It concerns a decision of the Council of State which is the court of last instance. In particular:
Under the provisions of Article 144 par. 1 of Law no. 3655/2008, the legislator reiterated the favourable conditions for the granting of a reduced or full old-age pension to an insured person of the I.K.A.E.T.A.M. (later e-E.F.K.A.) as a mother with minor children, namely the completion of a minimum age limit (50th or 55th year of age, respectively) and insurance time (5,500 days of insurance or 25 years of insurance), as well as not receiving any other pension from I.K.A.-E.T.A.M., the State, a public body, a public-law institution or another social security institution (first and second subparagraphs of paragraph d). 3 of Article 28 of the An.n. 1846/1951) and, in addition, enabled the insured mother to retire at the age of 55, even in the case where the child's minority and the pensionable period are cumulative in any of the years between the age of 50 and 55 (fifth subparagraph of subparagraph d). It also introduced the gradual abolition (from 1.1.2011) of the age limit for granting an insured mother of the I.K.A.-E.T.A.M. with a minor child to receive a reduced old-age pension, while the possibility was provided for in this case for the insured mother to retire on reaching the age limit provided for in each case, provided that the child's minority and the pensionable period cumulatively coincide between the 50th and the year of age applicable in each case on the basis of the phasing-out.
Furthermore, from the grammatical wording of the last subparagraph of para. 1 of Article 144 of Law No. 3655/2008, which introduces an exceptional provision, it is clear that the legislator has extended the application of the provisions of paragraph d of par. 3 of Article 28 of Law No. 28 of the Law of the Republic of Hungary. 1846/1951 also to widowed fathers with minor children and to those who have lost their spouse, to whom, in principle, the above beneficial (privilege) provision applied. Therefore, in accordance with its clear intention, the legislature did not grant the possibility of early retirement to fathers with minor children who are not widowed, even if they have exclusive parental responsibility for them, as in the case of a divorced father, to whom the right of parental care is transferred by operation of law under Article 1510 CC, the exclusive exercise of parental authority over his minor child by virtue of the death of his former wife (see CC 598/2024).
Furthermore, according to Article 1510 of the Civil Code (Decree 456/1984, A´ 164), «The care of a minor child is the duty and right of the parents (parental care), who exercise it jointly. Parental care includes the custody of the person ... Where parental care ceases due to the death ... of one parent, parental care shall belong exclusively to the other. ...».
The appellant, who, when he applied for an old-age pension, had the status of a divorced father with a minor child and not that of a widower, since after the death of his first wife and mother of her minor child he had entered into a second marriage which had already been dissolved, did not fall within the scope of the provisions of Article 144 para. 1 of Law No. 3655/2008, without this being in conflict with any constitutional provision.
The appellant, who was born on 27.1.1961 and is the father of a child born on 22.7.1995, completed 8,380 days of insurance with the I.K.A. from 1.11.1979 to 31.10.2013. His wife and mother of his child died on 17.2.1999. On 22.7.2006 the appellant entered into a second marriage which was dissolved by divorce in 2012.
In 2012, with his application to the Local Branch of Serres, the appellant requested that the I.K.A.-E.T.A.M. award him a main old age pension in the capacity of a widower with a minor child. By the 2014 decision of the Director of the Local Branch of Serres, his application was rejected, on the grounds that the appellant had reached the age of 50 at the time of its submission, had a minor child, had completed more than 5,500 days of insurance required under the provisions of article 144 of Law No. 3655/2008 (for insured mothers and widowed fathers of minor children), he was not a pensioner of the State, a public pensioner, a pensioner of a public institution or another main insurance institution (according to his solemn declaration), but he did not have the status of a widower, since he had entered into a second marriage after the death of his wife, regardless of whether that marriage was subsequently dissolved.
Against this decision, the appellant filed, before the Board of Directors of the above Branch, his 2014 appeal, in which he argued, inter alia, that it was covered by the provisions of article 144 of Law No. 3655/2008, because after the dissolution of his second marriage, he was again exclusively exercising custody of his minor child and therefore, in essence, he remained a widower. By the 2014 decision of the Board of Directors of the aforementioned Branch, this objection was, inter alia, rejected. The appellant brought an action against that decision of the Board of Directors before the Administrative Court of First Instance of Serres, which was upheld by the judgment of the Court of First Instance in the first instance, in so far as it concerned the rejection of his objection.
Against the decision of the first instance and in so far as it upheld the appellant's appeal, the E.F.K.A. brought an appeal before the Administrative Court of Appeal of Thessaloniki, which was upheld by the judgment under appeal. In particular, the Administrative Court of Appeal took into account the fact that the appellant, who became a widower after the death in 1999 of his first wife and mother of his minor child, subsequently entered into a second marriage in 2006, with the result that he lost his status of widower, a status which could not be regarded as having been revived after the dissolution, by divorce, of his second marriage in 2012. In view of these facts, the administrative appeal court held that the appellant, at the relevant time of the submission of the pension application (2012), no longer had the status of widower, so that he was entitled to a pension under the provision of Article 144 of Law No. 3655/2008, which, being exceptional, could not be applied by extension, and that this was not contrary to any constitutional provision or other supra-legislative rules of law (such as European Union law and the ECHR).
On the basis of these considerations, the administrative court of appeal concluded that the appellant was not entitled to receive a pension from the N.F.K.A. as a divorced father of a minor child. Further, the trial administrative appeals court allowed the appeal of the E.F.K.A. and dismissed, in relevant part, for the same reason as above, the appellant's appeal against the above decision of the T.D.C, on the grounds that where the legislature intended the favourable provisions for the early retirement of insured mothers with minor children to apply not only to widows but also to divorced fathers with minor children, it expressly so provided (see, by way of example, Article 144(6) of the same Law 3655/2008). In addition to the above, divorced fathers with minor children from a previous marriage, even if they exclusively exercise parental responsibility for them due to the death of their mother, are in any case not subject to the same conditions as widowed fathers with minor children. Consequently, the abovementioned exceptional provision in the last subparagraph of para. 1 of Article 144 of Law No. 3655/2008, in so far as it does not include divorced fathers with minor children from a previous marriage, even if they have exclusive parental responsibility for them due to the death of their mother, does not contravene Article 4(4)(a) of the Constitution. 1 of the Constitution or any other constitutional provision.
And the Council of State accepted that the beneficial pension provisions of paragraph d. 3 of article 28 of the An.n. 1846/1951 do not apply to divorced fathers with minor children from a previous marriage, even if they have exclusive parental responsibility for them due to the death of their mother. Consequently, the appellant, when he applied for an old-age pension, had the status of a divorced father with a minor child and not that of a widower, since, following the death of his first wife and mother of her minor child, he had entered into a second marriage which had already been dissolved, and was not subject to the provisions of Article 144(1)(b) of the Law of the Republic of Austria. 1 of Law No. 3655/2008, Furthermore, the provisions of Council Directive 79/7/EEC of 19 December 1978 «on the progressive implementation of the principle of equal treatment for men and women in matters of social security», which the appellant invokes in his application in order to apply to his case the provisions of paragraph d. 3 of Article 28 of Law No 28 of the Council of the European Union. 1 of Law No. 3655/2008, do not apply to the case at issue, as he wrongly claims.
This is because, although the above provisions of EU law prohibit discrimination on the grounds of sex, but, as stated above, the provision of the last subparagraph of para. 1 of Article 144 of Law No. 3655/2008, the legislature extended the right of an insured mother with minor children to early retirement from the I.K.A.-E.T.A.M. to insured fathers with minor children, provided that they are widowed.
In those circumstances, the non-extension of the above pension benefit to divorced fathers with minor children from a previous marriage, even if they have exclusive parental responsibility for those children as a result of the death of their mother, does not give rise to a question of discrimination on grounds of sex, so that the appellant's legal situation falls within the scope of Directive 79/7/EEC.
Author of the article:
Attorney at Law & Attorney-at-Law & Attorney-at-Law
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Tel. 6945-028153, 213-0338950
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