European Court of Human Rights
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 has become final under 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
1. 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.
2. 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.
3. 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.
4. 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.
5. 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
6. The applicants were born in 1938, 1942, 1939, 1942 and 1940 respectively, and live in Italy.
A. Background
of the case
1. Mr
Maggio
7. Mr
Maggio worked in Switzerland from
1980 to 1992.
8. 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.
9. 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.
10. 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.
11. By a judgment
filed in the registry on 8 May 2002, his claim
was rejected.
12. 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.
13. 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
14. 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.
15. 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).
16. The INPS appealed.
17. 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
18. Mr Faccioli was entitled to an old-age pension from 1 April
1999.
19. 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.
20. 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
21. 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.
22. 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.
23. 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
24. Ms Zanardini was entitled to an old-age pension from
1 August 1997.
25. 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.
26. 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
27. 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.”
28. 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 (*).”
29. 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).
30. 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.
31. 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
32. 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
33. 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.
34. 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.
35. 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
36. 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
37. 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
38. 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.
39. 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.
40. 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.
41. 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.
42. 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).
44. 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.
45. 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).
46. 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.
47. 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).
48. 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).
49. 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 had the effect of influencing the judicial determination of a pending dispute
to which the State was
a party.
50. 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 was 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
51. 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
52. 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.
53. 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
54. 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).
55. 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).
56. 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).
57. 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).
58. 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
59. 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 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.
60. 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).
61. 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).
62. 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).
63. 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.
64. 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
65. 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.”
66. 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.
67. 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
68. 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.”
69. 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.
70. The Court notes that Article 6 is applicable to the present case and this suffices to hold that Article 14 is also applicable.
71. 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).
72. 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.
73. 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.
74. 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.
75. 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
76. 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
77. 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.
78. 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.
79. All
the applicants claimed non-pecuniary damage, leaving it to the Court to determine an adequate amount.
80. 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
81. 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.
82. The Government did not submit
any comments in this respect.
83. 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
84. 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
1. 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;
2. Held that there has
been a violation of Article 6 § 1 of the Convention in respect of all the applicants;
3. 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;
4. Held that it is
not necessary to examine the second, third, fourth and fifth applicant’s complaint under Article 13 of the Convention;
5. 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;
6. 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;
7. 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