Recalculation of military pension, the aeronautical staff in the military aviation field. Amount of the recalculated pension – components, calculation basis

DREPTUL MUNCII ŞI DREPTUL SECURITĂȚII SOCIALE

Abstract

The court is called to rule whether, in the light of the applicable law, respectively according to art. 109 of Law no. 223/2015 – which, in the recalculation procedure, refers to the calculation basis established according to the provisions of art. 28 of the same law – the hourly flight premium forms part of the revenues which have been considered by the legislator in the calculation procedure of the State military pensions. Therefore, since a court ruling, even final, cannot order for the future and cannot produce any other effects than in relation to the legal framework according to which it was rendered, the issue at law regarding the inclusion of the hourly flight premium in the calculation basis of the pension should be examined, in this case, in relation to the new law into force upon issuing the recalculation decision, on 18 October 2016, a law which established new rules in the matter, as it is the exclusive attribute of the legislator to establish the conditions and criteria for being granted these rights. As regards the respective premiums collected during the work performed in the capacity as aeronautical staff in the military aviation field, according to the rules into force at those times, respectively Law no. 138/1999 and Law no. 35/1990, the current legislator, under the provisions of Law no. 223/2015, did not take them into account upon calculation of the military pension emoluments. Hence, the premiums referred to shall be included in the assumption provided for by art. 28 letter e) of Law no. 223/2015, which excludes for its calculation basis “e) the premiums and prizes, except the classification, specialization and embarking premiums as long as the aircrafts are in the permanent base”. Although it is stated that, in compliance with the laws into force upon collection of the respective revenues, these premiums were of the permanent nature of some salary revenues, being included in the pension calculation basis upon retirement, at the same time as the entry into force of Law no. 223/2015 a new right arises, respectively the right to have their pensions recalculated in relation to the provisions of art. 109 of the above-mentioned law, however, by reference to the calculation basis established under art. 28 of the Law.