CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 juin 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 13144/87                       by H. KOSTER-VAN MASTRIGT                       against the Netherlands             The European Commission of Human Rights sitting in private on 6 June 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 17 April 1987 by H. KOSTER-VAN MASTRIGT against the Netherlands and registered on 14 August 1987 under file No. 13144/87;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the parties, may be summarised as follows.           The applicant is a Dutch citizen, born in 1917, and resides in The Hague, the Netherlands.   Before the Commission she is represented by Mr.   B.F. Portier, a retired civil servant living in Baarn.           Upon her husband's death, the applicant received, as from 29 April 1975, a cumulated widow's pension, governed by public law, at the expense of:   a.       the Indonesian Pensions Administration Agency         (Stichting Administratie Indonesische Pensioenen)         on the basis of the period the applicant's husband served         in the Dutch East Indies civil service and his voluntary         "preservation" insurance policy (behoudsverzekering), based         on rank;   b.       the General Civil Service Pension Fund (Algemeen Burgerlijk         Pensioenfonds) on the basis of the period the         applicant's husband worked as a civil servant in the         Netherlands, based on the length of service and the last         salary;   c.       the Social Insurance Bank (Sociale Verzekeringsbank)         on the basis of the General Widows and Orphans         Benefits Act (Algemene Weduwen en Wezenwet) and the         General Old Age Pensions Act (Algemene Ouderdomswet).           According to Article 44 of the General Civil Service Pension Act (Algemene Burgerlijke Pensioenwet), as amended on 1 July 1974, the applicant did not receive a full pension.   It was reduced to account for her pension paid by the Foundation Administration Indonesian Pensions.   However, under Article H12 of the General Civil Service Pension Act, she received a supplementary allowance to bring the cumulative amount of her pensions up to the level of a single General Civil Service Pension Fund pension.           From both pensions listed under a) and b) a percentage is deducted to account for the general state pension which the applicant receives from the Social Insurance Bank (till the age of 65, when this widow's state pension has been replaced by the general old age state pension).   The deducted percentages are not the same as they are calculated on a different basis by the respective Pension Funds.           In a case of another widow in a position similar to that of the applicant, the Central Appeals Board (Centrale Raad van Beroep) declared on 7 April 1983 the supplementary allowance insufficient because of this difference in the deducted percentages.   This widow received a new adjusted allowance with retroactive effect from the day she was entitled to her pension.   Furthermore, the General Civil Service Pension Fund changed its policy accordingly and the applicant's supplementary allowance was increased as from 7 April 1983, the day of the decision of the Central Appeals Board, by way of a decision dated 13 December 1983 by the Board of the General Civil Service Pension Fund.         On 21 December 1983 the applicant lodged a complaint with the Supervisory Board (Raad van Toezicht) of the General Civil Service Pension Fund in order to obtain full compensation from the day she had become entitled to an allowance and not from 7 April 1983.   On 11 May 1984 her complaint was rejected.   On appeal, on 17 October 1984, the Civil Servants Court (Ambtenarengerecht) upheld the decision of the Supervisory Board.   The applicant's appeal to the Central Appeals Board was rejected on 20 November 1986.   The Central Appeals Board held, inter alia, that the decision of the General Civil Service Pension Fund was taken in accordance with the applicable provisions of the General Civil Service Pension Act.   Furthermore, it held that it was not unreasonable for the General Civil Service Pension Fund to restrict the retroactivity of the adjusted supplementary allowance for administrative reasons and in the interest of legal certainty.     COMPLAINT           The applicant complains that the decision by the General Civil Service Pension Fund to refuse to pay her the adjusted supplementary allowance from the day of her pension entitlement constitutes a discriminatory difference in treatment, as another widow in a similar position did obtain the adjusted supplementary allowance from the day of her pension entitlement.   She invokes Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 and Article 6 para. 1 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 17 April 1987 and registered on 14 August 1987.           On 7 May 1990 the Commission decided to communicate the complaint concerning discrimination to the respondent Government, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure (old version) and to invite them to submit written observations on the admissibility and merits of the application.           The observations of the Government were submitted on 20 September 1990 and the applicant's reply on 18 December 1990.     THE LAW           The applicant has complained that the refusal by the General Civil Service Pension Fund to grant her a full supplementary allowance from the date of her pension entitlement constituted a discriminatory difference in treatment, as another widow in a similar position did, as a result of proceedings she initiated, obtain the adjusted supplementary allowance from the day of her pension entitlement.   The applicant is of the opinion that to refuse her the same is contrary to Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1) to the Convention, which provides that:   "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."           The applicant also complains of a violation of Article 14 read in conjunction with Article 6 para. 1 (Art. 14+6-1) of the Convention, which, insofar as relevant, provides that:   1.    In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law..."           Article 14 (Art. 14) of the Convention reads:   "The enjoyment of the rights and freedoms set forth in this 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 Government submit that, in order for Article 1 of Protocol No. 1 (P1-1) to apply, a close relation between the contributions paid and the entitlement to pension is required.   The Government state that in the present case no relationship between the contributions originally paid in the Dutch East Indies and under the General Civil Service Pension Fund scheme and the amount of pension payable can be established.           The applicant submits that the right to a pension is a property right as under particular circumstances one can buy in additional time for one's pension.   The applicant states furthermore that a direct relationship between contribution and proposed pension already exists when it is established that the contribution has been paid for the sole purpose of that pension, and that in the present case, the requested adjustment is related to the paid contributions.           The Commission recalls that the payment of contributions to a pension fund may in certain circumstances create a property right in a portion of such a fund and a modification of the pension rights under such a system could therefore in principle raise an issue under Article 1 of Protocol No. 1 (P1-1) [No. 10671/83, Dec. 4.3.85, D.R. 42 p. 229] and that pension entitlements can under certain circumstances be regarded as a civil right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention [No. 9630/81, Dec. 13.10.86, D.R. 49 p. 59].           The Commission does however not need to resolve the question whether Article 6 para. 1 and/or Article 1 of Protocol No. 1 (Art. 6-1, P1-1) is applicable to the present case, as the applicant only complains that the decision by the General Civil Service Pension Fund to increase her pension retroactively from 7 April 1983 instead of from the day of the applicant's pension entitlement constitutes a discriminatory difference in treatment.           Even assuming that the present application falls within the ambit of Article 6 para. 1 and/or Article 1 of Protocol No. 1 (Art. 6-1, P1-1) there would be no violation of Article 14 (Art. 14) of the Convention in conjunction with the said provisions on the following ground.           The Commission notes that the reason for the applicant's request for an increase of her pension and the subsequent new decision on the pension amount by the General Civil Service Pension Fund was the fact that on 7 April 1983 the Central Appeals Board declared, in a similar case, that the initially awarded supplementary allowance was insufficient.   The widow in this similar case was awarded a retroactive increase from the day she became entitled to a pension.           The Commission notes furthermore that a decision by the General Civil Service Pension Fund to award a pension is a decision governed by administrative law and that these decisions obtain the force of res judicata upon expiration of the period for appeal.           The General Civil Service Pension Fund was therefore under no legal obligation to reconsider their initial decision on the pension amount awarded to the applicant.           The Commission notes that the board of the General Civil Service Pension Fund, as a result of the decision of 7 April 1983 by the Central Appeal Board, increased the supplementary allowance accordingly for new pension claims.   Following the applicant's request for a pension increase, the General Civil Service Pension Fund, considering this request as a new pension claim, decided on 13 December 1983 to award the applicant the requested increase as from 7 April 1983.           The difference in treatment between the applicant and the other widow, which resulted from this decision has, in the Commission's opinion, an objective and reasonable basis, namely the principle of legal certainty of administrative decisions.           In view of the above the Commission concludes that there is no appearance of a violation of Article 14 in conjunction with Article 1 of Protocol No. 1 and Article 6 (Art. 14+P1-1, 6) of the Convention.           It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission by a majority           DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission            President of the Commission                (H.C. KRÜGER)                          (C.A. NØRGAARD)