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THIRD
SECTION
DECISION
Application
no. 13902/11
Ionel PANFILE
against Romania
The European Court of Human Rights (Third Section), sitting on
20 March 2012 as a Chamber composed of:
Josep
Casadevall, President,
Egbert Myjer,
Ján
Šikuta,
Ineta Ziemele,
Luis López
Guerra,
Mihai Poalelungi,
Kristina Pardalos,
judges,
and Santiago Quesada,
Section Registrar,
Having regard to the above application lodged on 31 January 2011,
Having deliberated, decides as follows:
THE FACTS
- The applicant, Mr Ionel Panfile, is a Romanian national
who was born in 1957 and lives in Mihail Kogǎlniceanu, Constanţa
District.
A. The circumstances of the case
- The facts of the case, as submitted by the applicant,
may be summarised as follows.
- On
an unspecified date the applicant applied for early retirement, after
having worked for the Ministry of National Defence. His monthly
pension amounted to 2,880 Romanian lei. The legislation in force at
the time, namely Law no. 164/2001 on State military pensions, allowed
early retirees from the armed forces to apply for jobs in both the
public and private sector, the status of retiree and that of employee
being compatible.
On 4
June 2007 the applicant was appointed by the mayor of
Mihail Kogǎlniceanu, a small town in Constanţa
District, to work as a head of department within the Municipal Police
Service. His monthly salary amounted to 986 lei, to which an
additional allowance of 25% of his basic salary was paid on a monthly
basis.
- In
November 2010, following the entry into force of Law no. 329/2009
on rationalisation of public expenditure, which introduced certain
conditions for the concurrent receipt of a pension and of a
State-paid salary (see paragraph 9 below), the applicant was notified
by his employer that in view of the fact that his pension exceeded
the national average gross salary of 1,836 lei (see also paragraph 6
below), he was obliged to choose within 15 days between having his
pension suspended for the duration of his employment contract, or
having the employment contract terminated.
The
applicant refused to make such a choice, allegedly considering that
the legal provisions preventing him from receiving concomitantly a
pension and a salary were unconstitutional and in breach of European
legislation and of the human rights treaties.
Consequently,
on 9 December 2009 the mayor issued a decision confirming that from
10 December 2009 onwards the applicant’s appointment as head of
department was revoked, pursuant to section 20 of Law no. 329/2009.
- On
18 January 2010 the applicant contested the mayor’s decision
before the Constanţa District Court. He asked to be reinstated
in his previous post and to be paid the corresponding salaries,
retroactively, for the period since 10 December 2009. The applicant
mainly claimed that the provisions of Law no. 329/2009 were in breach
of the Romanian Constitution and of the European Convention of Human
Rights, as they infringed his right to work and to have his
possessions, namely monthly income, protected.
- The
Constanţa District Court dismissed the applicant’s action
on 25 May 2010. It noted that the applicant did receive
both a pension and a salary from a public institution, even though
his pension exceeded the level of the national average gross salary,
which was 1,836 lei for the year 2010. Therefore, it held that
section 17-22 of Law no 329/2009, which had already been declared
constitutional by the Constitutional Court, was relevant to his
situation and justified the termination of his employment in a public
institution.
Concerning
the alleged breach of the applicant’s right to work, the court
held that he was still entitled to receive a salary if he were
employed in the private sector; furthermore, the contested measure
was not discriminatory, since it applied equally to all persons that
were in the same situation as that described in the legal instrument.
- The
applicant lodged an appeal on points of law against this judgment,
invoking also a breach of his rights under Article 1 of Protocol No.
1 to the Convention, Article 14 of the Convention, Article 1 of
Protocol No. 12 to the Convention and Article 15 paragraph 1 of
the Charter of Fundamental Rights of the European Union.
- His
appeal was dismissed on 14 October 2010 by the Constanţa Court
of Appeal. The court reiterated that the provisions of the disputed
law had been declared constitutional by the Constitutional Court, its
decision being final and binding. In so far as the applicant’s
criticism of the law coincided with the arguments already assessed
and taken into consideration by the Constitutional Court in its
reasoning, the court was bound to follow the Constitutional Court’s
approach. It followed that the mayor’s decision to terminate
the applicant’s employment was lawful and in compliance with
the Constitution.
B. Relevant domestic law and practice
1. Law no. 329/2009
- Law
no 329/2009, concerning the reorganising of public authorities and
institutions, rationalisation of public expenditure, provision of
support for the business field and compliance with the agreements
signed with the European Commission and the International Monetary
Fund, came into force on 12 November 2009. Its chapter IV was
dedicated to “Measures regulating concurrent pension and salary
entitlements, aimed at reducing public expenditure”.
Section 17
1 – Anyone entitled to receive a pension, under
either the State pension scheme or another pension scheme, who is
also entitled to receive a salary pursuant to an employment contract
or act of appointment within a public institution, whether national
or local ..., shall be allowed to combine the pension with the salary
if the pension received is lower than the national average gross
salary, as validated by the Budget Act.
2 – The provisions of paragraph 1 shall be
applicable to persons who:
(a) at the time of the entry into force of
this chapter, are retired and enjoy concurrent pension and salary
entitlements (pensionari cumularzi);
(b) after the entry into force of this
chapter, begin to enjoy concurrent pension and salary entitlements.
Section 18
1 – Persons who are retired and fall under the
provisions of section 17(2) (b) and who practise a profession
pursuant to an employment contract or an act of appointment shall
have an obligation, within 15 days following the entry into force of
this chapter, to express in writing their choice between having the
payment of their pension suspended while they practise that
profession or having their employment/appointment terminated, in the
event that the amount of their net pension exceeds the national
average gross salary, as validated by the Budget Act ...
Section 20
Refusal to comply with the obligation to express a
choice within the deadline set out in section 18 ... shall constitute
justification for the termination of employment, whether it was based
on a contract or on an act of appointment.
Section 21
If the choice is expressed within the time-limit set out
in section 18 ..., the payment of the pension shall be suspended from
the following month onwards.
Section 22
Any payments received unduly shall be recovered from the
retiree, in compliance with the general rules on the statute of
limitations/negative prescription.
2. Constitutionality issues before the Constitutional
Court
- The above-mentioned provisions of Law no. 329/2009
have been subjected to the scrutiny of the Constitutional Court, both
before its promulgation (pre-legislative review) and after its
entry into force (post legislative review), as follows.
- On 23 September 2009 more than one hundred Romanian
MPs seised the Constitutional Court of a request for pre-legislative
review of constitutionality concerning sections 17-22 of Law no.
329/2009. The Constitutional Court gave its decision on 4
November 2009, finding that the impugned legal texts were in
compliance with the Romanian Constitution.
While
stating from the outset that the provisions of the impugned law could
not apply to persons whose mandates were provided for by the
Constitution (for example, high-ranking officials), the court mainly
stated, on the issue of concurrent pension and salary entitlements,
that no constitutional provision prevented the legislature from
prohibiting the concurrent receipt of both pension and salary,
provided that such a measure was applied in an equal manner for all
citizens, and that any potential differences in treatment were proved
to have a legitimate aim. At the same time, the context in which the
impugned measure was taken was an exceptional one, having regard to
the global crisis on a financial and economic level.
The
Constitutional Court further stated that the legislation allowed, as
a rule, the concurrent receipt of pension and salary, if the pension
was lower than a certain level; the level taken into account was
expressly prescribed by law, and was thus predictable and
determinable, while at the same time reasonable. The exception to the
rule of combining both incomes was justified by the exceptional
economic circumstances and applied only to those who were employed or
appointed in the public sector, for the purpose of rationalising
public expenditure, while also securing a certain level of income –
estimated as reasonable – for everyone. In so far as the
measure applied equally to all those concerned by the legal
instrument, it could not be regarded as discriminatory.
In
conclusion, the court held that the legislature had full
discretionary power to institute such measures as imposing a certain
level of secured income, in so far as they were reasonable,
proportionate and justified by a public interest.
- Subsequently,
the Constitutional Court was seised of several other complaints
regarding the alleged unconstitutionality of sections 17-22 of Law
no. 229/2009. In its decisions of 1 and 22 March 2011, 7 and 12 April
2011, 17 May 2011 and 12 July 2011, the Constitutional Court upheld
its previous reasoning and confirmed that the law was in compliance
with the Constitution. At the same time, the court reiterated that
the measure could not be regarded as discriminatory, in so far as the
employees in the public sector were not in a similar situation to
those working for private employers, essentially owing to the fact
that their incomes were dependent on the State budget.
COMPLAINTS
- The applicant complained under Articles 6 and 14 of
the Convention, Article 1 of Protocol No. 1 to the Convention and
Article 1 of Protocol No. 12 to the Convention about the
obligation imposed on him from 9 December 2009 onwards to choose
between having his pension suspended while he worked for a State-run
institution or having his employment terminated. He alleged that by
applying section 17-22 of Law no. 329/2009, the courts had
deprived him of his right to receive concomitantly a pension and a
salary, even though this was an “acquired
right”; at the same time, the application of the
above-mentioned texts led to an indirect discrimination, having
regard to the fact that those who had a pension that was lower than
the level of the national average gross salary, or those whose
pension was higher than that level but were employed in the private
sector, could still concurrently receive a pension and a salary.
The impugned legal instruments, as applied in his case, also breached
the principle of legal certainty as the domestic legislation was not
sufficiently foreseeable and accessible. The applicant contended that
the legislation in force at the time of his early retirement allowed
him to be employed or appointed in the public sector, which
represented a strong motivation for his decision to retire early; for
this reason, any amendment of the legislation could not affect his
situation without breaching the legal certainty principle, bearing in
mind also that his right to receive a pension and a salary was an
acquired right which could not be subject to reassessment.
THE LAW
A. Article 1 of Protocol No. 1 to the Convention
- The applicant complained that the application of the
new legislative measures prescribed in Law no. 329/2009 deprived him
of his income, which had been made up of a pension and a salary. Such
deprivation, he alleged, was in breach of Article 1 of Protocol No. 1
to the Convention, which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
1. General principles
- At the outset, the Court reiterates that the
principles which apply generally in cases under Article 1 of Protocol
No. 1 are equally relevant when it comes to pensions (see Stummer
v. Austria [GC], no. 37452/02, § 82, 7 July 2011) or to
salaries (see, among many others, Mihǎieş v. Romania
and Senteş v. Romania (dec.), no. 44232/11; 44605/11,
6 December 2011). Among these, especially relevant for the
present case is the fact that this provision does not guarantee, as
such, any right to a pension of a particular amount (see Maggio
and Others v. Italy, nos. 46286/09, 52851/08, 53727/08,
54486/08 and 56001/08, § 55, 31 May 2011), nor the right to
continue to be paid a salary of a particular amount (see Vilho
Eskelinen and Others v. Finland [GC], no. 63235/00, § 94,
ECHR 2007 II), it being entirely at the State’s discretion
to determine what benefits are to be paid to its employees out of the
State’s budget (see Kechko v. Ukraine, no. 63134/00, §
23, 8 November 2005).
At the same time, however, where the amount of a benefit is reduced
or discontinued, it may constitute interference with possessions
which needs to be justified (see Rasmussen v. Poland, no.
38886/05, § 71, 28 April 2009).
- An essential condition for interference to be deemed
compatible with Article 1 of Protocol No. 1 is that it should be
lawful. Any interference by a public authority with the peaceful
enjoyment of possessions can only be justified if it serves a
legitimate public (or general) interest. Because of their direct
knowledge of their society and its needs, the national authorities
are in principle better placed than the international judge to decide
what is “in the public interest”. Under the system of
protection established by the Convention, it is thus for the national
authorities to make the initial assessment as to the existence of a
problem of public concern warranting measures interfering with the
peaceful enjoyment of possessions
(see Terazzi S.r.l. v. Italy, no. 27265/95, § 85,
17 October 2002, and Wieczorek v. Poland, no. 18176/05, §
59, 8 December 2009). Furthermore, the Court considers that States
enjoy quite a wide margin of appreciation in regulating their social
policy (see Janković v. Croatia (dec.), no. 43440/98,
ECHR 2000-X and Kuna v. Germany (dec.), no. 52449/99, ECHR
2001-V (extracts))
Article
1 of Protocol No. 1 also requires that any interference be reasonably
proportionate to the aim sought to be realised (see Jahn and
Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, §§
81-94, ECHR 2005-VI). The requisite fair balance will not be struck
where the person concerned bears an individual and excessive burden
(see Maggio and Others v. Italy, cited above, § 57).
2. Application of the principles to the present case
- The Court notes that the applicant’s complaint
refers mainly to his inability to receive concurrently a military
pension and a State-paid salary, following the entry into force of
Law no. 329/2009, which introduced new rules concerning the
circumstances permitting such a combination. The applicant thus
considered that such limitations impaired his right to work and to be
paid accordingly, in spite of the fact that when he had applied for
early retirement he had envisaged continuing in gainful employment in
accordance with the law in force at the time.
- In this context, the Court reiterates that the
Convention does not guarantee a right to work (see Sobczyk v.
Poland, nos. 25693/94 and 27387/95, (dec.), 10 February 2000;
Dragan Cakalic v Croatia, (dec.), 15 September 2003; and
Torri and Others v. Italy and Bucciarelli v. Italy (dec.),
nos. 11838/07 and 12302/07, 24 January 2012). Nor does it guarantee,
as already mentioned above, the right to a pension or a salary of a
particular amount.
- The Court further considers that the limitations
introduced by the impugned legislation are not to be regarded as a
“deprivation of possessions”, as alleged by the
applicant, but rather as an interference with his right to the
peaceful enjoyment of his possessions, within the meaning of the
first sentence of the first paragraph of Article 1 of Protocol No. 1
to the Convention.
- From that viewpoint, the Court notes that the impugned
interference was prescribed by law, namely by the newly introduced
provisions of Law no. 329/2009 regarding certain measures to be
taken by the State in the context of the economic and financial
crisis.
- In its assessment of the public interest of the
impugned measures, the Court takes account of the Constitutional
Court’s reasoning, which confirmed that the Romanian
legislature had imposed new rules in the field of public-sector
salaries for the purpose of rationalising public expenditure, as
dictated by the exceptional context of a global crisis on a financial
and economic level (see paragraph 11 above). Having also regard to
the fact that this is a matter that falls to be decided by the
national authorities, who have direct democratic legitimation and are
better placed than an international court to evaluate local needs and
conditions, the Court sees no reason to depart from the
Constitutional Court’s finding that the contested measures
pursued a legitimate aim in the public interest (see, mutatis
mutandis, Valkov and Others v. Bulgaria, nos.
2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04,
171/05 and 2041/05, § 92, 25 October 2011).
- It remains therefore to be established whether a “fair
balance” between the demands of the general interest of the
community and the requirements of the protection of the individual’s
fundamental rights was struck, knowing that the requisite balance
will not be found if the person concerned had to bear an individual
and excessive burden (see, among many others, Lakićević
and Others v. Montenegro and Serbia, nos. 27458/06,
37205/06, 37207/06 and 33604/07, § 62, 13 December 2011).
- In that connection, particular emphasis needs to be
placed on the fact that the applicant was obliged to choose between
continuing to receive his monthly military pension and terminating
his employment, or having the pension payment suspended while
continuing to work for the State. The Court thus notes that, unlike
the situation in the case of Kjartan Ásmundsson (cited
above, §39), the applicant did not suffer a total deprivation of
his entitlements, nor was he divested of all means of subsistence,
considering that he would still receive a full monthly pension, whose
level was higher than the level of the national gross average salary
(see also paragraph 6 above). From the same viewpoint, the
applicant cannot be regarded as having lost substantial amounts of
his income, since his pension, which he will continue to receive, is
substantially higher than the monthly salary he would have received.
- Against this background and also bearing in mind the
State’s wide margin of appreciation in regulating the area of
social legislation (see also Frimu v. Romania (dec.), no.
45312/11, 7 February 2012) and the legitimate aim of rationalising
public expenditure (see paragraph 21 above), the Court considers that
the applicant can hardly be regarded as having to bear an individual
and excessive burden, or as having suffered an impairment of the
essence of his pension or salary rights.
- It follows that this complaint is manifestly
ill-founded within the meaning of Article 35 § 3 and must be
rejected in accordance with Article 35 § 4.
B. Article 14 of the Convention
- The applicant complained that the impugned legal
instruments instituted discrimination between different categories of
people, some being allowed to continue to receive concurrently a
salary and a pension, and others being prevented from doing so. More
specifically, he could not continue to receive both a salary and a
pension, on the ground that he was employed in the public sector,
compared to those employed in the private sector, on the one hand,
and on the ground that he had a pension higher than the gross
national average salary, compared to those who had a pension lower
than that level, on the other hand.
Article 14 of the Convention 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.”
- The Court reiterates that discrimination means
treating differently, without an objective and reasonable
justification, persons in relevantly similar situations (see Willis
v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV).
However, not every difference in treatment will amount to a violation
of Article 14. It must be established that other persons in an
analogous or relevantly similar situation enjoy preferential
treatment and that this distinction is discriminatory (see Unal
Tekeli v. Turkey, no. 29865/96, § 49, 16 November
2004).
Moreover, Article 14 does not prohibit a member State from treating
groups differently in order to correct “factual inequalities”
between them, the Contracting State enjoying a margin of appreciation
in assessing whether and to what extent differences in otherwise
similar situations justify different treatment. A wide margin is
usually allowed to the State under the Convention in respect of
general measures of economic or social strategy (see Stec and
Others v. the United Kingdom [GC], no. 65731/01, §§
51-52, ECHR 2006-VI).
- Turning to the present case, the Court considers that
the criticised legal instrument did institute a difference in
treatment between retired persons who were still active in the
private sector and those who worked in the public sector, like the
applicant; however, the two categories of persons can hardly be
regarded as being in an analogous or relevantly similar situation
within the meaning of Article 14, since the essential distinction,
relevant to the context in which the impugned measures were taken, is
that they draw their incomes from different sources, namely a private
budget and the State budget respectively. It should also be noted in
that connection that the Court has on a number of occasions
countenanced the distinctions that some Contracting States draw, for
pension purposes, between civil servants and private employees (see
Valkov and Others, cited above, § 117, and the citations
therein).
Concerning the difference in treatment based on the personal monthly
income level, the Court considers, in line also with the Romanian
Constitutional Court’s decision, that the level referred to was
foreseeable and reasonable (see paragraph 11 above), and was
established in relation to objective factors by the legislature,
which acted within its discretionary power in the field of budgetary
decisions, without transgressing the principle of proportionality
(see, mutatis mutandis, Valkov and Others, cited above,
§ 114).
- The Court thus holds that these complaints are
manifestly ill founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
C. Other alleged complaints
- The applicant also raised further complaints under
Article 6 of the Convention and Article 1 of Protocol No. 12 to the
Convention (see paragraph 13 above).
- The Court, having examined the remainder of the
applicant’s complaints, considers that, in the light of all the
material in its possession and in so far as the matters complained of
are within its competence, they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or
Protocols thereto.
It follows that this part of the application must be rejected as
being manifestly ill-founded, pursuant to Article 35 §§ 3
(a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago
Quesada Josep Casadevall
Registrar President
