Pension for Length of Service: Court Obliged the Pension Fund to Include Special Service Periods After October 11, 2017

The Zhytomyr District Administrative Court reviewed the case concerning the legality of the Pension Fund's refusal to grant a pension for length of service to an education sector employee. The dispute centered on whether the Pension Fund had the right to refuse such a pension by not including work periods after October 11, 2017, in the special service period and by applying a version of the legislation, some provisions of which were declared unconstitutional by the Constitutional Court of Ukraine. Circumstances of the Case The plaintiff applied to the territorial body of the Pension Fund with a request to grant a pension for length of service. The application was reviewed extraterritorially by the Main Department of the Pension Fund of Ukraine in the Lviv region, which decided to refuse the pension. The Pension Fund based its refusal on the absence of the required special service period as of October 11, 2017. The Fund argued that the plaintiff's special service period on that date was 23 years, 1 month, and 10 days, while the law required at least 26 years and 6 months of special service to qualify for the pension. The plaintiff's insurance period exceeded 31 years. Disagreeing with this decision, the plaintiff appealed to the administrative court. She stated that after submitting the application, she provided all necessary documents for pension assignment, but the Pension Fund unjustifiably refused. The plaintiff requested to recognize the refusal decision illegal and cancel it, to oblige the Pension Fund to count her work periods from October 12, 2017, to August 31, 2025, as special service, and to grant the pension from the date of her application. The Main Department of the Pension Fund of Ukraine in the Lviv region opposed the claim, stating that the right to a pension for length of service arises only if the legally established special service period existed as of October 11, 2017, and therefore the refusal was lawful. The Main Department of the Pension Fund of Ukraine in the Zhytomyr region also indicated that the plaintiff's special service period as of October 11, 2017, was only 23 years, 1 month, and 10 days, which did not entitle her to the pension. After examining the case materials, the court proceeded to assess the legislative norms regulating the procedure for granting pensions for length of service to education workers. Court's Position and Conclusions Examining case No. 240/11465/26, the court first focused on the legal regulation of pensions for length of service for education workers. The court noted that paragraph "e" of Article 55 of the Law of Ukraine "On Pension Provision" No. 1788-XII provides the right for education, healthcare, and social protection workers to a pension for length of service if they have the special service period in relevant positions, the list of which is approved by the Cabinet of Ministers of Ukraine. At the same time, the Law of Ukraine dated March 2, 2015, No. 213-VIII amended this provision, gradually increasing the required special service period for pension eligibility. Later, the Law of Ukraine dated December 24, 2015, No. 911-VIII introduced an additional condition regarding the required age for such pension assignment. The court emphasized that on June 4, 2019, the Constitutional Court of Ukraine issued decision No. 2-r/2019, which declared unconstitutional the amendments to Article 55 of Law No. 1788-XII introduced by Law No. 213-VIII. The Constitutional Court concluded that introducing additional conditions regarding special service period and age for certain categories of workers narrows their constitutional rights to social protection. In its decision, the Constitutional Court determined that the version of Article 55 of Law No. 1788-XII effective before the amendments by Law No. 213-VIII applies to persons who worked in relevant positions before April 1, 2015. The court also considered the legal conclusions of the Grand Chamber of the Supreme Court, particularly in the ruling dated November 3, 2021, in case No. 360/3611/20. The Grand Chamber noted that after the Constitutional Court's decision, a conflict arose between the Law of Ukraine "On Pension Provision" and the Law of Ukraine "On Compulsory State Pension Insurance." Under such circumstances, the law more favorable to the individual should apply. Furthermore, the court referred to the practice of the European Court of Human Rights, according to which, in cases of ambiguous or multiple interpretations of legal norms, state authorities must apply the interpretation most favorable to the individual. Assessing the Pension Fund's arguments, the court concluded that the defendant unjustifiably limited the determination of special service period only as of October 11, 2017, and did not consider the plaintiff's work periods after that date. The court established that after October 11, 2017, the plaintiff continued working in a position included in the list of positions entitling to a pension for length of service. Accordingly, these periods must also be counted as special service. According to the court, current legislation after the Constitutional Court's decision does not provide grounds to disregard such service simply because it was acquired after October 11, 2017. Therefore, the Pension Fund incorrectly applied substantive law when refusing the pension. Considering the established circumstances, the court concluded that the decision of the Main Department of the Pension Fund of Ukraine in the Lviv region to refuse the pension is unlawful and must be canceled. For full and effective protection of the violated right, the court deemed it necessary to oblige the Pension Fund to count the plaintiff's work period from October 12, 2017, to August 31, 2025, as special service, to reconsider her pension application for length of service taking into account the legal assessment provided in the court decision, and to make a decision in accordance with the law. The court denied other claims since pension assignment is within the competence of the Pension Fund after proper calculation of the special service period and reconsideration of the application. 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