THIRD SECTION
DECISION
Application no. 54577/07
Dumitru DAVID against Romania
and 7 other applications
(see list appended)
The European Court of Human Rights (Third Section), sitting on 6 March 2012 as a Chamber composed of:
Josep Casadevall, President,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Luis López Guerra,
Mihai Poalelungi,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the applications listed in the document appended,
Having deliberated, decides as follows:
THE FACTS
1. The applicants all reside in Romania and are Romanian nationals. The particulars relating to the applicants’ names and other details are set out in the table appended hereto.
A. The circumstances of the cases
2. The facts of the cases, as submitted by the applicants, may be summarised as follows.
3. The applicants have retired under Law 3/1977. They had been employed in the mining or railroad industry, thus qualifying in principle as having worked in Group I working conditions for the purposes of Law 3/1977 (see Relevant domestic law and practice below).
4. These applications concern essentially the recalculation of their pensions pursuant to Law 19/2000, as well as the alleged different outcomes of similar actions before the courts of appeal, depending on whether the “mandatory contribution period” (stagiu de cotizare) applicable for “special working conditions” was considered to be of 20 or 30 years.
5. A 30-year mandatory contribution period was taken into account by the pension authorities in the recalculation of the applicants’ pensions. The applicants argued before the national courts that, for the recalculation of their pensions under Law 19/2000, a 20-year mandatory contribution period should have been taken into account, thus allegedly entitling them to a higher pension. They relied on two lines of legal argument.
6. Firstly, some of them claimed that they should receive the same treatment as persons having worked in “special conditions”, under Articles 20 and 43 of Law 19/2000, and having retired after its entry into force, thus benefitting from a 20-year mandatory contribution period. Secondly, some of the applicants argued that the correct interpretation of Article 14 of Law 3/1977 resulted in a 20-year mandatory contribution period applicable in their cases. Furthermore, some of the applicants argued that Decision 40/2008 of the HCCJ mandated a 20-year mandatory contribution period, as it referred to Article 14 of Law 3/1977 in its operative part. They contended that this approach was followed by other courts of appeal, which had allowed identical claims of their former colleagues.
7. The applicants’ challenges to the recalculation of their pensions by the pension authorities were dismissed by final decisions of the competent courts of appeal. A summary of these decisions as well as the allegedly diverging case-law may be found in the appended table.
B. Relevant domestic law and practice
8. The relevant provisions of Law 3/1977 read as follows:
Article 1
“(3) Depending on the conditions, complexity and importance of the work, positions are categorized in Group I, II or III ...”
Article 8
“(1) Working personnel having a length of employment of minimum 30 years for men and 25 years for women, respectively, are entitled to a pension ... when reaching the age of 62 for men and 57 for women. ...”
Article 14
“(1) For persons having effectively worked for at least 20 years in positions which belong, according to the law, to Group I of working conditions, or at least 25 years in group II of working conditions, for the purposes of pension calculation, each year worked in any of these groups shall count as:
(a) one year and six months for persons in group I of working conditions.
(b) one year and three months for persons in group II of working conditions.
(2) On this basis, persons having worked in groups I and II are entitled, upon their request, to retire when reaching the age of:
(a) 52 for men in group I and 57 for men in group II;
(b) 50 for women in group I and 52 for women in group II.”
9. The relevant provisions of Law 19/2001 read as follows:
Article 20
“(a) For the purposes of this law, positions under special working conditions are those ... in mining enterprises, for personnel spending in a given month at least 50% of monthly normal working hours underground; ...”
Article 43
“(1) Persons having worked in any of the positions covered by Article 20 (a) and having achieved at least a 20 year contribution period under these conditions benefit from an age-limit pension from the age of 45 ....”
Article 77
“(1) The average annual pension score accrued during the contribution period shall be determined by dividing the total number of points resulting from the addition of annual scores by the number of years constituting a complete mandatory contribution period ....
(2) For persons covered by articles 43 ... the mandatory contribution period provided by these articles shall be taken into account when determining the average annual score provided by § 1.”
10. The relevant provisions of the Decision 40 of 22 September 2008 rendered by the High Court of Cassation and Justice in an appeal in the interest of the law regarding the interpretation of Article 77 in conjunction with Article 43 of Law 19/2000, published in the Official Gazette on 20 May 2009, read as follows:
“The courts do not have a unified point of view regarding the application of Article 77(2) in conjunction with Article 43 (1) and (2) of Law 19/2000 regarding the determination of the mandatory contribution period ... for persons having retired between 1 July 1977 and 31 March 2001 and having been employed in special working conditions”
Thus, some courts have held that such persons benefit ... from a mandatory contribution period of 20 years under Article 43 (1) of Law 19/2000. ...
Other courts, have on the contrary, held that for such persons the mandatory contribution period ... is that provided by the law in force at the time of their retirement. ...
The only advantages offered by Law 3/1977 to persons employed in groups I and II are the group bonus and the possibility of retirement before reaching the standard retirement age, the provisions of Article 14 not implying a reduction of the mandatory contribution period ....
These latter courts have correctly interpreted and applied the provisions of the law. ...”
11. The operative part of the Decision 40 of 22 September 2008 of the HCCJ, which was available prior to the publication of the decision in the Official Gazette, read as follows:
“The provisions of Article 77 in conjunction with Article 43 of Law 19/2000 ... are to be interpreted in the sense that the mandatory contribution period ... for persons having retired between 1 July 1977 – 31 March 2001... is the one provided for by Article 14 of Law 3/1977.”
12. A number of courts of appeal have interpreted the Decision 40 of 22 September 2008 of the HCCJ to imply a 30-year mandatory contribution period. Such is the case of Piteşti Court of Appeal, decision no 375/R-CA of 2 March 2009, Ploieşti Court of Appeal, decision no 755 of 14 April 2009, Braşov Court of Appeal, decisions no 768/R of 6 July 2010 and nos 716/R, 707/R and 708/R of 29 June 2010, Craiova Court of Appeal, decision no 5776 of 19 November 2010, Craiova Court of Appeal, decision no 5038 of 15 October 2010, and Cluj Court of Appeal, decision no 2417/R of 6 October 2010.
13. Other courts of appeal have interpreted the Decision 40 of 22 September 2008 of the HCCJ to imply a 20-year mandatory contribution period. Such is the case of Piteşti Court of Appeal no. 562/R-CA of 23 March 2009, Bucharest Court of Appeal, decisions no. 3988R of 17 October 2008, no. 4805R of 28 November 2008, no. 4859/R of 3 December 2008; no. 1528/P of 11 March 2009, no. 1895 of 25 March 2009, no. 4596R of 19 June 2009, no. 5423/R of 7 October 2009, no. 5868/R of 22 October 2009 and no. 6967R of 27 November 2009; Ploieşti Court of Appeal, decision no. 492 of 16 March 2009, Constanţa Court of Appeal, decisions no. 312/AS of 21 April 2009 and no. 77/AS of 2 March 2010, Galaţi Court of Appeal, decision no. 470/R of 5 May 2009, and Braşov Court of Appeal, decisions nos. 1047/R and 1036/R of 5 October 2010.
COMPLAINTS
14. The applicants complain that their right to a fair trial secured by Article 6 of the Convention has been infringed on account of the diverging solutions adopted by national courts in allegedly identical cases regarding the recalculation of pensions for persons having retired under Law 3/1977 based on the length of the mandatory contribution period taken into account. The final decisions submitted by the applicants in substantiation of the existence of a divergent case-law on the matter are enumerated in the table appended hereto. The applicants contend that such judgments, spanning from 2005 to late 2010, confirm the existence of a widespread divergent case-law before the courts of appeal across the country, despite Decision no 40/2008 rendered by the High Court of Cassation and Justice in an appeal in the interest of the law.
15. They further complain in substance that the divergent solutions, allowing or, on the contrary, as in the applicants’ case, dismissing identical pecuniary claims related to the pension calculation, also gave way to discrimination, in breach of Article 14 of the Convention and of Article 1 of Protocol No. 12 to the Convention, read in conjunction with Article 6 mentioned above.
16. The applicants also complain under Article 1 of Protocol No. 1 alone and taken together with Article 14 of the Convention that the favourable court decisions obtained by other retired persons, former colleagues in similar situations, created a legitimate expectation that they would also receive similar treatment and thus profit from an increased pension.
THE LAW
17. The applicants complain that their right to a fair trial secured by Article 6 of the Convention has been infringed on account of the diverging domestic case-law concerning the length of the mandatory contribution period to be taken into account for the recalculation of pensions. They further complain in substance that the divergent solutions mentioned above also gave way to discrimination, in breach of Article 14 of the Convention and of Article 1 of Protocol No. 12 to the Convention, read in conjunction with Article 6. The relevant parts of the invoked provisions read as follows:
Article 6
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law ... .”
Article 14
“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.”
Article 1 of Protocol No. 12
“1. The enjoyment of any right set forth by law 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.
2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”
18. The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
19. The applicants also complain under Article 1 of Protocol No. 1, alone and taken together with Article 14 of the Convention, that the favourable court decisions obtained by other retired persons in similar situations, created a legitimate expectation that they would also profit from an increased pension. Article 1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
20. The Court notes at the outset that Article 1 of Protocol No. 1 applies only to a person’s existing possessions. Thus, future income cannot be considered to constitute “possessions” unless it has already been earned or is definitely payable (see, for example, Koivusaari and others v. Finland (dec.), no. 20690/06, 23 February 2010). However, in certain circumstances, a “legitimate expectation” of obtaining an “asset” may also enjoy the protection of Article 1 of Protocol No. 1. Thus, where a proprietary interest is in the nature of a claim, the person in whom it is vested may be regarded as having a “legitimate expectation” if there is a sufficient basis for the interest in national law, for example where there is settled case-law of the domestic courts confirming its existence (see Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004-IX). However, no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (ibid., § 50).
21. In the present case, the applicants’ claims regarding the way their pensions should have been calculated cannot be regarded as having a sufficient basis in the domestic case-law, since the courts’ interpretation on the matter was divergent, as held by the High Court’s ruling of 22 September 2008 on the appeal in the interests of the law (see paragraph 10 above). Furthermore, on the basis of the case files, there is no indication that, by the time the applicants’ actions were dismissed, there was a settled case-law in the sense of their claims (see paragraphs 12-13 above).
It follows that the applicants did not have a possession within the meaning of Article 1 of Protocol No. 1.
22. As the Court has consistently held, Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see Hans-Adam von Liechtenstein v. Germany [GC], no. 42527/98, § 91, ECHR 2001-VIII).
23. In the light of these considerations, the complaint under Article 1 of Protocol No. 1, alone and taken together with Article 14 of the Convention, is inadmissible as incompatible ratione materiae, in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to adjourn the examination of the applicants’ complaints concerning the alleged diverging domestic case-law and breach of Article 6 of the Convention, taken alone and in conjunction with Article 14 of the Convention and of Article 1 of Protocol No. 12 to the Convention;
Declares the remainder of the applications inadmissible.
Marialena TsirliJosep Casadevall Deputy Registrar President
APPENDIX
Case number and date of lodging
Applicant(s)
and/or representative
Final decisions recalculating the applicants’ pension, applying a 30-year mandatory period
Diverging case-law cited by the applicants: final decisions applying a 20-year mandatory contribution period
54577/07
Lodged on 26/11/2007
Dumitru DAVID
Cluj Court of Appeal decision no 1364/R/2007 of 12 June 2007, file no 4409/100/2006
Timişoara Court of Appeal decisions no 4040/R of 7 December 2005 and no 2086 of 31 October 2006
43636/06
lodged on 19/10/2006
Ioan MIHALACHE
Alba Iulia Court of Appeal decision no 771/2006 of 8 June 2006, file no 97/57/2006
Timişoara Court of Appeal decision no 4040/Rof 7 December 2005
48039/09
lodged on 8/09/2009
Constantin DUBINTOV
Piteşti Court of Appeal, decision no 375/R-CA of 2 March 2009 (available on 1 April 2009), file no 1756/109/2008
Piteşti Court of Appeal decisions no 110/R‑CA of 3 October 2007 and no 562/R-CA of 23 March 2009
52596/09
lodged on 23/09/2009
Ion NICOLESCU
Ploieşti Court of Appeal, decision no 755 of 14 April 2009, file no 5960/120/2008
Bucharest Court of Appeal, decisions no 3988R of 17 October 2008, no 4805R of 28 November 2008, and no 4859/R of 3 December 2008;
Ploieşti Court of Appeal, decision no 492 of 16 March 2009
63469/10
lodged on 18/10/2010
Corneliu IOAN and Others (Arghir Porca, Ilie Marica, Marin Sfantu)
Represented by Vasile Barbu
Braşov Court of Appeal , decision no 768/R of 6 July 2010 (file no 9162/62/2009), and nos 716/R, 707/R and 708/R of 29 June 2010 (files nos 80/62/2010, 114/62/2010 and 7875/62/2009 respectively)
Braşov Court of Appeal, decisions nos 1047/R and 1036/R of 5 October 2010
10666/11
lodged on 4/02/2011
Paul DUMITRESCU
Craiova Court of Appeal, decision no 5776 of 19 November 2010, file no 788/104/2010
Bucharest Court Of Appeal, decisions no 5423/R of 7 October 2009, no 5868/R of 22 October 2009 and no 6967R of 27 November 2009;
Constanţa Court of Appeal, decision no 312/AS of 21 April 2009
13178/11
lodged on 14/02/2011
Constantin MECHE
Craiova Court of Appeal, decision no 5038 of 15 October 2010, file no 793/104/2010
Bucharest Court Of Appeal, decisions no 5423/R of 7 October 2009, no 5868/R of 22 October 2009 and no 6967R of 27 November 2009
20219/11
lodged on 12/03/2011
Augustin CALUGAR
Cluj Court of Appeal, decision no 2417/R of 6 October 2010, file no 4525/117/2009
Bucharest Court of Appeal, decisions no 1528/P of 11 March 2009, no 1895 of 25 March 2009, and no 4596R of 19 June 2009; Galaţi Court of Appeal, decision no 470/R of 5 May 2009; Constanţa Court of Appeal, decision no 77/AS of 2 March 2010
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