PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Applications nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08
by Aldo MAGGIO and 4 other applications
against Italy
The European Court of Human Rights (Second Section), sitting on 8 June 2010 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Işıl Karakaş,
Guido Raimondi, judges,
and Sally Dollé, Section Registrar,
Having regard to the above applications lodged on 13 August 2009, 28 October 2008, 3 November 2008, 4 November 2008 and 12 November 2008 respectively.
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Aldo Maggio, Mr Massimilaino Gabrieli, Mr Carlo Faccioli, Ms Emanuela Forgioli and Ms Maria Zanardini, are Italian nationals who were born in 1938, 1942, 1939, 1942, and 1940, respectively, and live in Italy.
The first applicant is represented before the Court by Ms L. Petrachi, a lawyer practising in Lecce. The second, third, fourth and fifth applicants are represented by Mr A. Carbonelli, a lawyer practising in Brescia.
A. The circumstances of the case
The facts of each case, as submitted by the applicants, may be summarised as follows.
1. Mr Maggio
Mr Maggio worked in Switzerland from 1980 to 1992.
On 25 June 1997 Mr Maggio requested the Istituto Nazionale della Previdenza Sociale (“INPS”), an Italian welfare entity, to re-examine his old-age pension and to liquidate it on the basis of the real remuneration received (“retribuzione effettiva”) during his years of work in Switzerland, in accordance with the 1962 Italo-Swiss Convention.
On an unspecified date the INPS rejected his request since the calculation had to be based on the remuneration received in Switzerland to be re-adjusted according to the tables supplied in Circular no. 324 of 4 January 1978.
Mr Maggio instituted proceedings before the Lecce Tribunal claiming that the payment of old-age pension had to be calculated on the basis of the real remuneration received (in the last five years of work) and the contributions paid in part in Switzerland and in part in Italy.
By a judgment filed in the registry on 8 May 2002, his claim was rejected.
Mr Maggio appealed to the Lecce Court of Appeal which, by a judgment filed in the registry on 30 October 2003, rejected his claim. It considered a technical expertise in relation to Article 23 of the Italo–Swiss Convention (see Relevant Domestic Law below). The latter provided for the transfer of contributions paid in Switzerland to the Italian insurance scheme to be used for the calculation of old-age pensions, and guaranteed the benefits of Italian legislation. Consequently, it held that the pension calculation had to be made according to Italian criteria even though they were less favourable than the Swiss ones. Indeed Italian law (decree of 27 April 1968 no. 488) provided for a calculation based on higher contributory rates than those in Switzerland, thus, providing a lower pension than that expected by Mr Maggio.
By a judgment of 11 December 2008 filed in the registry on 13 February 2009, the Court of Cassation dismissed Mr Maggio's claim after rejecting his request for a preliminary reference to the ECJ. It held that the criteria used by the Court of Appeal where eventually acknowledged in Article 1, paragraph 777, of Law no. 296 of 27 December 2006 (“Law 296/2006”) which had retroactive effect. This Law had not been found to be unconstitutional by the Constitutional Court in a judgment of 23 May 2008 (see Relevant Domestic Law below).
2. Mr Gabrieli
In 2005 Mr Gabrieli requested the INPS to establish his pension on the basis of the contributions paid in Switzerland for work he had performed there between November 1963 and June 2001. As a basis for the calculation of his pension, the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a re-adjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32%), which led to a reduction of 25% in the basic amount used to calculate the pension and therefore a reduction in the pension itself.
By a judgment of the Brescia Tribunal (Labour Section) of 2 October 2006, Mr Gabrieli's claim was upheld on the basis of the relevant Court of Cassation jurisprudence at the time (see Relevant Domestic Law below).
The INPS appealed.
By a judgment of 7 August 2007, the Brescia Court of Appeal reversed the first instance judgment in view of the entry into force of Law 296/2006. Mr Gabrieli did not appeal to the Court of Cassation, deeming it to be futile in the circumstances of the case.
3. Mr Faccioli
Mr Faccioli was entitled to an old-age pension from 1 April 1999.
In 2006 Mr Faccioli requested the INPS to establish his pension on the basis of the contributions paid in Switzerland for work he had performed there between 1 December 1958 and 31 March 1999. As a basis for the calculation of his pension, the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a re-adjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32%), which led to a reduction of 25% in the basic amount used to calculate the pension and therefore a reduction in the pension itself.
By a judgment of the Brescia Tribunal (Labour Section) of 20 October 2008, Mr Faccioli's claims were rejected in view of Law 296/2006 and the subsequent Constitutional Court judgment. Mr Faccioli did not appeal, deeming it to be futile in view of the relevant case-law at the time.
4. Ms Forgioli
Ms Forgioli was entitled to an old-age pension from 1 April 1995 and a survivor's pension, as a widow, her husband having become a pensioner on 1 April 1997.
In 2006 Ms Forgioli requested the INPS to establish her pension on the basis of the contributions paid in Switzerland for work she had performed there between 1 August 1959 and 30 November 1994, and those of her husband. As a basis for the calculation of the relevant pensions, the INPS had employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a re-adjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32%), which led to a reduction of 25% in the basic amount used to calculate the pension and therefore a reduction in the pension itself.
By a judgment of the Brescia Tribunal (Labour Section) of 20 October 2008, Ms Forgioli's claims were rejected in view of Law 296/2006 and the subsequent Constitutional Court judgment. Ms Forgioli did not appeal, deeming it to be futile in view of the relevant case-law at the time.
Ms Zanardini
Ms Zanardini was entitled to an old-age pension from 1 August 1997.
In 2006 Ms Zanardini requested the INPS to establish her pension on the basis of the contributions paid in Switzerland for work she had performed there between March 1960 and July 1997. As a basis for the calculation of her pension, the INPS had employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a re-adjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32%), which led to a reduction of 25% in the basic amount used to calculate the pension and therefore a reduction in the pension itself.
By a judgment of the Brescia Tribunal (Labour Section) of 20 October 2008, Ms Zanardini's claims were rejected in view of Law 296/2006 and the subsequent Constitutional Court judgment. Ms Zanardini did not appeal, deeming it to be futile in view of the relevant case-law at the time.
B. Relevant domestic law and practice
1. The Italo-Swiss Convention on Social Security
Article 23 of the transitory provisions of the Italo-Swiss Convention on Social Security, of 14 December 1962, in so far as relevant, reads 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 the cases where the insured event has occurred before the entry into force of the Convention. The old-age and survivors' ordinary annuities will however only apply in accordance with these provisions if the insured event has taken 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 when the insured event occurred on or after the date of its entry into force. Nevertheless, when the insured event occurred before such date, performance will take place in accordance with the present Convention from the date of its entry into force, in the event that 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. Except for 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, Italian citizens may request, in derogation of Article 7, upon the attainment of pensionable age, according to Italian law, that the contributions paid by them and their employers into the Swiss old-age and survivors insurance be transferred to the Italian insurance scheme, on condition that they would have left Switzerland for permanent settlement in Italy or in a third country before the end of the year in which their pensionable age was attained. 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, reads as follows (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 of any other dispositions issued by the Italian authorities. In the case that, due to the relevant Italian legal provisions, the insured person cannot assert a right to a pension, the Italian social welfare services will transfer, upon request, the contributions transferred to them.
(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 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). [1]
2. Jurisprudence 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 determination of workers' pensions, the method of calculation 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, reads as follows (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 case 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 working period abroad is calculated by multiplying the amount of contributions transferred by a hundred and dividing the result by the contribution rates for the invalidity, old-age and survivors insurance, 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:
Law 296/2006 although being interpretative was innovative. There had been no conflicting jurisprudence in the regime but a solid and unique orientation, 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 retributive pension calculations on the basis of the remuneration received 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. In fact a change from the contributory criterion to the retributive one, in calculating pensions, 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 was no breach of the principle of legal certainty. Nor was the norm discriminatory since the acquired, 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, catering for the lifestyle of a worker. Accordingly, the claim of unconstitutionality of the said Law was manifestly ill-founded.
COMPLAINTS
1. a. The first applicant complains that Law 296/2006 is incompatible with Article 6 § 1 of the Convention as a result of its retroactive effect.
b. The second, third, fourth and fifth applicants complain that the legislative intervention, whilst proceedings were pending, which changed well established case-law, had interfered with the judges' independence and impartiality. They invoke Article 6 § 1 of the Convention.
2. The second, third, fourth and fifth 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. The invoke Article 13 of the Convention.
3. a. Invoking Article 14 of the Convention and Protocol No. 12, the first applicant complains that Law 296/2006 is discriminatory vis a vis persons whose pensions have not already been liquidated.
b. Invoking Article 14 of the Convention and Protocol No. 12, the first applicant complains that Law 296/2006 is discriminatory vis a vis persons who have worked abroad in a non-European union member state.
c. The second, third, fourth and fifth applicants complain under Article 14 that the said Law discriminated against persons who had chosen to work abroad, particularly in Switzerland.
4. The first applicant further complains that the said Law breaches Article 1 of Protocol No. 1 to the Convention.
5. The first applicant also complains, under Article 2 of Protocol No. 4 to the Convention, that the financial repercussions of Law 296/2006 created an unjustified limitation on freedom of movement for persons who have worked in Switzerland.
6. Lastly, invoking Article 17 of the Convention, the second, third, fourth and fifth applicants complain about a limitation of their rights under the Convention.
THE LAW
1. The applicants complained that Law 296/2006 was incompatible with the Convention as a result of its retroactive effect. Indeed, the legislative intervention, whilst proceedings were pending, which changed well established case-law, had interfered with the judges' independence and impartiality. They invoke Article 6 § 1 of the Convention which, in so far as relevant, reads as follows
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing by an independent and impartial tribunal ...”
The Court considers that, in substance, all the applicants are complaining of an alleged breach of their right to a fair hearing. The Court further considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.
2. The second, third, fourth and fifth 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 invoked Article 13 of the Convention, which in so far as relevant, reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.
3. The applicants complain that Law 296/2006 was discriminatory. They invoke Article 14 of the Convention. The first applicant also invokes Article 1 of Protocol No. 12 to the Convention. In so far as relevant, these provisions read as follows:
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.”
a. In so far as the complaint relates to discrimination vis a vis persons whose pensions have not already been liquidated, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.
b. In so far as the complaint relates to discrimination against persons who have worked abroad in a non-European Union Member State, even assuming that the applicants can be considered to be in an analogous situation, the Court has previously held that preferential treatment in relation to other member States of the Communities, has an objective and reasonable justification, since they belong to a special legal order (see, mutatis mutandis, Moustaquim v. Belgium, 18 February 1991, § 49, Series A no. 193). It follows that this part of the complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
In so far as the above complaints are lodged under Article 1 of Protocol No. 12 to the Convention, the Court finds that, as Protocol No. 12 has only been signed but not ratified by the respondent State, the first applicant's complaint in this regard is incompatible ratione personae with the Convention, and must therefore be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
c. In so far as the complaint relates to discrimination against persons having chosen to work in Switzerland, the Court considers that the applicants have not provided any means of comparison, enabling the Court to consider the situation of other persons who have worked in countries other than Switzerland. The complaint is thus wholly unsubstantiated. It follows that this part of the complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
In so far as this complaint could concern discrimination vis a vis persons who, unlike most Italians, have opted to leave Italy for work purposes, the Court recalls that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 56, Series A no. 23). 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 (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007; Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008-). The Court notes that, while it has previously held that the place of residence constitutes an aspect of personal status for the purposes of Article 14 (see Carson and Others v. the United Kingdom [GC], no. 42184/05, §§ 70-71, 16 March 2010), the Court does not consider that the applicants can claim to be in a relevant, similar position to Italian residents who have worked in Italy. The Court notes that, in comparison to Italian workers, the applicants paid much lower contributions into their social security schemes. Moreover, unlike persons who migrated temporarily to Switzerland, Italian nationals were not subject to the relevant international conventions and subsequent Italian legislative norms. It follows that the applicants and Italian residents who remained working in Italy their entire lives cannot be compared for the purposes of Article 14.
It follows that, this part of the complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
4. The first applicant further complains that the said Law breaches Article 1 of Protocol No.1 to the Convention, which 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.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.
5. The first applicant complains that the financial repercussions of Law 296/2006 created an unjustified limitation on freedom of movement for persons who had chosen to leave and establish themselves in Switzerland and who then wished to return to Italy. He invoked Article 2 of Protocol No. 4 to the Convention which, in so far as relevant, reads as follows:
“2. Everyone shall be free to leave any country, including his own.”
The Court observes that the first applicant chose to leave Italy and subsequently Switzerland of his own motion. He has been able to undertake such a move and to establish himself in both countries without any interference by the authorities in that process. The financial repercussions which this type of migration may entail cannot be said to have impinged upon the first applicant's freedom to depart from either territory. It follows, that the first applicant cannot claim to be a victim of a violation of this provision.
Therefore, this complaint is incompatible ratione personae with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.
6. Lastly, the first applicant complains under Article 17 of the Convention, which in so far as relevant reads as follows:
“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
The Court considers that Mr Maggio's complaint under Article 17 of the Convention does not go beyond his aforementioned allegations of breaches of other provisions of the Convention and its Protocols. Since no issue arises under Article 17 proper, this complaint should be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Decides to join the applications;
Decides to grant priority to the applications under Rule 41 of the Rules of Court;
Decides to adjourn the examination of the applicants' complaints concerning Articles 6 § 1 and 13 of the Convention, Article 1 of Protocol No.1 and Article 14 of the Convention in respect of the alleged discrimination vis a vis persons whose pensions have not already been liquidated;
Declares the remainder of the applications inadmissible.
Sally DolléFrancoise Tulkens
RegistrarPresident
[1] The relevant text of the original articles is not available to the Registry.
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