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SECOND
SECTION
CASE OF MAGGIO AND OTHERS v. ITALY
(Applications
nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08)
JUDGMENT
STRASBOURG
31
May 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Maggio and Others
v. Italy,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
David
Thór Björgvinsson,
Dragoljub Popović,
András
Sajó,
Işıl Karakaş,
Guido
Raimondi, judges,
and Françoise
Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 10 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in five applications (nos. 46286/09, 52851/08,
53727/08, 54486/08 and 56001/08) against the Italian Republic lodged
with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by five Italian nationals, Mr Aldo Maggio, Mr Massimiliano Gabrieli,
Mr Carlo Faccioli, Ms Emanuela Forgioli and Ms Maria Zanardini (“the
applicants”), on 13 August 2009, 28 October 2008, 3
November 2008, 4 November 2008 and 12 November 2008 respectively.
- The
first applicant was represented by Ms L. Petrachi, a lawyer
practising in Lecce. The second, third, fourth and fifth applicants
were represented by Mr A. Carbonelli, a lawyer practising in Brescia.
The Italian Government (“the Government”) were
represented by their Agent Ms E. Spatafora, and their Co-Agents,
Mr N. Lettieri and Ms P. Accardo.
- The
applicants alleged that the legislative intervention while their
proceedings were pending was discriminatory and breached their right
to a fair trial. The first applicant also complained that, in
consequence, he was deprived of his possessions.
- On
8 June 2010 the Court declared the applications partly inadmissible
and decided to communicate the complaints concerning Article 6 §
1, Article 13 and Article 14 in respect of the alleged discrimination
vis-à-vis persons whose pensions have not already been
liquidated, and Article 1 of Protocol No. 1 to the Convention, to the
Government. It also decided to rule on the admissibility and merits
of the applications at the same time (Article 29 § 1). The Court
also decided, under Rule 54 § 2 (c) of the Rules
of Court, to grant the cases priority under Rule 41 and to invite the
parties to submit further written observations on the above
applications.
- The
Chamber furthermore decided to inform the parties that it was
considering the suitability of applying a pilot judgment procedure in
the cases (see Broniowski v. Poland [GC], 31443/96, §§
189-194 and the operative part, ECHR 2004-V, and Hutten-Czapska v.
Poland [GC] no. 35014/97, ECHR 2006-... §§ 231-239
and the operative part) and requested the parties' observations on
the matter. Having considered the circumstances and the observations
received, the Chamber decided not to apply the pilot judgment
procedure.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1938, 1942, 1939, 1942 and 1940 respectively,
and live in Italy.
A. Background of the case
1. Mr Maggio
- Mr
Maggio worked in Switzerland from 1980 to 1992.
- On
25 June 1997 Mr Maggio requested the Istituto Nazionale della
Previdenza Sociale (“INPS”), an Italian welfare
entity, to re-examine his old-age pension and to liquidate it on the
basis of the real remuneration received (“retribuzione
effettiva”) during his years of employment in Switzerland,
in accordance with the 1962 Italo-Swiss Convention.
- On
an unspecified date the INPS rejected his request, since the
calculation had to be based on the remuneration received in
Switzerland and then be re-adjusted on the basis of the tables
supplied in Circular no. 324 of 4 January 1978.
- Mr
Maggio instituted proceedings before the Lecce Tribunal, claiming
that the payment of old-age pensions had to be calculated on the
basis of the real remuneration received (in the last five years of
employment) and of the contributions paid in part in Switzerland and
in part in Italy.
- By
a judgment filed in the registry on 8 May 2002, his claim was
rejected.
- Mr
Maggio appealed to the Lecce Court of Appeal which, by a judgment
filed in the registry on 30 October 2003, rejected his claim. It took
into consideration a technical expert report in relation to Article
23 of the Italo-Swiss Convention (see Relevant Domestic Law below),
which provided for the transfer of contributions paid in Switzerland
to the Italian insurance scheme for use in the calculation of old-age
pensions, and guaranteed the benefits of Italian legislation.
Consequently, it held that the pension calculation was to be made on
the basis of Italian criteria, even though they were less favourable
than the Swiss ones. Indeed, Italian law (decree of 27 April 1968 no.
488) provided for a calculation based on higher contributory rates
than those in Switzerland, thus providing a lower pension than that
expected by Mr Maggio.
- By
a judgment of 11 December 2008 filed in the registry on 13 February
2009, the Court of Cassation dismissed Mr Maggio's claim, after
rejecting his request for a preliminary reference to the ECJ. It held
that the criteria used by the Court of Appeal were eventually
acknowledged in Article 1, paragraph 777, of Law no. 296 of 27
December 2006 (“Law 296/2006”), which had retroactive
effect. This Law had not been found to be unconstitutional by the
Constitutional Court in a judgment of 23 May 2008 (see
Relevant Domestic Law below).
2. Mr Gabrieli
- In
2005 Mr Gabrieli requested the INPS to establish his pension on the
basis of the contributions paid in Switzerland for work he had
performed there between November 1963 and June 2001. As a basis for
the calculation of his pension, the INPS employed a theoretical
remuneration (“retribuzione teorica”) instead of
the real remuneration (“retribuzione effettiva”).
The former resulted in a re-adjustment on the basis of the existing
ratio between the contributions applied in Switzerland (8%) and in
Italy (32.7%), which led to a reduction of 25% in the basic amount
used to calculate the pension and therefore a reduction in the
pension itself. Consequently, in 2006 Mr Gabrieli instituted judicial
proceedings.
- By
a judgment of the Brescia Tribunal (Labour Section) of 2 October
2006, Mr Gabrieli's claim was upheld on the basis of the relevant
Court of Cassation case-law at the time (see Relevant Domestic Law
below).
- The
INPS appealed.
- By
a judgment of 7 August 2007, the Brescia Court of Appeal reversed the
first-instance judgment in view of the entry into force of
Law 296/2006. Mr Gabrieli did not appeal to the Court of
Cassation, deeming it to be futile in the circumstances of the case.
Thus, the judgment became final on 7 August 2008.
3. Mr Faccioli
- Mr
Faccioli was entitled to an old-age pension from 1 April 1999.
- In
2006 Mr Faccioli requested the INPS to establish his pension on the
basis of the contributions paid in Switzerland for work he had
performed there between 1 December 1958 and 31 March 1999. As a basis
for the calculation of his pension, the INPS employed a theoretical
remuneration (“retribuzione teorica”) instead of
the real remuneration (“retribuzione effettiva”).
The former resulted in a re-adjustment on the basis of the existing
ratio between the contributions applied in Switzerland (8%) and in
Italy (32.7%), which led to a reduction of 25% in the basic amount
used to calculate the pension and therefore a reduction in the
pension itself. Consequently, in 2006 Mr Faccioli instituted judicial
proceedings.
- By
a judgment of the Brescia Tribunal (Labour Section) of 20 October
2008, Mr Faccioli's claims were rejected in view of Law 296/2006
and the subsequent Constitutional Court judgment. Mr Faccioli
did not appeal, deeming it to be futile in view of the relevant
case-law at the time.
4. Ms Forgioli
- Ms
Forgioli was entitled to an old-age pension from 1 April 1995 and to
a survivor's pension, as a widow, her husband having become a
pensioner on 1 April 1997, from the date of her husband's death.
- In
2006 Ms Forgioli requested the INPS to establish her pension on the
basis of the contributions paid in Switzerland for work she had
performed there between 1 August 1959 and 30 November 1994, and those
paid by her husband. As a basis for the calculation of the relevant
pensions, the INPS employed a theoretical remuneration (“retribuzione
teorica”) instead of the real remuneration (“retribuzione
effettiva”). The former resulted in a re-adjustment on the
basis of the existing ratio between the contributions applied in
Switzerland (8%) and in Italy (32.7%), which led to a reduction of
25% in the basic amount used to calculate the pension and therefore a
reduction in the pension itself. Consequently, in 2006 Ms Forgioli
instituted judicial proceedings.
- By
a judgment of the Brescia Tribunal (Labour Section) of 20 October
2008, Ms Forgioli's claims were rejected in view of Law 296/2006 and
the subsequent Constitutional Court judgment. Ms Forgioli did not
appeal, deeming it to be futile in view of the relevant case-law at
the time.
Ms Zanardini
- Ms
Zanardini was entitled to an old-age pension from 1 August 1997.
- In
2006 Ms Zanardini requested the INPS to establish her pension on the
basis of the contributions paid in Switzerland for work she had
performed there between March 1960 and July 1997. As a basis for the
calculation of her pension, the INPS employed a theoretical
remuneration (“retribuzione teorica”) instead of
the real remuneration (“retribuzione effettiva”).
The former resulted in a re-adjustment on the basis of the existing
ratio between the contributions applied in Switzerland (8%) and in
Italy (32.7%), which led to a reduction of 25% in the basic amount
used to calculate the pension and therefore a reduction in the
pension itself. Consequently, in 2006 Ms Zanardini instituted
judicial proceedings.
- By
a judgment of the Brescia Tribunal (Labour Section) of 20 October
2008, Ms Zanardini's claims were rejected in view of Law 296/2006 and
the subsequent Constitutional Court judgment. Ms Zanardini did not
appeal, deeming it to be futile in view of the relevant case-law at
the time.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Italo-Swiss Convention on Social Security
- Article
23 of the transitional provisions of the Italo-Swiss Convention on
Social Security, of 14 December 1962, provides, in so far as
relevant, as follows (unofficial translation):
“1. In so far as Switzerland is concerned,
performance shall be in accordance with the provisions of this
Convention, even in cases where the insured event occurred before the
entry into force of the Convention. Old-age and survivors' ordinary
annuities will, however, only apply in accordance with these
provisions if the insured event took place before 21 December 1959,
and if the contributions were not or will not be transferred or
reimbursed in accordance with the Convention of 17 October 1951, or
paragraph 5 of this Article. (...)
2. In so far as Italy is concerned, performance shall be
in accordance with the provisions of this Convention where the
insured event occurred on or after the date of its entry into force.
Nevertheless, when the insured event occurred before that date,
performance shall take place in accordance with the present
Convention from the date of its entry into force, if it would not
have been possible to grant such a pension due to the insufficiency
of the insurance periods, and only if the contributions have not been
reimbursed by the Italian social insurance scheme.
3. With the exception of the above provisions, periods
of insurance, of contributions and of residence occurring before the
entry into force of this Convention will be taken into consideration.
5. For a period of five years from the entry into force
of this Convention, upon the attainment of pensionable age under
Italian law, Italian citizens may request, in derogation of Article
7, that the contributions paid by them and their employers into the
Swiss old-age and survivors insurance schemes be transferred to the
Italian insurance scheme, on condition that they have left
Switzerland for permanent settlement in Italy or in a third country
prior to the end of the year in which their pensionable age was
reached. Article 5 (4) and (5) of the Convention of 17 October 1951
will apply to the use of such transferred contributions, eventual
reimbursements and the effects of such transfers.”
- In
so far as relevant, Article 5 of the Italo-Swiss Convention on Social
Insurance of 17 October 1951 provides (unofficial translation):
“...(4) Italian citizens not covered by the
preceding sub-paragraph (*) or their survivors, may request
contributions paid by them and their employers into the Swiss old-age
and survivors' insurance to be transferred to the Italian social
welfare insurance scheme as indicated in Article 1 (*). The latter
will use the said contributions to ensure that the insured person
obtains the benefits derived from Italian law quoted in Article 1 (*)
and any other dispositions issued by the Italian authorities. In the
event that, under the relevant Italian legal provisions, the insured
person cannot assert a right to a pension, the Italian social welfare
services will reimburse, upon request, the transferred contributions.
(5) Transfer of contributions as provided for in the
above sub-paragraph may be requested:
(a) if the Italian citizen has left Switzerland at least
ten years before,
(b) on the occurrence of the insured event.
The Italian citizen whose contributions have been
transferred to the Italian social insurance scheme cannot assert any
right in respect of the Swiss old-age and survivors' insurance on the
basis of such contributions. Such a person, or his [or her]
survivors, may expect an ordinary annuity from the Swiss old-age and
survivors insurance scheme only ... [under] the conditions set out in
the first paragraph (*).”
- It
is noted that the articles marked (*) were repealed by Article 26 (3)
of the 1962 Convention, except for the purposes of the above cited
Article 23 (5).
- The
transitional provision of Article 23 of the 1961 Convention became
definitive by means of the additional agreement of 4 July 1969, whose
Article 1 (1) and (3) reads:
“On reaching pensionable age under Italian law,
and where they have not already been in receipt of a pension, Italian
citizens may request, in derogation of Article 7, that the
contributions paid by them and their employers into the Swiss old-age
and survivors' insurance scheme be transferred to the Italian
insurance scheme, on condition that they have left Switzerland for
permanent settlement in Italy ...”
“The Italian social welfare entities must use such
contributions in favour of the insured or his or her heirs in such a
way as to ensure the attainment of the advantages derived from
Italian law, as cited in Article 1 of the Convention, in accordance
with the specific arrangements issued by the Italian authorities. If
no advantage can be attained on the basis of such arrangements, the
Italian social welfare entities must reimburse the transferred
contributions to the interested parties.”
B. Case-law relevant to the period before the enactment
of Law 296/2006.
- The
Court of Cassation's judgment of 6 March 2004, and other analogous
jurisprudence at the material time, established that, in the absence
of specific legislation regulating the transfer of contributions, the
method of calculation in determining workers' pensions should be
based on the real remuneration received by that person, including any
work undertaken in Switzerland, irrespective of the fact that
contributions paid in Switzerland and transferred to Italy had been
calculated on the basis of much lower rates than those established
under Italian legislation.
C. Law no. 296 of 27 December 2006
- Article
1, paragraph 777, of Law 296/2006,
which entered into force on 1 January 2007, provides
(unofficial translation):
“Article 5 (2) of Presidential Decree no. 488 of
27 April 1968 and subsequent modifications must be interpreted to the
effect that, in the event of transfer of contributions paid to
foreign welfare entities to the Italian obligatory general insurance
scheme, as a consequence of international social security treaties
and conventions, the pensionable remuneration relative to the
employment period abroad is calculated by multiplying the amount of
transferred contributions by a hundred and dividing the result by the
contribution rates for the invalidity, old-age and survivors
insurance scheme, as applicable during the relevant contributory
period. More favourable pension treatment already liquidated before
the entry into force of the current law is exempted.”
D. Constitutional Court judgment of 23 May 2008, no.
172
- By
a writ of 5 March 2007, the Court of Cassation questioned the
legitimacy of Law 296/2006 and remitted the case to the
Constitutional Court. The Constitutional Court gave judgment on 23
May 2008, holding, in sum, as follows.
-
Although interpretative, Law 296/2006 was innovative. There had been
no conflicting case-law on the pension regime but a single well
established interpretation, according to which the Italian worker
could ask to transfer his or her contributions, paid in Switzerland,
to the INPS, in order to obtain the advantages provided by Italian
law on invalidity, old-age and survivors' insurance, including that
of remuneration-based pension calculations, on the basis of the wages
earned in Switzerland, irrespective of the fact that the transferred
contributions had been paid at a much lower Swiss rate.
- The
Constitutional Court noted that the laws defining pension
remuneration were part of a welfare system which balanced available
resources and the services supplied. A change in calculating pensions
from the contributory criterion to the remuneration-based one
(“retributivo”), was not to the detriment of the
financial sustainability of the system. Thus, the changes brought
about by the impugned Law sought to bring the relationship between
pensionable remuneration and contributions in line with the system in
force in Italy during the same period of time. The Law provided that
remuneration received abroad (used as a basis for pension
calculations) was to be adjusted by applying the same percentage
ratios used for pension contributions paid in Italy during the same
period. Thus, the norm made explicit what had been in the original
interpretative provisions. Consequently, there had been no breach of
the principle of legal certainty. Nor was the norm discriminatory
since the acquired and more favourable rights of earlier pensioners
were, by then, unassailable. Furthermore, the Law did not
discriminate against people who had worked abroad, because it simply
ensured an overall balance in the welfare system, and avoided the
situation whereby persons who had made small contributions to a
foreign pension scheme could receive the same pension as those who
had paid the much higher Italian contributions. The contested Law did
not provide for any ex post reductions, as it merely imposed
an interpretation which could already have been inferred from the
original provisions. Lastly, this system still allowed for a
sufficient and satisfactory pension, adequate for the lifestyle of a
worker. Accordingly, the claim of unconstitutionality of the said Law
was manifestly ill-founded.
THE LAW
I. ADMISSIBILITY
- The
Court considers that any apparent objection ratione materiae
in relation to the complaint under Article 1 of Protocol No. 1 to the
Convention should be joined to the merits. The Court notes that the
application is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained of an alleged breach of their right to a fair
hearing as provided in Article 6 § 1 of the Convention, which
reads:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
1. The parties' submissions
- The
applicants submitted that before the entry into force of the legge
finanziaria of 2007 (“Law 296/2006”), the prevailing
established case-law, which, as confirmed by the Court of Cassation
judgment of 6 March 2004 (see paragraph 31 above), had not been
ambiguous, could have allowed a favourable evaluation of the
applicants' pensions on the basis of the “real remuneration”
(salaries earned) while they worked in Switzerland. The law at issue,
however, applied a new method of pension calculation, based on an
adjusted and therefore “theoretical remuneration”. This
resulted in a lower amount of pension, since the amount on the basis
of which the applicants' pension was fixed, and consequently the
pension award, was reduced by approximately 25%. Thus, the new law
applied new rules to situations that had arisen before it came into
force and which had already given rise to claims in this respect in
pending proceedings, thereby producing a retrospective effect. As a
result, the applicants as owners of pension rights were deprived of a
part of their pensions.
- According
to the applicants such a legislative interference could not be
justified by economic reasons under the Court's case-law.
Furthermore, the Government had not proved that other persons having
worked abroad in countries other than Switzerland, or who had worked
in Italy and paid lower contributions in accordance with their
specific regimes, had also suffered the same treatment in order to
balance the economic situation.
- Even
assuming that the application of the principle of solidarity in
welfare regimes amounted to a general interest consideration,
accepted by the Court, the applicants noted that the situation of the
Italian welfare system had not improved significantly and to the
extent that it could annul any (discriminatory) effects on the
persons in the applicants' situation.
- The
Government submitted that the system in 1962, when the Italo-Swiss
Convention came into force, had stipulated that the calculations
should be made on the basis of the contributions paid and not the
salaries received. In 1982 this had been changed and the INPS,
following certain case-law, had tried to adapt the interpretation of
Law no. 1987 of 1982 to a new context while maintaining the spirit of
the Italo-Swiss Convention. The criteria applied by the INPS to the
applicants took into account the low contributions paid by the
applicants in Switzerland, namely 8% of the salary, as opposed to the
Italian 32.7%. Otherwise, the applicants as persons having worked in
Switzerland would have had greater benefits for the relevant period,
which constituted an advantage both vis-à-vis other
Italian citizens who had paid higher contributions, and other Swiss
citizens who ultimately received lower pensions. However, a number of
affected individuals applied to the domestic courts contesting their
pension calculation. The outcome of such cases created a prevalent
but not univocal case-law, favourable to pensioners, which applied
the remuneration-based (“retributivo”) method of
calculation, based on the salaries received in Switzerland and not on
the basis of the contributions paid.
- According
to the Government there had not been interference by the legislature.
The interpretation of the relevant provision had in any event been
controversial, there having been some first-instance judgments and at
least one case on appeal confirming the INPS's practice. Moreover,
the calculation did not affect already liquidated pensions. The entry
into force of the impugned provision catered for an equitable
distribution of collective resources. Its enactment had been
reasonable, as the provision aimed to reinforce an interpretation
already applied by the INPS and confirmed by a minority case-law that
made it possible to attribute the same value to periods of work
served in Italy or abroad. Thus, although the financial burden was
not negligible, the reason had not been solely financial as in the
cases of Zielinski and Pradal and Gonzalez and Others v. France
([GC], nos. 24846/94 and 34165/96 to 34173/96, ECHR 1999 VII),
and Scordino v. Italy ((no. 1) [GC], no.
36813/97, ECHR 2006 V). Moreover, the enactment of this
legislation had been necessary as the previous interpretation had
been a literal one, arising out of provisions set out in a different
normative context.
2. The Court's assessment
43. The Court has repeatedly ruled that although the legislature is
not prevented from regulating, through new retrospective provisions,
rights derived from the laws in force, the principle of the rule of
law and the notion of a fair trial enshrined in Article 6
preclude, except for compelling public-interest reasons, interference
by the legislature with the administration of justice designed to
influence the judicial determination of a dispute (see, among many
other authorities, Stran Greek Refineries and Stratis Andreadis v.
Greece, 9 December 1994, § 49, Series A no. 301-B;
National & Provincial Building
Society, Leeds Permanent Building Society and Yorkshire
Building Society v. the United Kingdom, 23 October 1997,
§ 112, Reports 1997-VII; and Zielinski and Pradal
and Gonzalez and Others v. France [GC], nos. 24846/94 and
34165/96 to 34173/96, § 57, ECHR 1999-VII). Although
statutory pension regulations are liable to change and a judicial
decision cannot be relied on as a guarantee against such changes in
the future (see Sukhobokov v. Russia, no. 75470/01, § 26,
13 April 2006), even if such changes are to the disadvantage of
certain welfare recipients, the State cannot interfere with the
process of adjudication in an arbitrary manner (see, mutatis
mutandis, Bulgakova v. Russia, no. 69524/01, § 42, 18
January 2007).
- In
the instant case, the Court must look at the effect of Law 296/2006
and the timing of its enactment. It notes that the Law expressly
excluded from its scope court decisions that had become final
(pension treatments already liquidated) and settled once and
for all the terms of the disputes before the ordinary courts
retrospectively. Indeed, the enactment of Law 296/2006, while the
proceedings were pending, in reality determined the substance of the
disputes and the application of it by the various ordinary courts
made it pointless for an entire group of individuals in the
applicants' positions to carry on with the litigation. Thus, the law
had the effect of definitively modifying the outcome of the pending
litigation, to which the State was a party, endorsing the State's
position to the applicants' detriment.
- It remains to be determined whether there was any
compelling general interest reason capable of justifying such a
measure. Respect for the rule of law and the notion of a fair
trial require that any reasons adduced to justify such measures be
treated with the greatest possible degree of circumspection (see,
Stran Greek Refineries, cited above, § 49).
- The
Court notes that in their submissions the Government claimed that,
apart from any financial reasons, the promulgation of Law 296/2006
had been reasonable as it aimed to reinforce an interpretation
already applied by the INPS and confirmed by a minority case-law that
made it possible to attribute the same value to periods of employment
served in Italy or abroad, thus creating an equilibrium in the
welfare system.
- The
Court has previously held that financial considerations cannot by
themselves warrant the legislature substituting itself for the courts
in order to settle disputes (see Scordino v. Italy (no. 1)
[GC], no. 36813/97, § 132, ECHR 2006 V, and Cabourdin
v. France, no. 60796/00, § 37, 11 April 2006).
- The
Court notes that, after 1982, the INPS applied an interpretation of
the law in force at the time which was most favourable to it as the
disbursing authority. This system was not supported by the majority
case-law. The Court cannot imagine in what way the aim of reinforcing
a subjective and partial interpretation, favourable to a State's
entity as party to the proceedings, could amount to justification for
legislative interference while those proceedings were pending,
particularly when such an interpretation had been found to be
fallacious on a majority of occasions by the domestic courts,
including the Court of Cassation (see paragraph 31 above).
- As
to the Government's argument that the Law had been necessary to
re-establish an equilibrium in the pension system by removing any
advantages enjoyed by individuals who had worked in Switzerland and
paid lower contributions, while the Court accepts this to be a reason
of general interest, the Court is not persuaded that it was
compelling enough to overcome the dangers inherent in the use of
retrospective legislation, which has the effect of influencing the
judicial determination of a pending dispute to which the State was a
party.
- In
conclusion, the State infringed the applicants' rights under
Article 6 § 1 by intervening in a decisive manner to
ensure that the outcome of proceedings to which it was a party were
favourable to it. There has therefore been a violation of that
Article.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
first applicant further complained that the reduction in his pension,
as a result of the new method of calculation envisaged in Law
296/2006, constituted interference with the peaceful enjoyment
of his possessions within the meaning of Article 1 of Protocol No. 1,
which provides:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. The parties' observations
-
The first applicant submitted that his future pension had already
matured under the previous laws and therefore constituted a
possession. The fact that the first applicant was denied that
possession as a consequence of an illegitimate interference was, in
his view, in breach of the lawfulness requirement of Article 1 of
Protocol No. 1 to the Convention. Moreover, the first applicant
submitted that his category of pensioners, as sole targets of the
impugned provisions, were made to suffer an excessive individual
burden in the name of any general interest that may be invoked, which
created an unfair balance.
- The
Government submitted that a possible, more favourable amount of
pension could not constitute an already established possession. Thus,
at the time the first applicant's only possession was that awarded by
the INPS under the impugned law. Moreover, on the basis of the
reasons argued above, there had been no violation of the said
provision, particularly in view of the general interest invoked,
namely the need to ensure the economic and financial stability of the
Italian welfare system.
B. General Principles
- The
Court reiterates that, according to its case-law, an applicant can
allege a violation of Article 1 of Protocol No. 1 only in so far as
the impugned decisions relate to his “possessions” within
the meaning of that provision. “Possessions” can be
“existing possessions” or assets, including, in certain
well-defined situations, claims. For a claim to be capable of being
considered an “asset” falling within the scope of Article
1 of Protocol No. 1, the claimant must establish that it has a
sufficient basis in national law, for example where there is settled
case-law of the domestic courts confirming it. Where that has been
done, the concept of “legitimate expectation” can come
into play (see Maurice v. France [GC], no. 11810/03, §
63, ECHR 2005 IX).
- Article 1 of Protocol No. 1 does not guarantee as such
any right to become the owner of property (see Van der Mussele v.
Belgium, 23 November 1983, § 48, Series A no. 70;
Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 121,
ECHR 2002-II; and Kopecký v. Slovakia [GC],
no. 44912/98, § 35 (b), ECHR 2004-IX). Nor does it
guarantee, as such, any right to a pension of a particular amount
(see, for example, Kjartan Ásmundsson v. Iceland,
no. 60669/00, § 39, ECHR 2004-IX; Domalewski v.
Poland (dec.), no. 34610/97, ECHR 1999-V; and Janković
v. Croatia (dec.), no. 43440/98, ECHR 2000-X).
Similarly, the right to receive a pension in respect of activities
carried out in a State other than the respondent State is not
guaranteed (see L.B. v. Austria (dec.), no. 39802/98, 18 April
2002). However, a “claim” concerning a pension can
constitute a “possession” within the meaning of Article 1
of Protocol No. 1 where it has a sufficient basis in national law,
for example where it is confirmed by a final court judgment (see
Pravednaya v. Russia, no. 69529/01, §§ 37-39,
18 November 2004; and Bulgakova, cited above, § 31).
- The
Court reiterates that Article 1 of Protocol No. 1 comprises three
distinct rules: “the first rule, set out in the first sentence
of the first paragraph, is of a general nature and enunciates the
principle of the peaceful enjoyment of property; the second rule,
contained in the second sentence of the first paragraph, covers
deprivation of possessions and subjects it to certain conditions; the
third rule, stated in the second paragraph, recognises that the
Contracting States are entitled, amongst other things, to control the
use of property in accordance with the general interest. The three
rules are not, however, “distinct” in the sense of being
unconnected. The second and third rules are concerned with particular
instances of interference with the right to peaceful enjoyment of
property and should therefore be construed in the light of the
general principle enunciated in the first rule”
(see, among other authorities, James and Others v. the
United Kingdom, 21 February 1986, § 37, Series A
no. 98; Iatridis v. Greece [GC], no. 31107/96,
§ 55, ECHR 1999-II; and Beyeler v. Italy [GC], no.
33202/96, § 98, ECHR 2000-I).
- An essential condition for interference to be deemed
compatible with Article 1 of Protocol No. 1 is that it should be
lawful. Any interference by a public authority with the peaceful
enjoyment of possessions can only be justified if it serves a
legitimate public (or general) interest. Because of their direct
knowledge of their society and its needs, the national authorities
are in principle better placed than the international judge to decide
what is “in the public interest”. Under the system of
protection established by the Convention, it is thus for the national
authorities to make the initial assessment as to the existence of a
problem of public concern warranting measures interfering with the
peaceful enjoyment of possessions
(see Terazzi S.r.l. v. Italy, no. 27265/95,
§ 85, 17 October 2002, and Wieczorek v.
Poland, no. 18176/05, § 59, 8 December 2009). Article 1
of Protocol No. 1 also requires that any interference be
reasonably proportionate to the aim sought to be realised (see Jahn
and Others v. Germany [GC], nos. 46720/99, 72203/01 and
72552/01, §§ 81-94, ECHR 2005-VI). The requisite fair
balance will not be struck where the person concerned bears an
individual and excessive burden (see Sporrong and Lönnroth v.
Sweden, 23 September 1982, §§ 69-74, Series A no.
52).
- Where
the amount of a benefit is reduced or discontinued, this may
constitute interference with possessions which requires to be
justified (see Kjartan Ásmundsson, cited above, § 40,
and Rasmussen v. Poland, no. 38886/05, § 71,
28 April 2009).
C. The Court's assessment
- The
Court does not consider it necessary to decide on the Government's
preliminary objection and therefore to determine whether the first
applicant in the present case had a possession within the meaning of
the Protocol No. 1, as in any event it considers that there has been
no breach of Article 1 of Protocol No. 1 to the Convention for the
following reasons.
- The
Court has previously acknowledged that laws with retrospective effect
which were found to constitute legislative interference still
conformed with the lawfulness requirement of Article 1 of Protocol
No. 1 (see Maurice v. France [GC], no. 11810/03, § 81,
ECHR 2005 IX; Draon v. France [GC], no. 1513/03, §
73, 6 October 2005, and Kuznetsova v. Russia, no. 67579/01, §
50, 7 June 2007). It finds no reason to deem otherwise in the present
case. It further accepts that the enactment of Law 296/2006 pursued
the public interest (such as providing a harmonised pension
calculation, aiming at a balanced and sustainable welfare system).
- In
considering whether the interference imposed an excessive individual
burden on the first applicant, the Court has regard to the particular
context in which the issue arises in the present case, namely that of
a social security scheme. Such schemes are an expression of a
society's solidarity with its vulnerable members (see, mutatis
mutandis, Goudswaard-Van der Lans v. the Netherlands
(dec.), no. 75255/01, ECHR 2005-XI).
- The
Court notes that Law 296/2006 provided that the pensionable
remuneration relative to the working period abroad was to be
calculated by multiplying the amount of contributions transferred by
a hundred and dividing the result by the contribution rates for the
invalidity, old-age and survivors' insurance scheme, as applicable
during the relevant contributory period. As a consequence, according
to the first applicant, between the years 1996 when he started
receiving his pension and 2009, he received a monthly pension of EUR
873 as opposed to EUR 1,372 which he would have obtained had his
proceedings not been interfered with and he had been successful, and
for the year 2010 he received a pension of EUR 1,178 instead of EUR
1,900. On the basis of these calculations the Court observes that the
first applicant lost considerably less than half of his pension.
Thus, the Court considers that the applicant was obliged to endure a
reasonable and commensurate reduction, rather than the total
deprivation of his entitlements (see, conversely, Kjartan
Ásmundsson, cited above § 45).
- In
consequence, the applicant's right to derive benefits from the social
insurance scheme in question has not been infringed in a manner
resulting in the impairment of the essence of his pension
rights. In this respect the Court notes that the applicant had in
fact paid lower contributions in Switzerland than he would have paid
in Italy, and thus he had had the opportunity to enjoy more
substantial earnings at the time. Moreover, this reduction only had
the effect of equalizing a state of affairs and avoiding unjustified
advantages (resulting from the decision to retire in Italy) for the
applicant and other persons in his position. Against this background,
bearing in mind the State's wide margin of appreciation in regulating
the pension system and the fact that the applicant only lost a
partial amount of pension, the Court considers that the applicant was
not made to bear an individual and excessive burden.
- It
follows that, even assuming the provision was applicable, there has
not been a violation of Article 1 of Protocol No. 1 to the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
-
The second, third, fourth and fifth applicants complained that, as a
result of the recent case-law, any judicial remedies would have had
no prospects of success. Thus, they did not have at their disposal an
effective domestic remedy for their Convention complaints under
Article 6 to the Convention. They relied on Article 13 of the
Convention, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government submitted that the applicants had made use of judicial
remedies to contest their pension calculation by the INPS. Moreover,
the Constitutional Court had also pronounced itself on the matter in
its judgment of 28 May 2008, finding that the interpretation given
had been rational and had established an equilibrium between
contributions paid abroad and the amount to be paid in pension.
- Having
regard to the finding relating to Article 6 (see paragraph 50
above), the Court considers that it is not necessary to examine
whether there has been a violation of Article 13 in this case.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
first applicant further complained that he had suffered
discrimination in the enjoyment of his Convention rights because his
pension claims had not been liquidated at the material time, as
opposed to others whose proceedings had been finalised, contrary to
Article 14 of the Convention read in conjunction with Article 6
and/or Article 1 of Protocol No. 1 to the Convention. He relied on
Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Government submitted that, in accordance with the Italo-Swiss
Convention, the INPS paid out pensions after taking into
consideration the working period in Switzerland and contributions
paid there, in order to avoid the above-mentioned advantage. In the
case of individuals who had not contested the amounts paid by the
INPS, the latter was the final decision in respect of the amount of
pension. Those who opted to contest that amount could only hope for a
favourable outcome. However, the practical effects of Law 296/2006
were that the judicial decisions of the pending proceedings confirmed
the original amount awarded by the INPS. Thus, there had been no
discrimination, particularly because Law 296/2006 aimed to establish
a homogenous situation while eliminating unjustified privileges for
persons who had worked abroad. In the Government's subsequent
observations, referring to a report prepared by the INPS, they
submitted that any favourable treatment enjoyed by persons whose
pensions had already been liquidated was an inevitable situation, in
view of the necessity of the Government to regulate possessions in
the general interest.
- The
Court notes that Article 6 is applicable to the present case and this
suffices to hold that Article 14 is also applicable.
- The
Court reiterates that a difference of treatment is discriminatory if
it has no objective and reasonable justification; in other words, if
it does not pursue a legitimate aim or if there is not a reasonable
relationship of proportionality between the means employed and the
aim sought to be realised. The Contracting State enjoys a margin of
appreciation in assessing whether and to what extent differences in
otherwise similar situations justify a different treatment (see Stec
and Others, [GC], nos. 65731/01 and 65900/01, § 51,
ECHR 2006-VI). The scope of this margin will vary according to
the circumstances, the subject-matter and the background. The Court
has previously held that the choice of a cut-off date when
transforming social security regimes must be considered as falling
within the wide margin of appreciation afforded to a State when
reforming its social strategy policy (see Twizell v. the United
Kingdom, no. 25379/02, § 24, 20 May 2008).
- What
needs to be considered is whether in the instant case the impugned
cut-off date arising out of Law 296/2006 can be deemed reasonably and
objectively justified.
-
It must be recalled that Law 296/2006 was intended to level out any
favourable treatment arising from the previous interpretation of the
provisions in force, which had guaranteed to persons in the first
applicant's position an unjustified advantage, bearing in mind the
needs of the social security system in Italy. The Court reiterates
that in creating a scheme of benefits it is sometimes necessary to
use cut-off points that apply to large groups of people and which may
to a certain extent appear arbitrary (see Twizell, cited
above, § 24). The Court considers that this is an inevitable
consequence of introducing new regulations to replace previous
schemes. Thus, in the present case, bearing in mind the margin of
appreciation afforded to States in this sphere, the impugned cut-off
date can be deemed reasonably and objectively justified.
- The
fact that the impugned cut-off date arose out of legislation enacted
pending the first applicant's proceedings for the determination of
his pension does not alter the above conclusion for the purposes of
the examination under Article 14.
- It
follows that there has not been a violation of Article 14 of the
Convention read in conjunction with Article 6.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- Mr
Maggio claimed EUR 140,000 plus interest to cover the difference in
pension received over the relevant years, namely EUR 100,360 revalued
according to inflation. He further claimed a future pension of EUR
1,900 per month.
- The
remaining applicants claimed the sum representing the partial loss of
their pensions from the date when they were first due, to 78 years of
age in respect of the male applicants and 82 years in respect of the
female applicants (representing life expectancy), which, according to
their calculations, amounted to the following sums respectively, EUR
1,380,000 in respect of Mr Gabrieli, EUR 746,022.42 in respect of Mr
Faccioli, EUR 1,671,082.53 in respect of Ms Forgioli and EUR
903,948.24 in respect of Ms Zanardini.
- All
the applicants claimed non-pecuniary damage, leaving it to the Court
to determine an adequate amount.
- The Court notes that in the present case an award of
just satisfaction can only be based on the fact that the applicants
did not have the benefit of the guarantees of Article 6 in respect of
the fairness of the proceedings. Whilst the Court cannot speculate as
to the outcome of the trial had the position been otherwise, it does
not find it unreasonable to regard the applicants as having suffered
a loss of real opportunities (see Zielinski, cited above, §
79 and SCM Scanner de l'Ouest Lyonnais and Others v. France,
no. 12106/03, § 38, 21 June 2007). Thus, bearing in mind the
amount of years each applicant worked in Switzerland, the Court
awards EUR 20,000 to Mr Maggio and EUR 50,000 to each of the
other four applicants in respect of pecuniary damage. To that must be
added non-pecuniary damage, which the finding of a violation in this
judgment does not suffice to remedy. Making its assessment on an
equitable basis as required by Article 41, the Court awards each
applicant EUR 12,000 under this head.
B. Costs and expenses
- The
first applicant also claimed EUR 10,000 for the costs and expenses
incurred before the domestic courts and the Court. The remaining
applicants also claimed costs and expenses and left it to the Court
to quantify such sums.
- The
Government did not submit any comments in this respect.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the above criteria and the fact that no documents have been presented
justifying the alleged expenses the Court rejects the claim for costs
and expenses in its entirety.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decided to join to the merits the
Government's preliminary objection in relation to the first
applicant's complaint under Article 1 of Protocol No. 1 to the
Convention and declared the remainder of the applications
admissible;
- Held that there has been a violation of Article
6 § 1 of the Convention in respect of all the applicants;
- Held that there has not been a violation of
Article 1 of Protocol No. 1 to the Convention in respect of the first
applicant and that it is not necessary to consider the Government's
above-mentioned objection after having examined the merits;
- Held that it is not necessary to examine the
second, third, fourth and fifth applicant's complaint under Article
13 of the Convention;
- Held that there has not been a violation of
Article 14 of the Convention read in conjunction with Article 6 in
respect of the first applicant;
- Held
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention,
(i)
EUR 20,000 (twenty thousand euros) to Mr Maggio and EUR 50,000 (fifty
thousand euros) to each of the other four applicants in respect of
pecuniary damage;
(ii)
EUR 12,000 (twelve thousand euros), plus any tax that may be
chargeable, to each applicant in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismissed the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 31 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens Deputy Section Registrar President
