CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 31 janvier 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD6845F38 { font-family:Arial; color:#0072bc } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sAB45A539 { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .s68D1564D { width:34.89pt; display:inline-block } .sF9FB9744 { width:162.44pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIRST SECTION DECISION Application no. 69424/16 Jerzy DENYSIUK against Poland   The European Court of Human Rights (First Section), sitting on 31   January 2023 as a Committee composed of:   Ivana Jelić , President ,   Krzysztof Wojtyczek,   Erik Wennerström , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   69424/16) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18   November 2016 by a Polish national, Mr Jerzy Denysiuk (“the applicant”), who was born in   1949 and lives in Wrocław, and who was represented by Ms A. Szurpicka, a lawyer practising in Wrocław; the decision to give notice of the application to the Polish Government (“the Government”), represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application concerns the decrease of the applicant’s individual pension fund due to him having received early retirement pension for over five years. Early retirement pension 2.     On 18 August 2009 the applicant submitted a request for an early retirement pension. 3.     On 22 October 2009 the applicant stopped working, which was a condition of his receiving the early retirement pension. However, on 1   November 2009 he started to work again and continued working until 30   June 2011. This did not affect his early retirement payments once they had been granted, and he continued receiving early retirement pension during the period of his simultaneous employment. 4.     On 30 November 2009 the Wrocław Social Security Board ( Zakład Ubezpieczeń Społecznych – “the Board”) calculated the applicant’s early retirement pension as 2,750   Polish zlotys (PLN) gross per month. At the same time, it informed the applicant of the amount of money accumulated in his individual fund (PLN 112,000 in contributions and PLN 565,000 in initial capital). 5.     The early retirement pension was subject to yearly indexation: in May 2015 it reached PLN   3,300 and in 2019 PLN   3,520. Old-age pension 6.     On 21 April 2015 the applicant submitted a request for a regular old ‑ age pension. 7.     On 25 May 2015 the Board granted the applicant the old-age pension as of 4 April 2015. However, when calculating its amount, the Board deducted the sum which had been already paid to him as an early retirement pension (amounting to PLN   195,000) from his individual pension fund. That deduction was introduced following the entry into force on 1 January 2013 of the Act of 11 May 2012 amending the Retirement and Disability Pensions from the Social Insurance Fund Act (“the 2012 Act”). The applicant was informed that the sums accumulated in his individual fund had been indexed and amounted to PLN 158,000 of contributions and PLN   647,000 of initial capital. In order to calculate his pension those two amounts were added together, and PLN   195,000 was deducted. The total was then divided by the number of months corresponding to the median life expectancy. As a result, his monthly old-age pension amounted to PLN   2,800, which was lower than his early retirement pension had been (PLN 3,300 at the material time). The Board decided therefore to suspend the old-age pension and continue paying him the early retirement pension as it was more advantageous. 8.     The applicant appealed against that decision. He argued that the provision allowing for the deduction from his fund of the sums already received as an early retirement pension had been introduced only on 1   January 2013. Thus, at the time when he had resigned from work and had applied for his early retirement pension the domestic law had not provided for any deduction. 9.     On 21 September 2015 the Wrocław Regional Court ( Sąd Okręgowy ) dismissed his appeal after finding that the old-age pension had been calculated in accordance with the law. The applicant appealed further. 10.     On 15 June 2016 the Wrocław Court of Appeal ( Sąd Apelacyjny ) dismissed his appeal. 11.     According to the Government, had the applicant’s pension fund not been affected by the 2012 Act, his old-age pension on 25 May 2015 would have been PLN   3,700. 12.     The applicant complained under Article 1 of Protocol No. 1 to the Convention that he had been deprived of his possessions as the amount of money collected by him on his individual fund had been decreased by virtue of a law which entered into force after he had chosen to take early retirement. He also considered that the situation amounted to discrimination on the grounds of sex as women who were born in the same year as him had not been affected by the amendment. THE COURT’S ASSESSMENT 13.     The Government submitted that the Convention did not guarantee any right to a pension of a particular amount. They further argued that the enacting of laws on social benefits involved considerations of economic and social issues and therefore fell within the State’s wide margin of appreciation. The applicant had been receiving an early retirement pension of an amount calculated by the authorities and it had been justified to take that fact into consideration when calculating his old-age pension. The new pension system, which was based on the actual capital accumulated by individuals, presupposed that a retirement pension financed by the contributions paid by the insured person should not disregard any early drawing down of benefits by the same person. Its aim was to create a stable pension system in the light of unfavourable demographic trends leading to an increase in the number of beneficiaries of the system and a decrease in the number of persons contributing to it. Moreover, just after obtaining the early retirement pension the applicant had started working again in the same workplace which, while not against the law, appeared to be contrary to the purposes of the law. According to the Government, the applicant had not been deprived of his possessions and in any event, the situation did not impose an excessive individual burden on him. 14.     The applicant submitted that when he had decided to request early retirement in 2009 the two systems of early retirement and old-age pensions were totally independent. He could not therefore have foreseen that this would result in a reduction in his future old-age pension. However, through the 2012 Act the State introduced new, less favourable rules, which exposed him to the legal consequences of the decision which he had made on the basis of the law in force at the time. He emphasised that the old-age pension was to be determined in relation to the accumulated total of the contributions collected in his pension fund and the average life expectancy. The decrease in the funds accumulated in his individual pension fund therefore constituted an interference with his property rights. 15.     The applicant also submitted that the amendment had been found to be in compliance with the Constitution by the Constitutional Court on 7   May 2014 and that a constitutional complaint was therefore no longer an effective remedy. 16.     All principles which apply generally in cases concerning Article 1 of Protocol No. 1 are equally relevant when it comes to pensions (see Valkov   and Others v.   Bulgaria, nos. 2033/04 and 8 others, § 84, 25   October 2011, with further references). According to Convention case-law, the making of contributions to a pension fund may, in certain circumstances, create a property right and such a right may be affected by the manner in which the fund is distributed (see Bellet, Huertas and Vialatte v.   France   (dec.), nos.   40832/98 and 2 others, 27 April 1999, and Skorkiewicz v.   Poland (dec.), no. 39860/98, 1 June 1999). Moreover, the rights stemming from the payment of contributions to social insurance systems are pecuniary rights for the purposes of Article 1 of Protocol No.   1 (see Gaygusuz v.   Austria , 16 September 1996, §§ 39-41, Reports of Judgments and Decisions 1996-IV). However, even assuming that Article   1 of Protocol No.   1 guarantees benefits to persons who have contributed to a social insurance system, it cannot be interpreted as entitling any particular person to a pension of a particular amount (see Kjartan Ásmundsson v.   Iceland , no.   60669/00, §   39, ECHR 2004-IX). An important consideration in the assessment under this provision is whether the applicant’s right to derive benefits from the social insurance scheme in question has been infringed in a manner resulting in the impairment of the essence of his or her pension rights (see Domalewski v.   Poland (dec.), no.   34610/97, ECHR   1999 ‑ V). 17.     The Court firstly notes that it is not necessary to examine the Government’s preliminary objection on non-exhaustion of the domestic remedies – failure to appeal to the Constitutional Court – since the application is manifestly ill-founded in any event. For the same reasons, and on the basis of its case-law, the Court will proceed on the assumption that Article 1 of Protocol No. 1 to the Convention is applicable to the case (see Valkov and Others , cited above, §§   77 and 88). 18.     In 2009 the applicant obtained a right to an early retirement pension; he subsequently received it for over five years. The total sum which he received under it came to PLN 195,000. In 2015, after having reached retirement age, he applied for and obtained a regular old-age pension. The value of that pension was however negatively affected by his having received the early retirement pension; the authorities deducted the sums already received by the applicant under the early retirement scheme from his accumulated pension fund. The amendment to the domestic law allowing for such a deduction from a person’s individual pension fund had entered into force while the applicant had already been receiving the early retirement pension, more specifically in 2013. 19.     The decrease in value of the applicant’s personal fund led to a decrease in his old-age pension payments, as calculated in 2015, to a level which was below the payments he had been receiving as an early retirement pension. However, the authorities decided to continue paying the applicant the more advantageous benefit – in this case the early retirement pension. Having reached the retirement age, the applicant therefore continued to receive the early retirement pension in the same amount as before. 20.     The Court takes note of the argument that, had the applicant not taken early retirement in 2009, but waited until 2015 for his regular old-age pension, it would have been higher by, according to the Government’s calculation which has not been contested by the applicant, PLN 400 monthly. In other words, after having received the early retirement pension for over five years, the applicant’s old-age pension payments in 2015 amounted to 89% percent of what he would have received in old-age pension had the new law not affected him. Taking into account the amount of the pension received by him up until that point and the number of years he had benefited from the early retirement pension while, in part, still working, the Court cannot find that the applicant has been made to bear an excessive burden. Nor can it be said that the applicant’s right to derive benefits from the social security scheme in question has been infringed in a manner resulting in the impairment of the essence of his pension rights (see Cichopek and Others v.   Poland (dec.), nos.   15189/10 and others, § 153, 14 May 2013). 21.     According to the Court’s case ‑ law, the national authorities, because of their direct knowledge of their society and its needs, are in principle better placed than an international court to decide what is “in the public interest”. Under the Convention system, it is thus for those authorities to make the initial assessment as to the existence of a problem of public concern warranting measures which interfere with the peaceful enjoyment of possessions ( Béláné Nagy v. Hungary [GC], no. 53080/13, §   113, 13   December 2016). Moreover, the notion of “public interest” is necessarily extensive. In particular, the decision to enact laws concerning pensions or welfare benefits involves consideration of various economic and social issues. The margin of appreciation available to the legislature in implementing such policies should therefore be a wide one, and its judgment as to what is “in the public interest” should be respected unless that judgment is manifestly without reasonable foundation. 22.     Having regard to the circumstances of the case seen as a whole, the Court concludes that a fair balance was struck between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights and that the burden on the applicant was neither disproportionate nor excessive. It follows that this part of the application must be rejected for being manifestly ill-founded in accordance with Article   35 §§ 3(a) and 4 of the Convention. 23.     Finally, the applicant also complained that the situation had been discriminatory as women of the same age as him had not been affected by the deduction from their individual pension fund in the same way as he had, because their retirement age had been lower. He provided no further explanation of his complaint. The Government contested the allegation. The Court notes that it has previously accepted differences in the State retirement ages of men and women (see Stec and Others v. the United Kingdom [GC], nos.   65731/01 and 65900/01, § 61, ECHR 2006-VI) and it considers that the applicant has failed to substantiate his allegations that the application of the 2012 Act was discriminatory simply due to the difference in retirement age for men and women. Accordingly, this part of the application is 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, Declares the application inadmissible. Done in English and notified in writing on 23 February 2023.     Liv Tigerstedt   Ivana Jelić   Deputy Registrar   President