FOURTH SECTION
DECISION
Applications nos. 78135/13 and 429/14
István GELLÉRTHEGYI
and Zoltán BALLA and Hajnalka BALLÁNÉ GÁL against Hungary
The European Court of Human Rights (Fourth Section), sitting on 6 March 2018 as a Chamber composed of:
Ganna Yudkivska, President,
Faris Vehabović,
Iulia Motoc,
Carlo Ranzoni,
Georges Ravarani,
Marko Bošnjak,
Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,
Having regard to the above applications lodged on 5 and 27 December 2013 respectively,
Having deliberated, decides as follows:
THE FACTS
1. The applicant in application no. 78135/13, Mr István Gellérthegyi (hereinafter “the first applicant”), is a Hungarian national who was born in 1950 and lives in Budapest. He was represented before the Court by Mr A. Cech, a lawyer practising in Budapest.
2. The applicants in application no. 429/14, Mr Zoltán Balla and Ms Hajnalka Balláné Gál (hereinafter “the second and third applicant”), are Hungarian nationals who were born in 1956 and live in Budapest.
A. The circumstances of the case
3. The facts of the case, as submitted by the applicants, may be summarised as follows.
4. The applicants were employed as civil servants, notably as an associate professor of administrative law at Eötvös Loránd University and the National University of Public Service (as regards the first applicant), and as associate professors at the National University of Public Service (as regards the second and third applicants).
5. On a date not specified in the application, the applicants started receiving old-age pensions. It was disbursed to them alongside their salaries until 30 June 2013.
6. On 1 January 2013 an amendment to Act no. LXXXI of 1997 on Social-Security Pensions (hereinafter “the 1997 Pensions Act”) entered into force, pursuant to which the disbursement of those old-age pensions whose beneficiaries were simultaneously employed in certain categories within the civil service would be suspended from 1 July 2013 onwards for the duration of their employment.
7. A number of categories of persons in State employment were, however, exempted from the suspension of pension payments, such as members of Parliament and mayors, as well as persons employed in the public sector under the rules of the Labour Code (see Fábián v. Hungary [GC], no. 78117/13, § 23, 5 September 2017). Judges and prosecutors appointed to a stand-by post pursuant to Act no. XX of 2013 (see Baka v. Hungary [GC], no. 20261/12, § 54, ECHR 2016) were also exempted from the prohibition on double compensation (see paragraph 14 below). Although the suspension of pension payments also applied to health-care employees, given the importance of that sector their suspended pension payment could be compensated upon the decision of their employer by means of a salary supplement (see paragraph 15 below).
8. As of 1 July 2013, the disbursement of the applicants’ pension was suspended.
9. Partly following an application by the Ombudsman, the Constitutional Court embarked on the review of the impugned legislation’s constitutionality (see Fábián, cited above, § 16).
10. On 16 October 2017 the Constitutional Court found, in essence, that the rules concerning the ban on simultaneous receipt of a State pension and a salary struck a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights; they therefore did not violate Article XIII of the Fundamental Law enshrining the protection of property.
It further held that old-age pensioners employed, respectively, in the public and in the private sector were not in an analogous or relevantly similar situation. As regards the categories of public servants exempt from the ban on dual payment of State pensions and salaries (see paragraph 7 above), the Constitutional Court was of the view that the exception at issue was based on an objective and reasonable justification, notably on their specific legal status. Accordingly, the impugned legislation did not violate Article XV of the Fundamental Law enshrining the prohibition of discrimination (see paragraph 21 below).
B. Relevant domestic law and practice
11. Several elements of the relevant domestic law and practice as well as comparative-law material were set out in paragraphs 19 to 43 of the Fábián judgment (cited above).
12. Between 1 January 2013 (that is to say, its taking effect) and 1 April 2013, section 83/C of the 1997 Pensions Act read as follows (italics added):
“(1) The disbursement of an old-age pension shall be suspended ... if the pensioner concerned is employed as a civil servant, a government official, a senior State official, a public servant, a judge, an officer of the court, an officer of the prosecutor’s office, a professional member of an armed service, or a professional member or contractor of the Hungarian Defence Forces.”
13. As of 2 April 2013, section 83/C of the 1997 Pensions Act was amended by Act no. XX of 2013 as follows (see Fábián, cited above, § 24; italics added):
“(1) The disbursement of an old-age pension shall be suspended ... if the pensioner concerned is employed as a civil servant, a government official, a senior State official, a public official, an official in charge of public-service administration, a judge, an officer of the court, an officer of the prosecutor’s office, a professional member of an armed service, or a professional member or contractor of the Hungarian Defence Forces.”
14. Section 102/J of the 1997 Pensions Act (not quoted in Fábián, cited above) provides as follows:
“... [S]ections 83/C and 102/I are not applicable, as from the entry into force of Act no. XX of 2013 ... until 31 December 2022, to judges and prosecutors appointed to a stand-by post ...”.
15. Act LXXXIV of 2003 on Certain Questions Related to the Exercise of Health-care Activity, as amended on 29 April 2013, provides as follows:
Section 16/B
“(1) An employer may award a salary supplement ... to health-care employees who are employed as civil servants or who are in a Government or State-service relationship; and the disbursement of whose [old-age pension] is suspended pursuant to section 83/C of the [1997 Pensions Act] ... .
(2) The ... net amount of the salary supplement awarded by the employer cannot exceed the [suspended amount of the old-age pension].”
16. The legal status of members of parliament is governed by the Fundamental Law and by Act no. XXXVI of 2012 on Parliament (hereinafter “the Parliament Act”).
In so far as relevant, the Fundamental Law provides as follows:
Article 4
“(1) Members of parliament shall have equal rights and obligations, they shall perform their activities in the public interest, and they shall not be given instructions in that respect.”
The Parliament Act provides, in particular:
Section 97
“(1) The term of office of members of parliament ... shall be considered, for social-security purposes, employment with a working time of forty hours per week and a service period giving rise to a pension entitlement. For the calculation of a service period as a Government official, State official, public servant, civil servant, judge or prosecutor, the duration of the above-mentioned employment shall be counted as service time spent in the relevant legal relationship.”
Section 104
“(1) Members of parliament are entitled, from their swearing-in until the end of their term of office, to a monthly honorarium, the amount of which equals the salary ... of a deputy State secretary, as it is regulated by the Public Servants Act.”
17. The legal status of mayors, deputy mayors, presidents and vice-presidents of county assemblies is regulated by Chapter VII/A of Act no. CXCIX of 2011 on Public Servants (hereinafter “the Public Servants Act”), which contains the following passages:
Section 225/A
“(1) The employment relationship of full-time mayors is a special public service relationship established between the body of local representatives and the mayor, [in principle] ... on the strength of [the latter’s] election.”
Section 225/B
“(1) The term of office of full-time mayors shall be calculated as the service period spent in public service, Government service or armed service and shall give rise to a pension entitlement.”
Section 225/K
“(1) If this Act does not stipulate otherwise, any reference to mayors shall be construed as including deputy mayors, presidents and vice-presidents of county assemblies, and the mayor and deputy mayors of Budapest.”
18. Mayors and local representatives (including members of county assemblies) are elected in accordance with the rules laid down in Act no. L of 2010 on the Election of Local Government Representatives and Mayors. Presidents of county assemblies are elected by the assemblies themselves from among their members, in accordance with Article 33 § 2 of the Fundamental Law. Deputy mayors and vice-presidents of county assemblies are also elected by the respective body of local representatives from among their members, in accordance with section 74 of Act no. CLXXXIX of 2011 on the Local Governments of Hungary.
19. The Constitutional Court Act (Act no. CLI of 2011) provides as follows:
Section 5
“Members of the Constitutional Court shall be independent, subordinated only to the Fundamental Law and Acts.”
Section 13
“(2) Under their term of office and for the purposes of entitlement to social-security benefits, members of the Constitutional Court shall be considered insured employees in public service, and their salary shall be considered income from an activity other than self-employment, comprising part of the contribution base. The term of office of members of the Constitutional Court shall be considered to be the time spent in public-service employment.”
Section 14
“(1) Members of the Constitutional Court shall not be held accountable in court or by other authorities during or after their term of office for the activities carried out or statements of fact or opinion made while exercising the competences of the Constitutional Court as defined in the Fundamental Law and in this Act, and no proceedings shall be initiated against the Constitutional Court for such statements of fact or opinion in court or before other authorities. This exemption shall not cover abuse of information classified top secret or secret, libel, defamation and the civil law liability of Members of the Constitutional Court.”
Section 69
“(2) This Act shall be considered a Cardinal Act pursuant to Article 24 (9) of the Fundamental Law.”
20. In connection with persons employed in the public service under the rules of the Labour Code, the Public Servants Act provides as follows:
Section 8
“(1) For tasks directly related to the exercise of public powers and powers of guidance, inspection and supervision of a public-service institution, as well as for administrative tasks, persons may be employed only as Government officials or public servants.
(2) No contract for services, works contract or [ordinary labour-law] employment contract may be concluded for the completion of a task which shall exclusively be exercised by a person appointed as a Government official or public servant.
...
(4) The proportion of persons ... employed by a public-service institution [under the Labour Code] in a given year ... shall not exceed 10% of the average yearly staff number. ...
...
(9) The rules contained in subsections (1) to (4) above do not apply to the Office of the Parliament and to the Historical Archives of Hungarian State Security.
(10) As an exception to the rule contained in subsection (1) above, procedural tasks at diplomatic or consular representations ... may also be carried out by individuals other than Government officials or public servants.”
21. The Constitutional Court’s decision of 16 October 2017 (decision no. 29/2017. (X. 31.) AB, see paragraph 10 above) contains the following passages concerning the allegedly unjustified difference in treatment between pensioners employed in different categories within the public sector:
“77. It is apparent from the [impugned] rules of [the 1997 Pensions Act] that they do not apply to every person in State service but only to persons falling under the scope of specific legislative acts governing the status of certain categories of public servants.
78. For example, they do not apply to certain elected officials or to those who are employed [under the rules of the Labour Code], even if the employer is a budgetary institution. Although the rules could be extended to cover every position and every public servant, the exceptions are reasonably justified, on the one hand, by the fact that they are related to passive electoral rights and, on the other hand, by the specific legal status of certain appointed officials (section 102/J [of the 1997 Pensions Act]).
79. [Taking into account] the efforts to balance the pension system, the difference in treatment in question has a perceivable, objective and reasonable justification. Therefore it does not violate Article XV § 1 of the Fundamental Law.”
COMPLAINTS
22. The applicants complained that the suspension of disbursement of their old-age pension amounted to a violation of Article 1 of Protocol No. 1 to the Convention.
23. They further complained of an unjustified difference in treatment in that the suspension of old-age-pension payments to which they had been subjected on account of their employment in the public sector had not applied, firstly, to old-age-pension recipients working in the private sector and, secondly, to old-age-pension recipients working in certain categories within the public sector. They relied on Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1.
THE LAW
24. In view of the similarity of the applications in terms of both fact and law, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court).
25. The applicants complained under Article 1 of Protocol No. 1 to the Convention of the suspension of disbursement of their pension. Moreover, under Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1, they complained of their discrimination in comparison with old-age pensioners working in the private sector and in certain other categories of the public sector.
26. Article 1 of Protocol No. 1 provides 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.”
27. Article 14 of the Convention reads as follows:
“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.”
28. The Court notes, at the outset, that in the Fábián judgment the Grand Chamber held that there had been no violation of Article 1 of Protocol No. 1 taken alone on account of the suspension of disbursement of the old-age pensions in question (see Fábián v. Hungary [GC], no. 78117/13, §§ 84-85 and point 1 of the operative part, 5 September 2017).
29. Nor did it find a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 in respect of the alleged discrimination between old-age pensioners employed respectively in the private and the public sector. Indeed, it held that Mr Fábián, as a member of the civil service whose employment, remuneration and social benefits were dependent on the State budget, was not in a relevantly similar situation to pensioners employed in the private sector (see Fábián, cited above, §§ 133‑34 and point 3 of the operative part).
30. The Court sees no reason to depart from those conclusions in the present case. Accordingly, it finds that the present applications, in so far as they concern the above-mentioned complaints, are manifestly ill-founded within the meaning of Article 35 § 3 (a).
31. Therefore, the only issue that remains to be examined in the present case is the allegedly unjustified difference in treatment between pensioners employed in different categories within the public sector. In Fábián, that part of the application had been introduced outside of the six-month time‑limit and was therefore declared inadmissible by the Grand Chamber (see Fábián, cited above, § 98 and point 2 of the operative part). In the present case, no such inadmissibility reason appears to be present.
32. The Court reiterates that, in order for an issue to arise under Article 14, there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. In other words, the requirement to demonstrate an analogous position does not require that the comparator groups be identical. An applicant must demonstrate that, having regard to the particular nature of his or her complaint, he or she was in a relevantly similar situation to others treated differently (see Fábián, cited above, § 113, with further references).
33. The Court notes the Constitutional Court’s findings according to which the difference in treatment at issue was based on an objective and reasonable justification (see paragraphs 10 and 21 above).
34. However, for the Court, it also transpires from the Constitutional Court’s arguments and from the relevant domestic legal provisions that the persons exempt from the ban on dual payment of State pensions and salaries have a special legal situation within the public sector.
35. Firstly, it is to be noted that although members of parliament receive their honorarium from the State budget and the rules governing their legal status refer, in several respects, to the Act governing employment in the public sector, their standing cannot be equated to ordinary public servants. It is reflected by Article 4 § 1 of the Fundamental Law (see paragraph 16 above) that their bonds with the State, originating in their election, are of a different nature as compared to the duty of loyalty which public servants owe to their employers. The specificity of their position is further demonstrated by the fact that their legal status is governed by a separate Cardinal Act, rather than by other pieces of legislation applicable to the employment in public service (see Fábián, cited above, § 20). Lastly, it appears from the Parliament Act that it is only for social-security purposes that their otherwise special legal status is likened to employment in the public service. The Court therefore considers that the applicants were not in an analogous or relevantly similar situation to that group.
36. As regards mayors, deputy mayors, presidents and vice-presidents of county assemblies, the Court observes that they exercise their functions in a “special public-service relationship” governed by, among other sources, the Public Servants Act (see paragraph 17 above). Accordingly, the prohibition of double compensation in its initial form appeared to be applicable to them, as they were also covered by the term of “public servant” (see paragraph 12 above). However, as it is the case with members of parliament, their legal status is also based on election, unlike ordinary public servants (see paragraph 17 above). The Court further notes that the amendment of the 1997 Pensions Act limited the categories of public servants concerned by the prohibition of double compensation to public officials and officials in charge of public-service administration, exempting thus mayors and other elected local representatives from the impugned measures. It follows that their situation cannot be considered similar to that of the applicants either.
37. The Court further considers that the situation of those judges and prosecutors who were exempted from the ban on double compensation (see paragraph 14 above) constitutes an exception given the reasons behind that measure. Notably, the Court observes that their compulsory retirement age was abruptly and unlawfully lowered in 2012 and it is in the framework of the legislative scheme intended to remedy their situation that they later opted for a special stand-by post (see Baka, cited above, §§ 53, 54 and 69). The Court notes that no general exception is applied to judges and prosecutors as such; rather, the exception in question is a temporary one, limited to those who remain employed on a special stand-by post. In such circumstances, the Court is unable to see how the applicants’ situation could be considered similar to theirs.
38. The Court observes that the policy decision concerning the health-care sector (see paragraph 15 above) was likewise of an exceptional nature. Moreover, it did not even exempt health-care employees from the mandatory suspension of pension disbursement. Rather, it only made possible the payment of a compensatory salary supplement, in case the employer so decided. The Court does not find that, from the applicants’ perspective, this measure would constitute a difference in the treatment of persons in analogous, or relevantly similar, situations.
39. The Court would next compare the applicants’ situation with that of Constitutional Court judges, who are not subjected to the prohibition at issue in the present application. It is true that the Constitutional Court Act applies, to a certain extent, the rules of public-service employment in their case. However, that connection is only made for social-security purposes. Otherwise, the legal situation of Constitutional Court judges is governed by a specific Cardinal Act, and their legal status, also underpinned by guarantees of judicial independence, cannot be likened to that of ordinary public-service employees (see paragraph 19 above).
40. As regards, lastly, the situation of persons who are employed within the public service under the rules of ordinary labour law, the Court is of the view that, precisely because of the different legal framework of their employment, they cannot be compared to civil servants, public servants or other public-service employees whose bonds to the State are characterised by a special corpus of rights and obligations. As the Court has already had the occasion to point out, employment in the public sector and in the private sector may, for institutional and functional reasons, typically be subject to substantial legal and factual differences, not least in fields involving the exercise of sovereign State power and the provision of essential public services. Civil servants, unlike persons employed in the private sector, may be engaged in the exercise of the State’s sovereign power, and therefore their functions as well as the duty of loyalty owed to their employer may be of a different nature, although the extent to which this is the case may depend on the specific functions they have to perform (see Fábián, cited above, § 122).
The Court notes that the persons who are employed within the public service under the rules of ordinary labour law are, as a rule, excluded from the direct participation in the exercise of public powers (see paragraph 20 above). Even if there are certain exceptions to that rule (see, for example, subsections (9) and (10) of section 8 of the Public Servants Act cited in paragraph 20 above), the Court reiterates that, at any rate, in previous cases, it was not prepared to draw any conclusions from the applicants’ arguments regarding the nature of the tasks performed by the members of the groups invoked as comparators (see Fábián, cited above, § 128, and Valkov and Others v. Bulgaria, nos. 2033/04 and 8 others, § 117, 25 October 2011). Therefore, the Court is of the view that the applicants were not in a relevantly similar situation to those who are employed in the public service under the rules of the Labour Code and who are thus exempt from the prohibition of double compensation.
41. In conclusion, the Court finds that the applicants have not demonstrated that they were in an analogous or relevantly similar situation to those persons who, albeit working in the public sector, were not subjected to the suspension of disbursement of old-age pension or could possibly receive compensatory payments instead of their suspended pension.
42. It follows that the applications are manifestly ill-founded within the meaning of Article 35 § 3 (a), and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, by a majority,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 29 March 2018.
Marialena TsirliGanna Yudkivska
RegistrarPresident
Full & Egal Universal Law Academy