SECOND SECTION
Application no. 3429/09
Giannino BIRAGHI against Italy
and 21 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are Italian nationals (see Annex). They are represented before the Court by Mrs E. Fatuzzo, a lawyer practising in Bergamo, Italy.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The applicants requested the Istituto Nazionale della Previdenza Sociale (“INPS”) to establish their pensions in accordance with the 1962 Italo-Swiss Convention on Social Security (see Relevant Domestic Law and Practice below) on the basis of the contributions paid in Switzerland for work they had performed there over several years (see annexed table for details). As a basis for the calculation of their pensions (in respect of the average remuneration of the last ten years), the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a readjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which meant that the calculation had as its basis a pseudo-salary which amounted to approximately a quarter of the salary actually received by the applicants and therefore a reduction in the pension itself.
Consequently, in 2005/6 the applicants instituted judicial proceedings, contending that this was contrary to the spirit of the Italo-Swiss Convention. Law 296/2006 (see Relevant Domestic Law and Practice below) entered into force on 1 January 2007.
1. Mr Biraghi and Ms Marcazzo
By a judgment of the Varese Tribunal (Labour and Welfare Section) of 23 September 2008 (no. 306/2008), their claim was rejected in view of the entry into force of Law 296/2006.
2. Mr Bassi, Mt Matraxia, Ms Di Rella, Mr Franzetti, and Mr Speroni
By a judgment of the Varese Tribunal (Labour and Welfare Section) of 7 October 2008 (no. 329/2008), their claim was rejected in view of the entry into force of Law 296/2006.
3. Mr Trevisan, Mr Zuin and Ms Vallerini
By a judgment of the Udine Tribunal (Labour and Welfare Section) of 7 October 2008, filed in the relevant registry on 8 October 2008 (no. 311/2008), their claim was rejected in view of the entry into force of Law 296/2006.
4. Mr Panzarino, Mr Delli Compagni and Mr Lischetti
By a judgment of the Varese Tribunal (Labour and Welfare Section) of 26 November 2008, filed in the relevant registry on 9 December 2008 (no. 389/2008), their claim was rejected in view of the entry into force of Law 296/2006.
5. Ms Daina and Mr Gonano
By a judgment of the Bergamo Tribunal (Labour and Welfare Section) of 17 September 2008 (no. 789/2008), their claim was rejected in view of the entry into force of Law 296/2006.
6. Mr Gagliardi, Mr Rossi and Mr De Nile
By a judgment of the Como Tribunal (Labour and Welfare Section) of 15 June 2006, filed in the relevant registry on 30 June 2006, Mr Gagliardi’s and Mr De Nile’s claims were rejected as being out of time, their proceedings having been lodged more than three years after the administrative decision regarding their pensions; Mr Rossi’s claim was rejected as the court did not share the ratio of the relevant Court of Cassation case-law at the time, and considered that the relevant legal provisions had been sufficiently clear.
The applicants appealed.
By a judgment of 11 December 2008, filed in the relevant registry on 13 January 2009 (no. 63/2009), the Milan Court of Appeal reformed the first-instance judgment, considering that Mr Gagliardi’s and Mr De Nile’s claims for the dues relating to the three years before they lodged their proceedings could not be considered time-barred. However, it rejected the merits of all three applicants’ claims in view of the entry into force of Law 296/2006.
7. Mr Sottini and Mr Maestri
By two judgments of the Brescia Tribunal (Labour and Welfare Section) of 22 September 2006, filed in the relevant registry on 2 October 2006 (nos. 672/2006 and 678/2006) their claim was upheld on the basis of the relevant Court of Cassation case-law at the time.
The INPS appealed.
By a judgment of 18 December 2008, filed in the relevant registry on 11 March 2009 (no. 527/2008), the Brescia Court of Appeal reversed the first-instance judgments in view of the entry into force of Law 296/2006.
8. Mr Palumbo and Mr Izzi
By two judgments of the Campobasso Tribunal (Labour and Welfare Section) of 12 February 2009 (nos. 89/2009 and 90/2009), their claim was rejected in view of the entry into force of Law 296/2006.
All the applicants did not appeal further, deeming it to be futile given that the impugned law had been considered legitimate by the Constitutional Court in its judgment of 23 May 2008, no. 172 (see Relevant Domestic Law and Practice below), which other courts were then bound to uphold.
B. Relevant domestic law and practice
1. The Italo-Swiss Convention on Social Security
Article 23 of the transitional provisions of the Italo-Swiss Convention on Social Security, of 14 December 1962, provides, in so far as relevant, as follows (unofficial translation):
“1. In so far as Switzerland is concerned, performance shall be in accordance with the provisions of this Convention, even in cases where the insured event occurred before the entry into force of the Convention. Old-age and survivors’ ordinary annuities will, however, only apply in accordance with these provisions if the insured event took place before 21 December 1959, and if the contributions were not or will not be transferred or reimbursed in accordance with the Convention of 17 October 1951, or paragraph 5 of this Article. (...)
2. In so far as Italy is concerned, performance shall be in accordance with the provisions of this Convention where the insured event occurred on or after the date of its entry into force. Nevertheless, when the insured event occurred before that date, performance shall take place in accordance with the present Convention from the date of its entry into force, if it would not have been possible to grant such a pension due to the insufficiency of the insurance periods, and only if the contributions have not been reimbursed by the Italian social insurance scheme.
3. With the exception of the above provisions, periods of insurance, of contributions and of residence occurring before the entry into force of this Convention will be taken into consideration.
5. For a period of five years from the entry into force of this Convention, upon the attainment of pensionable age under Italian law, Italian citizens may request, in derogation of Article 7, that the contributions paid by them and their employers into the Swiss old-age and survivors insurance schemes be transferred to the Italian insurance scheme, on condition that they have left Switzerland for permanent settlement in Italy or in a third country prior to the end of the year in which their pensionable age was reached. Article 5 (4) and (5) of the Convention of 17 October 1951 will apply to the use of such transferred contributions, eventual reimbursements and the effects of such transfers.”
In so far as relevant, Article 5 of the Italo-Swiss Convention on Social Insurance of 17 October 1951 provides (unofficial translation):
“...(4) Italian citizens not covered by the preceding sub-paragraph (*) or their survivors, may request contributions paid by them and their employers into the Swiss old-age and survivors’ insurance to be transferred to the Italian social welfare insurance scheme as indicated in Article 1 (*). The latter will use the said contributions to ensure that the insured person obtains the benefits derived from Italian law quoted in Article 1 (*) and any other dispositions issued by the Italian authorities. In the event that, under the relevant Italian legal provisions, the insured person cannot assert a right to a pension, the Italian social welfare services will reimburse, upon request, the transferred contributions.
(5) Transfer of contributions as provided for in the above sub-paragraph may be requested:
(a) if the Italian citizen has left Switzerland at least ten years before,
(b) on the occurrence of the insured event.
The Italian citizen whose contributions have been transferred to the Italian social insurance scheme cannot assert any right in respect of the Swiss old-age and survivors’ insurance on the basis of such contributions. Such a person, or his [or her] survivors, may expect an ordinary annuity from the Swiss old-age and survivors insurance scheme only ... [under] the conditions set out in the first paragraph (*).”
It is noted that the articles marked (*) were repealed by Article 26 (3) of the 1962 Convention, except for the purposes of the above cited Article 23 (5).
The transitional provision of Article 23 of the 1961 Convention became definitive by means of the additional agreement of 4 July 1969, Article 1 (1) and (3) of which 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.”
2. Case-law relevant to the period before the enactment of Law 296/2006
The Court of Cassation’s judgment of 6 March 2004, and other analogous jurisprudence at the material time, established that, in the absence of specific legislation regulating the transfer of contributions, the method of calculation in determining workers’ pensions should be based on the real remuneration received by that person, including any work undertaken in Switzerland, irrespective of the fact that contributions paid in Switzerland and transferred to Italy had been calculated on the basis of much lower rates than those established under Italian legislation.
3. Law no. 296 of 27 December 2006
Article 1, paragraph 777, of Law 296/2006, which entered into force on 1 January 2007, provides (unofficial translation):
“Article 5 (2) of Presidential Decree no. 488 of 27 April 1968 and subsequent modifications must be interpreted to the effect that, in the event of transfer of contributions paid to foreign welfare entities to the Italian obligatory general insurance scheme, as a consequence of international social security treaties and conventions, the pensionable remuneration relative to the employment period abroad is calculated by multiplying the amount of transferred contributions by a hundred and dividing the result by the contribution rates for the invalidity, old-age and survivors insurance scheme, as applicable during the relevant contributory period. More favourable pension treatment already liquidated before the entry into force of the current law is exempted.”
4. Constitutional Court judgment of 23 May 2008, no. 172
By a writ of 5 March 2007, the Court of Cassation questioned the legitimacy of Law 296/2006 and remitted the case to the Constitutional Court. The Constitutional Court gave judgment on 23 May 2008, holding, in sum, as follows.
Although interpretative, Law 296/2006 was innovative. There had been no conflicting case-law on the pension regime but a single well-established interpretation, according to which the Italian worker could ask to transfer his or her contributions, paid in Switzerland, to the INPS, in order to obtain the advantages provided by Italian law on invalidity, old-age and survivors’ insurance, including that of remuneration-based pension calculations, on the basis of the wages earned in Switzerland, irrespective of the fact that the transferred contributions had been paid at a much lower Swiss rate.
The Constitutional Court noted that the laws defining pension remuneration were part of a welfare system which balanced available resources and the services supplied. A change in calculating pensions from the contributory criterion to the remuneration-based one (“retributivo”), was not to the detriment of the financial sustainability of the system. Thus, the changes brought about by the impugned Law sought to bring the relationship between pensionable remuneration and contributions in line with the system in force in Italy during the same period of time. The Law provided that remuneration received abroad (used as a basis for pension calculations) was to be adjusted by applying the same percentage ratios used for pension contributions paid in Italy during the same period. Thus, the norm made explicit what had been in the original interpretative provisions. Consequently, there had been no breach of the principle of legal certainty. Nor was the norm discriminatory since the acquired and more favourable rights of earlier pensioners were, by then, unassailable. Furthermore, the Law did not discriminate against people who had worked abroad, because it simply ensured an overall balance in the welfare system, and avoided the situation whereby persons who had made small contributions to a foreign pension scheme could receive the same pension as those who had paid the much higher Italian contributions. The contested Law did not provide for any ex post reductions, as it merely imposed an interpretation which could already have been inferred from the original provisions. Lastly, this system still allowed for a sufficient and satisfactory pension, adequate for the lifestyle of a worker. Accordingly, the claim of unconstitutionality of the said Law was manifestly ill-founded.
COMPLAINTS
1. The applicants complain under Article 6 § 1 of the Convention that the legislative intervention, namely the enactment of Law 296/2006, whilst proceedings were pending, which changed well-established case-law, had denied them their right to a fair trial.
2. The applicants further complain that they did not have an effective domestic remedy, since the legislative intervention negated any legitimate expectations they might have held and made the institution of any legal proceedings vain. They invoke Article 13 of the Convention.
3. Without invoking any article of the Convention the applicants further complain that Law 296/2006 created a disparity in treatment between persons who had chosen to work abroad, and those who remained in Italy; they further note that the Constitutional Court judgment confirming the validity of Law 296/2006 created a disparity between persons whose proceedings had ended (successfully) and those whose proceedings were still pending.
COMMON QUESTION
1. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was there interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute? If so, was the interference based on compelling grounds of general interest? Lastly, was the interference compatible with the principles of legal certainty (see Maggio and Others v. Italy, nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, 31 May 2011)?
2. Did the applicants have at their disposal an effective domestic remedy for their Convention complaints as required by Article 13 of the Convention?
APPENDIX
No.
Application
no.
Lodged on
Applicant’s name
date of birth
place of residence
Years worked in Switzerland
3429/09
30/12/2008
Giannino BIRAGHI
08/07/1936
Malnate
1969-1992
3430/09
30/12/2008
Guido BASSI
05/02/1938
Cantello
1967-1997
3431/09
30/12/2008
Filippo MATRAXIA
25/07/1942
Santa Caterina Villarmosa
1961-1998
3432/09
30/12/2008
Armando TREVISAN
19/12/1939
Lestizza
1959-1996
3992/09
08/01/2009
Mario ZUIN
29/03/1936
Rivignano
1955-1994
4100/09
14/01/2009
Anna Maria VALLERINI
10/11/1938
Comeglians
1956-1993
11561/09
21/02/2009
Nicoletta DI RELLA
01/09/1943
Arcisate
1961-1988
15609/09
02/03/2009
Enrico FRANZETTI
07/08/1936
Orino
1966-1997
15637/09
21/02/2009
Francesco PANZARINO
13/01/1937
Arcisate
1972-1998
15649/09
02/03/2009
Francesco DELLI COMPAGNI
25/01/1940
Luino
1960-1999
15761/09
12/03/2009
Martina Maria MARCAZZO’
11/11/1942
Saltrio
1964-1997
15783/09
12/03/2009
Liliana DAINA
25/01/1946
Berbenno
1964-1999
17111/09
12/03/2009
Alvio GONANO
13/11/1943
Berbenno
1963-1999
17371/09
24/03/2009
Felice GAGLIARDI
27/03/1947
Bulgarograsso
1974-2000
17374/09
24/03/2009
Alfonso ROSSI
26/10/1946
Villa Guardia
1968-2000
17378/09
24/03/2009
Domenico DE NILE
22/02/1934
Lurago
1960-1995
20787/09
07/04/2009
Bruno SOTTINI
23/10/1941
Cologne
1966-1997
20799/09
07/04/2009
Carlo SPERONI
28/12/1944
Vedano Olona
1985-2002
20830/09
07/04/2009
Pietro MAESTRI
27/06/1940
Toscolano Maderno
1965-1995
29007/09
20/05/2009
Piergiorgio LISCHETTI
28/02/1942
Besozzo
1966-1995
41408/09
27/07/2009
Angelo PALUMBO
05/08/1939
Castelmauro
1958-1995
41422/09
27/07/2009
Clemente IZZI
25/03/1941
Torrella Del Sannio
1959-1997
Full & Egal Universal Law Academy