Information Note on the Court’s case-law No. 123
October 2009
Si Amer v. France - 29137/06
Judgment 29.10.2009 [Section V]
Article 14
Discrimination
Residence requirement for entitlement to supplementary pension for employee who worked for a French company in Algeria prior to independence: no violation
Facts – The applicant is an Algerian national who held French nationality until 31 December 1962 and currently lives in Algiers. From 1953 to 1962, the applicant worked in Algeria – a French territory until 5 July 1962 – in a company incorporated under French law. He had taken out, on a voluntary basis, a supplementary pension policy with the Employees’ Inter-professional Insurance Fund. During this period the Fund received regular contributions, paid in due form by the applicant. In 1964 an agreement was signed between France and Algeria, which had become independent, regulating their relations with regard to supplementary pension schemes. Subsequently an amendment to the French inter-professional agreement of 1961 on supplementary pensions imposed a criterion of residence in France or Monaco in order to have validated employment that had been performed in Algeria. In 1998 the applicant applied to the French Fund for payment of a supplementary pension. His application was dismissed on the ground that he did not meet the residence requirement. The refusal was confirmed in writing in 1998 and 2002. The applicant brought proceedings against the Fund before the Paris tribunal de grande instance, which dismissed his claims. The appeal court upheld the judgment.
Law – Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1: The existence of a difference in treatment between persons who had made contributions to a French supplementary insurance fund in respect of their periods of employment in pre-independence Algeria was established. The Court noted in this respect that the applicant was in an objectively similar situation to persons who had had an identical or similar professional career but who had subsequently resided in France or Monaco.
The impugned difference corresponded to the legitimate aim of ensuring, through the principle of the territoriality of supplementary pension schemes, the administration of relations in this area between France and Algeria following the latter’s independence. The agreement signed by the two countries in 1964 was one of the measures intended to ensure a coherent and clear division in the settlement of past commitments and the respective outgoings incumbent on the States. In particular, it was intended to ensure the effectiveness of the rights of those individuals who had been repatriated to French territory. In addition, the need to divide the burden of past commitments was further justified, having regard to the preservation of the scheme’s financial stability, by the fact that it was based on the principle of redistribution, in which pensions were financed not by past contributions from their beneficiaries but by contributions paid by current employers and employees. As to the proportionality of the means employed in pursuit of this legitimate aim, it was to be noted that the difference in treatment affecting the applicant resulted, firstly, from the combined application of certain articles of the Franco-Algerian Agreement of 1964, which provided for the full affiliation of Algerian nationals, employed in Algeria, to that country’s supplementary pension schemes, with preservation of acquired rights. Nonetheless, this difference in treatment concerned, in principle, only the arrangements for implementing the supplementary scheme in question. From its entry into force, the terms of the agreement gave the applicant a right to payment that was equivalent to the right he had held prior to Algeria’s independence. As to the right’s effectiveness, it resulted from the application of the above-mentioned Franco-Algerian Agreement, an article of which made the French and Algerian Governments responsible for defining the level of benefits to be paid to the persons affiliated with these countries’ institutions and for nominating the relevant administrating institutions. In this regard, the Court considered that no shortcoming could be imputed to the French State, which had merely been required to guarantee the implementation of this agreement in respect of those persons affiliated to its internal institutions. In those circumstances, the impugned difference in treatment could not therefore be regarded as discriminatory, whatever the alleged consequences of provisions of EU law which had not been in force either when the above-mentioned Franco-Algerian Agreement entered into force, or at the time of the request for access to the pension rights, which had preceded the date on which supplementary pension schemes came under EU law, namely 1 July 2000.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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