Text file: 8341.txt
author: m m
downvotes: 0
end consideration date: 2017-07-01
id: '8341'
number comments: 10
number views: 5765
proposal type: Competent authority response
response: "Response by the Ministry of Labour, Family, Social Affairs and Equal Opportunities\n\
  We would like to clarify that the current regime regulates dual status in a way\
  \ that ensures equal treatment of insured persons irrespective of the legal relationship\
  \ that is the basis for their inclusion in the compulsory pension and invalidity\
  \ insurance. When drafting the Act on Amendments and Additions to the Act on Pension\
  \ and Disability Insurance (Official Gazette of the Republic of Slovenia, No. 102/15,\
  \ hereinafter referred to as the Act on Pension and Disability Insurance - ZPIZ-2B),\
  \ which entered into force on 1 January 2016, we tried to prepare the best possible\
  \ proposal for maintaining the dual status from the point of view of all insured\
  \ persons, and we did not take into account the proposal for a special regime for\
  \ self-employed persons to receive a pension and continue to work, as the proposal\
  \ did not receive support from the other social partners at the ESF.\nThe pension\
  \ is an income to replace the income received by the insured person during his/her\
  \ working life and its purpose is to ensure that insured persons have a secure old\
  \ age when they decide to leave the labour market or, if they are injured at work,\
  \ to provide them with adequate financial compensation under the insurance scheme\
  \ or to ensure that their family members, who do not have their own means of subsistence,\
  \ are provided with adequate rights under the pension and invalidity insurance scheme\
  \ after the death of the breadwinner. Retirement is not compulsory and it is up\
  \ to each individual to decide whether to retire or to continue working or pursuing\
  \ an occupation. However, the status of insured person is not, as a rule, compatible\
  \ with that of pensioner or beneficiary, except in certain cases provided for by\
  \ law. Therefore, someone cannot be a pensioner, receive a pension and be employed\
  \ or have a sole proprietorship, or hold a managerial position in a company at the\
  \ same time. A person wishing to retire must therefore have previously lost his\
  \ or her insured status (ceasing to be employed, ceasing to be self-employed, etc.),\
  \ otherwise he or she would be regarded as fit for work for the purposes of the\
  \ pension legislation and the insured event (old age) would not have occurred.\n\
  Thus, under the current legislation, all insured persons are treated in the same\
  \ way and can maintain their insured status in the context of receiving a 20% early\
  \ retirement pension or an old-age pension when they join the compulsory pension\
  \ and invalidity insurance scheme on a full-time basis and on a partial pension\
  \ basis, where the insured person has a minimum daily or weekly work obligation\
  \ of at least two hours per day or 10 hours per week, and receives a pension for\
  \ the remainder, i.e. can receive a maximum of 75% of the pension under the partial\
  \ pension.\nSince the entry into force of the Law on Pension and Disability Insurance\
  \ (Official Gazette of the RS, No 96/12, as amended, hereinafter referred to as\
  \ ZPIZ-2), persons who are engaged in any occupation and who also meet the conditions\
  \ for retirement could not retire, as the status of pensioner and the status of\
  \ insured person are incompatible. This arrangement generally applies to insured\
  \ persons who started their activity after the entry into force of the ZPIZ-2, i.e.\
  \ from 2013 onwards, but only some self-employed persons who retired under the previously\
  \ applicable legislation and claimed exemption from insurance could continue their\
  \ activity while receiving a full pension until the entry into force of the ZPIZ-2B,\
  \ i.e. until the end of 2015.\nAs one of the principles of the ZPIZ-2 is that all\
  \ individuals who carry out a job, activity or occupation on a more or less permanent\
  \ basis should be covered by insurance, the new law no longer allows for the possibility\
  \ of \"exemption\", but introduces the possibility of obtaining a partial pension\
  \ also for self-employed entrepreneurs. In order to ensure that all self-employed\
  \ persons are treated equally in pension legislation, the ZPIZ-2 already provided\
  \ for a transitional period during which pensioners who were self-employed under\
  \ the previous Pension and Disability Insurance Act (Official Gazette of the Republic\
  \ of Slovenia, No. 109/06 - Official consolidated text, 114/06 - ZUTPG, 10/08 -\
  \ ZVarDod, 98/09 - ZIUZGK, 38/10 - ZUKN, 61/10 - ZSVarPre, 79/10 - ZPKDPIZ, 94/10\
  \ - ZIU, 94/11 - Decree of the US, 105/11 - Decree of the Council of. US, 110/11\
  \ - ZDIU12, 40/12 - ZUJF, 96/12 - ZPIZ-2 and 9/17 - decree of the US, hereinafter\
  \ referred to as ZPIZ-1), to align their status with the provisions of ZPIZ-2, with\
  \ the latest date being 31 December 2015. We would like to point out that in this\
  \ context, too, not all self-employed persons are concerned, but only those who\
  \ have claimed the exemption from insurance, since under the old legislation it\
  \ was already considered that a pensioner could not be both employed and self-employed\
  \ if he or she did not meet the conditions for exemption from insurance, and the\
  \ legislation has been unified for self-employed persons, who could claim the exemption\
  \ under the previous legislation. From the point of view of the onset of the risk\
  \ of old-age insurance, there is no reason to treat work under an employment contract\
  \ differently from full-time work in the context of self-employed entrepreneurship.\
  \ As a consequence, the partial retirement regime has also been amended to allow\
  \ partial retirement also for self-employed persons, which was not allowed under\
  \ the previous legislation and which has already been ruled unconstitutional by\
  \ the Constitutional Court of the Republic of Slovenia. The legislation thus followed\
  \ the principle that every job counts and should be treated as such.\nThe dual status\
  \ under the current legislation is thus regulated in a systemic way, whereby all\
  \ self-employed persons are placed on an equal footing, i.e. those who, even under\
  \ ZPIZ-1 and ZPIZ-2, could not maintain their self-employed activity while receiving\
  \ a full pension and those who, under the previous legislation, could exceptionally\
  \ continue to carry out a self-employed activity while receiving a full pension\
  \ until the end of 2015. This establishes a regime for all self-employed workers\
  \ in the future in the same way and equal treatment not only between all categories\
  \ of insured persons but also within the category of self-employed workers, all\
  \ of whom have paid contributions and have to fulfil the same conditions for retirement,\
  \ and therefore there is no reason to treat some self-employed workers differently.\n\
  The rules requiring the cessation of compulsory insurance in order to be entitled\
  \ to a pension and those providing for the re-entry into insurance of pensioners\
  \ who resume work or activities which give them the status of insured persons have\
  \ been in force for a long time, but the constitutional objectionability of this\
  \ article in terms of re-entry into insurance on a full-time or insured basis has\
  \ never been established. However, we would like to clarify that a request for a\
  \ constitutional review of the dual status regime has been submitted, but the Constitutional\
  \ Court of the Republic of Slovenia has not yet ruled on the matter.\nFirst of all,\
  \ from the insurance point of view, it is important that under the ZPIZ-2, which\
  \ entered into force in 2013, the dual status regime is regulated in the same way\
  \ for all insurance grounds. The Constitutional Court of the Republic of Slovenia,\
  \ which has previously ruled on the unconstitutionality of the partial pension regime\
  \ from the perspective of sole traders, has already stated that there are no grounds\
  \ for treating sole traders differently on the sole ground of being insured on a\
  \ different basis, since from the perspective of pension and invalidity legislation\
  \ all insured persons are insured for the same scope of rights. On the basis of\
  \ this decision of the Constitutional Court of the Republic of Slovenia, the ZPIZ-2\
  \ introduced a partial pension and partial re-entry regime for self-employed persons\
  \ as well, thus allowing them to combine the status of pensioner and insured person\
  \ in the same way as for all other categories of persons. They may also be entitled\
  \ to a 20% early retirement pension or an old-age pension if they meet the conditions\
  \ laid down by law.\nWe would also like to clarify that, in the event of re-entry\
  \ into insurance, there is no deprivation of the pension, as is often wrongly stated,\
  \ but rather the pension is not paid for the period of re-entry into insurance,\
  \ but starts to be paid again after the termination of insurance, and insured persons\
  \ can also claim a reassessment of the pension or a percentage increase in the pension\
  \ according to the period of insurance completed during the period of re-entry into\
  \ insurance.\nWe are aware of the important role that pensioners play in the labour\
  \ market, but pensioners are not completely prevented from working, as the legislation\
  \ already allows them to carry out certain jobs while receiving a pension. Pensioners\
  \ can therefore enter into civil law contracts without restriction (e.g. sub-contracting,\
  \ author's contract), but they can also carry out temporary and occasional work\
  \ as pensioners in accordance with the legislation governing the labour market,\
  \ personal supplementary work and short-term work in accordance with the law governing\
  \ the prevention of undeclared work and employment, and, under certain conditions,\
  \ complementary activities on farms. If they carry out work within these limits,\
  \ their pension does not cease to be paid, but continues to be paid in full. However,\
  \ all these cases are characterised by the temporary and intermittent nature of\
  \ the pensioners' work, which does not have a lasting impact on their situation\
  \ and does not allow them to survive for a longer period of time. The conclusion\
  \ of author's and subcontracting agreements is also restricted, since such agreements\
  \ may not be concluded if the elements of an employment relationship exist.\nAt\
  \ the same time, we would like to clarify that the White Paper on pensions also\
  \ addressed this issue, proposing that pensioners who have fulfilled the full conditions\
  \ for retirement should be allowed to continue working, irrespective of the insurance\
  \ basis for their inclusion in the scheme, while receiving a full pension and paying\
  \ full contributions to the pension and invalidity insurance scheme. However, as\
  \ a proposal for discussion, it suggested the possibility of introducing dual status\
  \ also for those individuals who have retired before full retirement age, but only\
  \ to a limited extent (e.g. up to a certain amount).\nWith regard to the issue raised,\
  \ we would like to clarify that this is a regulation which is still undergoing the\
  \ process of determining its constitutional compatibility, and therefore no changes\
  \ to the regulation are foreseen at this stage, pending the decision itself. However,\
  \ in the event of future amendments to the pension legislation, depending on the\
  \ decision of the Constitutional Court of the Republic of Slovenia and the possibility\
  \ of adopting a consensus on the admissibility of pensioners' work with the social\
  \ partners, the possibility of pensioners' work while being insured will also be\
  \ examined. However, we would like to stress that the regulation is a strong interference\
  \ in the insurance system itself, and therefore the changes will have to be made\
  \ in a deliberate manner and, above all, the solutions will have to be found in\
  \ a way that will allow dual status for all insurance bases equally.\n "
response date: 2017-08-08
response due date: null
sent date: 2017-06-02
title: Reintroduction of the afternoon s.p. for pensioners
upvotes: 39
url: https://predlagam.vladi.si/predlog/8341
