CASE OF RAGAGNIN v. ITALY

FIRST SECTION

CASE OF RAGAGNIN v. ITALY

(Application no. 58436/19)

JUDGMENT
 

STRASBOURG

20 June 2024

This judgment is final but it may be subject to editorial revision.

In the case of Ragagnin v. Italy,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

 Péter Paczolay, President,
 Gilberto Felici,
 Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 58436/19) 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”) on 30 October 2019 by an Italian national, Mr Francesco Ragagnin, who was born in 1940 and lived in Torrenova (“the applicant”) and who was represented by Ms E. Fatuzzo, a lawyer practising in Bergamo;

the decision to give notice of the complaint raised under Article 1 of Protocol No. 1 to the Italian Government (“the Government”), represented by their Agent, Mr L. D’Ascia, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 28 May 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the calculation of the applicant’s pension according to the criteria established in section 1, subsection 777, of Law no. 296/2006.

2.  The applicant was a pensioner who, in accordance with the 1962 Italo-Swiss Convention on Social Security, transferred to Italy the pension contributions he had paid in Switzerland in respect of work that he had performed there over several years. The Istituto Nazionale della Previdenza Sociale (“the INPS”) calculated his pension by employing a theoretical level of remuneration (retribuzione teorica) instead of his actual remuneration (retribuzione effettiva). This resulted in a readjustment on the basis of the existing ratio between the social security contributions paid in Switzerland and in Italy. The calculation therefore had as its basis a notional salary which, according to the applicant, resulted in his receiving a much lower pension than that which he should have received.

3.  Several pensioners who were in a similar situation as the applicant lodged claims with the national courts, contending that the INPS’s calculation methods were contrary to the spirit of the Italo-Swiss Convention.

4.  While their proceedings were pending, Law no. 296 of 27 December 2006 (“Law no. 296/2006”) entered into force on 1 January 2007. Section 1, subsection 777, of that law provided an authentic interpretation of the relevant legal framework, upholding the calculation methods used by the INPS.

5.  On 14 February 2007 the applicant initiated proceedings before the Patti District Court which, in view of the entry into force of Law no. 296/2006, dismissed his claims on 7 June 2019.

6.  The applicant complained before the Court that the enactment of Law no. 296/2006 constituted an unjustified interference with his possessions, contrary to Article 1 of Protocol No. 1 to the Convention.

THE COURT’S ASSESSMENT

7.  On 17 September 2021 the applicant died. By a letter of 13 March 2023, the applicant’s representative informed the Court that the applicant’s wife and heir, Ms Maria Concetta Miracola, wished to pursue the proceedings in his stead.

8.  The Court takes note of the information regarding the death of the applicant and of the wish of his heir, Ms Maria Concetta Miracola, to continue the proceedings in his stead, as well as of the absence of any objection to that wish on the Government’s part.

9.  Therefore, the Court considers that Ms Maria Concetta Miracola has standing to continue the proceedings on behalf of the deceased.

10.  However, for practical reasons, reference will still be made to the initial applicant throughout the ensuing text.

11.  The Government submitted a unilateral declaration which did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1 in fine). The Court rejects the Government’s request to strike the applications out and will accordingly pursue its examination of the merits of the case (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003-VI).

12.  The applicant complained that the enactment and application to his case of section 1, subsection 777, of Law no. 296/2006 had resulted in his receiving a much lower pension than that which he should have received. He relied on Article 1 of Protocol No. 1 to the Convention.

13.  The Court notes that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

14.  The Government did not contest the applicant’s submissions.

15.  The Court observes that virtually identical circumstances gave rise to a violation of Article 1 of Protocol No. 1 to the Convention in Stefanetti and Others v. Italy ((merits), nos. 21838/10 and 7 others, 15 April 2014) and is satisfied that there is no reason to hold otherwise in the present application.

16.  There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

17.  The applicant claimed 715,328.29 euros (EUR) in respect of pecuniary damage, EUR 25,000 in respect of non-pecuniary damage and EUR 5,000 in respect of costs and expenses incurred before the domestic courts and the Court.

18.  The Government contested the claims as excessive, arguing that the applicant was at most entitled to an overall damage award of EUR 194,100.

19.  The Court considers it reasonable to award the applicant the difference between 55% of the sums which he would have obtained in the absence of the intervention of the contested law and those he actually received (see Stefanetti and Others v. Italy (just satisfaction), nos. 21838/10 and 7 others, § 29, 1 June 2017).

20.  The Court notices that the parties provided diverging calculations, in particular with regard to the sums which the applicant would have obtained in the absence of the contested law. However, the Government did not provide any explanation in this respect, nor did they submit detailed calculations made by INPS as they had done in previous cases (see Stefanetti and Others (just satisfaction), cited above, §§ 22-23).

21.  As to the sums invoked by the applicant, the Court notes that they include both the pension due to him from 1 July 1995 until his death on 17 September 2021 and the survivor’s pension due to his spouse after that date. In this respect, the Court considers that his spouse, Ms Maria Concetta Miracola, did not raise any complaint on her own behalf and that a violation has been found only in respect of the initial applicant’s pension. Therefore, it will calculate damages on the basis of the amounts invoked by the applicant only in respect of the period preceding his death.

22.  Having regard to the above, the Court awards EUR 234,000 in respect of pecuniary damage.

23.  Moreover, ruling on an equitable basis, the Court awards EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

24.  With regard to costs and expenses, the Court observes that the applicant has not substantiated his claim with any relevant supporting documents establishing that he was under an obligation to pay legal fees or that he has actually paid them and, as a consequence, no sum is awarded on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant’s heir, within three months, the following amounts:

(i)   EUR 234,000 (two hundred thirty-four thousand euros) in respect of pecuniary damage;

(ii)  EUR 5,000 (five 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;

Done in English, and notified in writing on 20 June 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Liv Tigerstedt Péter Paczolay
 Deputy Registrar President