Foreign Borrowings of employees in Germany Their Pension Status and Premium Debts

Between our citizens abroad and Social Security Institution (SGK) in Turkey, there occurs different kinds of controversies. Main reason for them is that at first Turkey uses just their own Social Security law without considering international contracts. The institution acts within the framework of this law. But the Supreme Court settle the matter minding all legislation, especially

considering the bilateral agreements between Turkey and the other countries and generally on behalf of the movant complainant.

Controversies with he Social Security Institution can be divided into 3 main groups;

1- Problem of Detecting the Insurance Period;

The most important point for detecting the insurance period is detecting the insurance start date. So the older the insurance start date date is, the earlier a pension is possible. But when requesting a pension assignment, SGK calculates the insurance start date of the claimant considering the law no 5510 without bilateral agreements. In deed, Art. 28 of the Social Security Agreement between Turkey and Belgium defines the insurance start date as “the first day of subjection to the insurance if subjected to an old age insurance...”. There are also judgments of higher judicial bodies about this matter.

According to the age of claimant in the possible pension date, the insurance start date and the insurance cover, there can occur differences up to 10-15 years.

Let’s try to explain the matter with a little example;

If M.A, born 08.11.1965 applied to SGK for pension, he would face up with the clause "25 years, age of 53, 5600 days and he had to wait for turning to 53. So he could retire and his salary on 08.11.2018. But if he sued, the age of 18 (assumed beginning of insurance in Belgium) would be based on (08.11.1983) and he could retire on 08.11.2008. The value recovered is approx. 10 years x 12 months = 120 months.

2. wıll pension allocation procedures be calculated based on 4/1-A (SSK) or 4/1-b (BAGKUR)

If person who apply for pension allocation has never worked in Turkey before or on the tıme of pension allocation request, premıums wıll be calculated based on 5510 numbered law , 4/1-b article of the Bagkur regulation. This calculation creates substantial differences if premium calculated according to the SSK regulation or article 4/1-A of the same law. Therefore, it will be very beneficiary for people applying for pension, when they make final return before submıttıng petıtıon for pensıon allocatıon to the SSK, they should prepare theır pensıon allocatıon petıtıon in favor of their interest by their working period or insurance status based on leading case verdict passed by the10. Civil Chamber of the Supreme Court in 2012.

3- Situation of Depreviated People from Turkish Citizenship with a Permit (blue card);

Even though they depreviated from Turkish citizenship, these people be met by a refusal for their pension claims by the Social Security Institution in Turkey. However, they may obtain the pension right by means of foreign borrowing if sued.

Within the scope of all of these information, if people who work abroad want to retire from Turkey can have that right very economically and in a profitable way by means of considering the respects above and, if necessary, appealing to the specialists.

10. Civil Chamber Docket no. 2012/9969, Decree no. 2012/13423

• DETECTING THE INSURANCE CONTIGENCY
• BORROWING LAW NO 3201
• INTERNATIONAL CONTRACTS

• LAW ON SOCIAL INSURANCE AND GENERAL INSURANCE (5510) Art. 4
• LAW ON EVALUATION OF DURATION ABROAD OF TURKISH CITIZENS IN TERMS OF SOCIAL SECURITY (3201) Art. 5
• LAW ON EVALUATION OF DURATION ABROAD OF TURKISH CITIZENS IN TERMS OF SOCIAL SECURITY (3201) Art. 3

"Precedent Text "was prepared by the IT Department of Ministry of Justice. Copying and distributing without permission causes a legal responsibility.

Summary: For Persons who never worked in Turkey under any Social Security Institution, indebtment period under 3201 numbered law have to be considered by law asInsurance period by the 5510 numbered law aricle 4/1-b.

According to the 90.th law of our constitution and TURKISH GERMAN SOCIAL SECURITY AGREEMENT, In case of entering to the German Annuity Insurance before entering to the TURKISH INSURANCE, even though date of entering to the German Annuity Insurance is considered to be entering date to the TURKISH INSURANCE by the law, there is no clear definition for indebtment calculation of insurance period spent in abroad ACCORDING TO THE CONTRACTING STATES REGULATIONS. Thus, calculated indebtment under 3201 numbered law and allocated pension after01.06.2009 should be considered according to the 5510 numbered law and 4/1-b article.

The plaintiff requested determination of insurance start date as 25.07.1972 and calculated indebtment and pension allocation procedure according to the 3201 numbered law to be redone by the 5510 numbered law and 4/1-b article.

The court decided to accept the case as stated in the verdict taken.

Upon appeal of the verdict by the respondent institution’s lawyer, it is seen that appeal request has been done on time and after consideration report of investigating judge and examining other documents in the file below indicated verdict is taken.

Case is regarding determination of the start date of insurance as of 25.07.1972 which is start date of insurance abroad, insured person who have no in-country insurance period and insurance registration, plaintiff’s calculated indebtment and pension allocation from 01.06.2009 which is calculated under 3201 numbered law to be reconsidered by the 5510 numbered law and 4/1-b article.

Court decided that the plaintiff’s first insurance start date is 07/25/1972 which is insurance start date of the German Annuity Insurance and calculated indebtment and pension allocation from 01.06.2009 which is calculated under 3201 numbered law to be reconsidered by the 5510 numbered law and 4/1-b article, thus accepted the case.

1-Court accepted and determined that insured start date is 25/07/1972 which is date insured started to work abroad. Under Turkish-German Social Security Agreement article 29/4 this is an international regulation and should be accepted as valid internal law, has its priority and this situation also is valid in accordance with the provisions of Article 90 of the Constitution

2- About calculated indebtment and pension allocation under 3201 numbered law to be reconsidered by the 5510 numbered law and 4/1-b article:

After plaintiff’s application on13.04.2009 who has no in-country working period, his working period in Germany between 25.07.1972-31.08.2008 which is constitutes 5401 working days is indebtment under 3201 numbered Law article No. 4 /1-b on 18.05.2009, upon pension allocation request on 25.05.2009, his application is processed under 5510 numbered law and 4/1-b article and pension is granted starting from 01.06.2009.

Main dispute in the case is whether indebtment calculation and pension allocation should be done under 3201 numbered law or under 5510 numbered law and 4/1-b article for insured who has no in-country working period, started to work under labor contract in Germany on 25.02.1972, his working period is considered under 3201 numbered law for panison allocation and granted Bağ-Kur pension on 01.06.2009.

According to the current 5754 numbered law, article 79 dated on 17.04.2008 which is amended by 3201 numbered law, article 3 at the time of dispute, law indicate that " people defined in the 1.st article of the this law, Turkish citizen beneficiaries of the insureds who died while working abroad or died after returning country, if they have no working history under any social insurance intuitions in Turkey, they will apply to the SGK, if they worked in Turkey they will apply to the social insurance institution last they worked under, thus they can exercise their rights."

indebtment procedures will be done by the social security institutions which granted partial pension to the Insureds or their Beneficiaries based on implemented social security agreement“

Again, through added clause by the same law to the 3201 numbered law, Article 5, clause 4 indicate that “to determine what social insurance institutions will be responsible for indebtment periods for of abroad working time under 5510 numbered Social Security Insurance and General Health Insurance law, If they have insurance history in the Turkey, they will apply to the social insurance institution last they worked under at the indebtment calculation request, if they have no insurance history in the country they will be assessed according to the same law, article 4, 1/b clause ”

When we examined based on above mentioned 5754 numbered law, amended 3201 numbered law and introduced additional regulation, it is seen that previous 3.Article is totally abandoned and only accepted that “If they have insurance history in the Turkey, they will apply to the social insurance institution last they worked under at the indebtment calculation request, if they have no insurance history in the country they will be assessed according to the same law, article 4, 1/b clause ”. Based on this clear definition of the law, indebtment periods can not be evaluated under abolished law and regualation. In other words, indebtment period of insureds under the 3201 numbered law who have no insurance history in Turkey will be evaluated by the 5510 numbered law, article 4, clause 1/b and this is a legal obligation.

On the other hand, in accordance with final 90.th article of the Constitution, international agreements which put in the effect by the government have internal legal force, considered as international conventions by the hierarchy of norms, and in practice, have the legal power and priority.

There is a clear definition in the Turkish-German Social Security Agreement that If insured entered in German Annuity Insurance prior to the entry into the Turkish insurance, this entry date also consider as entry date to the Turkish insurance. But, in the aforesaid agreement, there is no clear definition for under what insurance system of the contracting country to be considered for indebtment period of the abroad working time.

In this case, indebtment calculation under 3201 numbered law and granted pension allocation on 01.06.2009 should be considered under 5510 numbered law, article 4/1-b and otherwise verdict by the court is not appropriate.

Court verdict without consideration of the factual and legal points and with incomplete examination and evaluation is against common practice and legal procedures, thus constitute legal reason for reversal of the verdict.

In that case, request of the defendant institution’s representative for objection to the appeal should be accepted and verdict should be reversed.

Conclusion: based on above mentioned legal reasons verdict which is appealed to be reversed. Verdict is taken unanimously on 04.07.2012