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Royal Decree 1010 / 2009, Of 19 June, Establishing Measures To Compensate For The Decline In The Contribution To The Social Security Of Workers Whose Contract Of Employment Was Extinguished As A Result Of The Records Of...

Original Language Title: Real Decreto 1010/2009, de 19 de junio, por el que se establecen medidas destinadas a compensar la disminución en la cotización a la Seguridad Social de los trabajadores cuyo contrato de trabajo se extinguió como consecuencia de los expedientes de ...

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TEXT

The Council of Ministers, by agreement of 29 February 2008, has provided for the adoption of exceptional social measures in favour of workers affected by the employment regulation files 76/2000, 8 of In March 2001, and 25/2001, of 31 July 2001, provided that they are 50 or more years of age and are in a situation of high social security, as a result of their relocation to other companies.

the purpose of such measures is to compensate those workers, as from the age indicated, for the reduction in the contribution to social security as a result of the loss of their jobs in the Community. In the case of the Commission, the Commission has taken into account the fact that it has not yet been able to make a decision on the application of the provisions of this Directive, even if it does not fall within the scope of Article 3 (1) of the Directive. they have not been approved. It would therefore be necessary to add that it is impossible for such workers to benefit from the Pension Fund which they were entitled to for the special circumstances in which they were entitled.

The aid for which the reduction in the contribution referred to in this royal decree is compensated is a subsidy, in accordance with the provisions of Article 2 of Law 38/2003 of 17 November 2001, Grants.

For its part, Article 22.2.c) of the aforementioned Law 38/2003 of 17 November, provides that, by way of exception, those grants may be granted directly in respect of reasons of public interest, social, economic or humanitarian, or other duly justified cases that hinder its public call. The special rules governing such subsidies shall be approved by royal decree, on a proposal from the competent minister and after report by the Ministry of Economic Affairs and Finance, in accordance with Article 28 (2) and (3) of that Regulation. Law.

In the grants to which this royal decree refers, there are singular circumstances and reasons of public, economic and social interest in the collective of affected workers that make their public call difficult and justify their grant under direct concession.

On the other hand, the competencies of the State Employment Service are set out in Article 2 of Royal Decree 1383/2008 of 1 August, approving the organic structure and institutional participation of the Public Service of State Employment, with its own paragraph (k), which may have any other jurisdiction which is legally or legally attributed to it.

By this royal decree, the qualification entrusted by the Agreement of 29 February 2008 is fulfilled, with the rules determining and specifying the particular conditions and the procedure for the increase and compensation of the contribution to the Social Security contribution, by the subscription of a special agreement for the workers concerned, with the State Employment Public Service being assigned the obligation to pay the said convention.

In its virtue, on the proposal of the Minister of Labor and Immigration, prior to the report of the Ministry of Economy and Finance and after deliberation of the Council of Ministers at its meeting of June 19, 2009,

DISPONGO:

Article 1. Object and scope of application.

1. The present royal decree is intended to regulate exceptional social measures authorized by the Agreement of the Council of Ministers of 29 February 2008, in favour of workers whose employment contract was extinguished as a result of the cases of employment regulation 76/2000 of 8 March 2001 and 25/2001 of 31 July 2001, which are over 50 years of age and are in a high state of social security as employed persons, and who are intended to compensate for the loss of the level of contribution which such workers may have suffered as a result of consequence of the reported loss of employment.

2. These measures are implemented in the regulation of the special agreement to be signed by such workers with the General Treasury of Social Security, and in an aid to be granted by the State Employment Public Service consisting of the payment of the which corresponds to that special agreement in the terms indicated in the following Articles.

Article 2. Nature and applicable legal status.

1. The aid regulated in this royal decree will have the legal nature of the grant and will be granted at the request of the workers under direct concession, taking into account their unique character in their public, economic and social interest. particular economic and social circumstances of the collective referred to in Article 1.1 pursuant to Articles 22.2.c) and 28 of Law 38/2003 of 17 November, General of Grants, and 67 of its Implementing Regulation, approved by Royal Decree 887/2006 of 21 July.

This aid will be governed by what is established in this royal decree, and, as not provided for in it, in Law 38/2003 of 17 November, and in Royal Decree 887/2006 of 21 July, for which the Regulation of the aforementioned Law is adopted; Law 30/1992, of 26 November, of the Legal Regime of Public Administrations and of the Common Administrative Procedure, and the Royal Legislative Decree 5/2000, of 4 August, approving the recast of the Law on Infrastructures and Penalties in the Social Order, as well as the other rules applicable to them.

2. The special agreement with the General Treasury of Social Security shall be governed by the provisions of this royal decree, and, as not provided for therein, in Chapter I of Order TAS/2865/2003 of 13 October, which regulates the special in the social security system.

Article 3. Funding.

1. The credit to which the aid referred to in this royal decree is to be financed will not have the character of a national employment fund, as referred to in Article 14 of Law 56/2003 of 16 December 2003, of Employment, and therefore it will not be applicable. Article 86.2 of Law 47/2003 of 26 November, General Budget.

2. The financing of the cost of the aid regulated in this royal decree shall be borne by the budget of the State Employment Public Service, in which the available credit intended for that purpose shall be entered.

Article 4. Requirements of the beneficiaries.

To benefit from these measures, the workers referred to in Article 1.1 shall meet the following requirements:

(a) Be fifty or more years of age and not have fulfilled the ordinary age required to claim entitlement to the retirement pension, as provided for in Article 161.1.a) of the recast text of the General Law on Security Social, approved by the Royal Legislative Decree 1/1994, of June 20.

b) Finding yourself as an employed person under some system of the Social Security system.

(c) Have experienced a decrease in their contribution to Social Security in respect of which they would have been responsible for maintaining their jobs affected by the related employment regulation files.

d) Subscribe to the special convention with the General Treasury of Social Security in the terms indicated in the following article.

e) Fulfill the obligations established in general in Article 14 of Law 38/2003 of 17 November, and the others established in this royal decree and norms that develop it.

f) Not to be in any of the prohibitions provided for in Article 13 of Law 38/2003 of 17 November.

Article 5. Special Convention Subscription with the General Treasury of Social Security.

The workers referred to in Article 1.1, and who satisfy the conditions laid down in points (a), (b) and (c) of the preceding Article, may conclude a special agreement with the General Treasury of Social Security with subject to the provisions of Chapter I of Order TAS/2865/2003 of 13 October 2003, with the following specialties:

(a) In the application for subscription of the special agreement, the condition of the affected by the cases of employment regulation 76/2000 or 25/2001 shall be recorded and the Public Service of State Employment shall be authorized to act as subject to compliance with the obligation to list, in accordance with Article 8 of the abovementioned order, in application of the aid authorised in the Council of Ministers ' Agreement of 29 February 2008.

In the same act of presentation of the application for subscription of the special agreement, the interested parties will submit, before the General Treasury of Social Security, the request for the granting of the regulated aid in this royal decree, addressed to the State Employment Public Service and to the official model established by that body.

(b) The choice of the basis for listing the special agreement shall be made in accordance with the provisions of Article 23.2 of Order TAS/2865/2003 of 13 October 2003 for the purpose of not exceeding the difference between the the basis for the contribution of the labour activity and the average of the bases listed during the 12 months preceding the end of the work as a result of the employment regulation files, with the updates or increases as provided for in accordance with Article 6.2.1 of that order.

(c) The decision of the General Treasury of Social Security on the provenance or failure to conclude the special agreement shall be in accordance with the provisions of Article 4.1 of Order TAS/2865/2003 of 13 October 2003.

The decision declaring the failure to subscribe to the special agreement for failure to comply with the conditions laid down in Article 4 (a), (b) and (c) shall bring an end to the processing of the aid referred to in this Article. decree.

The resolution stating the origin of the subscription of the special agreement will be transferred by the General Treasury of Social Security, within the maximum period of 15 days, to the Public Service of State Employment, together with the application referred to in the second subparagraph of point (a) of this Article. Such a decision shall be deemed to be for all purposes as accrediting that the worker fulfils the requirements of Article 4 (a), (b) and (c).

d) The subscription of the special agreement will be conditional upon the favorable resolution of the aid by the State Employment Service, in the terms stated in Article 6 of this royal decree.

e) Once subscribed, the special agreement shall have effect from the day on which the fifty-year-old is fulfilled, if the application for subscription is submitted within 90 days of the date of entry into force of the this royal decree or, if that age is to be satisfied after that date, if the application is submitted within 90 days of the date on which the worker meets that age. If the time limits laid down are not met, the agreement shall have effect from the day on which the application is lodged.

The applications made under this rule by workers who are already meeting the requirements of this rule on 29 February 2008 will have an effect from 1 March 2008, provided they are submitted within the framework of the Ninety days after the date of entry into force of this royal decree, or from the day of its filing, it shall be effected outside that period.

(f) Not to subscribe to the special agreement within three months of the date of notification of the favourable resolution of the aid by the State Employment Service, due to the fact that the person concerned is imputable, will produce the expiry of the subscription procedure in the terms of Article 4.2 of Order TAS/2865/2003 of 13 October. The General Treasury of Social Security shall inform the State Employment Public Service of the expiry of the proceedings in order to enable proceedings to be initiated in order to declare the loss of the right to aid in the Member States. Article 42 of the General Law of Grants and the 89 of the Regulation of the Law, approved by Royal Decree 887/2006 of 21 July.

(g) The entry of the quotas, which come from these special agreements, shall be made by the State Employment Public Service on an annual basis, during the month of November, for each financial year, for the period of November of the year prior to October of the year of entry, with the exception of the first entry by the State Employment Public Service, which, pursuant to the second subparagraph of point (e) of this Article, shall comprise, in addition, the quotas that come from the period of March to October 2008.

Article 6. Procedure for granting the aid.

1. The competent body of the State Employment Service, within three months of the entry in its register of the application for the aid and of the decision on the provenance of the special agreement, referred by the The General Treasury of Social Security under the terms referred to in Article 5 (c) shall verify that the conditions laid down in Article 4 (e) and (f) are met and shall notify the decision on the granting of such aid. If the application does not meet the requirements laid down in those letters, the person concerned shall be required for his/her under-healing within the maximum period of 10 days, indicating that if he does not do so, he shall be given the withdrawal of his application, prior to the decision to be given in accordance with the terms of Article 71 of Law No 30/1992 of 26 November 1992.

After the period of three months referred to in the preceding paragraph without having been given an express decision on the application, the grant of the aid may be deemed to be dismissed by administrative silence, in accordance with the established in Article 25.5 of Law 38/2003 of 17 November, General of Grants, in conjunction with Article 28.2.

2. The State Employment Public Service shall transmit a copy of the decision to the General Treasury of Social Security within a maximum of 15 days for the purpose of fulfilling the condition laid down in Article 5.d.

Article 7. Extinction and suspension of the special agreement.

1. The special agreement shall be extinguished from any of the following circumstances:

(a) Where the persons concerned satisfy the ordinary retirement age, in accordance with Article 161.1.a) of the recast text of the General Law on Social Security, or acquire the status of permanent incapacity pensioners or early retirement, in accordance with the social security regulations applicable to each case.

(b) For the failure to comply with the requirement in Article 4 (b), as a result of the absence of the persons concerned with the Social Security scheme in which they were included.

c) By death of the data subject.

d) By decision of the person concerned, communicated in writing to the General Treasury of Social Security, in which case the extinction of the agreement will take place from the first day of the month following the date of the communication.

e) For the loss of the right to the full or partial recovery of the aid in the event of a lack of justification or of any of the causes provided for in Article 37 of Law 38/2003 of 17 November. In this case, the extinguishing resolution of the aid will be communicated to the General Treasury of Social Security for the purpose of extinguishing the agreement.

2. If the fall in the social security scheme referred to in paragraph (b) of the preceding paragraph is due to a suspension of the worker's employment relationship, the special agreement which he has signed shall be suspended until a date has been reached. new high as an employed person in the corresponding system of the Social Security system, and the interested party must ask again for the application of the benefits of this royal decree.

Article 8. Justification for expenditure and transfer of funds.

1. Within the first five working days of the month of November of each financial year, the General Treasury of Social Security shall forward to the State Employment Public Service an annual ratio of the employees who have signed the special agreement. in which the amounts of the quotas corresponding to that convention are recorded.

2. Once the information referred to in the previous paragraph has been received, the State Employment Public Service shall issue an ADOP accounting document from the credit authorized for this purpose and shall proceed to transfer to the account that the General Treasury of the Social security is open at the Banco de España the annual amount of these contributions, which will be available in the aforementioned account, as the deadline, the last working day of the month of November.

3. The periods listed under this special agreement which may be affected by a subsequent extinction or suspension thereof, by virtue of the circumstances referred to in the preceding article, shall be communicated by the General Treasury of Social Security to the State Public Employment Service, the contributions corresponding to them being entered into the account that is pointed out to the effect.

Additional disposition first. Coordination of actions.

The State Employment Public Service and the General Treasury of Social Security will establish the necessary coordination mechanisms for the correct application of the procedures regulated in this royal decree.

Additional provision second. Control of the trading bases.

The Labour and Social Security Inspectorate, in the exercise of its responsibilities in the field of social security, will ensure that the determination of the contribution bases corresponding to the employment activity held during the term of the special convention referred to in Article 5 of this royal decree, be carried out subject to the provisions of Article 109 of the recast text of the General Law of Social Security and its rules of In order to avoid any deviations affecting the proper performance of the compensator target to which the indicated convention is directed

Final disposition first. Competence title.

This royal decree is dictated by the provisions of article 149.1.17. of the Spanish Constitution, which attributes to the State exclusive competence on the economic regime of Social Security.

Final disposition second. Application and development powers.

The Minister of Labor and Immigration is hereby authorized to issue any provisions necessary for the implementation and development of the provisions of this royal decree.

The Director General of the State Employment Public Service and the Director General of the General Treasury of Social Security are hereby authorized to dictate how many instructions and resolutions are to be issued. precise for the execution of what was established in this royal decree.

Final disposition third. Entry into force.

This royal decree will enter into force on the day following its publication in the "Official State Gazette".

Given at the Embassy of Spain in Singapore, on June 19, 2009.

JOHN CARLOS R.

The Minister of Labor and Immigration,

CELESTINO CORBACHO CHAVES