AS TO THE ADMISSIBILITY OF
Application No. 12264/86
by Sture STIGSON
against Sweden
The European Commission of Human Rights sitting in private
on 13 July 1988, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C. L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 June 1986 by
Sture STIGSON against Sweden and registered on 2 July 1986 under file
No. 12264/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a Swedish citizen, born in 1918. He is the
retired director of the Swedish National Board for Technical
Development. He resides at Lidingö, Sweden.
The applicant served in the Swedish army in the years 1938 to
1941. In 1942 he entered the Royal Värmland's Regiment as a reserve
officer and his remuneration when on active duty and also after having
fulfilled his duties as a reserve officer was set out in the Swedish
Royal Ordinance no. 364 of 1927. Section 29 of the Ordinance reads as
follows:
"Early retired officers and officers appointed in the reserve
corps, civil military (civilmilitär) persons of a comparative
position and non-commissioned officers (underofficer) who
have, in an appropriate manner, fulfilled the prescribed
service or who have, as a result of injury or illness
inflicted during service, been unable to fulfil the said
service, are awarded an annual pension after having reached
the age of 55, totalling 900 Swedish crowns for an officer (or
equal) and for a non-commissioned officer totalling 672
Swedish crowns. However, those who have been appointed in the
reserve officers' corps are, after the age of 42, under the
conditions indicated, entitled to receive, instead of the
pension, an amount corresponding to 5 % of the capitalised
value of the pension."
In 1961 the applicant was informed by the National Pension
Board (Statens pensionsanstalt) that he had fulfilled his duties
according to the 1927 Ordinance and that he was entitled to either the
pension or the capitalised sum. The applicant chose the pension
system which meant that he would receive a monthly sum as from the
year in which he reached the age of 55, which would be in 1973.
Following the introduction in 1960 of the general additional
pension (ATP) it was decided by the Swedish Royal Ordinance 1962:661
that the reserve officers pension should be co-ordinated with the new
additional pension in accordance with the Social Insurance Act (lagen
om allmän försäkring).
On 13 November 1973, the year in which the applicant reached
the age of 55, the applicant received from the appropriate defence
authority a letter whereby he was informed that he was now entitled to
receive the pension in accordance with the 1927 Ordinance. He was
furthermore informed that the pension now amounted to 405 Swedish
crowns per month. The applicant received the pension as from 6
December 1973 and by the time he reached the age of 65, in December
1983, the amount had reached 1,011 Swedish crowns per month due to a
specific index regulation.
It appears that the applicant retired in 1983 and on
retirement he was entitled to an old age pension as well as the
general additional pension (ATP). The latter had, as mentioned above,
been introduced in 1960 and furthermore, by Royal Ordinance no. 661 of
1962, it had been decided to co-ordinate the reserve officers pension
and the ATP pension. The applicant realised that upon retirement and
upon receiving the ATP pension his reserve officers pension was
reduced as from December 1983. He therefore complained to the National
Salaries and Pensions Board (Statens löne- och pensionsverk) which
rejected his complaints on 17 February 1984. In its decision the
National Salaries and Pensions Board stated as follows:
"As from 6 December 1973 you received a reserve officers
pension in accordance with the Ordinance 1927:364 regarding
officers and civil military personnel in the army's reserves.
In accordance with the Royal Ordinance 1962:661 (as
amended through Royal Ordinance 1970:509 and Ordinance
1977:9) the reserve officers pension shall be reduced
in view of (co-ordinated with) the general additional
pension (ATP) in accordance with the Social Insurance Act.
It follows from the provisions that the reserve officers
pension must be reduced by 10 % of the ATP. In your case
you will receive 1,011 - 659 (10% of ATP) = 352 crowns.
As the co-ordination is carried out in accordance with the
applicable provisions the National Salaries and Pensions Board
has no intention to change its decision that the reserve
officers pension and the general additional pension should be
co-ordinated as indicated above."
Realising that his reserve officers pension had been reduced
by approximately two-thirds the applicant complained about this
decision to the Administrative Court of Appeal (kammarrätten).
Referring to the factual circumstances of the case the applicant
pointed out that the contract between him and the State and the
latter's obligation to pay in accordance with the 1927 Ordinance had
come into effect in 1961, which was before the act on co-ordination of
pensions had entered into force. He maintained therefore that the law
could not apply retroactively to his situation. Furthermore, he
maintained that his so-called reserve officers pension was no pension
but merely a part of a contract and should not therefore be
co-ordinated with the ATP pension. Accordingly he requested the Court
of Appeal to overrule the decision of the National Salaries and
Pensions Board and to award him his full reserve officers pension.
In its judgment of 19 December 1984 the Administrative Court
of Appeal stated as follows:
"The Administrative Court of Appeal, which notes that the
Ordinance 1962:661 entered into force on 1 January 1963 and
contains provisions concerning co-ordination of the reserve
officers pension and the ATP as from this day onwards, does
not change the decision complained of."
The applicant complained to the Supreme Administrative Court
(regeringsrätten) maintaining in substance the position taken before
the Administrative Court of Appeal. On 30 December 1985, however, the
Supreme Administrative Court refused to grant leave to appeal.
COMPLAINTS
The applicant invokes Article 1 of Protocol No. 1 (P1-1) to the
Convention. He maintains that by co-ordinating the reserve officers
pension and the ATP, and thereby reducing his reserve officers pension
he has been deprived of his possessions by the respondent Government
without this being in the public interest or for tax purposes. He
maintains that the so-called reserve officers pension is not at all a
pension but a clear remuneration and part of the contract which he
entered into with the Government when he became a reserve officer. In
any event he maintains that the introduction of co-ordination of
pensions in 1963 could not apply to him since his entitlements entered
into force already in 1961.
THE LAW
The applicant has complained that he has been deprived of his
possessions contrary to Article 1 of Protocol No. 1 (P1-1) to the Convention
when his reserve officers pension was co-ordinated with the ATP,
thereby reducing the amount he received from the former.
Article 1 of Protocol No. 1 (P1-1) to the Convention provides that
any person is entitled to peaceful enjoyment of his possessions and
that no one shall be deprived of his possessions except in the public
interest and subject to conditions provided for by law and by the
general principles of international law.
According to the Commission's constant case-law the right to a
pension is not as such guaranteed by the Convention (cf. for example
Müller v. Austria, Comm. Report 1.10.75, para. 27, D.R. 3 p. 25, and
No. 7624/76, Dec. 6.7.77, D.R. 19 p. 100). However, the Commission
has considered that the right to a pension which is based on
employment can in certain circumstances be assimilated to a property
right. This may be the case where special contributions have been
paid or the employer, as in the present case, has given a more general
undertaking to pay a pension on conditions which can be considered to
be part of the employment contract (cf. No. 10671/83, Dec. 4.3.85,
unpublished).
For the purposes of the present case, and having regard to
the relevant provision of the Swedish Royal Ordinance of 1927, the
Commission would not exclude that the applicant, when entering the
Royal Värmland's Regiment as a reserve officer and after fulfilling
the requirements of Section 29 of the Ordinance, acquired a property
right within the meaning of Article 1 of Protocol No. 1 (P1-1) to the
Convention.
In the present case the Commission recalls, however, that the
applicant's right to benefit from the acquired right under the Royal
Ordinance of 1927 is left intact and it is merely the amount in
question which has been reduced. This reduction is solely due to the
fact that the applicant, after reaching a certain age, became entitled
to both ATP and old age pensions and since the Swedish Parliament had
introduced legislation which should co-ordinate the benefits received
through the various pension schemes available in Sweden.
It follows from the above that the applicant in essence asks
for full benefits from all the pension schemes applicable to him. The
Commission does not find, however, that the authorities, when applying
the legal provisions concerning co-ordination of the pension schemes,
can be considered to have deprived the applicant of a property right
which he previously had. If the applicant's submissions were to be
accepted, he should, under Article 1 of Protocol No. 1 (P1-1), be entitled to
full benefits for his service as a reserve officer irrespective of the
benefits that could be derived from other pension systems. The
Commission considers, however, that it cannot be in conflict with
Article 1 of Protocol No. 1 (P1-1) to the Convention that a co-ordination is
made between different pension systems.
Accordingly, having regard to the above considerations, the
Commission finds that there is no appearance of a violation of Article
1 of Protocol No. 1 (P1-1) to the Convention, or of any other Article of the
Convention.
It follows that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRUGER) (C. A. NØRGAARD)