European Court of Human
Rights
FIRST SECTION
CASE OF D’AMICO v. ITALY
(Application no. 46586/14)
JUDGMENT
Art 6 § 1 (civil) • Fair hearing • No sufficiently
compelling reason justifying retrospective application of a law determining the
substance of pensions disputes in pending proceedings
STRASBOURG
17 February 2022
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 D’Amico v. Italy,
The
European Court of Human Rights (First Section), sitting as a Chamber composed
of:
Marko
Bošnjak, President,
Péter Paczolay,
Alena Poláčková,
Erik Wennerström,
Raffaele Sabato,
Lorraine Schembri Orland,
Davor Derenčinović, judges,
and Renata Degener, Section Registrar,
Having
regard to:
the
application (no. 46586/14) 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 an Italian national, Ms Immacolata Filomena D’Amico
(“the applicant”), on 18 April 2014;
the
decision to give notice of the application to the Italian Government (“the
Government”);
the
parties’ observations;
Having
deliberated in private on 18 January 2022,
Delivers
the following judgment, which was adopted on that date:
INTRODUCTION
1. The
case concerns legislative intervention in the course of ongoing proceedings. In
particular, the applicant complained, under Article 6 § 1 of the Convention,
that the enactment of Law no. 296 of 27 December 2006 (“Law no. 296/2006”) had
violated her right to a fair hearing.
THE
FACTS
2. The
applicant was born in 1938 and lives in Matera. She was represented before the
Court by Mr A. Iuliano, a lawyer practising in Matera.
3. The
Government were represented by their Agent, Mr L. D’Ascia, Avvocato
dello Stato.
4. The
facts of the case, as submitted by the parties, may be summarised as follows.
5. The
applicant’s husband, A.C., retired on 1 January 1990. His pension, in
accordance with section 2(1) of Law no. 324 of 27 May 1959
(“Law no. 324/1959”), included a special supplementary allowance (indennità
integrativa speciale – “the IIS”), conceived as a cost-of-living
adjustment separate from the main pension payment.
6. In
accordance with the relevant laws applicable at the time, pensions of public
servants were not based on the principle of “all-inclusiveness”, as was the
case for pensions of private-sector employees. Public servants’ pensions were
composed of a fixed salary element and a series of other independent elements,
such as the IIS. This type of calculation method meant that whereas the pension
paid to the survivor of a private-sector employee was calculated as a
percentage of the overall pension, the pension paid to the survivor of a
public-sector employee was calculated as a percentage of only the fixed salary
element, and the ancillary allowances were paid in full.
7. Starting
in 1994 the Italian Parliament passed a series of laws which were aimed at
harmonising the pension schemes of employees in the public and private sectors.
On 23 December 1994 Law no. 724/1994 was enacted. It provided for
the harmonisation of the payment of pensions in the public and private sectors,
meaning that the pensions of public servants were to be determined by a single
calculation on the basis of the salary elements
subject to contribution, including the IIS. At the same time, section 15(5) of
that Law preserved arrangements which were already in place, such as those for
A.C., who had been in receipt of a pension since 1990.
8. Subsequently,
Law no. 335 of 8 August 1995 (“Law no. 335/1995”) entered into force. Without
explicitly repealing Law no. 724/1994, section 1(41) of Law no. 335/1995
extended the rules governing survivors’ pensions to all forms of the general
compulsory insurance scheme.
9. A.C.
died on 1 April 2002. As a consequence, from 1 May
2002 the applicant received a survivor’s pension (calculated as 60% of A.C.’s
pension). In accordance with section 1(41) of Law no. 335/1995, the IIS
was combined with A.C.’s salary and therefore paid as a percentage of A.C.’s
overall original pension.
10. On
22 July 2005 the applicant brought proceedings against the National Public
Service Social Security Institute (Istituto Nazionale di Previdenza per i
Dipendenti dell’Amministrazione Pubblica – hereinafter “the INPDAP”,
whose functions, following its abolition in 2011, are currently carried out by
the Istituto Nazionale della Previdenza Sociale (INPS) before
the Basilicata Court of Auditors. She complained that the IIS should have been
paid in its entirety, that is, as an ancillary allowance rather than as a
percentage of the benefit originally paid to her late husband.
11. By
a judgment of 2 April 2007 the Basilicata Court of Auditors granted the
applicant’s claim. Referring to judgment no. 8/QM of 17 April 2002 of
the Joint Sections (Sezioni Riunite) of the Court of Auditors (“judgment
no. 8/QM/2002”), it held that the new system provided for in Law no. 335/1995
only applied to direct pensions which had been paid after 1 January 1995.
As A.C. began to receive his pension in 1990, the applicant should have
received the IIS in its entirety pursuant to section 15(5) of Law no.
724/1994.
12. On
1 January 2007, while an appeal by the INPDAP was pending before the Central
Section of the Court of Auditors, Law no. 296/2006 entered into force. Section
1(774) of that Law provided an authentic interpretation of section 1(41) of Law
no. 335/1995, establishing that, in instances where survivors’ pensions were
received after the entry into force of Law no. 335/1995, regardless
of the date of the payment of the direct pension, the IIS had to be paid as a
percentage, forming an integral part of the main pension.
13. Pursuant
to the entry into force of Law no. 296/2006, on 21 October 2013 the
Central Section of the Court of Auditors, acting as an appellate court in the
applicant’s case, allowed the INPDAP’s appeal, reversed the first-instance
judgment and dismissed the applicant’s claim.
RELEVANT
LEGAL FRAMEWORK AND PRACTICE
- RELEVANT PROVISIONS
14. Section
2(1) of Law no. 324/1959 provided:
“Holders
of ordinary pensions ... whether ... direct, indirect or reversionary ... shall
be granted a special supplementary allowance which shall be determined for each
year by applying ... the percentage variation in the cost-of-living index ...”
15. Section
15(5) of Law no. 724/1994 provided for the harmonisation of the pension systems
of the public and private sectors and conferred on public-sector pensions the
character of all-inclusiveness already adopted for the private sector. It also
preserved former arrangements already in place, providing:
“The provisions
relating to the payment of the special supplementary allowance on pension
payments set out in section 2 of Law no. 324 of 27 May 1959 ... shall only
apply to direct pensions paid until 31 December 1994 and to the respective
survivors’ pensions.”
16. Section
1(41) of Law no. 335/1995 extended the rules governing survivors’ pensions to
all forms of the general compulsory insurance scheme.
17. Section
1(774) of Law no. 296/2006 provided an authentic interpretation of section
1(41) of Law no. 335/1995. It read:
“...
Section 1(41) of [Law no. 335/1995] shall be interpreted as meaning that, in
the case of survivors’ pensions paid after the entry into force of [Law no.
335/1995], regardless of the starting date of the direct pension, the special
supplementary allowance ... shall be paid as a percentage, as is generally
provided in respect of survivors’ pensions.”
18. Section
1(775) of Law no. 296/2006 excluded from its scope survivors’ pensions that had
already been determined in final court decisions.
- JUDGMENT No. 8/QM OF 17
APRIL 2002 OF THE JOINT SECTIONS OF THE COURT OF AUDITORS
19. In
judgment no. 8/QM/2002, the Joint Sections of the Court of Auditors, in
resolving a conflict of case-law that had emerged, held that in the event of
the death of a pensioner whose retirement had started before 31 December
1994, the IIS was to be paid in its entirety to the holder of the relevant
survivor’s pension, regardless of the date of death of the original pensioner.
It therefore established that section 1(41) of Law no. 335/1995 had not
repealed section 15(5) of Law no. 724/1994.
- CONSTITUTIONAL COURT’S
JUDGMENTS IN RESPECT OF LAW No. 296/2006
20. In
judgment no. 74 of 28 March 2008, the Constitutional Court acknowledged that
Law no. 296/2006 was a law of authentic interpretation in which the legislature
had chosen one of the possible readings of the original text of Law no.
335/1995. At the same time, it found that that reading was not unreasonable and
was therefore compliant with Article 3 of the Constitution.
21. In
judgment no. 228 of 24 June 2010, the Constitutional Court reiterated that the
legislative intervention had been meant not only to curb public spending, but
also to harmonise the pension benefits of the public and private sectors.
22. In
judgments no. 1 of 5 January 2011 and no. 227 of 26 September 2014
the Constitutional Court reiterated that, while the contested law had taken as
a reference a minority strand of case-law, it had chosen one of the possible
meanings of the original 1995 text. The court also held that persons who were
the beneficiaries of a social security scheme did not have a legitimate
expectation of its immutability. Moreover, the amendments made to the relevant
legal framework did not completely disregard acquired rights or entail
unreasonable measures aimed at harmonising public and private pension payments.
Law no. 335/1995 was indeed the first step towards a progressive harmonisation
of the pension systems, with structural effects on public expenditure and
budget balances, also with a view to ensuring compliance with European Union
obligations on financial stability.
THE LAW
- ALLEGED VIOLATION OF
ARTICLE 6 OF THE CONVENTION
23. The
applicant complained that the legislative intervention – namely the enactment
of Law no. 296/2006, which departed from well-established case-law while the
proceedings in her case were still pending – had violated her right to a fair
hearing under Article 6 § 1 of the Convention, which reads as follows:
“In the
determination of his civil rights and obligations ... everyone is entitled to a
fair ... hearing ... by [a] ... tribunal ...”
- Admissibility
24. The
Government asserted that the application was manifestly ill-founded, since the
Constitutional Court had on several occasions held that the impugned law
reinforced one of the possible meanings of the interpreted provision and that
its enactment had been justified by the need to reform the Italian pension
system.
25. The
Government also submitted that the applicant had not suffered a significant
disadvantage. They noted that, in accordance with the interpretation of Law no.
335/1995 adopted by the authorities and subsequently confirmed by the authentic
interpretation provided in Law no. 296/2006, the applicant had received an
overall amount of 41,523 euros (EUR) instead of EUR 50,762, which she would
have received if the IIS had been paid to her in its entirety under section
15(5) of Law no. 724/1994.
26. The
applicant contested those arguments.
27. The
general principle de minimis non curat praetor underlies the
logic of Article 35 § 3 (b), which seeks to ensure consideration by an
international court of only those cases where violation of a right has reached
a minimum level of severity. Violations which are purely technical and
insignificant outside a formalistic framework do not merit European
supervision. The assessment of this minimum level is, in the nature of
things, relative and depends on all the circumstances of the case (see, among
many other authorities, Shefer v. Russia (dec.), no. 45175/04, § 18, 13 March 2012).
28. Taking
into account the calculations made by the Government, and
having regard to the financial impact on the applicant – a pensioner of a
certain age who did not receive a pension other than the one paid to her as
A.C.’s surviving spouse – she cannot, in the Court’s view, be deemed not to
have suffered a significant disadvantage.
29. Therefore,
the Court dismisses the Government’s preliminary objections, with
the exception of their argument that the applicant’s complaint is
manifestly ill-founded, as this objection must be joined to the merits of the
application.
- Merits
- The parties’ submissions
30. The
applicant argued that by enacting section 1(774) of Law no. 296/2006, the
State had interfered in favour of one of the parties in pending proceedings.
31. The
Government contested that argument. They reiterated that at the time of the
enactment of Law no. 296/2006 there had been two distinct interpretations of
Law no. 335/1995. While the majority of the case-law
was favourable to the applicant, the interpretation applied by the INPDAP was
consistent with a minority strand of case-law. They relied on the judgments of
the Constitutional Court, which confirmed that the legislature had employed one
of the possible meanings of the interpreted rule in order to
resolve a case-law conflict. The Government further argued that the applicant
could not have had any expectation that a specific interpretation of Law no.
335/1995 would have been applied in her case, as judgments of the Court of
Auditors did not have binding effect on other cases brought under its
jurisdiction.
32. The
Government relied on the judgment in Forrer-Niedenthal v. Germany (no. 47316/99, 20 February 2003), arguing that interference by the legislature could
be justified by historical generational reasons. They also submitted that the
case was comparable to National & Provincial Building Society,
Leeds Permanent Building Society and Yorkshire Building Society v. the
United Kingdom (23 October 1997, Reports of Judgments and
Decisions 1997‑VII) and OGIS-Institut Stanislas, OGEC
Saint-Pie X and Blanche de Castille and Others v. France (nos. 42219/98 and 54563/00, 27 May 2004), in which the Court had found no violation because
the interference was aimed at ensuring respect for the original will of the legislature,
and in which the Court had also given weight to the aim of remedying a
technical imperfection in the interpreted law. In that connection, they
asserted that in the present case the Italian public sector pension system had
gone through a generational reform which had justified the interference. In particular, Law no. 335/1995 had been enacted to
eliminate an irrational difference in treatment between the private and public
sectors and to tackle the heavy financial imbalance of the pension system. The
impugned law had been aimed at reintroducing the legislature’s original
intention to harmonise the pension system.
- The Court’s
assessment
33. The
Court has repeatedly held that although the legislature is not prevented from
enacting new retrospective provisions to regulate rights derived from the laws
in force (see, for example, Anagnostopoulos and Others v. Greece,
no. 39374/98, § 19, ECHR 2000‑XI), the principle of the rule of law and the
notion of a fair trial enshrined in Article 6 preclude any interference by the
legislature – other than on compelling public-interest grounds – with the
administration of justice designed to influence the judicial determination of a
dispute (see, among many other authorities, Zielinski and Pradal
and Gonzalez and Others v. France [GC], nos. 24846/94 and 9 others, § 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).
34. In
the instant case, the Court must look at the effect of
Law no. 296/2006 and the timing of its enactment. It notes that the
law expressly excluded from its scope survivors’ pensions that had already been
determined in final court decisions and settled once and for all the terms of
the disputes before the ordinary courts retrospectively. Indeed, the enactment
of Law no. 296/2006 while the proceedings were pending did in fact determine
the substance of the disputes, and its application by the various ordinary
courts made it pointless for an entire group of individuals in the applicant’s
position to carry on with the litigation. Thus, the law had the effect of
definitively altering the outcome of the pending litigation to which the State
was a party, endorsing the State’s position to the applicant’s detriment.
35. The
Court reiterates that only compelling general-interest reasons could be capable
of justifying such interference by the legislature. 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 Maggio
and Others v. Italy, nos. 46286/09 and 4 others, § 45, 31 May 2011).
36. The
Government repeatedly argued that there had been a minority strand of case-law
that was unfavourable to individuals in the same
position as the applicant, as confirmed by the Constitutional Court in its
2011 judgment (see paragraph 22 above). The Court notes that at the time
of the enactment of the impugned legislation the Court of Auditors in its
highest formation (the Joint Sections) had upheld the approach in favour of the
applicant in judgment no. 8/QM/2002. Against this background, the Court
cannot discern why the conflicting court decisions, especially after the
judgment by the Joint Sections of the Court of Auditors, would have required
legislative intervention while proceedings were pending. It reiterates that such divergences are an inherent
consequence of any judicial system which is based on a network of courts with
authority over the area of their territorial jurisdiction, and the role of a
supreme court is precisely to resolve conflicts between decisions of the courts
below (see, mutatis mutandis, Zielinski and Pradal and
Gonzalez and Others, cited above, § 59).
37. As
to the Government’s argument that the law had been necessary to tackle the
heavy financial imbalance of the pension 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, for
example, Zielinski and Pradal and Gonzalez and Others, cited above,
§ 59, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 132, ECHR 2006‑V, and Maggio and Others, cited
above, § 47).
38. As
to the Government’s argument that the law had been necessary to achieve a
homogeneous pension system, in particular by abolishing a system which favoured
pensioners of the public sector over others, while the Court accepts this to be
a reason of some general interest, it 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 (see Arras and Others v. Italy, no. 17972/07, § 49, 14 February 2012).
39. The
Court further considers that the present case is different from that of National
& Provincial Building Society, Leeds Permanent Building Society and
Yorkshire Building Society, cited by the Government (see paragraph 32
above), where the institution of proceedings by the applicant societies was
considered to amount to an attempt to take advantage of the authorities’
vulnerability resulting from technical defects in the law, and as to frustrate
the intention of Parliament (see National & Provincial Building Society,
Leeds Permanent Building Society and Yorkshire Building Society, cited
above, §§ 109 and 112). The instant case is also different from that of OGIS-Institut
Stanislas, OGEC Saint-Pie X and Blanche de Castille and Others, also cited
by the Government (see paragraph 32 above), where the applicants attempted to
derive advantages as a result of a lacuna in the law,
which the legislative interference aimed to remedy. In the above-mentioned two
cases, the domestic courts had acknowledged the deficiencies in the law at
issue and action by the State to remedy the situation was foreseeable
(see National & Provincial Building Society, Leeds Permanent
Building Society and Yorkshire Building Society, cited above, § 112,
and OGIS-Institut Stanislas, OGEC Saint-Pie X and Blanche de Castille
and Others, cited above, § 72). However, in the present case, there had
been no major flaws in the law.
40. Against
this background, even assuming that the law sought to
reintroduce the legislature’s original intention, the Court considers that the
aim of harmonising the pension system, while in the general interest, was not
compelling enough to overcome the dangers inherent in the use of retrospective
legislation affecting a pending dispute. Indeed, even accepting that the State
was attempting to adjust a situation it had not originally intended to create,
the Court notes that it could have done so without resorting to a retrospective
application of the law.
41. In
the light of the above, the Court finds that there has been a violation of
Article 6 § 1 of the Convention. Consequently, it dismisses the Government’s
preliminary objection to the effect that the complaint was manifestly
ill-founded.
- APPLICATION OF
ARTICLE 41 OF THE CONVENTION
42. 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.”
- Damage
43. The
applicant claimed 98,435.82 euros (EUR) in respect of pecuniary damage. She
also sought an award in respect of non-pecuniary damage as compensation for the
emotional distress that she had suffered.
44. The
Government contested the amount claimed by the applicant in respect of
pecuniary damage. They did not submit any comments as to non-pecuniary damage.
45. The
Court notes that in the present case an award of just satisfaction can only be based on the fact that the applicant 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 applicant as having suffered a loss of real
opportunities (see Maggio and Others, cited above, § 80, and Arras
and Others, cited above, § 88). 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 the applicant EUR 9,700 in respect of pecuniary damage and EUR
6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
- Costs and expenses
46. The
applicant also sought an award for the costs and expenses incurred before the
Court. She did not quantify this claim or provide the Court with any supporting
documentation.
47. According
to the Court’s settled 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 (see Merabishvili
v. Georgia [GC], no. 72508/13, § 370, 28 November 2017). In the present case the Court observes
that the applicant’s claim for reimbursement of costs and expenses manifestly
fails to satisfy these requirements, since the amount claimed is not quantified
nor substantiated by any supporting documents. The Court therefore rejects the
claim made under this head.
- Default interest
48. The
Court considers it appropriate that the default interest rate 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,
- Dismisses the
Government’s objection that the applicant did not suffer a significant disadvantage;
- Joins to the
merits the Government’s objection that the application
is manifestly ill-founded and dismisses it;
- Declares the application admissible;
- Holds that
there has been a violation of Article 6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months from the date
on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts at the
rate applicable at the date of settlement:
(i) EUR
9,700 (nine thousand seven hundred euros), plus any tax that may be chargeable,
in respect of pecuniary damage;
(ii) EUR
6,000 (six thousand euros), plus any tax that may be chargeable, 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;
- Dismisses the
remainder of the applicant’s claim for just satisfaction.
Done in
English, and notified in writing on 17 February 2022, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Renata Degener Marko Bošnjak
Registrar President