AS TO THE ADMISSIBILITY OF
Application no. 16149/08
by Andrzej ZUBCZEWSKI
The European Court of Human Rights (Third Section), sitting on 12 January 2010 as a Chamber composed of:
Josep Casadevall, President,
Boštjan M. Zupančič,
Ann Power, judges,
and Stanley Naismith, Deputy Section Registrar,
Having regard to the above application lodged on 14 February 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
1. The applicant, Mr Andrzej Zubczewski, is a Swedish national who was born in 1939 and lives in Spain. The Swedish Government (“the Government”) were represented by their Agent, Mr B. Sjöberg, of the Ministry for Foreign Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. When the applicant retired, he obtained a retirement pension (ålderspension). It appears that he was entitled only to the so-called supplementary pension, one part of which depends on the retired person's civil status.
4. In 2002, at the age of sixty-three, the applicant married.
5. Consequently, in accordance with the Earnings-related Old Age Pension Act (Lagen om inkomstgrundad ålderspension, 1998:674 – hereafter “the 1998 Act”), on 27 June 2003 the Social Insurance Office (försäkrings-kassan) in Gotland decided to reduce the applicant's pension. It appears that the applicant received 9,136 Swedish kronor (SEK) per month thereafter instead of the previous SEK 9,648 per month, thus a reduction of SEK 512 per month (approximately 50 euros).
6. The applicant complained against the decision. He stated that, after the marriage, his pension was lower than it had been when he was single, although now he had to support two persons as his wife did not have any income. The Social Insurance Office dismissed the complaint upon review on 10 November 2003.
7. The applicant brought the dispute before the County Administrative Court (länsrätten) in Gotland claiming that the 1998 Act was discriminatory and illogical and contrary to legal principles and human rights.
8. By a judgment of 31 March 2004 the County Administrative Court found against the applicant, inter alia, stating as follows:
“[The applicant] has questioned the  Act per se, as it distinguishes between married and unmarried pensioners and he states that the Act thereby violates, inter alia, human rights. The County Administrative Court notes however that marriage is an institution regulated by law which carries with it certain other rights and obligations than those concerning unmarried individuals. Having regard thereto and to [the applicant's] observations, the County Administrative Court cannot find that the  Act, as challenged, manifestly runs counter to any rule of fundamental law or other superior statute or find that the adoption of the Act significantly disregarded established regulation. Thus, the County Administrative Court must apply the said law. Since [the applicant] is married, the Social Insurance Office calculated his pension fairly as for a married pensioner. Therefore the appeal shall be rejected.”
9. The applicant's request for leave to appeal against the judgment was refused by the Administrative Court of Appeal (kammarrätten) in Stockholm on 18 January 2005 and by the Supreme Administrative Court (Regeringsrätten) on 18 October 2007.
B. Relevant domestic law and practice
10. Under the 1998 Act, persons born between 1938 and 1953 are, subject to certain criteria being met, entitled to two types of pension upon retirement, income pension (“inkomstpension”), regulated by Chapter 5 of the Act, and supplementary pension (“tilläggspension”), governed by Chapter 6.
11. Income pension, to which the applicant was apparently not entitled, is based on how much a person has set aside for his or her pension while working and the life expectancy for persons born in a specific year.
12. Supplementary pension, which is at issue in the present case, consists of two parts, defined in Chapter 6, section 2 of the 1998 Act:
“Unless otherwise indicated in sections 3-7, the annual supplementary pension amounts to the total of
1. 60% of the product of the price base amount [prisbasbeloppet] for the year in question under the Social Insurance Act [Lagen om allmän försäkring, 1962:381] and the average pension points earned by the person entitled to the pension or, if pension points have been earned for more than 15 years, the average of the 15 highest points, and
2. 96% of the price base amount for the year in question under the Social Insurance Act or, if the person is married, 78.5% of this base amount.”
13. The applicant complained under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention that he was being discriminated against because, as a married person, his pension was lower than the equivalent pension for a single person. The applicant also invoked Article 17 of the Convention.
14. The applicant claimed that the lower pension awarded to him under the 1998 Act after his marrriage involved violations of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention as well as of Article 17 of the Convention. The Court finds that the complaint falls to be considered under the two first-mentioned provisions which read as follows:
Article 14 of the Convention:
“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.”
Article 1 of Protocol No. 1:
“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.”
15. The respondent Government contended that, while earnings-related public pension benefits governed by law fell within the scope of Article 1 of Protocol No. 1, no deprivation of property had occurred in the present case as the applicant, when marrying in 2002, must have been fully aware of the resultant consequences for his pension. In any event, the decisions taken were in compliance with domestic law and the regulation of pensions under the 1998 Act struck 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. They submitted that the difference in pension levels for married and unmarried pensioners had been a fundamental principle in Swedish legislation since the introduction of the Swedish social security system in the early 20th century. The reason behind this principle was the fact that married couples who lived together generally had lower costs for living per capita than single, unmarried persons. Hence, the principle constituted a general measure of social and economic strategy, for which the State enjoyed a wide margin of appreciation.
16. The applicant maintained his complaint. While acknowledging that the decision to decrease his pension after he married was in conformity with the 1998 Act, it was the regulation in the Act that was itself discriminating.
17. The Court reiterates that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the provisions in question. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide (see Andrejeva v. Latvia [GC], no. 55707/00, § 74, ECHR 2009-, with further references). As regards the question whether the pension at issue in the present case falls within the “ambit” or “scope” of Article 1 of Protocol No. 1, the Court observes that there is no distinction between contributory and non-contributory benefits for the purposes of the applicability of Article 1 of Protocol No. 1; when a State chooses to set up a pension scheme, the individual rights and interests deriving from it fall within the ambit of that provision, irrespective of the payment of contributions and the means by which the pension scheme is funded (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, §§ 47-53, ECHR 2005-X, and Andrejeva v. Latvia [GC], § 76).
18. It follows that the applicant's pecuniary interests fall within the scope of Article 1 of Protocol No. 1 and the right to the peaceful enjoyment of possessions which it safeguards. This is sufficient to render Article 14 of the Convention applicable.
19. According to the Court's settled case-law, discrimination means treating differently, without an objective and reasonable justification, persons in similar situations. “No objective and reasonable justification” means that the distinction in issue does not pursue a “legitimate aim” or that there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. A wide margin of appreciation is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy (see, for example, Andrejeva v. Latvia [GC], cited above, §§ 81-83, with further references).
20. Turning to the circumstances of the present case, the Court notes that the monthly pension received by the applicant after his marriage in 2002 is approximately 50 euros lower than the amount he received previously when he was single. As such, the present case does not relate to an alleged difference in treatment between married couples and unmarried cohabitees.
21. The Court notes that the Government's submission on the difference in relevant pension entitlements between single and married persons is based on the principle that, generally speaking, the cost of living for two people who share a home is lower than for one person who, living alone, discharges all costs from a single income. The applicant claims that, in view of the economic dependency of his wife, his particular circumstances constitute an exception to that general principle. Be that as it may, the Court does not regard the applicant's situation as being entirely comparable to that of a single person.
22. The Court considers that States enjoy a wide margin of appreciation when it comes to implementing general measures of economic or social strategy, including measures pertaining to the issue of pension entitlements. It notes that the Swedish legislation establishes different pension levels for different categories of persons and that the rationale for this distinction is based on the broad principle that, generally speaking, costs shared are lower than costs borne alone. Notwithstanding the applicant's alleged exception to the general principle on which the legislation is based the Court finds that the enactment of the said legislation and the impugned decision which was based thereon falls squarely within the State's margin of appreciation.
23. Accordingly, the Court finds that the application of the 1985 Act to the situation in the present case did not involve a violation of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention.
24. It follows that the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stanley Naismith Josep
Deputy Registrar President
ZUBCZEWSKI v. SWEDEN DECISION
ZUBCZEWSKI v. SWEDEN DECISION