Overview of Recent Cases before the European Court of Human Rights and the European Court of Justice (January – March 2012)
| Author | Mel Cousins |
| DOI | 10.1177/138826271201400204 |
| Published date | 01 June 2012 |
| Date | 01 June 2012 |
| Subject Matter | Recent News and Case Law |
THE EUROPEAN COURT OF HUMAN
RIGHTS AND THE EUROPEAN COURT
OF JUSTICE (JANUARY – MARCH 2012)
Mel Cousins*
Note from the Editors
Th
is issue of the journal carries the last of Mel Cousins’ reviews of recent cases before
the European Court of Human Rights and the European Court of Justice and recent
EU policy initiatives. Mel took on this role for Issue 11(3) and has produced a total
of 11 really well-written and informative reviews for us. He now feels that the time
has come to pass on the baton and move on to pastures new and we have reluctantly
agreed to let him go. However, we do not want to do this without thanking him for
his long stint as case reviewer. As we say goodbye to Mel, so we welcome Anne Pieter
van der Mei, from the University of Maastricht, whose fi rst contribution will appear
in the next issue.
Careful readers of Mel’s last piece will have noticed that the name of a recent case
(Lakićević) which was referred to in the text and in footnote 12 on page 44 was mis-
spelled. Th
e editors and the publisher would like to apologise to Mel and to readers.
Michael Adler
Frans Pennings
Sara Stendahl
Unusually, there were only a small number of signifi cant rulings by either the Court of
Justice or the Court of Human Rights in the period January–March 2012. In Markin v
Russia the Court of Human Rights showed its positive side, ruling that the exclusion
of servicemen from entitlement to parental leave, while servicewomen are entitled
to such leave, was in violation of Article 14 taken in conjunction with Article 8.1
*
School of Law and Social Science, Glasgow Caledonian University; e-mail: mcousi11@caledonian.
ac.uk.
1
Markin v Russia, 30078/06, 22 March 2012.
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Intersentia
Recent News and Case Law
However, the other important case considered by the Court – B. v United Kingdom –
unfortunately makes no contribution whatsoever to the protection of human rights.2
Th
e Court of Human Rights also continued its advocacy of palm tree justice3 in cases
concerning social security as a property right.
Th
e only social security case to be considered by the Court of Justice was Salemink,
in which the Court held that Regulation 1408/71 precluded national law from treating
an employee, working on a fi xed installation on the continental shelf adjacent to a
Member State (though outside territorial waters), as not being compulsorily insured
under national statutory employee insurance in that Member State solely on the
ground that he was not resident there, but in another Member State.4
Meanwhile, the proposed Directive on equal treatment outside employment
remains smothered in the loving embraces of the Working Party on Social Questions
and the Social Aff airs Council.
1.
PROPERTY RIGHTS UNDER THE PALM TREES
In the last issue of this Journal, we discussed a number of cases in which the Fourth
Section of the Court of Human Rights appeared to be taking a more stringent approach
to the protection of property rights in the social security fi eld (albeit one based on
principles which were diffi
cult to elucidate, assuming they exist).5 In the Arras and
Torri rulings, the Second Section adopted a more traditional approach to this issue.6
Torri v Italy
In the Torri case the applicants were public servants (employed by an agency called
AGENSUD) who had contributed to pensions administered by the INPS (Istituto
Nazionale della Previdenza Sociale). In 1992, AGENSUD was dissolved and they were
eventually re-employed in the civil service on lower salaries and became insured
with a diff erent body: INPDAP (Istituto Nazionale di Previdenza per I Dipendenti
2
36571/06, 14 February 2011. See also Raviv v Austria, 26266/05, 13 March 2012, in which the
Court narrowly rejected a challenge under Article 14 to the provisions of very specifi c Austrian
legislation creating additional possibilities of obtaining pension entitlements for persons who
had been prevented from accumulating insurance periods by their arrest, punishment, detention,
unemployment, denaturalisation or emigration, as a result of National Socialist persecution.
3
A pragmatic approach to justice that is entirely discretionary and transcends legal rights or
precedent, enabling the court to make such order as it thinks fair and just in the circumstances of
the case.
4
Case C-347/10, Salemink [2012] ECR I-000. Th
is is an interesting decision, but more from the point
of view of labour law and the international law of the sea.
5
Lakićević v Montenegro and Serbia, 27458/06, 37205/06, 37207/06 and 33604/07, 13 December
2011 and, to a lesser extent, Valkov v Bulgaria, 2033/04, 19125/04, 19475/04, 19490/04, 19495/04,
19497/04, 24729/04, 171/05 and 2041/05, 25 October 2011.
6
Arras v Italy, 17972/07, 14 February 2012; Torri v Italy, 11838/07 and 12302/07, 24 January 2012.
European Journal of Social Security, Volume 14 (2012), No. 2
133
Recent News and Case Law
dell’Amministrazione Pubblica). It eventually emerged that the applicants lost out as a
result of this move in that any future pensions would be lower, and secondly, that a part
of the contributions already paid did not add anything to their pension entitlement.7
Th
e applicants complained that they had suff ered a violation of their property
rights under P1–1, both because they had been forced to take up lower salaries, and
because, as a consequence of legislative interference (contrary to Article 6 of the
Convention) with contributory benefi ts already acquired by them, they had lost a
substantial amount of contributions that they had paid. Th
ey further invoked Article
14, in conjunction with P1–1, claiming that they suff ered discriminatory treatment
vis-à-vis: (i) AGENSUD employees who had their contributions from INPDAP
returned voluntarily received back their contributions from the INPDAP voluntarily;
(ii) AGENSUD employees who maintained their previous welfare status; and (iii)
other employees in general who allegedly received more favourable treatment.
Th
e Court quickly dismissed the argument that the applicants had been forced
to take up lower salaries (and the implications thereof for their pensions), pointing
out that ‘the applicants were not forced to take up a new job, but they willingly
chose to take up the off er made by the State…’8 In addition, they ‘were fully aware
of the legal signifi cance of the employment contract they were signing up for and in
particular the repercussions it would have had on their pensions.’ As to the ‘loss’ of
paid up pension contributions, the Court noted that the legislative change predated
legal proceedings, and that there had not been any legislative interference in the form
of an enactment of laws in the period 2000–2006 during which the applicants were
pursuing proceedings. It followed that their complaint of legislative interference was
misconceived. Th
e applicants also complained of inconsistent national jurisprudence
but the Court explained that, unlike a case involving divergent approaches by the
national supreme court which could create jurisprudential uncertainty depriving the
applicants of the benefi ts arising from the law,9 the present case involved a reversal of
previous court decisions by the supreme administrative court (Consiglio di Stato).10
Th
e Court reiterated that it is primarily for the domestic courts to interpret and apply
domestic legislation. Even a ‘reversal of jurisprudence’ fell within the discretionary
powers of domestic courts, ‘notably in countries having a system of written law (as in
Italy) that are not bound by precedent.’11
Th
e Court went on to consider the complaint relating to the fact that the change
of jurisprudence constituted a disproportionate interference with the applicants’
7
Th
e facts and national law as set out by the Court (at paras. 3–22) appear very convoluted, and
are only summarised here insofar as is necessary to understand the proceedings. Despite the
complexity, the Court noted that ‘no appropriate numerical details’ had been furnished as to the
alleged loss.
8
At para. 37.
9
Citing Beian v. Romania (No. 1), 30658/05, ECHR 2007-XIII.
10
In fact, the Court’s presentation of the facts indicates that the Consiglio di Stato changed its view on
the interpretation of the legislation over time (para. 18).
11
At para. 42.
134
Intersentia
Recent News and Case Law
possessions. It considered that the contributions that the applicants had paid could not,
in themselves, now be regarded as their possessions. However, the rights stemming
from the payment of those contributions to social insurance systems were pecuniary
rights for the purposes of P1–1. Indeed, the Court has previously recognised that the
making of contributions to a pension fund may, in certain circumstances, create a
property right and such a right may be aff ected by the manner in which the fund is
distributed.12 However, even assuming that the applicants had a property right in the
present case, the interference was in itself a lawful one, as the Court had already found
that the decision in the applicants’ case was not arbitrary (i.e. on the...
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