Conflictos Jurisprudenciales respecto a los derechos adquiridos en materia pensional

Abstract

The transitional regime in pension matters was directed in favor of those persons who held a legitimate expectation around the calculation and settlement of their pension under the rules indicated in provisions prior to the effectiveness of the (Ley 100, 1993), that is, in relationship with age requirements, time of service, or weeks quoted. However, with regard to the Base Settlement Income (hereinafter IBL) as a transitional factor, controversy has arisen in its interpretation, because since the promulgation of the aforementioned (Ley 100, 1993), the High Courts have adopted dissimilar criteria regarding how the settlement of pensions should be calculated and only until 2018, the Council of State and Constitutional Court agreed that the calculation should be made with the average of the last ten years of service or all the time worked in case that such value was higher than the first, a consensus that is partial to the extent that for the Council of State there is no place for the revision or reassessment of previously recognized pensions (in which pensions were granted by liquidating the IBL with the factors salaries earned in the last year of service), while for its part, the Constitutional Court upholds a thesis under which any pension liquidated from In this way, it must be subject to review through the mechanisms established for these purposes. This study develops the argumentation proposed by these courts identifying through the analysis of its jurisprudence, the motivation exposed by the Council of State with which it decides to distance itself from what was determined by the Constitutional Court and, which concludes in two different positions with respect to when they constitute the constitutional protection of acquired rights, which, as indicated in the Political Constitution, are irrevocable.