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SECOND
SECTION
DECISION
AS TO THE
ADMISSIBILITY OF
Application
no. 11838/07 and 12302/07
Laura TORRI and Others and BUCCIARELLI against Italy
The
European Court of Human Rights (Second Section), sitting on
24 January 2012 as a Chamber composed of:
Françoise Tulkens,
President,
Dragoljub Popović,
Isabelle
Berro-Lefèvre,
András Sajó,
Guido
Raimondi,
Paulo Pinto de Albuquerque,
Helen
Keller, judges,
and Stanley Naismith,
Section Registrar,
Having
regard to the above applications lodged on 12 March 2007 and 15 March
2007 respectively,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicants,
Having
deliberated, decides as follows:
THE FACTS
- The
applicants, Ms Laura Torri, Ms Patrizia Tomage, Mr Carlo Caino Rosa,
Ms Piera Albanese, Mr Roberto Iodice, Mr Andrea Camera, Ms Loredana
Pappada, Mr Antonino Casciolo and Mr Carmine Bucchiarelli, are
Italian nationals who live in Rome (see Annex for dates of birth).
They were represented before the Court by Mr M. de Stefano, a lawyer
practising in Rome. The Italian Government (“the Government”)
were represented by their Co-Agent, Ms Paola Accardo.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. Background of the case
- The
applicants as employees of AGENSUD (Agenzia per la promozione
dello sviluppo nel Mezzogiorno) had by 12 October 1993
accumulated a certain length of service and had been paying
contributions towards their old-age pension into the INPS (Istituto
Nazionale della Previdenza Sociale), the primary Italian welfare
entity. Thus, according to the law in force at the time, on 12
October 1993, even assuming they became unemployed in the future, all
the applicants had already accrued all the necessary years of
contributions to obtain an old age-pension on attaining pensionable
age (sixty for men and fifty-five for women) (see annexed table).
- AGENSUD
had previously been called Cassa per il Mezzogiorno (Cassa),
a public entity having its own juridical personality. Thus, according
to the applicants, on 12 October 1993 they were civil servants and
all the relevant guarantees applied to them, including Article 29 of
Law no. 646 of 10 August 1950 (Law no. 646/50) (the law which
had instituted the Cassa), providing that on the date of
cessation of the Cassa or its dissolution, all the rights and
obligations of the latter would be transferred to the State.
- By
means of Law no. 488 of 19 December 1992 (Law no. 488/92) AGENSUD was
dissolved. However, the working relationship between employer and
employee with its duties and obligations was not transferred to the
State as had been provided. Instead, this working relationship ceased
to have effect and the employees acquired a right to an
“end-of-service payment” (TFR). They were further
given the option to undertake new employment with a new civil service
entity. This employment, however, provided for lower salaries than
the ones they had previously received, contrary, according to the
applicants, to consolidated principles of the public service
(Presidential decree no. 3 of 10 January 1997 – see relevant
domestic law). The Government noted that this salary corresponded to
that of Administrative State employees in equal grades of service.
- Eventually,
in 1995, the applicants were employed within the Ministry for Forest
and Agricultural Policies (the Ministry) with retroactive effect from
13 October 1993. Thus, they had chosen to remain in employment and
accepted lower salaries, together with the implications for their
future social welfare coverage and pensions, in respect of
contributions to be paid during this new employment.
- At
the time, the law (Article 14 bis of Law no. 96/1993) provided
for two options, one of which (hereinafter referred to as joining)
entailed that previous contributions paid by the applicants, viz
by AGENSUD to the INPS, be joined to those that would subsequently be
paid by the Ministry to a different welfare entity, namely the INPDAP
(Istituto Nazionale di Previdenza per I Dipendenti
dell’Amministrazione Pubblica).
- According
to the applicants, on the basis of Article 14 bis paragraph 1
(b) of Law no. 96/1993, any benefits acquired had to remain untouched
and the change of system should have occurred without any
disbursements or losses on their part. Thus, the applicants accepted
the relevant employment offer and the joining of their contributions,
believing that, in accordance with the case-law as it stood at the
time (see Title C below), they would receive back any payments in
excess which would not go towards the calculation of their pension.
- Indeed,
at the time, the system of joining entailed that only part of the
previous contributions (paid to INPS) was used for the calculation of
the pensions. However, it eventually resulted that any contributions
in excess were to the benefit of the INPDAP and were not given back
to the INPS or to the applicants. It followed that a future pension
would also not have benefited from the entirety of the contributions
paid. Thus, through this move the applicants suffered two
disadvantages: firstly, any future pensions would be lower and
secondly a good share of the already paid contributions would be
lost.
- In
consequence, the legislator provided for a derogation (Article 14 bis
paragraph 4) applicable to a limited number of employees of the
AGENSUD, namely personnel who had left the civil service after 13
October 1993 and before the entry into force of Article 14 bis
paragraph 1 (b) of Law No. 96/1993. The derogation entailed the
restitution of the paid contributions which had not been calculated
for the purposes of joining the social security periods. The
applicants did not fall within this category.
- Initially,
the civil service started paying up all the AGENSUD employees,
without distinction, either spontaneously or as a result of a number
of court cases successful at first instance. However, eventually, the
civil service limited this payment only to persons who had left the
civil service after 13 October 1993 and before the entry into force
of Article 14 bis paragraph 1 (b) of Law No. 96/1993, thus
excluding the applicants, who had accepted to take up new employment
and agreed to the joining of their contributions into one entity.
- In
1995 the Italian welfare system introduced a new pension calculation,
namely the Sistema Contributivo (calculation of pension by
reference to contributions paid throughout a life-time and
revalorisation factors) as opposed to the Sistema Retributivo
(based on the salaries applicable to employees in their last years of
service). The change in system has been gradual and while for young
employees the system is obligatory, for older ones it is only
optional.
2. The applicants’ domestic proceedings
- In
2000 the applicants instituted judicial proceedings to ascertain
their right to the restitution of the contributions they had paid to
the INPS and which had not been used to calculate their pensions.
They contended that if Article 14 bis had to be interpreted as
not implying the right for them to take back their contributions, it
would be discriminatory vis-à-vis both a) other AGENSUD
employees and/or b) other employees in general who had previously
been transferred and had been reimbursed the excess contributions.
They requested the reimbursement of the relevant sums.
- By
a judgment of 21 August 2003, the Lazio Administrative Tribunal (TAR)
declared the application inadmissible on formal and procedural
grounds.
- On
appeal, by a judgment delivered on 15 September 2006 in the relevant
registry of the plenary (Adunanza Plenaria), the Supreme
Administrative Court (Consiglio di Stato) rejected the claims
on the merits. It held that the contributions which had been paid to
INPS but had not been used for pension calculation could validly be
vested in the INPDAP. In the ambit of a welfare system based on the
principle of solidarity, the circumstances that social benefits do
not reflect the contributions paid did not amount to unjust
enrichment of the entity receiving the contributions. Lastly, the
restitution of contributions was an exceptional measure not regulated
by uniform norms and only applicable to a certain category of people.
In consequence, in the absence of any specific norm to that effect,
the applicants did not have a right to the reimbursement of
contributions paid in excess. Moreover, the applicants had accepted
to take up new employment with the civil service and requested the
joining of their contributory periods.
3. Other relevant domestic proceedings
- In
1992 the plenary (Adunanza Plenaria) of the Supreme
Administrative Court (Consiglio di Stato) had held that it was
possible to reimburse contributions in excess to civil servants. The
same was reiterated again in 1997 in analogous cases relating to the
dissolution of the National Health Service (enti mutualistici),
whose employees were transferred to another organ of the civil
service.
- Subsequently,
numerous ex-employees of the AGENSUD instituted court proceedings
complaining about the lower salaries and social coverage. By a
judgment of the Constitutional Court of 19 June 1998 it was held that
persons in the applicants’ position had acquired a new status
equal to their colleagues. Thus, since they had been given the option
either to retire and maintain the old welfare regime or to continue
in employment and join the contributions into one (at the State’s
expense and for certain others with the recovery of such
contributions), the system was in conformity with constitutional
principles.
- Again
in relation to AGENSUD employees, the Supreme Administrative Court
had originally by an opinion of 30 June 1999, delivered in the
framework of its consultative competence, expressed itself in favour
of reimbursement being made to all AGENSUD employees, including the
ones in the applicants’ situation. On the same lines, a number
of decisions at first instance, some of which had become final, were
delivered (for example Antognoni Alberto v the Ministry for
transport and Infrastructure, INPS and INPDAP, judgment of
the Lazio Administrative Tribunal of 9 October 2002 and D’Agostino
Caterina v Presidente del Consiglio dei Ministri, Ministry of Economy
and Finance, INPS and INPDAP judgment of the Lazio Administrative
Tribunal of 6 April 2004). It was only the Supreme Administrative
Court Plenary formation which reversed this jurisprudence in 2006 in
the applicants’ domestic case.
B. Relevant domestic law and practice
1. The law in force up to 31 December 1992
- In
accordance with the law in force up to 31 December 1992, persons were
eligible to receive an old-age pension on attaining pensionable age,
namely sixty for men and fifty-five for women, after fifteen years of
welfare contributions. As from 1 January 1993 to 31 December 1993,
sixteen years of welfare contributions were necessary to obtain the
said benefit. This applied even if persons had been unemployed up to
the date when they reached pensionable age. As from 1 January 1994 to
31 December 1994, sixteen years of welfare contributions were
necessary to obtain the said benefit; however, pensionable age was
increased to sixty-one for men and fifty-six for women. As from 1
January 1995 to 31 December 1995, seventeen years of welfare
contributions were necessary to obtain the said benefit when reaching
pensionable age, which remained sixty-one for men and fifty-six for
women.
2. Other relevant articles
- Article
29 of Law no. 646/50, in so far as relevant, reads as follows:
“On the date of cessation of the Cassa or
its dissolution, all the rights and obligations of the latter are
transferred to the State.”
- Article
202 of Presidential decree no. 3 of 10 January 1997, provides as
follows:
“In the case of career changes in the same or a
different administration, employees having higher salaries than those
provided on such change are awarded a personal cheque, relevant to
pensions, equal to the difference between the two salaries, without
prejudice to future salary increases.”
- Article
14 bis paragraph 1 (b) of Law no. 96/1993 provided that
Article 6 of Law no. 29 of 1979 was applicable to the persons in the
applicants’ positions for the purposes of welfare coverage. The
latter read as follows:
“The joining of social security periods related to
service rendered with suppressed public entities, in relation to
which there has been a transfer of personnel to other public
entities, occurs ex officio through the receiving welfare entity,
without any charges on the employees.”
COMPLAINTS
- The
applicants complained that they had suffered a violation of Article 1
of Protocol No. 1 to the Convention both because they had been forced
to take up lower salaries and because as a consequence of a
legislative interference (contrary to Article 6) which interfered
with contributory benefits already acquired by them by means of
antecedent laws, they had lost substantial amounts of contributions
which they had paid. They further invoked Article 14 in conjunction
with Article 1 of Protocol No. 1 to the Convention, claiming that
they suffered discriminatory treatment vis-à-vis i)
AGENSUD employees who received back their contributions from the
INPDAP voluntarily on the basis of the jurisprudence at the time; ii)
AGENSUD employees who maintained their previous welfare status; iii)
other employees in general who could opt for joining systems
according to a calculation of their own choice or could either
request the total aggregation “totalizzazione” of
their contributions or receive a pro rata payment of their pensions
from the multiple welfare entities; iv) other employees in general,
who following a change in the Italian welfare system, benefited from
a sistema contributivo.
THE LAW
- Pursuant to Rule 42 § 1 of the Rules of
Court, the Court decides to join the applications, given their common
factual and legal background.
A. Alleged violation of Article 1 of Protocol No. 1 to
the Convention
- The
applicants complained that they had suffered a violation of their
property rights both because they had been forced to take up lower
salaries and because as a consequence of a legislative interference
(contrary to Article 6) which interfered with contributory benefits
already acquired by them by means of antecedent laws, they had lost
substantial amounts of contributions which they had paid. They relied
on Article 1 of Protocol No. 1 to the Convention, which reads as
follows:
“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.”
1. The parties’ submissions
a) The applicants’ submissions
- The
applicants complained that their move to the new employer entailed
lower salaries than those which pertained to them with AGENSUD, and
this resulted in lower future pensions. They maintained that although
the applicants had not yet reached pensionable age, in 1993, they had
by then worked the required 16 years of service to benefit from
old-age pension (see Annex), and other types of pension required even
less. Similarly, had the applicants moved to another country, their
pensions would have been calculated on the amount of contributions
paid to the INPS. Thus, at the relevant time the applicants had
already acquired a right to a pension, on condition that they reached
pensionable age or any other prefixed condition for the relevant
pension regime. This constituted a legitimate expectation which
constituted a possession for the purposes of Article 1 of Protocol
No. 1 to the Convention.
- The
applicants considered that pensions were due according to the number
of months and amount of contributions paid, in consequence they could
not imagine that they would have lost the advantages attached to
their already paid contributions. Thus, they complained that the
further loss of their contributions, in the amounts shown in the
Annex, was not foreseeable for the following reasons: i) Law no.
646/50 (see paragraph 20 above) and Article 14 bis paragraph 1
(b) of Law no. 96/1993 (see paragraph 22 above); the latter, more
particularly the words “without any charges on the employees”,
in the applicants’ view, meant that the employee was not to
sustain any losses, including a loss of contributions which had been
retained by the INPDAP, namely the public treasury; ii) the repayment
of these contributions by the INPDAP to individuals in the
applicants’ position had been confirmed in consistent
jurisprudence up to 2006; this change in jurisprudence could not be
foreseeable at the time.
- According
to the applicants the aim of any change to welfare regimes should be
that of augmenting the relevant benefits and not the contrary.
b) The Government’s submissions
- The
Government submitted that even assuming there was a possession there
had been no violation of the provision since the applicants’
previous employment contract had ended and the applicants engaged on
a new employment contract. The working relationship the applicants
had with AGENSUD ceased when the latter was dissolved. The applicants
were then given the opportunity to take up new employment as a remedy
for the unemployment which had come about. While it was true that the
new salaries were lower, this reduction had been justified.
Maintaining the applicants’ previous salaries would have
entailed giving the applicants a privileged status, since they would
have earned more than their new colleagues who were working at the
Ministry and earning the regular civil service salary. Moreover, the
applicants had the possibility to choose freely whether to take up
employment with the Ministry. Alternatively, they could have stopped
working and safeguarded both the TFR and the contributions they had
made towards their pension.
- The
Government submitted that, first and foremost, the applicants had
themselves chosen to take up the joining regime, which in effect led
to the loss of a certain amount of their contributions. Secondly,
they noted that welfare arrangements were not regulated according to
private (contractual) law. The payment of contributions was made by
virtue of the principle of solidarity, and it was not necessary to
receive in pension or other welfare benefits all that had been paid
by an employee and an employer.
- The
Government noted that the INPS and INPDAP had different contributory
systems which explained why certain contributions could not be
transferred from one management to another. They submitted that it
fell within the margin of appreciation of a State to determine
whether the unused contributions in the present case would be
returned to the applicants. Indeed, bearing in mind the
above-mentioned legitimate aim, the fact that the unused
contributions remained with the welfare entity which could eventually
use them to provide other welfare services could not be in breach of
the invoked provision. The Government reiterated that the State had a
wide margin of appreciation in regulating pension regimes and made
reference to the case of Maggio and Others v. Italy (nos.
46286/09, 52851/08, 53727/08, 54486/08 and 56001/08,
31 May 2011).
2. The Court’s assessment
- 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). 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).
- However, 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).
Nevertheless, it has been recognised that the making of contributions
to a pension fund may, in certain circumstances, create a property
right and such a right may be affected by the manner in which the
fund is distributed (see Skorkiewicz
v. Poland (dec.), no.
39860/98, 1 June 1999). One of the considerations in the
assessment under this provision is whether the applicant’s
right to derive benefits from the social insurance scheme in question
has been infringed in a manner resulting in the impairment of the
essence of that pension right (see Domalewski v. Poland
(dec.), no. 34610/97, ECHR 1999-V and Kjartan Ásmundsson,
cited above, § 39). Thus, recalculation of one’s pension
and its decrease may or may not violate Article 1 of
Protocol No. 1 (see Skorkiewicz, (dec.),
cited above). 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).
- 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).
a) Lower salaries leading to lower pensions
- The
first of the applicants’ complaints under this provision is the
fact that they had been forced to take on a new jobs which provided
lower salaries and therefore resulted in lower future pensions.
- The Court reiterates that the Convention does not
guarantee a right to work (see Sobczyk v. Poland, nos.
25693/94 and 27387/95, (dec.), 10 February 2000; and Dragan
Cakalic v Croatia, (dec.), 15 September 2003). Nor does
it guarantee, as such, any right to a pension of a particular amount
(see, for example, Kjartan Ásmundsson, cited above §
39). Moreover, the Court notes that the applicants were not forced to
take up a new job, but they willingly chose to take up the offer made
by the State, which had been aimed at reducing the unemployment rate
following the dissolution of the AGENSUD. Thus, the applicants in the
present case freely entered into a new contractual agreement. The
Court further notes that the applicants have not complained of any
changes to the salary regime within the Ministry following their
employment. Thus, at the time, the applicants were fully aware of the
legal significance of the employment contract they were signing up
for and in particular the repercussions it would have had on their
pensions. In that light the applicants cannot hold that circumstance
against the authorities (see, mutatis mutandis, Allan
Jacobsson v. Sweden (no. 1), 25 October 1989, § 60-62,
Series A no. 163; Fredin v. Sweden (no. 1), 18 February 1991,
§ 54, Series A no. 192, and Lacz v Poland, (dec.),
no. 22665/02, 23 June 2009).
- It
follows that, even assuming the provision is applicable, the
complaint is manifestly ill-founded with the provisions of the
Convention within the meaning of Article 35 § 3 and must be
rejected in accordance with Article 35 § 4.
b) The loss of paid up contributions
- The
applicants further complained that as a consequence of a legislative
interference (contrary to Article 6) which interfered with
contributory benefits already acquired by them by means of antecedent
laws, they had lost substantial amounts of contributions which they
had paid.
- The
Court starts by noting that there had not been any legislative
interference in the form of an enactment of laws in the period
2000-2006 during which the applicants were pursuing proceedings.
Thus, their complaint based on that argument is misconceived.
- In
so far as the complaint could relate to the domestic court’s
interpretation of the law or practice in the applicants’ case
(namely, in respect of Article 14 bis), the Court notes that
unlike in Beian v.
Romania ((no. 1),
no. 30658/05, ECHR 2007 XIII (extracts)) the present case
does not deal with divergent approaches by the Supreme Court which
could create jurisprudential uncertainty depriving the applicants of
the benefits arising from the law. It is true that in the present
case jurisprudence to the effect that the contributions paid in
access to the INPS which were not transferred to the INPDAP were
returned to the former employees of the AGENSUD appeared
consolidated. However, the highest administrative court, namely the
Supreme Administrative Court, found differently in the applicants’
case and thus contrary to the established jurisprudence in identical
and similar cases. This constituted a reversal of jurisprudence.
- The
Court reiterates that it is primarily for the domestic courts to
interpret and apply domestic legislation (Worm v. Austria, 29
August 1997, § 38, Reports of Judgments and Decisions
1997 V). Principally, the Court notes that there is no
indication that in the national court’s application of domestic
law in the applicants’ case there was any arbitrariness capable
of raising an issue under the Convention. The law had clearly stated
that the refund of contributions applied solely to a certain category
of persons, which did not include the applicants (see paragraph 10
above). Moreover, the Court reiterates that as held in S.S.
Balıklıçeşme Beldesi Tarım Kalkınma
Kooperatifi et autres v. Turkey (nos. 3573/05, 3617/05, 9667/05,
9884/05, 9891/05, 10167/05, 10228/05, 17258/05, 17260/05,
17262/05, 17275/05, 17290/05 et 17293/05, § 28, 30 November
2010) a reversal of jurisprudence falls within the discretionary
powers of domestic courts, notably in countries having the system of
written law (as in Italy) and which are not bound by precedent. In
these circumstances, the Court considers that no issue arises in
respect of Article 6 in the present proceedings.
- In
so far as the complaint refers to the fact that the change of
jurisprudence constituted a disproportionate interference with their
possessions, the Court considers that the contributions which the
applicants had paid cannot in themselves, any longer, be considered
as their possessions. It is the rights stemming from the payment of
those contributions to social insurance systems that are, however,
pecuniary rights for the purposes of Article 1 of Protocol No. 1 to
the Convention (Gaygusuz v. Austria, 16 September 1996,
Reports of Judgments and Decisions 1997, p. 1142, §§
39-41). Indeed, as mentioned above, it has been recognised that the
making of contributions to a pension fund may, in certain
circumstances, create a property right and such a right may be
affected by the manner in which the fund is distributed (see
Skorkiewicz v. Poland (dec.),
no. 39860/98, 1 June 1999).
- Even
assuming that the applicants had a property right in the present
case, the interference was in itself a lawful one, as the Court has
already found that the decision in the applicants’ case was not
arbitrary (see paragraph 42 above).
- Moreover,
the Court notes that the applicants’ right to derive benefits
from the social insurance scheme has not been infringed in a manner
resulting in the impairment of the essence of that pension right (see
Domalewski (dec.), cited above, and Kjartan Ásmundsson,
cited above, § 39). Unlike in the case of Kjartan
Ásmundsson, the applicants did not suffer a total
deprivation of their entitlements and will still receive a pension on
retirement. Neither has it been claimed that the applicants have lost
substantial amounts of their pension, and in any event no appropriate
numerical details have been submitted showing to what extent their
pensions have been reduced. Against this background, bearing in mind
the State’s wide margin of appreciation in regulating the
pension system (see Maggio and Others v. Italy, nos. 46286/09,
52851/08, 53727/08, 54486/08 and 56001/08, §
63, 31 May 2011) and the legitimate aim invoked by the Government,
namely the principle of solidarity (see paragraph 30), the
Court considers that the applicants were not made to bear an
individual and excessive burden.
- It
follows that the complaint is manifestly ill-founded with the
provisions of the Convention within the meaning of Article 35 §
3 and must be rejected in accordance with Article 35 § 4.
B. Alleged violation of Article 14 of the Convention
- The
applicants further invoked Article 14 in conjunction with Article 1
of Protocol No. 1 to the Convention, claiming that they had suffered
discriminatory treatment vis-à-vis i) AGENSUD employees
who received back their contributions from the INPDAP voluntarily on
the basis of the jurisprudence at the time; ii) AGENSUD employees who
maintained their previous welfare status; iii) other employees in
general who could opt for joining systems according to a calculation
of their own choice or could either request the total aggregation
“totalizzazione” of their contributions or to
receive a pro-rata payment of their pensions from the multiple
welfare entities; iv) other employees in general, who following a
change in the Italian welfare system, benefited from a sistema
contributivo. Article 14 reads as follows:
“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
Court recalls that Article 14 complements the other substantive
provisions of the Convention and the Protocols. It has no independent
existence since it has effect solely in relation to “the
enjoyment of the rights and freedoms” safeguarded by those
provisions. The application of Article 14 does not necessarily
presuppose the violation of one of the substantive rights guaranteed
by the Convention. The prohibition of discrimination in Article 14
thus extends beyond the enjoyment of the rights and freedoms which
the Convention and Protocols require each State to guarantee. It
applies also to those additional rights, falling within the general
scope of any Article of the Convention, for which the State has
voluntarily decided to provide. It is necessary but it is also
sufficient for the facts of the case to fall “within the ambit”
of one or more of the Convention Articles (see Stec and Others v.
the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 39,
ECHR 2005-X; Andrejeva, cited above, § 74).
- Article
1 of Protocol No. 1 does not include a right to acquire property. It
places no restriction on the Contracting States’ freedom to
decide whether or not to have in place any form of social security
scheme, or to choose the type or amount of benefits to provide under
any such scheme. If, however, a State does decide to create a
benefits or pension scheme, it must do so in a manner which is
compatible with Article 14 of the Convention (see Stec and Others
v. the United Kingdom (dec.) cited above, § 54). Such
legislation has to be regarded as generating a proprietary interest
falling within the ambit of Article 1 of Protocol No. 1 for persons
satisfying its requirements (Carson and Others v. the United
Kingdom [GC], no. 42184/05, § 53, 16 March 2010).
- The
Court reiterates that discrimination means treating differently,
without an objective and reasonable justification, persons in
relevantly similar situations (see Willis v. the United Kingdom,
no. 36042/97, § 48, ECHR 2002-IV). However, not every
difference in treatment will amount to a violation of Article 14. It
must be established that other persons in an analogous or relevantly
similar situation enjoy preferential treatment and that this
distinction is discriminatory (see Unal Tekeli v. Turkey,
no. 29865/96, § 49, 16 November 2004).
- Moreover,
Article 14 does not prohibit a member State from treating groups
differently in order to correct “factual inequalities”
between them; indeed, in certain circumstances a failure to attempt
to correct inequality through different treatment may in itself give
rise to a breach of the Article. The Contracting State enjoys a
margin of appreciation in assessing whether and to what extent
differences in otherwise similar situations justify a different
treatment. The scope of this margin will vary according to the
circumstances, the subject matter and the background. A wide margin
is usually allowed to the State under the Convention when it comes to
general measures of economic or social strategy (see Stec and
Others v. the United Kingdom [GC], no. 65731/01, §§
51-52, ECHR 2006 VI).
- The
Court notes that it is not necessary to determine whether Article 14
in conjunction with Article 1 of Protocol No. 1 to the Convention is
applicable in the present case, since the various complaints are in
any event inadmissible for the following reasons.
1. AGENSUD employees who received back their contributions from
the INPDAP voluntarily or on the basis of the jurisprudence at the
time
- The
Court considers that, while it is true that there was a difference in
treatment, the present case is one where the “others”
were treated more favourably. This more favourable treatment depended
on voluntary action or judicial determinations which were grounded in
an interpretation which was not eventually applied to the applicants’
case. The Court has already held that the change in jurisprudence was
legitimate (see paragraph 42 above). In consequence, its effects and
the apparent difference in treatment, which fall within the wide
margin of appreciation of the State in matters such as social
security (see Maggio and Others v. Italy, nos. 46286/09,
52851/08, 53727/08, 54486/08 and 56001/08, §
63, 31 May 2011) can be considered to be objectively
justified.
- It
follows that the complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
2. AGENSUD employees who maintained their previous welfare status
- The
Court notes that this option was available to former AGENSUD
employees who retired and not to those who chose to take up new
employment. In consequence, the applicants who had freely chosen the
latter option cannot be considered to be in an analogous situation to
former AGENSUD employees who chose to retire at the time.
- It
follows that the complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
3. Other employees in general who could opt for joining systems
according to a calculation of their own choice or who could either
request the total aggregation “totalizzazione” of their
contributions or receive a pro-rata payment of their pensions from
the multiple welfare entities
- The
Court notes that the applicants have not given any details about the
other systems and categories of persons vis-à-vis whom
they have allegedly been treated differently. The complaint is, thus,
unsubstantiated.
-
It follows that the complaint must be rejected as being manifestly
ill-founded pursuant to Article 35 §§ 3 and 4 of the
Convention.
4. Other employees in general, who following a change in the
Italian welfare system, benefited from a sistema contributivo
- Again
the Court notes that the applicants failed to explain what other
specific category of persons they are referring to, and to give any
detail about the different systems applicable or in which way this
alleged discrimination had arisen. The complaint is, thus,
unsubstantiated.
-
It follows that the complaint must be rejected as being manifestly
ill-founded pursuant to Article 35 §§ 3 and 4 of the
Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Stanley Naismith Françoise Tulkens Registrar President
ANNEX
|
Name
|
Born in
|
Yrs of service
at AGENSUD
|
Yrs of INPS
contributions
|
Contributions
remained unused (one third of which was paid by
the applicants)
|
|
|
|
|
|
|
|
(applic no. 11838/07)
|
1948
|
19
|
21
|
EUR 138,834.21
|
|
Torri Laura
|
|
Tomage Patrizia
|
1952
|
19
|
19
|
EUR 122,566.40
|
|
Rosa Carlo Caino
|
1953
|
13
|
18
|
EUR 134,933.82
|
|
Albanese Piera
|
1952
|
19
|
19
|
EUR 144,150.60
|
|
Iodice Roberto
|
1955
|
13,5
|
19
|
EUR 143,025.33
|
|
Camera Andrea
|
1952
|
12
|
16
|
EUR 127,755,56
|
|
Pappada Loredana
|
1957
|
16
|
16
|
EUR 108,759.71
|
|
Casciolo Antonino
|
1954
|
18
|
13
|
EUR 135,167.54
|
|
(applic no. 12302/07)
|
1948
|
18
|
23
|
EUR 142,650.36
|
|
Bucciarelli Carmine
|
