FIRST SECTION
DECISION
Application no. 39247/12
Tadeusz PERSJANOW
against Poland
The European Court of Human Rights (First Section), sitting on 11 December 2018 as a Chamber composed of:
Linos-Alexandre Sicilianos, President,
Ksenija Turković,
Krzysztof Wojtyczek,
Armen Harutyunyan,
Pauliine Koskelo,
Jovan Ilievski,
Gilberto Felici, judges,
and Abel Campos, Section Registrar,
Having regard to the above application lodged on 11 June 2012,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Tadeusz Persjanow, is a Polish national who was born in 1945 and lives in Józefosław. He was represented before the Court by Ms M. Derlatka, a lawyer practising in Warsaw.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant served in the army between 1962 and 1983.
5. On 7 September 1984 he was granted a military pension.
6. Between 7 September 1984 and 30 April 2010 he received the military pension referred to above.
7. At the same time, between 1984 and 2010 he was employed outside the military and paid compulsory contributions into the Social Insurance Fund.
8. On 29 March 2010 the Social Security Board (Zakład Ubezpieczeń Społecznych) issued a decision by virtue of which the applicant was granted the right to a retirement pension from the Social Insurance Fund. When calculating the applicant’s retirement pension, the Social Security Board took into consideration a contributory period of twenty-five years and three months and a non-contributory period of three months. The board did not take into account the period of the applicant’s military service between 1 October 1962 and 3 August 1983, referring to the fact that the applicant had been receiving a military pension and that that period had already been taken into account for the purpose of calculating his military pension.
9. On 19 April 2010, following a request by the applicant on 12 April 2010, the payment of his military retirement pension was suspended with effect from 30 April 2010.
10. The applicant appealed against the decision of the Social Security Board of 29 March 2010, arguing that the period of his military service had not been taken into account when calculating his retirement pension from the Social Insurance Fund. He also submitted that since the payment of his military pension had been suspended, there should be no obstacle to his being granted a civil retirement pension calculated on the basis of the whole period of his employment (that is to say, including his military service).
11. On 2 June 2011 the Warsaw Regional Court (Sąd Okręgowy) dismissed his appeal. The court held, referring to the relevant provisions of domestic law, that the period of his military service could only have been taken into account for the purpose of calculating his civil retirement pension if he had not acquired the right to a military pension or had lost his right to a military pension. The court held that this was not so in his case; he had been granted the right to a military pension, the payment of which had been suspended because he had chosen to be paid a pension under the civil scheme.
12. The applicant appealed against the first-instance judgment. He alleged, among other things, a violation of basic rights and the principle of equality of all citizens and their equal treatment by the administrative authorities.
13. On 10 January 2012 the Warsaw Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s appeal, finding that the challenged judgment had been given in accordance with the relevant provisions of law. The court did not share the applicant’s view regarding the allegedly unequal treatment of “military” and “civil” retired persons and stressed in this regard that the main difference between the military and civil retirement schemes lay in the non-contributory nature of the military system (as opposed to the civil system, in which contributions are compulsory) and the possibility of beginning to receive the military pension after fifteen years of service, notwithstanding the age of the person concerned. The court further pointed out that between the years 1984 and 2010 the applicant, while still employed in a non-military capacity, had been receiving a military pension.
14. On 25 April 2012 the applicant’s lawyer lodged a cassation appeal with the Supreme Court (Sąd Najwyższy).
15. On 30 January 2013 the Supreme Court refused to examine the cassation appeal, holding that the relevant provisions concerning the calculation and suspension of retirement pensions did not raise any doubts as regards their interpretation.
B. Relevant domestic law and practice
1. Retirement pensions under the general social security scheme
16. The rules for the determination of retirement pensions under the general social security scheme are laid down in the Law of 17 December 1998 on pension benefits from the Social Insurance Fund (ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych – hereinafter “the 1998 Law”).
17. The general social security scheme operates on the basis of two schemes (hereinafter “the old scheme” and “the new scheme”).
18. Under the old scheme, which applies to persons born before 1 January 1949 and persons born after 31 December 1948 but before 1 January 1969 who opted for this system, the right to a retirement pension is generally acquired by women aged sixty with at least a twenty-year contributory and/or non-contributory period and men aged sixty-five years with at least a twenty-five year contributory and/or non-contributory period. A retirement pension amounts to 24% of the so-called “base amount” (kwota bazowa) (100% of the average salary in Poland in the previous calendar year, reduced by compulsory social insurance contributions deducted from the salary) + 1.3% of the basis of assessment for each contributory year + 0.7% of the basis of assessment for each non‑contributory year. The basis of assessment is calculated according to the average salary (reduced by social insurance contributions) received by the person concerned over ten years selected from the last twenty years of employment (or twenty years chosen by the person concerned).
19. The new scheme comprises the so-called “three pillars” (trzy filary).
20. The first pillar is managed by the Social Security Board, a public institution, while the second and third pillars are managed by private institutions. The third pillar manages supplementary private pension plans that are based on voluntary contributions; it is not relevant to the present case.
21. In respect of the first and second pillars, social insurance contributions are compulsory and the scheme applies to persons born after 31 December 1948. The right to a retirement pension is acquired by persons who have reached the statutory retirement age (between 60 and 67 years old for women and between 65 years and five months and 67 years old for men). The level of a retirement pension is calculated as the equivalent of the total amount of pension contributions after indexation collected since 31 December 1998, plus what is known as “initial capital” (contributions collected before 1 January 1999) after indexation, divided by the average life expectancy expressed in months for a person whose age is the same as the retirement age of the person concerned. On 1 February 2014 the Act of 6 December 2013 amending the rules as regards the payment of retirement pensions from the second pillar came into force. Under the new provisions, membership in the second pillar is no longer mandatory; currently an insured person may but is not under an obligation to save his or her contributions in the second pillar; if no decision is made within the specified time-limit, the contributions of the person concerned are paid only to the mandatory first pillar.
22. Section 2(2) of the 1998 Law contains a special provision which grants the right to social benefits from the general social security scheme to soldiers who cannot receive benefits from the special scheme. It provides as follows:
“The benefits referred to in the present act shall also be paid to professional soldiers ... if they do not fulfil the conditions for receiving (or if they have lost the right to receive) the benefits referred to in the provisions concerning retirement pensions for professional soldiers and members of the families of deceased soldiers.”
23. Section 95(1) provides as follows:
“In the case that one person is authorised to receive several of the benefits referred to in the present Act, the person concerned shall be paid one benefit – either the most advantageous or that of his own choice.”
24. Section 69 of the previous Act of 14 December 1982 on retirement benefits for employees and their families (Ustawa o zaopatrzeniu emerytalnym pracowników i ich rodzin), which entered into force on 1 January 1993, contained a similar principle – that only one retirement pension could be paid, even if the person concerned was eligible to receive more than one retirement pension or a retirement and a disability pension.
2. Retirement pensions for soldiers and their families
25. The rules for the determination of retirement pensions for persons serving in the military are laid down in the Law of 10 December 1993 on social benefits for professional soldiers and their families (ustawa o zaopatrzeniu emerytalnym żołnierzy zawodowych oraz ich rodzin – hereinafter “the 1993 Law”). As a rule, a military retirement pension is granted to a soldier after fifteen years of military service.
26. Section 1(1) provides, in so far as relevant, as follows:
“Soldiers released from professional military service have the right to receive, on the basis laid down in the present Act, retirement benefits from the State budget, depending on the length of their service ...”
27. Section 2 provides, in so far as relevant, as follows:
“the retirement benefits [referred to in the previous section] shall include:
a. military retirement pensions;
b. military disability pensions.”
28. Section 7 provides, in so far as relevant, as follows:
“In the case of an overlap of a right to a retirement or disability pension referred to in the present Act or to a retirement or disability pension ... referred to in other provisions, the most advantageous benefit or the benefit chosen by the person concerned shall be paid, unless special provisions provide otherwise.”
COMPLAINTS
29. The applicant complained in substance that he had had to choose between the two retirement benefits to which he had acquired rights and that he was not being paid both benefits – the military pension and the retirement pension from the Social Insurance Fund.
30. He also relied on Article 14 of the Convention, claiming that his exclusion from the military retirement system amounted to discrimination.
THE LAW
A. Complaint under Article 1 of Protocol No. 1 to the Convention
31. The Court considers that the essence of the applicant’s complaint concerns the calculation of his retirement pension and the authorities’ refusal to take into account certain periods of his employment or military service; it therefore finds it appropriate to examine the complaint from the standpoint of 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.”
1. The parties’ submissions
(a) The Government
32. The Government considered that the applicant’s complaints should be found inadmissible as manifestly ill-founded.
33. They noted in the first place that there had been no interference with the applicant’s peaceful enjoyment of his possessions; the applicant had already had his right to the military pension established in 1984 and since then had received that benefit. The payment of his military pension had only been suspended on 19 April 2010, with effect from 30 April 2010, at the applicant’s own request, because he had chosen to be paid the benefit from the Social Insurance Fund.
34. The Government further submitted that the payment of only one retirement benefit was in accordance with the “single benefit” rule expressed directly in the domestic law and confirmed in the case-law of the domestic courts. They also noted that that principle was not a novelty in the Polish legal system; it had already existed in the Act of 14 December 1982 on retirement benefits for employees and their families and had been further incorporated into the 1998 Law. The single benefit rule was justified by the principle of solidarity of risk and its application was well-established and raised no doubts in the domestic legal system. The provisions of domestic law in question were thus available, precise and their application foreseeable.
35. The Government also submitted that there were some exceptions to the single benefit rule, however, they were only applicable in particular circumstances; they concerned ex-military professionals or ex-policemen who had started their service after 1 January 1999. Some exceptions were also provided for persons born after 1948 insured in the agricultural social insurance scheme.
36. The Government further argued that the single benefit rule was based on the solidarity principle and served to protect the financial stability of the social insurance system. As such it served the general interest. The suspension of the applicant’s social benefits had also been proportionate; the applicant had at no time been left without any means of subsistence. What was more, his case had been examined on the merits by courts at two levels of jurisdiction and, finally, by the Supreme Court. The proceedings before the domestic courts had been prompt and fair and the applicant had had full access to all procedural guarantees.
(b) The applicant
37. The applicant submitted that he had satisfied all the conditions to be paid a pension calculated on the basis of his entire working period within and outside of the military, or to be granted both benefits.
38. He did not question the fact that the domestic courts’ decisions had been issued in accordance with the relevant domestic provisions. He considered however that they had amounted to interference with his property rights under Article 1 of Protocol No. 1 to the Convention, as they had not been justified as in the public interest and could not be seen as proportionate.
39. He further submitted that “he had participated in the pension scheme for almost forty-seven years”, trusting the State and hoping that his future pension would reflect the whole period of his work. However, the State was refusing to accept his right to be granted a pension based upon the whole period or to be granted two pensions calculated on the basis on two independent pension schemes.
40. The applicant further argued that the Government had misinterpreted the solidarity principle and, thus, the single benefit rule. The solidarity principle did not allow the State to disregard certain periods of professional activity, treating them in fact as non-existent. The single benefit rule, in turn, implied a prohibition on being granted two benefits which covered two insurance risks in a situation where the reason for their payment originated from the same damage. In the applicant’s view, his situation was different: both the military pension and pension from the Social Insurance Fund protected the same risk, that is, the inability to earn a living after reaching a certain age.
41. The applicant did not agree with the Government that the interference with his property rights had been in the public interest. However, he submitted that even if it was the case that interference, which had consisted in disregarding almost twenty-one years of his professional activity, could not be considered proportionate and justified.
2. The Court’s assessment
(a) General principles
42. All principles which apply generally in cases concerning Article 1 of Protocol No. 1 are equally relevant when it comes to pensions.
43. Firstly, that provision does not guarantee the right to become the owner of property. By the same logic, it cannot be interpreted as securing a right to a pension of a particular amount. It places no restriction on the Contracting State’s freedom to decide whether or not to have in place any form of social-security scheme, or to choose the type or amount of benefits to be provided under any such scheme. If, however, a Contracting State has in force legislation providing for the payment as of right of a pension – whether conditional or not upon the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (see Andrejeva v. Latvia [GC], no. 55707/00, § 77, with further references, in particular to Stec and Others (dec.), cited above; Kjartan Ásmundsson v. Iceland, no. 60669/00, § 39, ECHR 2004‑IX; and Carson and Others v. the United Kingdom [GC], no. 42184/05, § 64, ECHR 2010).
44. An applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. Article 1 of Protocol No. 1 comes into play if the applicant has an assertable right which, applying the principle enounced in paragraph 52 of Kopecký judgment (Kopecký v. Slovakia [GC], no. 44912/98, ECHR 2004‑IX) may not fall short of a sufficiently established, substantive proprietary interest under the national law (see Béláné Nagy v. Hungary [GC], no. 53080/13, § 79, 13 December 2016). By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 82-83, ECHR 2001-VIII, and Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002-VII).
45. In determining whether there has been an interference, the Court’s enquiry will focus on the domestic law in force at the time of the alleged interference (Béláné Nagy, cited above, § 85). Where the person concerned did not satisfy or ceases to satisfy, the legal conditions laid down in domestic law for the grant of any particular form of benefits or pension, there is no interference with the rights under Article 1 of Protocol No. 1 where the conditions had changed before the applicant became eligible for a specific benefit (see, for, example, Bellet, Huertas and Vialatte v. France (dec.), nos. 40832/98, 40833/98 and 40906/98, 27 April 1999, and also the principles set out in Béláné Nagy, cited above, §§ 86-87).
(b) Application of these principles to the present case
46. The Court notes that the provisions excluding the accumulation of retirement pensions from different pension schemes were introduced in 1982 (see paragraph 24 above). According to principle of single benefit, the applicant could not have been granted two benefits simultaneously.
47. The applicant was eligible to receive pensions from two retirement systems. By a decision of 7 September 1984 he was granted the right to a military pension which he received from 1 September 1984 to 30 April 2010. By a decision of 29 March 2010 the Social Security Board recognised his right to a retirement pension from the Social Insurance Fund. However, it cannot be said that the applicant had a legitimate expectation that he would keep his military pension if he decided to claim a retirement pension from the general scheme. On the contrary, it was clear that, if he were eligible to receive retirement pensions from two different pension schemes, he would be entitled to only one pension.
48. The Court accordingly concludes that the applicant has neither shown that – under the domestic law - he had a claim to keep two benefits nor that he had a claim to receive a single retirement pension calculated on the basis of his entire working period within and outside of the military. He therefore cannot argue that he had a “possession” or at least a “legitimate expectation” within the meaning of Article 1 of Protocol No. 1 to the Convention.
49. It follows that the complaint under Article 1 of Protocol No. 1 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
B. Complaint under Article 14 of the Convention taken together with Article 1 of Protocol No. 1 to the Convention
50. The applicant also raised a complaint that his exclusion from the system under the Social Insurance Fund amounted to discrimination. He relied on Article 14 of the Convention and Article 1 of Protocol No. 1. Article 14 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.”
1. The parties’ submissions
51. As regards the Court’s question about Article 14 taken together with Article 1 of Protocol No. 1, the Government submitted that all persons who found themselves in circumstances similar to those of the applicant’s would be treated in the same way. Thus, the circumstances complained of did not amount to a situation in which a State, without an objective and reasonable justification, failed to treat differently persons whose situations are significantly different (the Government cited in this context Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000‑IV and Kurić and Others v. Slovenia [GC], no. 26828/06, § 288, ECHR 2012). The Government further relied on a judgment of the Supreme Court of 4 April 2012 (I UK 390/11) in which that court stated that the single benefit rule was not contrary to the principle of equality expressed in Article 32 of the Polish Constitution and was not of a discriminatory nature.
52. The applicant submitted that, according to the Court’s case-law, if the State decided to create a benefit or pension scheme it had to do so in a manner which was compatible with Article 14 of the Convention. He had been discriminated against in comparison with members of the military who had joined the service for the first time after 1 January 1999. Those members of the military, provided that they fulfilled the criteria to be granted a pension from the Social Insurance Fund and a military pension, were able to receive the two benefits simultaneously.
53. The applicant further submitted that he had also been discriminated against in comparison with other members of the military who had joined the service before 2 January 1999 and had been born before 1 January 1949 and who, after termination of their military service, had not claimed to have their military pension right established and had continued employment outside of the military. That group of soldiers could subsequently claim to have their pension under the social security scheme established and the period of their military service would be taken into account when determining the amount of their civil pension. The applicant thus submitted that the discrimination consisted in the different treatment of military officials who had requested to be granted the military pension and those who had not done so.
2. The Court’s assessment
54. According to the established case-law of the Court, Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, 21 February 1997, § 33, Reports of Judgments and Decisions 1997‑I; Petrovic v. Austria, 27 March 1998, § 22, Reports 1998‑II; Zarb Adami v. Malta, no. 17209/02, § 42, ECHR 2006‑VIII; and Konstantin Markin v. Russia [GC], no. 30078/06, § 124, ECHR 2012).
55. Having regard to the fact that Article 14 of the Convention is not autonomous and to the conclusion that Article 1 of Protocol No. 1 is not applicable, the Court considers that Article 14 cannot apply in the instant case.
56. It follows that the complaint under Article 1 of Protocol No. 1 taken together with Article 14 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 10 January 2019.
Abel CamposLinos-Alexandre Sicilianos
RegistrarPresident
Full & Egal Universal Law Academy