (ed. once the adequacy has disappeared, but this time there is also the reasonableness), in the context of an overall evaluation dominated by the reasons of necessity, more or less stringent, induced by the needs of rebalancing and sustainability of the social security system ", without forgetting" the of rebalancing of pension treatments ”(as if to say that Robin Hood is permanently on our doorstep for any future raid, not always and not only to transfer from the rich to the poor, always so-called).

What about this Court and this judgment, daughter of this Court?

1. These constitutional judges come from political appointments and make politics, they do not believe in the current Constitution and decide on the basis of the "virtual constitution" that they have in their minds or hearts, limiting themselves to weakly signaling when the legislator is too bold in trampling the constitutional principles , but always ready to "cover" the bad legislation with every twist, benevolent interpretation and justificationism.

2. In this way, the Court does not respect its super partes constitutional role to protect and guarantee compliance with the constitutional principles in force and the correctness of the laws of our system, but becomes a sort of "added legislator" appointed to give some warning and put a few "patches" here and there, but becoming co-responsible for the legislator on duty and for any wrongdoing.

3. And yet the articles. 3, 36, 38, 42, 53, 136 of our Constitutional Charter exist, and claim to be respected and implemented, as the judges of the Court of Milan and of numerous regional jurisdictional sections of the Court of Auditors know well, and our retired members , which raised the question of constitutional legitimacy regarding the numerous and disconcerting exceptions (with respect to consolidated and fundamental rights and principles) contained, most recently, in Law 145/2018.

4. Finally, there is no doubt that this Court, as it is named, operates and ruled, is an integral part of the complex crisis of the “Italian institutional system”. Without substantial and comprehensive reforms, our democracy languishes being reduced to a caricature.

Prof. Michele Poerio, national president of FEDER.SPeV. and Secretary General CONFEDIR

This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/economia/pensioni-inps-che-cosa-ha-stabilito-la-corte-costituzionale/ on Thu, 12 Nov 2020 06:10:06 +0000.