SILVESTRI A OSTATNÍ proti Itálii

FIRST SECTION

DECISION

Application no. 76571/14
Sergio SILVESTRI against Italy
and 13 other applications
(see list appended)

The European Court of Human Rights (First Section), sitting on 28 June 2022 as a Chamber composed of:

Marko Bošnjak, President,

Péter Paczolay,

Krzysztof Wojtyczek,

Alena Poláčková,

Gilberto Felici,

Erik Wennerström,

Raffaele Sabato, judges,

and Renata Degener, Section Registrar,

Having regard to the above applications lodged on the various dates indicated in the appended table,

Having deliberated, decides as follows:

INTRODUCTION

1. The present applications concern the effects, on the applicants’ rights to adversarial proceedings and to equality of arms, of section 42 § 2 of Law no. 69/2009, a provision aimed at ensuring consistency and uniformity of domestic case-law.

THE FACTS

2. A list of the applicants is set out in the appendix.

3. They were represented before the Court by Ms A. Mascia and Ms A. Polonio, lawyers practising in Strasbourg and Padova.

The circumstances of the case

4. The facts of the case, as submitted by the applicants, may be summarised as follows.

5. The applicants are former air force pilots, employed by the Italian Ministry of Defence. At the end of their service, as they had not accrued the right to an occupational pension, their social security plan was transferred from the National Public Service Social Security Institute (Istituto Nazionale di Previdenza per i Dipendenti dell’Amministrazione Pubblica - INPDAP) to the National Social Security Institute (Istituto Nazionale della Previdenza Sociale - INPS) in accordance with Article 124 § 1 of Presidential Decree (“DPR”) no. 1092 of 29 December 1973. To determine the amount of contributions gained, INPS took into account the actual period of service (servizio effettivo), without increasing it by a third as provided for in Article 20 of DPR no. 1092/1973 (servizio utile).

6. Between 28 October 2010 and 6 September 2012, the applicants lodged several complaints with the Regional Divisions of the Court of Audit, asking for the recognition of the increase in question.

7. All the applications were dismissed (see the appended list for details concerning the relevant domestic decisions and their dates). The Regional Divisions applied the principle stated by the Joint Divisions of the Court of Audit in judgment no. 8/QM of 27 May 2011, and further reiterated in decision no. 11/QM of 21 June 2011, according to which Article 20 of DPR no. 1092/1973 was not applicable in the event of a transfer of the social security plan from INPDAP to INPS (see paragraph 12 below).

8. Meanwhile, in different proceedings, the Judicial Division of the Lombardy Court of Audit had raised an objection based on the unconstitutional nature of Article 124 § 1 of DPR no. 1092/1973. In particular, the Regional Division questioned the compatibility of that provision with the equality principle enshrined in Article 3 of the Constitution, on account of the fact that, according to the judgment of the Joint Divisions, Article 124 denied the figurative increase of a third of the period of service only to employees switching from the public to the private system, while still recognising it, in contrast, to those who retired on the INPDAP plan. Some of the applicants’ second-instance sets of proceedings were suspended pending the Constitutional Court’s decision. On 6 February 2018, however, the Constitutional Court found that there had been no infringement of the Constitution and endorsed the interpretation of the Joint Divisions (see paragraph 13 below). On the basis of that decision, the Central Divisions of the Court of Audit rejected a request by the applicants for referring the case for a preliminary ruling to the Court of Justice of the European Union (“CJEU”) and dismissed the appeals with final effect.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

9. The relevant Articles of DPR no. 1092/1973, as in force at the relevant time, provide as follows:

Article 20 (Flight duty)

“Flight duty, which is compensated by the relevant monthly allowance, shall be increased by a third.”

Article 40 § 1 (Actual service and creditable service)

“For the effects envisaged by this consolidated act, the total amount of service and the periods eligible for retirement, considered without taking into account the increases referred to in Chapter III above, constitute the actual service; with the addition of these increases, they constitute the creditable service.”

Article 124 § 1 (Establishment of the insurance plan)

“If a civilian employee or a serviceman on permanent or continuous duty terminates his or her service without having acquired the right to a pension on account of the lack of the necessary length of service, the insurance plan shall be established with regard to invalidity, old age and survivors’ insurance at the National Social Security Institute, for the period of service performed.”

10. Before decision no. 8/QM of 27 May 2011 by the Joint Divisions, there had been conflicting decisions in the appellate divisions of the Court of Audit on the interpretation of the above-mentioned provisions. While in some decisions it had been found that the establishment of the servicemen’s insurance plan should have taken into account “creditable service” (servizio utile, see decisions nos. 225/1999 of the Second Section of Appeal, 142/2006 and 164/2008 of the First Section of Appeal, and 465/2009 and 193/2010 of the Third Section of Appeal), other judgments had referred to the “actual service” (servizio effettivo, see decisions nos. 235/2009 of the First Section of Appeal, and 235/2008, 426/2010, 432/2010, 58/2011 and 165/2011 of the Second Section of Appeal).

11. On 4 July 2009, section 42(2) of Law no. 69 of 18 June 2009 entered into force, which provided as follows:

Section 42(2) (Provisions concerning the Court of Audit)

“The President of the Court of Audit may order that the Joint Divisions shall decide cases that present a question of law already decided in conflicting decisions by Central or Regional Divisions, and those which present a question of principle of particular importance. If Central or Regional Divisions do not wish to adopt the principle of law enunciated by the Joint Divisions, they shall refer to the latter, with a reasoned order, the decision of the case”.

12. The Court of Audit is composed of Regional Divisions, which act as courts of first instance, and Central Divisions, which are ordinary courts competent to examine cases at second (and last) instance. The Joint Divisions also act as a court of second instance in the cases assigned to them on account of controversial issues or questions of principle (normally, ensuring the uniform application and interpretation of the law (nomofilachia) is the task of the Central Divisions). In the light of this, the above-mentioned provision has been interpreted in the sense that a Regional Division could, as long as reasons were provided, disagree with the principle of law established by the Joint Divisions. To ensure two levels of jurisdiction and the reasonable length of proceedings, however, they were prevented from referring the case directly to the Joint Divisions. Only in the event of an appeal, if the Central Divisions also dissented from the established principle of law, were they obliged to refer the case to the Joint Divisions (see judgment no. 8 of 13 October 2010 of the Joint Divisions of the Court of Audit). That interpretation has been transposed in Article 117 of Legislative Decree no. 174 of 2016, which consolidates the rules on proceedings before the Court of Audit.

13. In accordance with section 42(2), the Joint Divisions of the Court of Audit intervened to settle the conflicting case-law concerning Article 124 of DPR no. 1092/1973. In judgment no. 8/QM of 27 May 2011, they stated: “For the purposes of establishing the insurance plan referred to in Article 124, the expression ‘period of service performed’ contained therein must be understood as ‘actual service’ (periodo effettivo) and not as ‘creditable service’ (periodo utile).” That conclusion was reiterated in decision no. 11/QM of 21 June 2011.

14. The Constitutional Court found that that interpretation was not contrary to the principle of equality enshrined in Article 3 § 1 of the Italian Constitution. While admitting that there was a difference in treatment between employees who accrued the right to a pension in the public system and those who switched to the private one, as only the first category benefited from the increase of a third provided for by Article 124 of DPR no. 1092/1973, the Constitutional Court considered that the difference between the rules was justified in the light of the different length of service in the two categories and the purpose of the legislature in maintaining the professional skills acquired by pilots working in the public sector and motivating them not to transfer to the private system. It further noted that the overall legislative framework struck a reasonable balance between the right to an adequate pension and the sustainability of the social welfare system without unreasonably discriminating against the applicants, who were compensated for their special services by a one-off grant paid upon termination of their service, in accordance with Articles 42 and 52 of DPR no. 1092/1973. That grant was not available to those who retired under the public system (judgment no. 39 of 6 February 2018).

COMPLAINTS

15. Relying on Article 6 § 1 of the Convention, all the applicants claimed that, through the mechanism introduced by section 42(2) of Law no. 69/2009, the Joint Divisions of the Court of Audit unduly interfered with their proceedings, overruling well-established case law and breaching their rights contrary to the principles of adversarial proceedings, equality of arms and the rule of law.

16. The applicants in applications nos. 1751/17, 44206/19, 44255/19, 44284/19 and 52793/19 and the applicants Baracchini Caputi, Lattanzio and Lopo in application no. 1622/15 also alleged that the appellate courts had failed to decide their request for a preliminary ruling to the CJEU.

17. Under Article 1 of Protocol No. 1, all the applicants further complained that they had been deprived of their credit or, at least, of their legitimate expectation of a higher amount of pension and the possibility of an anticipated retirement, without any justification of public or general interest.

THE LAW

1. Joinder of the applications

18. Given the similarity of the factual aspects of the applications and the substantive issues they raise, the Court considers it appropriate to join them and examine them together.

2. Complaints under Article 6 § 1 of the Convention as regards equality of arms and adversarial proceedings

19. The applicants claimed that the Joint Divisions had interfered with their ongoing proceedings, overruling well-established case law and breaching their right to adversarial proceedings, on the basis of the mechanism introduced by section 42(2) of Law no. 69/2009, in breach of Article 6 § 1 of the Convention, which provides:

“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 ...”

20. The applicants maintained that before judgment no. 8/QM of 27 May 2011, the case-law was firmly in their favour and that the Joint Divisions’ overruling of it had had the sole aim of safeguarding the economic interests of the public authority which was a party to the proceedings, reducing their pension and postponing their retirement.

21. The applicants also expressly argued that, since both the Regional and the Central Divisions of the Court of Audit were bound by the precedent set by the Joint Divisions, they had uncritically applied it without examining the applicants’ arguments.

22. With reference to the above-mentioned decision of the Joint Divisions of the Court of Audit about which the applicants complain, the Court firstly notes that many of the current applicants’ applications had been lodged after the above-mentioned judgment of 27 May 2011. Hence, the supposed change in domestic case-law could not have affected their proceedings, which were not ongoing at that time, nor was that case-law unknown to those parties when they decided to bring their legal actions.

23. However, most importantly, the existence of well-established case-law in favour of the applicants is refuted by some of the decisions that they attached to the applications to the Court, as well as by judgment no. 8/QM of 27 May 2011 of the Joint Divisions. As noted above (see paragraph 9), the case-law prior to the Joint Divisions’ intervention indicates conflicting criteria to be used in establishing the servicemen’s insurance plan. Far from overruling well-established case-law, therefore, the Joint Divisions intervened to resolve a conflict in the interpretation of Article 124 of DPR n. 1092/1973, which is precisely the role of a supreme court (see Beian v. Romania (no. 1), no. 30658/05, § 37, ECHR 2007-V (extracts)).

24. The Court notes, therefore, that the applicants’ claim is actually directed against the mechanism introduced by section 42(2) which they alleged made the decisions of the Joint Divisions binding on the lower courts. In this regard, however, the Court emphasises that, contrary to the applicants’ contention, section 42(2) was not at all designed to influence the judicial determination of their disputes in a way favourable to the State. Indeed, it is not a substantive provision intended to regulate the merits of the case. Nor did it institute a specific procedural rule for social welfare litigation. On the contrary, Law no. 69/2009 established a general procedural rule, applicable to any kind of judgment before the Regional and Central Divisions of the Court of Audit, with the specific aim of settling case-law conflicts and so ensuring the principle of legal certainty.

25. The Court has reiterated on many occasions the importance of putting mechanisms in place to ensure consistency in court practice and uniformity of the courts’ case-law (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 55, 20 October 2011, and Schwarzkopf and Taussik, v. the Czech Republic (dec.), no. 42162/02, 2 December 2008). It has likewise stated that it is the States’ responsibility to organise their legal systems in such a way as to avoid the adoption of discordant judgments (see Vrioni and Others v. Albania, no. 2141/03, § 58, 24 March 2009; Mullai and Others v. Albania, no. 9074/07, § 86, 23 March 2010; and Brezovec v. Croatia, no. 13488/07, § 66, 29 March 2011). Divergences in case-law which are not profound and long-standing cannot, in themselves, be considered contrary to the Convention. Conflicts are an inherent consequence of a dynamic and evolutive approach, necessary to ensure case-law development as well as reform or improvement in the administration of justice (see Nejdet Şahin and Perihan Şahin, cited above, § 58, and Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 116, 29 November 2016). On the contrary, when divergences in the case-law are profound and long-standing, the compatibility with the Convention depends on whether domestic law provides for mechanisms capable of resolving such inconsistencies. As long as such mechanisms exist and are applied promptly and in an effective manner, the principle of legal certainty cannot be deemed undermined (contrast, among other authorities, Iordan Iordanov and Others v. Bulgaria, no. 23530/02, §§ 50-53, 2 July 2009, and Tudor Tudor v. Romania, no. 21911/03, §§ 26-33, 24 March 2009).

26. In the case at issue, considering that the first conflicting decision was issued in 2008, the procedure provided for by section 42(2) of Law no. 69/2009 allowed the Joint Divisions of the Court of Audit to settle the inconsistencies in question in just three years. Hence, the machinery put in place by domestic law for overcoming case-law inconsistencies has proven to be effective in order to ensure legal certainty.

27. As to the alleged restriction of the applicants’ right to adversarial proceedings, the Court notes that the lower courts are not completely subordinate to the Joint Divisions, since Regional Divisions (first instance) retain the power to depart from the decisions of the Joint Divisions, as long as they provide reasons for doing so. Central Divisions (second instance), on the other hand, can always refer the case anew to the Joint Divisions, arguing that it is necessary to reconsider the established principle of law (see the judgment cited in paragraph 12 above). Furthermore, the applicants themselves stated that even after the Joint Divisions’ judgment no. 8/QM of 27 May 2011, some Regional Divisions had endorsed the applicants’ arguments. Thus, the Court is of the view that the procedure provided for in section 42 (2) of Law no. 69/2009 does not impose any constraint on the parties’ rights under the principles of equality of arms and adversarial proceedings.

28. Moreover, the pleadings submitted before the domestic courts, and the domestic decisions, show that the applicants had the benefit of adversarial proceedings in which they were able to adduce evidence and freely formulate their arguments under the same conditions as their opponent (see Hudáková and Others v. Slovakia, no. 23083/05, §§ 25-26, 27 April 2010), and in which their arguments were properly examined by the courts, including the argument concerning the lack of reasons for departing from the precedent set by the Joint Divisions (see Magnin v. France (dec.), no. 26219/08, § 29, 10 May 2012).

3. Complaints under Article 6 § 1 of the Convention as regards the right to a reasoned judicial decision

29. The applicants in applications nos. 1751/17, 44206/19, 44255/19, 44284/19 and 52793/19 and the applicants Baracchini Caputi, Lattanzio and Lopo in application no. 1622/15 alleged that the appellate courts had failed to decide their request for referring the case for a preliminary ruling to the CJEU.

30. Contrary to such allegations, however, the Court notes that the request for a preliminary ruling was, at least implicitly, examined (see paragraph 8 above).

31. The Court has already accepted that the reasons for refusing to make a request for preliminary ruling may be inferred from the reasoning of the rest of the judgment (see, for illustrative purposes, Ogieriakhi v. Ireland (dec.) [Committee], no. 57551/17, § 62, 30 April 2019), or from somewhat implicit reasoning in the decision refusing the request (see Repcevirág Szövetkezet v. Hungary, no. 70750/14, §§ 57-58, 30 April 2019, and Wind Telecomunicazioni S.p.a. v. Italy (dec.), no. 5159/14, §§ 36-37, 8 September 2015).

32. In deciding the applicants’ appeals, the Court of Audit reiterated the previous judgments that had already dismissed the request, affirmed that the State had fully complied with its international obligations, that the precedent set by the Joint Divisions had complied with Article 6 of the Convention, and that any further request should have been regarded as dismissed or absorbed by the previous requests.

4. Conclusion as regards Article 6 § 1 of the Convention

33. Having regard to all the above findings, the Court considers that the applicants’ complaints under Article 6 § 1 are inadmissible as manifestly ill‑founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

5. Complaint under Article 1 of Protocol No. 1 to the Convention

34. The applicants further complained that the enforcement of the principle of law established by the Joint Divisions of the Court of Audit constituted an unjustified interference with their right to the peaceful enjoyment of their possessions, contrary to 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”.

35. The Court has repeatedly held that Article 1 of Protocol No. 1 only applies to a person’s existing “possessions” or assets (see Marckx v. Belgium, 13 June 1979, § 50, Series A no. 31, and Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 64, ECHR 2007‑I), including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 31, Series A no. 332; J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 61, ECHR 2007‑III; Von Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01 and 2 others, § 74 (c), ECHR 2005‑V; and Kopecký v. Slovakia [GC], no. 44912/98, § 35 (c), ECHR 2004‑IX).

36. However, the Court’s case-law does not contemplate the existence of a “genuine dispute” or an “arguable claim” as a criterion for determining whether there was a “legitimate expectation” protected by Article 1 of Protocol No. 1. On the contrary, where the proprietary interest is in the nature of a claim it may be regarded as an ‘asset’ only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it (see Kopecký, cited above, § 52, and Béláné Nagy v. Hungary [GC], no. 53080/13, § 77, 13 December 2016). Thus, no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 173, ECHR 2012; Kopecký, cited above, § 50; Anheuser-Busch Inc., cited above, § 65; Béláné Nagy, cited above, § 75; and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018).

37. As a result, in the light of the conflicting case-law referred to in paragraph 10 above, the applicants who had applied to domestic courts before the Joint Divisions’ intervention had not had any legitimate expectation of the “recognition of the creditable service” in the establishment of their insurance plans by INPS. With reference to the petitions lodged after judgment no. 8/QM of 27 May 2011, that legitimate expectation was expressly excluded by the domestic case-law. In reaching this conclusion, the Court points out that the increase of a third provided for by Article 124 of DPR no. 1092/1973 did not correspond to any actual period of service performed by the applicants, nor was it covered by any social security contribution paid by them (contrast Béláné Nagy, cited above, § 105).

38. Accordingly, the remainder of the application is inadmissible as being incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 21 July 2022.

Renata Degener Marko Bošnjak
Section Registrar President

Appendix