SECOND SECTION
Application no. 21838/10
Emilio STEFANETTI against Italy
and 7 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are Italian nationals. They are represented before the Court by Mrs R. Palotti (SPI-CGIL), a lawyer practising in Sondrio, Italy.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The applicants requested the Istituto Nazionale della Previdenza Sociale (“INPS”) to establish their pensions in accordance with the 1962 Italo-Swiss Convention on Social Security (see Relevant Domestic Law and Practice below) on the basis of the contributions paid in Switzerland for work they had performed there over several years (see annexed table for details). As a basis for the calculation of their pensions (in respect of the average remuneration of the last ten years), the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a readjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which meant that the calculation had as its basis a pseudo-salary with the result that the applicants were obtaining a lower pension than that expected. According to the applicants they were receiving approximately a third of what they were due in pension. As an example, the amount they were receiving in pension in 2010 and an estimate, according to the applicants, of what they should have received in that same year had this method of calculation not been applied, is annexed.
Consequently, in 2006 the applicants instituted judicial proceedings, contending that this was contrary to the spirit of the Italo-Swiss Convention.
Law no. 296/2006 (see Relevant Domestic Law and Practice below) entered into force on 1 January 2007.
The applicants’ claims were rejected in separate judgments of the Sondrio Tribunal (filed in the relevant registry as mentioned below) in view of the entry into force of Law no. 296/2006:
Judgment (no. 149/09) of 30 November 2009 in respect of Mr Stefanetti;
Judgment (no. 96/09) of 27 October 2009 in respect of Mr Rodelli;
Judgment (no. 09/10) of 28 January 2010 in respect of Mr Negri;
Judgment (no. 104/09) of 27 October 2009 in respect of Mr Del Nave;
Judgment (no. 09/10) of 28 January 2010 in respect of Mr Del Maffeo;
Judgment (no. 166/09) of 10 December 2010 in respect of Mr Cotta;
Judgment (no. 112/09) of 10 November 2009 in respect of Mr Del Curti;
Judgment (no. 96/09) of 27 October 2009 in respect of Mr Andreola.
All the applicants did not appeal further, deeming it to be futile given that the impugned law had been considered legitimate by the Constitutional Court in its judgment of 23 May 2008, no. 172 (see Relevant Domestic Law and Practice below), which other courts were then bound to uphold.
B. Relevant domestic law and practice
1. The Italo-Swiss Convention on Social Security
Article 23 of the transitional provisions of the Italo-Swiss Convention on Social Security, of 14 December 1962, provides, in so far as relevant, 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 cases where the insured event occurred before the entry into force of the Convention. Old-age and survivors’ ordinary annuities will, however, only apply in accordance with these provisions if the insured event took 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 where the insured event occurred on or after the date of its entry into force. Nevertheless, when the insured event occurred before that date, performance shall take place in accordance with the present Convention from the date of its entry into force, if 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. With the exception of 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, upon the attainment of pensionable age under Italian law, Italian citizens may request, in derogation of Article 7, that the contributions paid by them and their employers into the Swiss old-age and survivors insurance schemes be transferred to the Italian insurance scheme, on condition that they have left Switzerland for permanent settlement in Italy or in a third country prior to the end of the year in which their pensionable age was reached. 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 provides (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 any other dispositions issued by the Italian authorities. In the event that, under the relevant Italian legal provisions, the insured person cannot assert a right to a pension, the Italian social welfare services will reimburse, upon request, the transferred contributions.
(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 a 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).
The transitional provision of Article 23 of the 1961 Convention became definitive by means of the additional agreement of 4 July 1969, Article 1 (1) and (3) of which read:
“On reaching pensionable age under Italian law, and where they have not already been in receipt of a pension, Italian citizens may request, in derogation of Article 7, that the contributions paid by them and their employers into the Swiss old-age and survivors’ insurance scheme be transferred to the Italian insurance scheme, on condition that they have left Switzerland for permanent settlement in Italy ...”
“The Italian social welfare entities must use such contributions in favour of the insured or his or her heirs in such a way as to ensure the attainment of the advantages derived from Italian law, as cited in Article 1 of the Convention, in accordance with the specific arrangements issued by the Italian authorities. If no advantage can be attained on the basis of such arrangements, the Italian social welfare entities must reimburse the transferred contributions to the interested parties.”
2. Case-law relevant to the period before the enactment of Law no. 296/2006
The Court of Cassation’s judgment of 6 March 2004, and other analogous jurisprudence at the material time, established that, in the absence of specific legislation regulating the transfer of contributions, the method of calculation in determining workers’ pensions 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 no. 296/2006, which entered into force on 1 January 2007, provides (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 the event 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 employment period abroad is calculated by multiplying the amount of transferred contributions by a hundred and dividing the result by the contribution rates for the invalidity, old-age and survivors insurance scheme, 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 no. 296/2006 and remitted the case to the Constitutional Court. The Constitutional Court gave judgment on 23 May 2008, holding, in sum, as follows.
Although interpretative, Law no. 296/2006 was innovative. There had been no conflicting case-law on the pension regime but a single well-established interpretation, 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 remuneration-based pension calculations, on the basis of the wages earned 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. A change in calculating pensions from the contributory criterion to the remuneration-based one (“retributivo”), 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 into 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 had been no breach of the principle of legal certainty. Nor was the norm discriminatory since the acquired and 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, adequate for the lifestyle of a worker. Accordingly, the claim of unconstitutionality of the said Law was manifestly ill-founded.
COMPLAINTS
1. The applicants complain under Article 6 § 1 of the Convention that the legislative intervention, namely the enactment of Law no. 296/2006, whilst proceedings were pending, which changed well-established case-law, had denied them their right to a fair trial.
2. The applicants further complain that the enactment of Law no. 296/2006 and its application to their cases constituted an unjustified interference with their possessions. Moreover, it had been arbitrary since it created a disparity in treatment between persons who had chosen to work in Switzerland, and those who remained in Italy. They invoked Article 1 of Protocol No. 1 to the Convention in conjunction with Article 14 of the Convention.
COMMON QUESTIONS
1. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was there interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute? If so, was the interference based on compelling grounds of general interest? Lastly, was the interference compatible with the principles of legal certainty (see Maggio and Others v. Italy, nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, 31 May 2011)?
2. a. Did the applicants have a possession within the meaning of Article 1 of Protocol No. 1?
2. b. If so, did the applicants’ pension reductions, as a consequence of the new method of calculation as envisaged in Law no. 296/2006, which they claim resulted in a loss of approximately two-thirds of their pensions, constitute an interference with the applicants’ peaceful enjoyment of their possessions in the public interest and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1? Did it impose an excessive individual burden on the applicants?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Years worked in Switzerland
Pension Received in 2010 in EUR
Pension which would have been received in EUR
21838/10
14/04/2010
Emilio STEFANETTI
21/10/1940
Dubino
1959-1996
9,898
29,696
21849/10
14/04/2010
Giovacchino RODELLI
18/03/1942
Talamona
1962-1973
1977-1996
8,571
25,715
21852/10
14/04/2010
Roberto NEGRI
11/01/1937
Castione Andevenno
1954-1957
1965-1973
1975-1997
11,513
34,540
21855/10
13/04/2010
Luigi DELLA NAVE
28/03/1933
Morbegno
1962-1989
11,321
33,965
21860/10
13/04/2010
Gottardo DEL MAFFEO
20/10/1938
Spriana
1959-1966
10,583
31,751
21863/10
13/04/2010
Rinaldo COTTA
14/08/1944
San Martino Val Masino
1962-1987
14,132
42,396
21869/10
13/04/2010
Fausto CURTI
28/05/1942
Verceia
1962-1976
1978-1997
10,473
31,419
21870/10
13/04/2010
Luigi ANDREOLA
22/10/1944
Tirano
1967-1977
21,842
65,526
Full & Egal Universal Law Academy