European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

 

CASE OF BIRAGHI AND OTHERS v. ITALY

 

(Applications nos. 3429/09, 3430/09, 3431/09, 3432/09, 3992/09, 4100/09, 11561/09, 15609/09, 15637/09, 15649/09, 15761/09, 15783/09, 17111/09, 17371/09, 17374/09, 17378/09, 20787/09, 20799/09, 20830/09, 29007/09, 41408/09, and 41422/09)

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

24 June 2014

 

 

 

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

 




In the case of Biraghi and Others v. Italy,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Işıl Karakaş, President,
          Guido Raimondi,
          András Sajó,
          Nebojša Vučinić,
          Egidijus Kūris,
          Robert Spano,
          Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 27 May 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in twenty-two applications (see Annex) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by twenty-two Italian nationals (“the applicants”), in 2009 (see Annex for details).

2.  The applicants were represented by Ms Elisabetta Fatuzzo, a lawyer practising in Bergamo, Italy. The Italian Government (“the Government”) were represented by their Agent, Ms E. Spatafora and their Co-Agent,
Ms Paola Accardo.

3.  The applicants alleged that legislative intervention, namely the enactment of Law no. 296/2006, whilst proceedings were pending, had denied them their right to a fair trial under Article 6 § 1 of the Convention.

4.  On 29 August 2012 the applications were communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  Background to the cases

5.  The circumstances of the case are analogous to those described in Maggio and Others v. Italy (nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, 31 May 2011).

6.  In 1995, by means of the Dini reform, Italy changed its pension system from a retributive one, which applied the remuneration-based (“retributivo”) method of calculation, to a contributory one, where the amount received in pension was dependent on the contributions paid.

7.  The applicants, who had transferred to Italy the contributions they had paid in Switzerland, 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 which according to the applicants amounted to approximately a quarter of the salary actually received by them and therefore led to a reduction in the pension itself.

8.  Consequently, in 2005/6 the applicants instituted judicial proceedings, contending that this was contrary to the spirit of the Italo-Swiss Convention.

Various individuals in the applicants’ position had done the same and had been successful, the domestic courts having determined that persons having worked in Switzerland and who had subsequently transferred their contributions to Italy should benefit from the 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.

9.  Pending their proceedings, Law no. 296/2006 (see Relevant Domestic Law and Practice below) entered into force on 1 January 2007.

1.  Mr Biraghi and Ms Marcazzo

10.  By a judgment of the Varese Tribunal (Labour and Welfare Section) of 23 September 2008 (no. 306/2008), these applicants’ claim was rejected in view of the entry into force of Law no. 296/2006.

2.  Mr Bassi, Mr Matraxia, Ms Di Rella, Mr Franzetti, and Mr Speroni

11.  By a judgment of the Varese Tribunal (Labour and Welfare Section) of 7 October 2008 (no. 329/2008), these applicants’ claim was rejected in view of the entry into force of Law no. 296/2006.

3.  Mr Trevisan, Mr Zuin and Ms Vallerini

12.  By a judgment of the Udine Tribunal (Labour and Welfare Section) of 7 October 2008, filed in the relevant registry on 8 October 2008
(no. 311/2008), these applicants’ claim was rejected in view of the entry into force of Law no. 296/2006.

4.  Mr Panzarino, Mr Delli Compagni and Mr Lischetti

13.  By a judgment of the Varese Tribunal (Labour and Welfare Section) of 26 November 2008, filed in the relevant registry on 9 December 2008 (no. 389/2008), these applicants’ claim was rejected in view of the entry into force of Law no. 296/2006.

5.  Ms Daina and Mr Gonano

14.  By a judgment of the Bergamo Tribunal (Labour and Welfare Section) of 17 September 2008 (no. 789/2008), these applicants’ claim was rejected in view of the entry into force of Law no. 296/2006.

6.  Mr Gagliardi, Mr Rossi and Mr De Nile

15.  By a judgment of the Como Tribunal (Labour and Welfare Section) of 15 June 2006, filed in the relevant registry on 30 June 2006,
Mr Gagliardi’s and Mr De Nile’s claims were rejected as being out of time, their proceedings having been lodged more than three years after the administrative decision regarding their pensions; Mr Rossi’s claim was rejected as the court did not share the ratio of the relevant Court of Cassation case-law at the time, and considered that the relevant legal provisions had been sufficiently clear.

16.  The applicants appealed.

17.  By a judgment of 11 December 2008, filed in the relevant registry on 13 January 2009 (no. 63/2009), the Milan Court of Appeal reformed the first-instance judgment, considering that Mr Gagliardi’s and Mr De Nile’s claims for the dues relating to the three years before they lodged their proceedings could not be considered time-barred. However, it rejected the merits of all three applicants’ claims in view of the entry into force of Law no. 296/2006.

7.  Mr Sottini and Mr Maestri

18.  By two judgments of the Brescia Tribunal (Labour and Welfare Section) of 22 September 2006, filed in the relevant registry on 2 October 2006 (nos. 672/2006 and 678/2006) these applicants’ claim was upheld on the basis of the relevant Court of Cassation case-law at the time.

19.  The INPS appealed.

20.  By a judgment of 18 December 2008, filed in the relevant registry on 11 March 2009 (no. 527/2008), the Brescia Court of Appeal reversed the first-instance judgments in view of the entry into force of Law 
no. 296/2006.

8.  Mr Palumbo and Mr Izzi

21.  By two judgments of the Campobasso Tribunal (Labour and Welfare Section) of 12 February 2009 (nos. 89/2009 and 90/2009), these applicants’ claim was rejected in view of the entry into force of Law no. 296/2006.

 

22.  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.

II. RELEVANT DOMESTIC LAW AND PRACTICE

23. The relevant domestic law and practice concerning the case is to be found in in Maggio and Others v. Italy (nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, §§ 27-35, 31 May 2011).

Constitutional Court judgment of 28 November 2012, no. 264

The matter came again before the Italian Constitutional Court following the European Court of Human Right’s judgment in Maggio and Others v. Italy (nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, 31 May 2011), which had found, in circumstances such as those of the present case, that by enacting Law no. 296/2006 the Italian State had infringed the applicants’ rights under Article 6 § 1 by intervening in a decisive manner to ensure that the outcome of proceedings to which it was a party were favourable to it. The Constitutional Court had therefore to examine the compatibility of Law no. 296/2006 with the relevant legal framework and it found that it was in fact compatible.

The Constitutional Court recalled that Presidential Decree no. 488 of 27 April 1968 introduced a new system of pension calculation, namely a remuneration-based one (metodo retributivo). A constant jurisprudence had been established holding that Italian persons, who had worked in Switzerland and then transferred their contribution into the Italian system, would also benefit from the remuneration-based calculation, irrespective of the fact that they had paid lower contributions than those payable in Italy. Subsequently, the legislator enacted Law no. 296/2006, the constitutionality of which was confirmed by the Constitutional Court in 2008, since the law had been an authentic interpretation of the original law and was therefore reasonable, and from then onwards jurisprudence shifted accordingly.

The Constitutional Court referred to the findings in Maggio, but considered that it was for it to assess the matter; the ECHR had acknowledged that it was possible to intervene in pending proceedings in so far as there existed compelling general interest reasons, and in the Constitutional Court’s view, it was the role of the Contracting States to identify those compelling general interest reasons and intervene legislatively to ensure they are resolved.

The jurisprudence of the Constitutional Court provided that when comparing the national and Convention protection mechanisms, it was the protection of the guarantees that must prevail, taking account, however, of other constitutionally protected interests. The principle of the margin of appreciation established by the Court itself was of particular relevance, and had to be taken into account by the Constitutional Court to ensure a uniform system of coherent laws.

While the Constitutional Court was in principle bound by the Maggio judgment (the principles on which it was based being also constitutionally recognised principles), the Constitutional Court had to lend itself to a balancing exercise. It considered that other opposing interests, which were also constitutionally protected and which related to the matter at issue, prevailed in the circumstances of the case. It followed that there existed compelling general interest reasons justifying a retroactive application of the law. Indeed, the effects of the new law were such as to avoid a welfare system which privileged some and was advantageous to others, guaranteeing the respect for the principles of equality and solidarity, which because of their founding nature, occupied a privileged position when weighed against other constitutional rights. The impugned law was inspired by the principles of equality and proportionality and took into account the fact that contributions paid in Switzerland were four times lower than those paid in Italy. It thus applied a direct recalculation which allowed pensions to be dispensed in proportion to the contributions paid, thus levelling out any inequalities and rendering the welfare system more sustainable for the benefit of all those making use of it. Indeed, even the ECHR had upheld such reasoning in the Maggio case in relation to the complaint under Article 1 of Protocol No., although it had not found such a reason to be sufficient to avoid a violation of Article 6. However, unlike the Court which is bound to examine complaints separately, the Constitutional Court had to take a global approach and evaluate a case on the basis of all the relevant constitutional guarantees. The claim of unconstitutionality was therefore unfounded. Indeed, to conclude otherwise would not only have consequences for the pension system but would also go against the spirit of the Court’s judgment in Maggio, which had rejected the applicant’s claims for their pension according to the previous calculation.

THE LAW

I.  JOINDER OF THE APPLICATIONS

24.  In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.

II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

25.   The applicants complained 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. The provision, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

26.  The Government contested that argument.

A.  Admissibility

27.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

28.  The applicants submitted that Law no. 296/2006 had the explicit aim of avoiding the disbursement of millions of euros in order to enforce a multitude of judgments resulting from the cases pending before the domestic courts. The outcome of those cases, namely that they would be favourable to the claimants, had been foreseeable given the constant jurisprudence. Indeed, the legislature had approved a law defined as interpretative (di interpretazione autentica), but which was in reality innovative, with the scope of influencing the relevant judicial determinations, thereby reversing the consolidated interpretation given to the laws at issue by the domestic courts. By so doing the State had acted contrary to the rule of law and in breach of the right to a fair trial, which provided that disputes over civil rights and obligations were to be determined by a tribunal and not the legislature

29.  The Government recapitulated the facts, highlighting that the
Italo-Swiss Convention had been ratified in 1963 and Law no. 1987 had been passed in 1982. That law had changed the pension calculation method from a contributory one to a remuneration-based one (metodo retributivo). It thus posed a serious problem of coherence in relation to the evaluation of periods worked in Switzerland, in so far as Swiss salaries were subject to a contribution of 8%, compared with 32% for Italian salaries. It followed that the pensions of Italian people who had worked in Switzerland were overvalued vis-à-vis both other Italian workers who had paid contributions only in Italy and also Swiss workers who had paid lower contributions but who also received smaller pensions. That is why the Government had enacted Law no. 296/2006, which provided that if contributions paid abroad were transferred to the Italian system in accordance with international agreements regarding social security, the remuneration of people having worked abroad, for the period during which they worked abroad, was to be determined by multiplying their paid-up contributions by one hundred and dividing that sum by the contribution rate applicable in Italy in the relevant period. More favourable pension entitlements already liquidated before the entry into force of the law were to be exempt.

30.  The Government considered that there had not been an unjustified interference with judicial decisions, nor any breach of legal certainty, because the interpretation of the law had in any event been controversial - a number of first-instance decisions having confirmed the INPS method of calculation - and because the law had no effect on cases which had already been concluded. The reason behind the enactment of the law, namely to ensure that the method of calculation used by the INPS (and confirmed by the minority case-law) became the prevalent interpretation of the relevant laws, was serious and reasonable because it provided for the same value to be given to periods of work whether they were served in Italy or abroad. It followed that the reasons had not been solely financial as they had been in Zielinski and Pradal and Gonzalez and Others v. France ([GC],
nos. 24846/94 and 34165/96 to 34173/96, ECHR 1999-VII), and Scordino
v. Italy (no. 1) ([GC], no. 36813/97, ECHR 2006-V).

31.  The Government considered that the case was comparable to that of OGIS-Institut Stanislas, OGEC Saint-Pie X and Blanche de Castille and Others v. France (nos. 42219/98 and 54563/00, 27 May 2004), where the Court had found no violation because the interference was aimed at ensuring respect for the original will of the legislator, and where the Court had also given weight to the aim of re-establishing equal treatment between teachers in private and public establishments. In the present case, too, the purpose of the legislature’s intervention in enacting Law no. 296/2006 had been to ensure respect for the original will of the legislator, and to coordinate the application of the Italo-Swiss Convention and the new method of calculation which had come into force in 1982 and created an imbalance in the relevant evaluations. It followed that the interference was justified for a compelling general interest reason.

2.  The Court’s assessment

32.  The Court has repeatedly ruled that although the legislature is not prevented from regulating, through new retrospective provisions, rights derived from the laws in force, the principle of the rule of law and the notion of a fair trial enshrined in Article 6 preclude, except for compelling public-interest reasons, interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute (see, among many other authorities, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 49, Series A no. 301-B; National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 112, Reports 1997-VII; and Zielinski and Pradal and Gonzalez and Others, cited above). Although statutory pension regulations are liable to change and a judicial decision cannot be relied on as a guarantee against such changes in the future (see Sukhobokov v. Russia, no. 75470/01, § 26, 13 April 2006), even if such changes are to the disadvantage of certain welfare recipients, the State cannot interfere with the process of adjudication in an arbitrary manner (see, mutatis mutandis, Bulgakova
v. Russia, no. 69524/01, § 42, 18 January 2007).

33.  In analogous circumstances, in the case of Maggio and Others, cited above, §§ 44-50, the Court, in finding a violation of Article 6, held as follows:

“the Law [296/2006] expressly excluded from its scope court decisions that had become final (pension treatments already liquidated) and settled once and for all the terms of the disputes before the ordinary courts retrospectively. Indeed, the enactment of Law 296/2006 while the proceedings were pending, in reality determined the substance of the disputes and the application of it by the various ordinary courts made it pointless for an entire group of individuals in the applicants’ positions to carry on with the litigation. Thus, the law had the effect of definitively modifying the outcome of the pending litigation, to which the State was a party, endorsing the State’s position to the applicants’ detriment.

... Respect for the rule of law and the notion of a fair trial require that any reasons adduced to justify such measures be treated with the greatest possible degree of circumspection (see, Stran Greek Refineries, cited above, § 49). ... The Court has previously held that financial considerations cannot by themselves warrant the legislature substituting itself for the courts in order to settle disputes (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 132, ECHR 2006-V, and Cabourdin v. France, no. 60796/00, § 37, 11 April 2006).

The Court notes that, after 1982, the INPS applied an interpretation of the law in force at the time which was most favourable to it as the disbursing authority. This system was not supported by the majority case-law. The Court cannot imagine in what way the aim of reinforcing a subjective and partial interpretation, favourable to a State’s entity as party to the proceedings, could amount to justification for legislative interference while those proceedings were pending, particularly when such an interpretation had been found to be fallacious on a majority of occasions by the domestic courts, including the Court of Cassation.

As to the Government’s argument that the Law had been necessary to re-establish an equilibrium in the pension system by removing any advantages enjoyed by individuals who had worked in Switzerland and paid lower contributions, while the Court accepts this to be a reason of general interest, the Court is not persuaded that it was compelling enough to overcome the dangers inherent in the use of retrospective legislation which had the effect of influencing the judicial determination of a pending dispute to which the State was a party.

In conclusion, the State infringed the applicants’ rights under Article 6 § 1 by intervening in a decisive manner to ensure that the outcome of proceedings to which it was a party was favourable to it.”

34.  In the present case, the Government submitted further arguments, highlighting in particular that the enactment of Law no. 296/2006 was intended to ensure respect for the original will of the legislator, and to coordinate the application of the Italo-Swiss Convention and the new method of calculation which had come into force in 1982 and created an imbalance in the relevant evaluations. They relied on the case of OGIS-Institut Stanislas, OGEC Saint-Pie X and Blanche de Castille and Others (cited above).

35.  The Court considers that the present case is different from that of National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society (cited above), where the applicant societies’ institution of proceedings was considered as an attempt to benefit from the vulnerability of the authorities resulting from technical defects in the law, and as an effort to frustrate the intention of Parliament (§§ 109 and 112). The instant case is also different from the case of OGIS-Institut Stanislas, OGEC Saint-Pie X and Blanche de Castille and Others cited by the Government, where the applicants also attempted to derive benefits as a result of a lacuna in the law, which the legislative interference was aimed at remedying. In those two cases the domestic courts had acknowledged the deficiencies in the law in issue and action by the State to remedy the situation had been predictable (§§ 112 and 72 respectively).

36.  In the present case there had been no major flaws in the legal framework of 1962, and, as acknowledged by the Government, the need for a legislative intervention only arose as a result of the State’s decision, in 1982, to reform the pension system. At that stage the State itself created a disparity which it tried to amend only twenty-four years later (and thirty-eight years after the enactment of the original legal provisions). Indeed, it does not appear that there had been any timely attempts at adjusting the system earlier, despite the fact that numerous pensioners who had worked in Switzerland were repeatedly winning their claims before the domestic courts. In this connection the Court notes that before the enactment of Law no. 296/2006 the domestic courts had repeatedly found in favour of people in the applicants’ position, and that interpretation of the relevant legal provisions (as confirmed by the Court of Cassation’s judgment of 6 March 2004) had become the majority case-law. It follows that, given also that in the decades during which the application of the calculation concerned had been challenged in the domestic courts there had been a majority interpretation in favour of the claimants (save some first-instance decisions), in the present case, unlike in the above-mentioned cases, a legislative interference (shifting the balance in favour of one of the parties) was not foreseeable.

37.  The Court further considers that, given the sequence of events, it cannot be said that the legislative intervention aimed at restoring the original intention of the legislator in 1962. Furthermore, even assuming that the law did aim at reintroducing the legislator’s original wishes following the changes in 1982, the Court has already accepted that the aim of re-establishing an equilibrium in the pension system, while in the general interest, was not compelling enough to overcome the dangers inherent in the use of retrospective legislation affecting a pending dispute. Indeed, even accepting that the State was attempting to adjust a situation it had not originally intended to create, it could have done so perfectly well without resorting to a retrospective application of the law. Furthermore, the fact that the State waited twenty-four years before making such an adjustment, despite the fact that numerous pensioners who had worked in Switzerland were repeatedly winning their claims before the domestic courts, also creates doubts as to whether that really was the legislator’s intention in 1982.

38.  In the light of the above, and reaffirming its considerations in the above-mentioned Maggio judgment, the Court finds that there has been a violation of Article 6 § 1 of the Convention.

III.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

39.  The applicants further complain that they did not have an effective domestic remedy, since the legislative intervention negated any legitimate expectations they might have held and made the institution of any legal proceedings vain, impinging on the impartiality of the relevant courts. They invoked Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

40.  The Government reiterated their observations under Article 6, noting that in Maggio (cited above), the Court had considered the complaint absorbed by the latter provision.

41.  The Court notes that in Maggio and Others (cited above, § 67), the Court held that having regard to the finding relating to Article 6 it was not necessary to examine whether there had also been a violation of Article 13.

42.  The Court further notes that as evidenced from that case and the present one, there is no doubt that the applicants were not required to continue pursuing their ordinary proceedings given that they had not any prospects of success once domestic courts were bound to apply the new law, which was eventually confirmed as being constitution compliant by the Constitutional Court judgment of 2008.

43. However, such a conclusion does not necessarily raise an issue under Article 13 of the Convention. Indeed, even assuming the provision is applicable according to the Court’s case-law, Article 13 does not go so far as to guarantee a remedy allowing a Contracting State’s laws as such to be challenged before a national authority (see, for example, Gustafsson v. Sweden, § 70, 25 April 1996, Reports of Judgments and Decisions 1996-II, § 70). Consequently, the applicants’ complaint falls foul of that principle in so far as they complained of the lack of a remedy after the promulgation of Law no. 296/2006 (see, mutatis mutandis, Draon v. France [GC], § 98, no. 1513/03, 6 October 2005 and Maurice v. France [GC], § 108, no. 11810/03, ECHR 2005-IX)).

44.  Thus, the complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

45.  Lastly, without invoking any article of the Convention the applicants further complained that Law no. 296/2006 created a disparity in treatment between persons who had chosen to work abroad, and those who remained in Italy; they further noted that the Constitutional Court judgment confirming the validity of Law no. 296/2006 created a disparity between persons whose proceedings had ended (successfully) and those whose proceedings were still pending.

46.   In Maggio and Others v. Italy, (dec.) (nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, 8 June 2010) the Court examined the complaint concerning discrimination against persons, as the applicants, who, unlike most Italians, have opted to leave Italy for work purposes. In that case, the Court considered that the applicants could not claim to be in a relevant, similar position to Italian residents who have worked in Italy. It noted that, in comparison to Italian workers, the applicants, as persons who chose to work in Switzerland, paid much lower contributions into their social security schemes. Moreover, unlike persons who migrated temporarily to Switzerland, Italian nationals were not subject to the relevant international conventions and subsequent Italian legislative norms. It followed that the applicants and Italian residents who remained working in Italy their entire lives could not be considered to be in a comparable situation for the purposes of Article 14.

47.  Subsequently, in the Maggio judgment the Court also examined the complaint under Article 14 alleging discrimination vis-à-vis persons whose proceedings had terminated. In that case the Court recalled that Law no. 296/2006 was intended to level out any favourable treatment arising from the previous interpretation of the provisions in force, which had guaranteed to persons in the applicants’ position an unjustified advantage, bearing in mind the needs of the social security system in Italy. The Court reiterated that in creating a scheme of benefits it is sometimes necessary to use cut-off points that apply to large groups of people and which may to a certain extent appear arbitrary (see Twizell v. the United Kingdom, no. 25379/02, § 24, 20 May 2008), an inevitable consequence of introducing new regulations to replace previous schemes. Bearing in mind the wide margin of appreciation afforded to States in the sphere of social policy, it considered that the impugned cut-off date arising out of Law no. 296/2006 could be deemed reasonably and objectively justified. The fact that the impugned cut-off date arose out of legislation enacted while proceedings were pending did not alter that conclusion for the purposes of the examination under Article 14, and there has therefore been no violation of the said provision (see Maggio and Others, cited above, §§ 71-75).

48.  For the same reasons, it follows that, the entirety of this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention

V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

49.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

50.  The applicants claimed the below sums in respect of pecuniary damage. The first sum represented the difference between the amount of pension payable to the applicants and what was actually liquidated to them by the INPS until 2012 taking into account inflation and, where applicable, the second sum represented the difference in pension awards due for future pensions up to the average life expectancy of 79.4 years:

371,825 + 78,602 Euros (EUR) Mr Biraghi

EUR 419,907 + 136,101 Mr Bassi

EUR 317,621 + 226,673 Mr Matraxia

EUR 528,355 + 246,493 Mr Trevisan

EUR 951,806 + 180,393 Mr Zuin

EUR 209,568 + 152,764 Ms Valerini

EUR 115,695 + 136,333 Ms Di Rella

EUR 596,665 + 130,482 Mr Franzetti

EUR 308,709 + 82,420 Mr Panzarino

EUR 463,996 + 233,423 Mr Delli Compagni

EUR 246,860 + 209,237 Ms Marcazzo`

EUR 240,469 + 218,092 Ms Daina

EUR 422,297 + 383,000 Mr Gonano

EUR 335,267 + 309,205 Mr Gagliardi

EUR 173,257 + 183,569 Mr Rossi

EUR 538,453 + 23,550 Mr De Nile

EUR 361,093 Mr Sottini

EUR 311,900 + 325,436 Mr Speroni

EUR 320,338 + 163,457 Mr Maestri

EUR 304,888 + 193,737 Mr Lischetti

EUR 426,879 + 182,247 Mr Palumbo

EUR 377,746 + 224,342 Mr Izzi

They further claimed EUR 25,000 each in pecuniary damage. They particularly noted that when they had opted to move back to Italy they had relied on a state of consolidated jurisprudence, but ended up having to get by with a much lower pension than that which they had relied upon and having to initiate judicial proceedings in that respect.

51.  The Government considered that the claims were unfounded given that in the Maggio case the Court had only found a violation of Article 6 § 1 and awarded a sum for loss opportunities, which in the Government’s view was to be limited to the period before the coming into force of the law.

52.  The Court notes that in the present case an award of just satisfaction can only be based on the fact that the applicants did not have the benefit of the guarantees of Article 6 in respect of the fairness of the proceedings. Whilst the Court cannot speculate as to the outcome of the proceedings had the position been otherwise, it does not find it unreasonable to regard the applicants as having suffered a loss of real opportunities (see Maggio and Others, cited above, § 80). However, given the many imponderables in evolving political and economic conditions that could affect future pension entitlements and calculations, an award based on future pensions would be largely hypothetical. The Court further notes that although the Government submitted that the payment should be limited to a specified time, they failed to explain why or to submit any calculations in that respect. Thus, bearing in mind the said considerations and the amount of the applicants’ pensions (see annex) as well as the years each applicant worked in Switzerland, the Court awards the following amounts:

 

EUR 18,500 Mr Biraghi

EUR 21,000 Mr Bassi

EUR 16,000 Mr Matraxia

EUR 26,500 Mr Trevisan

EUR 47,500 Mr Zuin

EUR 10,500 Ms Valerini

EUR 6,000 Ms Di Rella

EUR 30,000 Mr Franzetti

EUR 15,000 Mr Panzarino

EUR 23,000 Mr Delli Compagni

EUR 12,500 Ms Marcazzo`

EUR 12,000 Ms Daina

EUR 21,000 Mr Gonano

EUR 17,000 Mr Gagliardi

EUR 9,000 Mr Rossi

EUR 27,000 Mr De Nile

EUR 18,000 Mr Sottini

EUR 15,500 Mr Speroni

EUR 16,000 Mr Maestri

EUR 15,000 Mr Lischetti

EUR 21,000 Mr Palumbo

EUR 19,000 Mr Izzi

 

To that must be added non-pecuniary damage, which the finding of a violation in this judgment does not suffice to remedy. Making its assessment on an equitable basis as required by Article 41, the Court awards each applicant EUR 10,000 under this head.

B.  Costs and expenses

53.  The applicants also claimed a lump sum of EUR 10,000 each for the costs and expenses incurred before the domestic courts and before the Court.

54.  The Government made no comment.

55.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicants have not submitted any details concerning their costs nor have they substantiated any such disbursements. In those circumstances, the Court rejects the claim for costs and expenses under all heads.

C.  Default interest

56.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1.  Decides, unanimously, to join the applications;

 

2.  Declares, unanimously, the complaint concerning Article 6 § 1 admissible and the remainder of the applications inadmissible;

 

3.  Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention;

 

4.  Holds, by five votes to two

(a)  that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following:

(i)  EUR 18,500 (eighteen thousand five hundred euros) in respect of pecuniary damage, to Mr Biraghi,

EUR 21,000 (twenty-one thousand euros) in respect of pecuniary damage, to Mr Bassi,

EUR 16,000 (sixteen thousand euros) in respect of pecuniary damage, to Mr Matraxia,

EUR 26,500 (twenty-six thousand five hundred euros) in respect of pecuniary damage, to Mr Trevisan,

EUR 47,500 (forty-seven thousand five hundred euros) in respect of pecuniary damage, to Mr Zuin,

EUR 10,500 (ten thousand five hundred euros) in respect of pecuniary damage, to Ms Valerini,

EUR 6,000 (six thousand euros) in respect of pecuniary damage, to
Ms Di Rella,

EUR 30,000 (thirty thousand euros) in respect of pecuniary damage, to Mr Franzetti,

EUR 15,000 (fifteen thousand euros) in respect of pecuniary damage, to Mr Panzarino,

EUR 23,000 (twenty-three thousand euros) in respect of pecuniary damage, to Mr Delli Compagni,

EUR 12,500 (twelve thousand five hundred euros) in respect of pecuniary damage, to Ms Marcazzo`,

EUR 12,000 (twelve thousand euros) in respect of pecuniary damage, to Ms Daina,

EUR 21,000 (twenty-one thousand euros) in respect of pecuniary damage, to Mr Gonano,

EUR 17,000 (seventeen thousand euros) in respect of pecuniary damage, to Mr Gagliardi,

EUR 9,000 (nine thousand euros) in respect of pecuniary damage, to
Mr Rossi,

EUR 27,000 (twenty-seven thousand euros) in respect of pecuniary damage, to Mr De Nile,

EUR 18,000 (eighteen thousand euros) in respect of pecuniary damage, to Mr Sottini,

EUR 15,500 (fifteen thousand five hundred euros) in respect of pecuniary damage, to Mr Speroni,

EUR 16,000 (sixteen thousand euros) in respect of pecuniary damage, to Mr Maestri,

EUR 15,000 (fifteen thousand euros) in respect of pecuniary damage, to Mr Lischetti,

EUR 21,000 (twenty one thousand euros) in respect of pecuniary damage, to Mr Palumbo,

EUR 19,000 (nineteen thousand euros) in respect of pecuniary damage, to Mr Izzi;

(ii)  EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to each applicant;

 (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

5.  Dismisses, by five votes to two, the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 24 June 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith                                                                     Işıl Karakaş
       Registrar                                                                              President

 

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Sajó and Kūris is annexed to this judgment.

A.I.K.
S.H.N.

 




APPENDIX

No.	Application no.	Lodged on	Applicant’s name date of birth place of residence	Years worked in Switzerland	Yearly pension actually received in 2012 in EUR
1.	3429/09	30/12/2008	Giannino BIRAGHI 08/07/1936 Malnate	1969-1992	11,810
2.	3430/09	30/12/2008	Guido BASSI 05/02/1938 Cantello	1967-1997	13,178
3.	3431/09	30/12/2008	Filippo MATRAXIA 25/07/1942 Santa Caterina Villarmosa	1961-1998	10,643
4.	3432/09	30/12/2008	Armando TREVISAN 19/12/1939 Lestizza	1959-1996	16,781
5.	3992/09	08/01/2009	Mario ZUIN 29/03/1936 Rivignano	1955-1994	30,231
6.	4100/09	14/01/2009	Anna Maria VALLERINI 10/11/1938 Comeglians	1956-1993	6,656
7.	11561/09	21/02/2009	Nicoletta DI RELLA 01/09/1943 Arcisate	1961-1988	5,818
8.	15609/09	02/03/2009	Enrico FRANZETTI 07/08/1936 Orino	1966-1997	18,951
9.	15637/09	21/02/2009	Francesco PANZARINO 13/01/1937 Arcisate	1972-1998	10,224
10.	15649/09	02/03/2009	Francesco DELLI COMPAGNI 25/01/1940 Luino	1960-1999	15,176
11.	15761/09	12/03/2009	Martina Maria MARCAZZO’ 11/11/1942 Saltrio	1964-1997	8,854
12.	15783/09	12/03/2009	Liliana DAINA 25/01/1946 Berbenno	1964-1999	9,346
13.	17111/09	12/03/2009	Alvio GONANO 13/11/1943 Berbenno	1963-1999	16,413
14.	17371/09	24/03/2009	Felice GAGLIARDI 27/03/1947 Bulgarograsso	1974-2000	13,250
15.	17374/09	24/03/2009	Alfonso ROSSI 26/10/1946 Villa Guardia	1968-2000	7,866
16.	17378/09	24/03/2009	Domenico DE NILE 22/02/1934 Lurago	1960-1995	17,102
17.	20787/09	07/04/2009	Bruno SOTTINI 23/10/1941 Cologne	1966-1997	13,806
18.	20799/09	07/04/2009	Carlo SPERONI 28/12/1944 Vedano Olona	1985-2002	13,946
19.	20830/09	07/04/2009	Pietro MAESTRI 27/06/1940 Toscolano Maderno	1965-1995	10,174
20.	29007/09	20/05/2009	Piergiorgio LISCHETTI 28/02/1942 Besozzo	1966-1995	9,815
21.	41408/09	27/07/2009	Angelo PALUMBO 05/08/1939 Castelmauro	1958-1995	13,743
22.	41422/09	27/07/2009	Clemente IZZI 25/03/1941 Torrella Del Sannio	1959-1997	12,474




PARTLY DISSENTING OPINION OF JUDGES
SAJÓ AND KŪRIS

We agree with all points of the judgment, except for the application of Article 41 of the Convention.  We expressed our reasons in our opinion attached to the judgment in Cataldo and Others v Italy (nos. 54425/08, 58361/08, 58464/08, 60505/08, 60524/08 and 61827/08, 24 June 2014).