FOURTH SECTION
DECISION
Applications nos. 50408/15 and 11727/16
Janez VEREŠ against Slovenia
and Miro KOCJANČIČ against Slovenia
The European Court of Human Rights (Fourth Section), sitting on 10 April 2018 as a Committee composed of:
Vincent A. De Gaetano, President,
Georges Ravarani,
Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above applications lodged on 6 October 2015 and 24 February 2016 respectively,
Having deliberated, decides as follows:
THE FACTS
1. The applicant in the first case, Mr Janez Vereš, is a Slovenian national who was born in 1960 and lives in Cerknica. He was represented before the Court by Ms M.M. Kunstelj, a lawyer practising in Kranj.
2. The applicant in the second case, Mr Miro Kocjančič, is a Slovenian national who was born in 1953 and lives in Ljubljana.
A. The circumstances of the cases
3. The facts of the cases, as submitted by the applicants, may be summarised as follows.
4. Both applicants were civil servants employed by the Ministry of the Interior.
5. On 11 May 2012 the Fiscal Balance Act (Zakon za uravnoteženje javnih financ, hereinafter “the ZUJF”, see paragraphs 11-13 below), which introduced extensive austerity measures, was adopted. Among those measures, the Act provided for the compulsory termination of the employment contracts of civil servants who, under the applicable Act, fulfilled the conditions for retiring on a full pension (see paragraph 11 below).
6. In accordance with that Act, decisions of 1 August 2012 terminating the applicants’ employment contracts were served on them. Following appeals by the applicants, the employment contracts were terminated when the decisions of 1 August 2012 became final. The decision in respect of Mr Vereš became final on 17 October 2012, and the decision in respect of Mr Kocjančič became final on 29 September 2012.
7. Both applicants initiated proceedings before the Ljubljana Labour and Social Court, asking that the court find the terminations unlawful.
8. As to Mr Vereš, referring to a decision of the Constitutional Court of 14 November 2013 (see paragraphs 14-19 below), the first‑instance court dismissed his application by a judgment of 26 February 2014. The judgment was subsequently confirmed by the Higher Labour and Social Court on 12 June 2014. Mr Vereš lodged an appeal on points of law, which the Supreme Court dismissed by a judgment of 24 November 2014. A constitutional complaint lodged by Mr Vereš was dismissed by a decision of 1 April 2015 that was served on him on 8 April 2015.
9. As to Mr Kocjančič, referring to the decision of the Constitutional Court of 14 November 2013 (see paragraphs 14-19 below), the first‑instance court dismissed his application by a judgment of 25 February 2014. The judgment was confirmed by the Higher Labour and Social Court on 16 October 2014. Mr Kocjančič lodged an appeal on points of law, which the Supreme Court dismissed by a judgment of 25 May 2015. A constitutional complaint lodged by Mr Kocjančič was dismissed by a decision of 17 September 2015 that was served on him on 15 October 2015.
10. Meanwhile, both applicants had lodged an application with the Pension and Disability Insurance Institute of Slovenia to claim their rights under the retirement scheme. Mr Vereš retired on 18 October 2012 and Mr Kocjančič retired on 30 September 2012. In 2012 Mr Vereš’s pension was determined as being 1,003.32 euros (EUR), and Mr Kocjančič’s pension was determined as being EUR 1,287.99.
B. Relevant domestic law and practice
1. The Fiscal Balance Act (ZUJF)
11. Under section 188 of the ZUJF, as it stood at the material time, the employment contract of a civil servant who fulfilled the conditions for acquiring the right to a full old-age pension under the applicable law was terminated. The termination became effective on the day when the decision on the termination became final. The civil servant whose employment contract was terminated was entitled to severance pay on favourable conditions.
12. A civil servant and his or her employer could agree that the employment contract would not be terminated if this was necessary in order to ensure that the employer’s work could continue without interruption. In 2016 a new law limited the duration of a possible extension to one year. In 2017 the measure was changed so that the employment contract was terminated within a year of the conditions for acquiring the right to a full old‑age pension being fulfilled.
13. Under section 182 of the ZUJF, the measure was to remain in force until the end of the year following the year in which economic growth exceeded 2.5% of the gross domestic product. Special laws extended the duration of the measure for 2016 and 2017.
2. The Constitutional Court’s decision of 14 November 2013
14. On 13 June 2012 the Slovenian Human Rights Ombudsman lodged a request to initiate a review of the constitutionality and legality of the ZUJF. The Ombudsman alleged, among other things, that the Act interfered with public servants’ right to non-discriminatory treatment. This was because it treated civil servants differently on grounds of age and sex with regard to terminating an employment contract owing to the fulfilment of statutorily determined retirement conditions.
15. In its decision of 14 November 2013 the Constitutional Court found the Act unconstitutional in so far as it concerned female civil servants who had not yet fulfilled the same conditions for acquiring the right to an old‑age pension as male civil servants. The remaining provisions of the ZUJF were, in the court’s opinion, not inconsistent with the Constitution.
16. The Constitutional Court observed that the ZUJF was an extensive Act, whose main aim was to offset the financial consequences of the economic crisis affecting Slovenia. The measures provided for by this statute affected all social groups, including civil servants, retirees, families, young people and disabled people. Under the ZUJF, civil servants who fulfilled the conditions for acquiring the right to an old-age pension were indeed treated differently from other civil servants who were in a similar position in respect of their work, and they were treated differently because of their age. However, referring to Article 6 of Directive 2000/78/EC, the court pointed out that such interference was constitutionally admissible if it was justified by a reasonable aim and the means of realising the interference were appropriate and necessary.
17. As to the measure in question, namely the mandatory termination of employment contracts, the Constitutional Court held that the fiscal situation was, by itself, not sufficient justification for different treatment on the grounds of age. However, there were several additional reasons for adopting the measure, such as establishing a more favourable age structure of civil servants, which contributed to a better quality of public services, and preventing possible conflicts regarding the civil servants’ ability to continue working after a certain age.
18. According to the Constitutional Court, the measure was appropriate for achieving the above goals. The court further held that reducing the number of employees would mean that the funds required for their salaries would become smaller. It also noted that those costs made up almost one third of the total resources in the proposal for amendments to the budget of the Republic of Slovenia for the year 2014.
19. It was further noted that, before enforcing the challenged measure, the Government had unsuccessfully attempted to achieve the aims by other measures. This proved that the measure in question was necessary. The Constitutional Court held that the measure was proportionate, because the civil servants affected by it were entitled to some kind of financial remuneration to replace their salaries, namely a full old-age pension. Moreover, they were not required to retire, as they could still seek employment with private entities.
COMPLAINTS
20. The applicants complained under Article 1 of Protocol No. 12 and under Article 14 of the Convention, that they had been discriminated against because they had been treated differently from: (i) civil servants who could not be replaced; (ii) civil servants who would fulfil retirement conditions after the law had ceased to be applicable because of the improved economic situation; and (iii) those employed in the private sector. They argued that none of the aims pursued by the law amounted to a legitimate reason for discriminating against older employees, and that the discrimination had serious consequences, as the pensions which they were receiving were much lower than their salaries had been.
THE LAW
A. Joinder of the applications
21. Given their common factual and legal background, the Court decides that the two applications should be joined under Rule 42 § 1 of the Rules of Court.
B. The complaint under Article 1 of Protocol No. 12 and under Article 14 of the Convention
22. The applicants complained that their rights under Article 1 of Protocol No. 12 to the Convention had been violated. This provision reads:
“1. The enjoyment of any right set forth by law 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.
2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”
In addition, they complained under Article 14 of the Convention, which 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. General principles
23. It is appropriate to consider firstly the applicants’ complaint under Article 1 of Protocol No. 12 to the Convention. Notwithstanding the difference in scope between those provisions, the meaning of the term “discrimination” in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 of the Convention. The Court does not therefore see any reason to depart from the established interpretation of “discrimination” in applying the same term under Article 1 of Protocol No. 12 (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 55, ECHR 2009).
24. Discrimination means treating differently, without an objective and reasonable justification, persons in similar situations (see Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 81, ECHR 2013 (extracts); Sejdić and Finci, cited above, § 42; and Zornić v. Bosnia and Herzegovina, no. 3681/06, § 26, 15 July 2014). There will be a difference in treatment if it can be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment (see Konstantin Markin v. Russia [GC], no. 30078/06, § 125, ECHR 2012 (extracts)). An applicant must demonstrate that, having regard to the particular nature of his or her complaint, he or she was in a relevantly similar situation to others treated differently (see Clift v. the United Kingdom, no. 7205/07, § 66, 13 July 2010).
25. However, not every difference in treatment will amount to a violation of Article 14. Firstly, the Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010, and Eweida and Others v. the United Kingdom, nos. 48420/10 and 3 others, § 86, ECHR 2013 (extracts)). Secondly, a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Fabris v. France [GC], no. 16574/08, § 56, ECHR 2013 (extracts); Topčić‑Rosenberg v. Croatia, no. 19391/11, § 36, 14 November 2013; and Weller v. Hungary, no. 44399/05, § 27, 31 March 2009).
26. A wide margin is usually allowed to the State under the Convention when assessing whether and to what extent differences in otherwise similar situations justify different treatment when it comes to general measures of economic or social strategy for example. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (see Fábián v. Hungary [GC], no. 78117/13, §§ 114‑115, ECHR 2017 (extracts), and Panfile v. Romania (dec.), no. 13902/11, § 27, 20 March 2012).
2. Application of those principles to the present case
27. In the present case, the applicants complained that they had been treated differently from three other groups: (i) civil servants who would fulfil retirement conditions after the law had ceased to be applicable because of the improved economic situation; (ii) civil servants who could not be replaced; and (iii) those employed in the private sector.
28. As to the first group, the Court notes that the civil servants who would fulfil retirement conditions in the years to come had, at the material time, accumulated fewer years of service, and were not entitled to retire on a full pension as the applicants were. Therefore, those civil servants were not in an analogous situation when compared to the applicants.
29. As to the second group, this category of employees consisted of a limited number of people who could not be replaced in a short period of time. Each case was to be determined in special proceedings and was considered an exception (see paragraph 12 above). In principle, such extensions of employment were to be temporary (see paragraph 12 above). It therefore cannot be said that the employees belonging to that category were in a position comparable to that of the applicants.
30. As to the third group whose situation the applicants seem to compare to their own, namely those employed in the private sector, the Court has on numerous occasions accepted the distinction which some Contracting States draw, for pension purposes, between civil servants and private employees (see Matheis v. Germany (dec.), no. 73711/01, 1 February 2005; Ackermann and Fuhrmann v. Germany (dec.), no. 71477/01, 8 September 2005; Valkov and Others v. Bulgaria, nos. 2033/04 and 8 others, § 117, 25 October 2011; Panfile, decision cited above, § 28; and, more recently, Giavi v. Greece, no. 25816/09, § 52, 3 October 2013). The logic behind this approach is to be found in the structural differences between the two systems, which in turn justifies having different regulations (see Matheis, cited above, and, mutatis mutandis, Fábián, cited above, §§ 122-128). Hence, the Court accepts that the applicants were not in a situation similar to that of employees in the private sector.
31. Consequently, because the applicants have not shown that they were in an analogous situation to that of the other employees they referred to, they have not shown that there has been a difference in treatment. Without a difference in treatment, there can be no claim for discrimination. For this reason, their complaint under Article 1 of Protocol No. 12 is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention.
32. The applicants’ complaint based on Article 14 of the Convention remains to be considered. This provision has no independent application and can only be invoked in conjunction with a substantive provision of the Convention or its Protocols, the most obvious connection in the present case being with the right to property, guaranteed by Article 1 of Protocol No. 1. In any event, this failure to expressly invoke a substantive Article of the Convention is of no consequence in the present case. As the meaning of the term “discrimination” in these Articles is identical (see paragraph 23 above), if there is no difference in treatment for the purposes of Article 1 of Protocol No. 12, there can be no difference in treatment for the purposes of Article 14 of the Convention. For this reason, the complaint under Article 14 is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 3 May 2018.
Andrea TamiettiVincent A. De Gaetano
Deputy RegistrarPresident
Full & Egal Universal Law Academy