AS TO THE ADMISSIBILITY OF
Application No. 33770/96
by Wanda PARUSZEWSKA
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 April 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 October 1996
by Wanda Paruszewska against Poland and registered on 13 November 1996
under file No. 33770/96;
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 applicant, a Polish citizen born in 1933, is a retired
engineer and employee of the State administration, residing in Warsaw.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
Particular circumstances of the case
By a letter of 9 December 1992 the applicant's immediate superior
asked the Ombudsman whether Article 13 para. 1 point 5 of the State
Administration Employees Act was compatible with the provisions of the
Constitution concerning the prohibition of discrimination on the ground
of sex in that it set forth different retirement ages for men and
women.
In a reply of 9 February 1993 the Ombudsman's office stated that
the impugned provision was not incompatible with the Constitution,
given that it conferred on women a right to retire at sixty, not an
obligation to do so. Thus, it did not amount to discrimination.
By a letter of 8 March 1993 the applicant requested the
Constitutional Court (Trybunal Konstytucyjny) to institute, of its own
motion, proceedings in order to examine whether Article 13 para. 1 item
5 of the State Administration Employees Act was compatible with the
provisions of the Constitution concerning the prohibition of
discrimination on the ground of sex and with Poland's relevant
obligations under international law.
On 17 March 1993 the applicant's employer, the Polish Committee
of Normalisation, Measures and Quality (Polski Komitet Normalizacji,
Miar i Jakosci) served the applicant with notice of termination of her
contract, due to the fact that, in pursuance of Article 13 para. 1
point 5 of the State Administration Employees Act, on 15 March 1993 she
had acquired her retirement entitlements as she had turned sixty. The
contract was to expire on 30 June 1993.
The applicant lodged an appeal with the Supreme Administrative
Court (Naczelny S*d Administracyjny). She submitted that the impugned
decision was based on legal provisions which were in breach of the
constitutional principle of equality of men and women in that the age
of retirement for men was fixed at 65 years, whereas for women it was
60 years. Consequently, she was forced to retire against her will,
which in itself amounted to a non-pecuniary injury. Further, as the
period in which she had been paying contributions towards her pension
rights was shorter than that of male employees, her retirement pension
would consequently be lower. Thus, the obligation to retire earlier
was in fact to her detriment, even though technically it was construed
by the legislator as a privilege. The applicant further argued that
the impugned legal provisions and, in consequence, the decision
concerned, were in breach of the international instruments prohibiting
discrimination on the grounds of gender. She invoked in particular
Article 2 paras. 1, 2, 6 and 7 of the International Covenant of Social,
Economic and Cultural Rights and the United Nations Convention on
Discrimination Against Women. The applicant finally requested the
court to stay the proceedings in view of her request to the
Constitutional Court of 8 March 1993.
On 22 June 1993 the Supreme Administrative Court dismissed the
applicant's appeal. The court first found that there were no grounds
on which the proceedings should be stayed as the applicant had not
shown that the Constitutional Court had in fact instituted the
proceedings following her request of 8 March 1993. The court went on
to state that it had not established any reasons for a finding that the
decision of 17 March 1993 was not in conformity with the applicable
laws. The applicant had been working for approximately 38 years and
had turned sixty on 15 March 1993. Pursuant to Article 13 para. 1 item
5 of the State Administration Employees Act, her employer was entitled
to give notice on her contract as she had thereby acquired her
retirement pension rights by virtue of the generally applicable
regulations governing pension rights. It was true that this provision
left the decision whether or not to give notice to a particular
employee in such circumstances to the discretion of an employer, but
the employer was free to decide whether or not to terminate the
employment of a particular person, who was eligible for retirement, in
accordance with its human resources policy.
On 7 September 1994 the Constitutional Court instituted, of its
own motion, proceedings in order to examine whether Article 13 para.
1 point 5 of the State Administration Employees Act was compatible with
the Constitution, and in particular with the constitutional prohibition
of discrimination on the ground of sex. The Court had regard to the
motion of the President of the Court of 21 June 1994 in which he had
submitted that complex problems were involved in the assessment of
Article 13, in particular as doubts had arisen as to whether the lower
age of retirement for female employees of the State administration,
construed as a privilege, was not in fact to their detriment and
whether it did not amount to de facto discrimination. The Court
considered that State employees were entitled under the law to special
protection of their employment, whereas the effect of Article 13 was
such that it deprived female employees of this reinforced protection.
Thus, the intended privilege of allowing women to retire at a lower
retirement age turned out to be costly as it effectively diminished for
them the possibility of acquiring entitlement to higher retirement
pensions.
On 15 November 1994 the Constitutional Court discontinued the
proceedings, having found that the impugned provision of the Employees
of the State Administration Act had entered into force on 8 October
1982. The court therefore had no jurisdiction to analyse its
compatibility with the Constitution as, pursuant to the provisions on
its competence and procedure, it was only competent to examine laws
which had entered into force less than five years before the date on
which a request for examination of their compatibility with the
Constitution was submitted to the Court.
On 4 December 1995 the First President of the Supreme Court
(Prezes S*du Najwyzszego) lodged an extraordinary appeal against the
judgment of the Supreme Administrative Court of 22 June 1993. He first
submitted that the Supreme Administrative Court had breached its
procedural rules in that, in view of the complexity of the legal issues
involved in the applicant's case, it should, before pronouncing the
judgment, have requested the Constitutional Court to examine the issue
of the compatibility of Article 13 para. 1 point 5 of the Employees of
the State Administration Act with the Constitution. The court declined
to do so, having disregarded the decision of the Constitutional Court
of 24 September 1991 in which the latter court had found that the ex
lege termination of employment of female university professors at the
end of an academic year in which they had turned sixty, whereas for men
this age was sixty-five, was unjustified as there were no relevant
reasons for this difference in treatment. It was further argued in the
appeal that the Supreme Administrative Court's interpretation of
Article 13 para. 1 point 5 of the State Administration Employees Act
was superficial in that it had not addressed the issue of whether this
provision in fact amounted to discrimination against women on the
ground of sex and whether it was compatible with the constitutional
prohibition of discrimination.
On 14 May 1996 the Supreme Court (S*d Najwyzszy) dismissed the
extraordinary appeal. The court first considered that the Supreme
Administrative Court was under no legal obligation to refer the legal
question of the compatibility of any given statute with the
Constitution to the Constitutional Court, since the relevant procedural
provisions merely opened such a possibility to it, without imposing
an obligation to do so.
The court went on to state that there were no reasons to find
that the impugned judgment was in flagrant breach of the law. This was
so firstly because the Supreme Administrative Court had correctly
applied Article 13 of the State Administration Employees Act, and,
secondly, because this provision was not incompatible with the
Constitution. The court observed in this respect that Article 13, in
conjunction with generally applicable social insurance regulations
allowed for a termination of service of a female civil servant five
years earlier than for men. Such a situation was a direct consequence
of the privileged position of women in that they were entitled to
acquire retirement pension rights earlier than men. The court referred
here to the Constitutional Court's decision of 7 September 1994 to
institute proceedings concerning the constitutionality of Article 13,
in which the Constitutional Court considered that in the assessment of
this provision it must be examined whether the lower age of retirement
for female civil servants, construed as a privilege, was not in fact
to their detriment and whether it did not amount to discrimination.
On the other hand, the Constitutional Court considered that any
situation in which the law confers a certain privilege on an
individual, without any adverse consequences, might be seen as
discrimination against persons who do not enjoy the privilege
concerned. Thus, the negative results of a privileged position were
the inherent and inevitable costs to be borne by the privileged
persons.
The Supreme Court further held that the prohibition of
discrimination not only prohibited different treatment, without any
objective and reasonable justification, of persons in relevantly
similar situations, but also banned identical treatment of persons in
different situations according to the relevant criteria. The court
invoked here its decision of 24 October 1989 (K 6/96) in which it had
found that the regulations fixing a lower retirement age for women did
not amount to discrimination against men, and that fixing the same age
for both sexes would amount to discrimination against women. The court
had held in this judgment that if the biological and social differences
between men and women were of relevance for the process in which human
resources are depleted by working, then fixing identical legal
conditions of acquisition of retirement pension rights would be in
breach of the principle of equality and of international treaties
ratified by Poland.
The court went on to state that from a global point of view - and
it was only this general aspect, not the situation, feelings and needs
of a particular woman which were pertinent in this respect - the lower
retirement age for women was for them a particularly valuable and
advantageous solution. This conclusion could not but be reinforced by
recent vehement protests against the idea of an equal retirement age
for men and women. Therefore, in this respect the advantages of
different treatment outweighed any possible drawbacks.
Having regard thereto, the court continued, there was no
contradiction between Article 13 of the Civil Servants Act and the
constitutional principle of equality. Consequently, if there were
sufficient grounds for more advantageous regulations as regards women's
retirement entitlements, the same held true for different regulations
as regards termination of their employment in the civil service. In
this sense, earlier termination of service was the price to be paid for
an earlier retirement age. Therefore, there were no grounds for
finding that the said difference in treatment amounted to
discrimination against women.
Relevant domestic law
Article 13 para. 1 point 5 of the State Administration Employees
Act provides that employment of a tenured employee can be terminated
if that person has acquired his or her pension rights in pursuance of
the generally applicable provisions concerning pension rights.
Article 26 of the Retirement Pension Rights Act of 1982 provides
that an employee acquires pension rights if two conditions are
satisfied: the retirement age has been reached and the person concerned
has been working for a certain length of time. The retirement age for
women is 60 years and for men 65. The required periods of work are
twenty years for women and twenty-five years for men.
On 1 January 1997 the Civil Service Act came into force, but the
State Administration Employees Act remained in force. The Civil
Service Act created a special category of civil servants of higher
qualifications which must be certified by special examinations. The
employment of persons who had started to work in the State
administration before 1 January 1997 in pursuance of the provisions of
the State Administration Employees Act is to be governed by the
provisions of that Act and is to remain valid until 31 December 2007.
Article 44 para. 2 item 1 of the Civil Service Act provides that
employment of a civil servant can be terminated, on the expiry of a
three-months notice period, if that person has acquired his or her
pension rights in pursuance of the generally applicable provisions
concerning pension rights.
On 3 April 1997 the Ombudsman lodged with the Constitutional
Court a request for examination of the compatibility of this provision
with the constitutional principle of equality of sexes. He submitted
in particular that the impugned provision, identical with Article 13
para. 1 point 5 of the State Administration Employees Act, could not
in fact be regarded as creating any privilege for female civil
servants. Its effect was to leave to the employer the decision whether
to terminate the service of a particular person or not, whereas a
female civil servant did not have any influence on this decision and
could not herself decide whether she wanted to remain in service or
not. Consequently, even those female civil servants who wished to
continue working, were obliged to leave at the age of 60 if their
employer wanted them to do so. This effectively shortened their
careers and entailed all negative consequences thereof, both regarding
their salary and other benefits normally linked with their work, and
regarding their pension rights, the latter being normally inferior to
those they would have been entitled to had they been allowed to work
longer. Such a situation could not be deemed compatible with the
principle of equality of sexes, enshrined in the Constitution.
On 29 September 1997 the Constitutional Court rendered a decision
concerning the Ombudsman's request. The court referred to Articles
77 and 78 of the Constitution which prohibited discrimination on any
grounds and further enshrined the principle that women had equal rights
to those of men. The court considered that these provisions reflected
the legislator's conviction that there was a special need for specific
guarantees to ensure equality of women. The court subsequently
recalled its case-law in this respect and emphasised that its principal
ideas were, firstly, that in order to ensure genuine equality it was
necessary in certain situations to undertake positive measures which
would counterbalance the disadvantages of women's generally more
difficult social situation. Thus, in view of the constitutional
principle of equality, such measures could not be regarded as amounting
to discrimination or constituting a privilege. Quite to the contrary,
in certain situations in which the differences between men and women
were particularly relevant, the Constitution obliged the legislator to
take such measures. The necessary consequence of this was that the
assessment of any concrete legal provisions or institutions should
necessarily be made also from the point of view of whether their effect
was such that they de facto contributed to the elimination of
inequalities between men and women. The court further referred to
certain international treaties and decisions of international bodies
in which this idea was expounded. The court concluded that the
impugned provision was in fact to the detriment of women civil servants
as it gave them no choice of age at which to leave the civil service
since this decision was left entirely to the employer. Consequently,
they were forced to retire even in those cases in which they had no
wish to do so. The court further held that the differences between men
and women were irrelevant here in that there were no convincing reasons
why a female civil servant aged sixty could not continue in service.
Thus, the impugned regulation amounted to discrimination against female
civil servants and as such was not compatible with the Constitution.
COMPLAINTS
The applicant complains under Article 3 read together with
Article 14 of the Convention that the decisions in her case amounted
to degrading treatment of her as a woman. She refers in particular to
the Supreme Court's argument that "if the biological and social
differences between men and women were of relevance for the process in
which human resources were depleted by working - then fixing of
identical legal conditions of acquisition of retirement pension would
be in breach of the principle of equality". She further refers to the
Supreme Court's argument that "from a global point of view - and it was
only this general aspect, not the situation, feelings and needs of a
particular woman which were pertinent in this respect - the lower
retirement age for women was for them a particularly valuable and
advantageous solution".
The applicant further submits various complaints under Article
6 para. 1 of the Convention, alleging that the proceedings in her case
were unfair.
The applicant finally submits that the decisions in her case were
in violation of Article 1 of Protocol No. 1 of the Convention read
together with Article 14 of the Convention. She contends that, by
being forced to retire five years earlier than male employees, she lost
her possessions in that she did not receive the salary or any of the
normal benefits which she would have received as an employee for a
further five years, had she remained in the service. She also submits
that she lost her possessions in that, as a result of retiring five
years earlier than a man, her retirement entitlements, which are
calculated on the basis of salary, are lower than they would have been
if she had been allowed to work and given a possibility to earn for
five more years.
THE LAW
1. The applicant complains under Article 3 read together with
Article 14 (Art. 3+14) of the Convention that the decisions in her case
amounted to degrading treatment of her as a woman. She refers to
certain statements in the Supreme Court's judgment of 14 May 1996.
Article 3 (Art. 3) of the Convention reads:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission recalls that ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3
(Art. 3) of the Convention as established in the case-law of the
Convention organs (Eur. Court HR., Ireland v. United Kingdom judgment
of 18 January 1979, Series A no. 25, p. 65, para. 162). In the present
case the treatment complained of consisted of certain arguments in the
Supreme Court's judgment. Whereas the Commission agrees that the
applicant might have legitimately felt that they were paternalistic and
that, in their sweeping character, the court did not show regard for
her personal situation and personal feelings, the treatment complained
of does not fall within the ambit of Article 3 (Art. 3) of the
Convention.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant further submits different complaints under Article
6 para. 1 (Art. 6-1) of the Convention, alleging that the proceedings
in her case were unfair.
Article 6 (Art. 6) of the Convention in its relevant part reads:
"1. In the determination of his civil rights and
obligations ... everyone is entitled to a fair .... hearing
within a reasonable time by (a) ... tribunal ..."
The Commission must ascertain whether Article 6 (Art. 6) of the
Convention is applicable to the proceedings concerned.
The Commission observes that the applicant's case was first
decided by the judgment of the Supreme Administrative Court of 22 June
1993. The present application was introduced on 30 October 1996.
Therefore the Commission cannot examine those proceedings, as, pursuant
to Article 26 (Art. 26) of the Convention, it can only deal with the
matter within a period of six months from the date on which the final
decision was taken. However, the Commission observes that subsequently
the President of the Supreme Court lodged the extraordinary appeal
against this judgment with the Supreme Court which pronounced its
judgment on 14 May 1996. It is therefore necessary to examine whether
the character of the proceedings instituted before the Supreme Court
by its President's extraordinary appeal was such as to bring them
within the ambit of Article 6 (Art. 6) of the Convention.
The Commission observes that it was within the powers of the
Supreme Court to examine, and in fact it did examine, whether the
Supreme Administrative Court's judgment was in conformity with the
substantive law or ill-founded, or whether there had been a substantial
breach of procedure. The Supreme Court in the extraordinary appeal
proceedings was competent to quash or to uphold the judgment of the
Administrative Court. These proceedings must therefore be regarded as
having the same character as the original proceedings before the
Supreme Administrative Court in that the decision on the merits of the
case was to be taken by the Supreme Court.
It thus remains to be examined whether the proceedings in the
applicant's case, both at the stage which ended with the judgment of
the Supreme Administrative Court of 22 June 1993 and at the later stage
before the Supreme Court, concerned in any way the applicant's "civil
rights and obligations" within the meaning of Article 6 (Art. 6) of the
Convention, regard being had to the character of the rights concerned.
The Commission recalls in this respect that Article 6 para. 1
(Art. 6-1) of the Convention only applies to disputes over "rights and
obligations" which can be said, at least on arguable grounds, to be
recognised under domestic law. Article 6 (Art. 6) does not in itself
guarantee any particular content for "rights and obligations" in the
substantive law of the Contracting States (cf. Eur. Court HR, James and
others v. the United Kingdom judgment of 21 February 1986, Series A no.
98, p. 46, para. 81, and Lithgow and others v. the United Kingdom
judgment of 8 July 1986, Series A no. 102, p. 70, para. 192). The
dispute which gives a right to a determination by a court must be
"genuine and of a serious nature" (see Eur. Court HR, Benthem v. the
Netherlands judgment of 23 October 1985, Series A no. 97, p. 14, para.
32).
In the present case there clearly was a dispute between the
parties regarding the constitutionality of the provisions of the State
Administration Employees Act and, consequently, the lawfulness of the
decision issued in pursuance of this Act, by virtue of which the
applicant was forced to retire.
However, the Commission recalls that, according to the Convention
organs' case-law, disputes relating to the recruitment, careers and
termination of service of public servants are, as a general rule,
outside the scope of Article 6 para. 1 (Art. 6-1) of the Convention
(cf. Eur. Court HR, Massa v. Italy judgment of 4 August 1993, Series A
no. 265-B, p. 20, para. 26; Neigel v. France judgment of 17 March 1997,
para. 12; Reports, 1997; Huber v. France judgment of 17 February 1998,
Reports 1997-II no. 32, para. 36). The Commission further recalls its
decision in which it found that the proceedings relating to the
termination of service which had been governed by the State
Administration Employees Act fell outside the scope of Article 6
(Art. 6) of the Convention (No. 25871/94, Dec. 2.7.97, unpublished).
In the present case the proceedings before the Supreme
Administrative Court and subsequently before the Supreme Court related
to the lawfulness of the decision of 17 March 1993. Pursuant to this
decision, the applicant's employment was terminated in conformity with
Article 13 para. 1 point 5 of the State Administration Employees Act.
The applicant, in her appeal against the decision of 17 March 1993,
called into question the compatibility with the Constitution of the
termination of her career in the civil service. It is true that the
applicant argued in her appeal that she had a pecuniary interest in the
case in that she maintained that, as she had retired earlier, the
period in which she had been paying contributions to the Social
Insurance authorities was shorter than that of male employees, which
meant that her retirement pension would be lower. However, the
proceedings before the Supreme Court did not relate to the applicant's
pension rights. Therefore, the Commission considers that the dispute
in the instant case related essentially to the termination of the
applicant's service and that her pecuniary interests would not be
directly affected by their outcome so as to bring the proceedings
within the ambit of Article 6 (Art. 6) of the Convention.
Therefore, the Commission considers that Article 6 (Art. 6) of
the Convention is not applicable to the proceedings concerned. It
follows that this part of the application is incompatible ratione
materiae with the Convention within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant submits that the decisions in her case were in
violation of Article 1 of Protocol No. 1 to the Convention read
together with Article 14 of the Convention (P1-1+14). She contends
that, by being forced to retire five years earlier than male civil
servants would have been obliged to, she lost her possessions in that
she did not receive a salary throughout that period and any of the
normal benefits which she would have received as an employee for a
further five years, had she remained in employment. She also complains
that her retirement benefits were lower as they were calculated on the
basis of her salary, which would have been higher had she been allowed
to work for a further five years.
Article 1 of Protocol No. 1 (P1-1) to the Convention, insofar as
relevant, 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 Commission observes that Poland ratified Protocol No. 1 to
the Convention on 10 October 1994. It follows that the Commission is
competent to examine this complaint insofar as it relates to events
which occurred after that date.
The Commission recalls that, according to the Convention organs'
case-law, the making of contributions to a pension fund may, in certain
circumstances, create a property right in a portion of such fund and
such right may be affected by the manner in which the fund is
distributed (No. 4130/69, Yearbook 14, pp. 224 and 240 et seq.;
No. 5849/72, Dec. 16.12.74, D.R. 1, p. 46; No. 9776/82, Dec. 3.10.83,
D.R. 34, p. 153; No. 12264/86, Dec. 13.7.88, D.R. 57, p. 131).
Further, the rights originating from social insurance systems are
pecuniary rights for the purposes of Article 1 of Protocol No. 1 (P1-1)
to the Convention (Eur. Court HR, Gaygusuz v. Austria judgment of 16
September 1996, Reports 1996-IV, no. 14, p. 1142, para. 41). However,
even if it is assumed that Article 1 of Protocol No. 1 (P1-1)
guarantees persons who have paid contributions to a social insurance
system the right to derive benefits from the system, it cannot be
interpreted as entitling that person to a pension of a particular
amount (5849/72, Müller v. Austria, Comm. Report 1.10.75, D.R. 3,
p. 25; No. 10671/83, Dec. 4.3.85, D.R. 42, p. 229).
According to the Convention organs' case-law, a person
complaining of an interference with his property must show that such
right existed (No. 7655-7657/76, Dec. 4.10.77, D.R. 12, p. 111).
Moreover, Article 1 of Protocol No. 1 (P1-1) to the Convention does not
recognise any right to become the owner of property (No. 11628/85,
Dec. 9.5.86, D.R. 47, p. 270).
The Commission further recalls that "possessions" within the
meaning of Article 1 of Protocol No. 1 (P1-1) may be either "existing
possessions" (Eur. Court HR, Van der Mussele v. Belgium judgment of
23 November 1983, Series A no. 70, p. 23, para. 48) or claims, in
respect of which the applicant can argue that he has at least a
"legitimate expectation" of obtaining effective enjoyment of a property
right (Eur. Court HR, Pine Valley Developments v. Ireland judgment of
29 November 1991, Series A no. 222, p. 23, para. 51; Pressos Compania
Naviera S.A. v. Belgium judgment of 20 November 1995, Series A no. 332,
p. 21, para. 31).
In the present case the essence of the applicant's complaint is
that the legal regulations in force at the relevant time obliged her
to retire, and, as a result, she lost the salary which she could have
earned had she remained in the civil service. Secondly, had she
remained in service, she would have been entitled to a higher
retirement pension. In this sense her complaint does not concern any
"existing possessions".
It remains to be examined whether the applicant could have any
"legitimate expectation" of having her claims satisfied. The
Commission observes that the Supreme Court, by its judgment of 14 May
1996, dismissed the Ombudsman's request to have the 17 March 1993
decision on the termination of the applicant's service set aside.
As regards the judgment of the Constitutional Court of 29 September
1997, even though in principle it was in line with the applicant's
argument, it did not concern any individual situation, but was limited
to an analysis of the constitutionality of the Civil Servants Act. This
Act entered into force on 1 January 1997, a long time after the
applicant retired. This judgment did not directly relate to the 1993
decision by which the applicant was obliged to take her retirement and
did not have any bearing on the applicant's individual situation.
Moreover, the Commission observes that the Civil Servants Act is
applicable only to the category of civil servants in the full sense of
the term. This category was in fact created by the Act, which sets out
their special rights and obligations. As this group did not exist
before that date, the findings of the Constitutional Court cannot have
any influence on the applicant's status, either past or present.
It follows that the applicant has not shown that she has any
relevant "existing possessions" or any legally recognised claims which
could be regarded as "legitimate expectations" of enjoying property
rights.
The application is therefore incompatible ratione materiae with
the provisions of the Convention and must be rejected under Article 27
para. 2 (Art. 27-2).
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy