AS TO THE ADMISSIBILITY OF
Application No. 13144/87
by H. KOSTER-VAN MASTRIGT
against the Netherlands
The European Commission of Human Rights sitting in private
on 6 June 1991, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 17 April 1987
by H. KOSTER-VAN MASTRIGT against the Netherlands and registered
on 14 August 1987 under file No. 13144/87;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is a Dutch citizen, born in 1917, and resides in
The Hague, the Netherlands. Before the Commission she is represented
by Mr. B.F. Portier, a retired civil servant living in Baarn.
Upon her husband's death, the applicant received, as from 29
April 1975, a cumulated widow's pension, governed by public law, at
the expense of:
a. the Indonesian Pensions Administration Agency
(Stichting Administratie Indonesische Pensioenen)
on the basis of the period the applicant's husband served
in the Dutch East Indies civil service and his voluntary
"preservation" insurance policy (behoudsverzekering), based
on rank;
b. the General Civil Service Pension Fund (Algemeen Burgerlijk
Pensioenfonds) on the basis of the period the
applicant's husband worked as a civil servant in the
Netherlands, based on the length of service and the last
salary;
c. the Social Insurance Bank (Sociale Verzekeringsbank)
on the basis of the General Widows and Orphans
Benefits Act (Algemene Weduwen en Wezenwet) and the
General Old Age Pensions Act (Algemene Ouderdomswet).
According to Article 44 of the General Civil Service Pension
Act (Algemene Burgerlijke Pensioenwet), as amended on 1 July 1974, the
applicant did not receive a full pension. It was reduced to account
for her pension paid by the Foundation Administration Indonesian
Pensions. However, under Article H12 of the General Civil Service
Pension Act, she received a supplementary allowance to bring the
cumulative amount of her pensions up to the level of a single General
Civil Service Pension Fund pension.
From both pensions listed under a) and b) a percentage is
deducted to account for the general state pension which the applicant
receives from the Social Insurance Bank (till the age of 65, when this
widow's state pension has been replaced by the general old age state
pension). The deducted percentages are not the same as they are
calculated on a different basis by the respective Pension Funds.
In a case of another widow in a position similar to that of
the applicant, the Central Appeals Board (Centrale Raad van Beroep)
declared on 7 April 1983 the supplementary allowance insufficient
because of this difference in the deducted percentages. This widow
received a new adjusted allowance with retroactive effect from the day
she was entitled to her pension. Furthermore, the General Civil
Service Pension Fund changed its policy accordingly and the
applicant's supplementary allowance was increased as from 7 April
1983, the day of the decision of the Central Appeals Board, by way of
a decision dated 13 December 1983 by the Board of the General Civil
Service Pension Fund.
On 21 December 1983 the applicant lodged a complaint with the
Supervisory Board (Raad van Toezicht) of the General Civil Service
Pension Fund in order to obtain full compensation from the day she had
become entitled to an allowance and not from 7 April 1983. On 11 May
1984 her complaint was rejected. On appeal, on 17 October 1984, the
Civil Servants Court (Ambtenarengerecht) upheld the decision of the
Supervisory Board. The applicant's appeal to the Central Appeals
Board was rejected on 20 November 1986. The Central Appeals Board
held, inter alia, that the decision of the General Civil Service
Pension Fund was taken in accordance with the applicable provisions of
the General Civil Service Pension Act. Furthermore, it held that it
was not unreasonable for the General Civil Service Pension Fund to
restrict the retroactivity of the adjusted supplementary allowance for
administrative reasons and in the interest of legal certainty.
COMPLAINT
The applicant complains that the decision by the General Civil
Service Pension Fund to refuse to pay her the adjusted supplementary
allowance from the day of her pension entitlement constitutes a
discriminatory difference in treatment, as another widow in a similar
position did obtain the adjusted supplementary allowance from the day
of her pension entitlement. She invokes Article 14 of the Convention
in conjunction with Article 1 of Protocol No. 1 and Article 6 para. 1
of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 April 1987 and registered
on 14 August 1987.
On 7 May 1990 the Commission decided to communicate the
complaint concerning discrimination to the respondent Government,
pursuant to Rule 42 para. 2 (b) of its Rules of Procedure (old
version) and to invite them to submit written observations on the
admissibility and merits of the application.
The observations of the Government were submitted on 20
September 1990 and the applicant's reply on 18 December 1990.
THE LAW
The applicant has complained that the refusal by the General
Civil Service Pension Fund to grant her a full supplementary allowance
from the date of her pension entitlement constituted a discriminatory
difference in treatment, as another widow in a similar position did,
as a result of proceedings she initiated, obtain the adjusted
supplementary allowance from the day of her pension entitlement. The
applicant is of the opinion that to refuse her the same is contrary to
Article 14 of the Convention, read in conjunction with Article 1 of
Protocol No. 1 (Art. 14+P1-1) to the Convention, which provides that:
"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."
The applicant also complains of a violation of Article 14 read
in conjunction with Article 6 para. 1 (Art. 14+6-1) of the Convention, which,
insofar as relevant, provides that:
1. In the determination of his civil rights and
obligations ... everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law..."
Article 14 (Art. 14) of the Convention reads:
"The enjoyment of the rights and freedoms set forth in
this 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."
The Government submit that, in order for Article 1 of Protocol
No. 1 (P1-1) to apply, a close relation between the contributions paid and
the entitlement to pension is required. The Government state that in
the present case no relationship between the contributions originally
paid in the Dutch East Indies and under the General Civil Service
Pension Fund scheme and the amount of pension payable can be
established.
The applicant submits that the right to a pension is a
property right as under particular circumstances one can buy in
additional time for one's pension. The applicant states furthermore
that a direct relationship between contribution and proposed pension
already exists when it is established that the contribution has been
paid for the sole purpose of that pension, and that in the present
case, the requested adjustment is related to the paid contributions.
The Commission recalls that the payment of contributions to a
pension fund may in certain circumstances create a property right in a
portion of such a fund and a modification of the pension rights under
such a system could therefore in principle raise an issue under
Article 1 of Protocol No. 1 (P1-1) [No. 10671/83, Dec. 4.3.85, D.R. 42 p.
229] and that pension entitlements can under certain circumstances be
regarded as a civil right within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention [No. 9630/81, Dec. 13.10.86, D.R. 49 p.
59].
The Commission does however not need to resolve the question
whether Article 6 para. 1 and/or Article 1 of Protocol No. 1 (Art. 6-1,
P1-1) is applicable to the present case, as the applicant only
complains that the decision by the General Civil Service Pension Fund
to increase her pension retroactively from 7 April 1983 instead of
from the day of the applicant's pension entitlement constitutes a
discriminatory difference in treatment.
Even assuming that the present application falls within the
ambit of Article 6 para. 1 and/or Article 1 of Protocol No. 1 (Art. 6-1,
P1-1) there would be no violation of Article 14 (Art. 14) of the
Convention in conjunction with the said provisions on the following
ground.
The Commission notes that the reason for the applicant's
request for an increase of her pension and the subsequent new decision
on the pension amount by the General Civil Service Pension Fund was
the fact that on 7 April 1983 the Central Appeals Board declared, in a
similar case, that the initially awarded supplementary allowance was
insufficient. The widow in this similar case was awarded a
retroactive increase from the day she became entitled to a pension.
The Commission notes furthermore that a decision by the
General Civil Service Pension Fund to award a pension is a decision
governed by administrative law and that these decisions obtain the
force of res judicata upon expiration of the period for appeal.
The General Civil Service Pension Fund was therefore under no
legal obligation to reconsider their initial decision on the pension
amount awarded to the applicant.
The Commission notes that the board of the General Civil
Service Pension Fund, as a result of the decision of 7 April 1983 by
the Central Appeal Board, increased the supplementary allowance
accordingly for new pension claims. Following the applicant's request
for a pension increase, the General Civil Service Pension Fund,
considering this request as a new pension claim, decided on 13
December 1983 to award the applicant the requested increase as from 7
April 1983.
The difference in treatment between the applicant and the
other widow, which resulted from this decision has, in the
Commission's opinion, an objective and reasonable basis, namely the
principle of legal certainty of administrative decisions.
In view of the above the Commission concludes that there is no
appearance of a violation of Article 14 in conjunction with Article 1
of Protocol No. 1 and Article 6 (Art. 14+P1-1, 6) of the Convention.
It follows that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy