AS TO THE ADMISSIBILITY OF
Application no. 77782/01
by Richard LUCZAK
The European Court of Human Rights (Fourth Section), sitting on 27 March 2007 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 8 August 2000,
Having regard to the Chamber’s decision of 13 December 2005 to examine jointly the admissibility and the merits of the application (Article 29 § 3 of the Convention and Rule 54A § 3),
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated on 27 March 2007,
Decides to disapply Article 29 § 3 of the Convention and to examine the admissibility and the merits of the application separately, and
Delivers the following decision:
The applicant, Mr Richard Luczak, is a French national of Polish origin who was born in 1950 and lived in Brzeg. He was represented before the Court by Mr M. Bubak, a lawyer practising in Brzeg. The respondent Government were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant moved to Poland in 1980. He was in employment for a number of years and consequently was affiliated to the general social security scheme. The relevant law did not exclude participation of foreign nationals in the general social security scheme.
On 20 January 1997 the applicant and his wife, who is a Polish national, jointly bought a farm. They took possession of it on 20 November 1997. At about that time the applicant terminated his employment and decided to make his living from the farm.
On 2 December 1997 the applicant requested the Częstochowa branch of the Farmers’ Social Security Fund (Kasa Rolniczego Ubezpieczenia Społecznego) to admit him to the farmers’ social security scheme.
On 16 December 1997 his request was refused on the ground that he was not a Polish national, a condition stipulated in the Law of 20 December 1990 on Social Security for Farmers (“the 1990 Act”; ustawa o ubezpieczeniu społecznym rolników). As a result, the applicant did not have social security cover in case of sickness or occupational injury. In addition, he could not pay contributions towards his old-age pension.
In a decision given on the same date, the applicant’s wife was admitted to the farmers’ scheme.
The applicant appealed against the decision given in his case. He submitted that as a self-employed farmer he was exposed to the risk of work-related accidents. Furthermore, he argued that since he had acquired the farm he had terminated his previous employment and that the farm was intended to provide for his living. The applicant also submitted that when previously employed he had been covered by the general social security scheme despite his foreign nationality. As a result of the refusal, he could not pay his social security contributions, so the relevant time would not be taken into account when calculating his future retirement pension.
He also submitted that he had been informed about an obligation to join the scheme by way of a clause in the notary deed whereby he had acquired the farm. In addition, the applicant stated that he had been living in Poland for 18 years and that he had had a permanent residence card for 15 years. He also referred to his Polish origin and his willingness to pay the relevant contributions to the scheme.
On 30 March 1998 the Częstochowa Regional Court dismissed the applicant’s appeal, finding that the applicant could not be admitted to the farmers’ social security scheme as he did not have Polish nationality. On the other hand, it observed that in case of a serious occupational injury the applicant could be granted a one-off compensation payment as provided in section 10 of the 1990 Act. As regards social security cover in case of sickness, the Regional Court noted that the applicant, as a foreign national permanently residing in Poland, would be provided with such cover by a law which was to come into force on 1 January 1999.
The applicant appealed against that judgment. He submitted that the refusal to admit him to the social security scheme for farmers based on his nationality was discriminatory. He alleged a breach of the principle of equality, relying on the Constitution and the International Covenant on Economic, Social and Cultural Rights (“the ICESC”).
On 22 December 1998 the Katowice Court of Appeal dismissed the applicant’s appeal. It found that the applicant could not base his claim for admission to the farmers’ social security scheme on the Constitution as the latter provided in Article 37 § 2 for statutory limitations on the rights of aliens. Similarly, the Court of Appeal held that the 1948 bilateral treaty concluded between France and Poland in matters of social security was applicable exclusively to employees. The applicant’s claim as based on the ICESC was also dismissed. The Court of Appeal noted that Article 9 of the ICESC included a provision on the right of everyone to social security. However, it held that the provisions of the Covenant were not self-executing and left the States a margin of discretion in the manner of implementing its provisions in domestic law.
The applicant lodged a cassation appeal against that judgment with the Supreme Court. On 8 February 2000 the Supreme Court dismissed his cassation appeal, relying principally on the same grounds as the Court of Appeal. Additionally, it observed that Article 67 of the Constitution stipulated that the right to social security was guaranteed only to Polish nationals.
In 1998 the applicant petitioned the Ombudsman. On 16 September 1998 the Ombudsman wrote to the Minister of Agriculture that discrimination on the grounds of nationality in respect of the provision of social security to farmers was questionable in view of the obligations specified in the ICESC. He accordingly requested the Minister to urgently prepare a relevant amendment to the 1990 Act. On 30 September 1998 the Minister informed the Ombudsman that amendments were being prepared. Those amendments would enable farmers of foreign nationality having a permanent residence status in Poland to join the farmers’ scheme. It was envisaged that the amendments would enter into force on 1 January 1999. The applicant was so informed by the Ombudsman. However, the amendments were never enacted.
In 2002, in view of the prolonged uncertainty as to his social security cover, the applicant went to the Netherlands where he got a job. From April 2004 to April 2006 the applicant was on sick leave and subsequently he has been in receipt of a sickness allowance.
On 2 April 2004 the 1990 Act was amended in connection with Poland’s accession to the EU. The amendments provided, inter alia, that nationals of the EU Member States and foreign nationals in possession of a residence card could join the farmers’ scheme.
B. Relevant domestic and international law
1. The European Social Charter 1961
The European Social Charter 1961 (“the Social Charter”), which entered into force in respect of Poland on 25 July 1997, provides, as relevant:
“The governments signatory hereto, being members of the Council of Europe, ...
Considering that the enjoyment of social rights should be secured without discrimination on grounds of race, colour, sex, religion, political opinion, national extraction or social origin; ...
Have agreed as follows:
The Contracting Parties undertake, as provided for in Part III, to consider themselves bound by the obligations laid down in the following articles and paragraphs. ...
Article 12 – The right to social security
With a view to ensuring the effective exercise of the right to social security, the Contracting Parties undertake:
1. to establish or maintain a system of social security;
2. to maintain the social security system at a satisfactory level at least equal to that required for ratification of International Labour Convention (No. 102) Concerning Minimum Standards of Social Security;
3. to endeavour to raise progressively the system of social security to a higher level;
4. to take steps, by the conclusion of appropriate bilateral and multilateral agreements, or by other means, and subject to the conditions laid down in such agreements, in order to ensure:
a. equal treatment with their own nationals of the nationals of other Contracting Parties in respect of social security rights, including the retention of benefits arising out of social security legislation, whatever movements the persons protected may undertake between the territories of the Contracting Parties;
b. the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Contracting Parties.”
According to Article 20 of the Social Charter, the Republic of Poland considered itself bound by a number of substantive provisions of the Social Charter, including Article 12.
2. Constitutional provisions
Article 37 of the Constitution reads:
“1. Any person within the jurisdiction of the Republic of Poland shall enjoy the freedoms and rights guaranteed by the Constitution.
2. Exemptions from this principle with respect to aliens shall be specified by statute.”
Article 67 § 1 of the Constitution provides:
“A citizen shall have the right to social security whenever incapacitated for work by reason of sickness or invalidity as well as having attained retirement age. The scope and forms of social security shall be specified by statute.”
3. Social security scheme for farmers
The social security scheme for farmers is regulated by the Law of 20 December 1990 on Social Security for Farmers (“the 1990 Act”; ustawa o ubezpieczeniu społecznym rolników). At the relevant time section 1 § 1 of the 1990 Act provided, in so far as relevant:
“Social security [scheme] for farmers shall include farmers of Polish nationality and members of their household working with them”.
The Law of 14 December 1982 on Social Security for Farmers and Members of their Families, which predated the 1990 Act, did not lay down a nationality condition.
The scheme laid out in the 1990 Act provides the following benefits: (1) sickness and maternity benefits, (2) benefits in respect of occupational injuries and diseases, and (3) old-age benefits. It is operated by the Farmers’ Social Security Fund (Kasa Rolniczego Ubezpieczenia Społecznego), a specialised government agency which is subsidised by the State budget. Depending on the size of their farms, farmers are either required to join the scheme by law or on their request. Each farmer admitted to the scheme is required to pay contributions to it, the amount of which did not depend on the size of a farm or level of income made from it. The precondition for admission to the scheme was to be an owner of a farm, regardless of whether farming was the main source of the farmer’s living.
On 2 April 2004 the 1990 Act was amended. The relevant amendment, which entered into force on 2 May 2004, broadened the range of farmers who could be admitted to the farmers’ social security scheme by, inter alia, including nationals of the EU Member States and foreign nationals residing in Poland on the basis of a visa or a residence card.
4. The general social security scheme for employees
At the relevant time the rules governing the operation of the general social security scheme for employees were laid down in the Law of 25 November 1986 on the Organisation and Financing of Social Security (ustawa o organizacji i finansowaniu ubezpieczeń społecznych). That law did not provide for any restrictions on the admission to the general social security scheme on the basis of an employee’s nationality, with the exception of those aliens who did not reside permanently in the country and were employed by foreign diplomatic missions. On 1 January 1999 the Law of 25 November 1986 was repealed and replaced by the Law of 13 October 1998 on the Social Security System (ustawa o systemie ubezpieczeń społecznych). However, the rule in respect of the admission of employees of foreign nationality to the general social security scheme remains the same.
5. The bilateral agreement between Poland and France
In 1948 Poland and France concluded the General Convention on Social Security (Konwencja Generalna pomiędzy Polską a Francją o zabezpieczeniu społecznym). However, the provisions of that Convention were applicable exclusively to employees and other workers in comparable positions as opposed to self-employed persons.
The applicant complained under Article 14 of the Convention that he had been refused admission to the farmers’ social security scheme on the ground of his nationality although he had complied with all other relevant requirements. In his subsequent submissions of 20 January 2001, the applicant relied on Article 1 of Protocol No. 1 to the Convention. He submitted that his right to be admitted to the farmers’ social security scheme fell within the concept of “possessions” within the meaning of Article 1 of Protocol No. 1.
The applicant complained that he had been refused admission to the farmers’ social security scheme in breach of Article 14 taken in conjunction with Article 1 of Protocol No. 1. The latter provision reads:
“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.”
Article 14 provides:
“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.”
A. Applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1
1. The Government’s submissions
The Government argued that the applicant’s claims concerning his admission to the farmers’ social security scheme fell outside the scope of Article 1 of Protocol No. 1. They submitted that not only was the scheme in question State-financed, the applicant did not acquire any legal title to participate in it. On the contrary, he was lawfully refused admission to the scheme because he did not fulfil the statutory requirements.
Referring to the admissibility decision in Stec and Others v. the United Kingdom ([GC], nos. 65731/01 and 65900/01, § 54ECHR 2005-...), the Government emphasised that there was a fundamental difference between protection of a legitimately acquired right to a certain welfare benefit on the one hand, and protection of a mere request to be admitted to a given social security scheme on the other. They disagreed with the assumption that the applicant had “possessions” under Article 1 of Protocol No. 1 since he had never been a member of the farmers’ social security scheme. Neither this provision nor any other provision of the Convention guaranteed a “right of access” to a social security scheme. Had the applicant fulfilled all the statutory conditions, he would have been admitted to the farmers’ scheme and could pay contributions. This, however, had not been the case. The applicant had therefore never acquired any rights or “possessions” as a member of this particular social security system.
The Government claimed that if the protection of Article 1 of Protocol No. 1 was to be extended to non-acquired rights related to social security schemes, and in particular to the conditions of admission to a specific scheme, the Court would in fact be reviewing the basic principles of national social security systems. They submitted that nothing in the Convention provided for such an approach.
The applicant had no “legitimate expectation” to be admitted to the farmers’ scheme prior to 2004 when the relevant law was amended. They observed that the applicant could not base his expectations on the fact that he had been previously affiliated to the general social security scheme. The applicant’s rights related to his benefits under that scheme were a separate issue and of no relevance to the present case. Furthermore, the applicant could not have expected to be admitted to the farmers’ scheme without fulfilling all the statutory conditions. They submitted that no legitimate expectation could be said to arise where there was a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions were subsequently rejected by the national court (Kopecký v. Slovakia [GC], no. 44912/98, § 50, ECHR 2004-IX). In conclusion, the case fell outside the scope of Article 1 of Protocol No. 1 and, in consequence, of Article 14 of the Convention.
2. The applicant’s submissions
The applicant argued, having regard to the autonomous concept of possessions under Article 1 of Protocol No. 1, that he had an economic interest which fell within the scope of this provision. He had a possibility of buying land in Poland regardless of his foreign nationality. At the time of the acquisition of their farm, the applicant and his wife were informed that they were under an obligation to join the farmers’ scheme.
When the applicant terminated his contract of employment with a view to working as a farmer he was deprived of social security cover. He could not continue paying his contributions towards his retirement pension which he had done for a number of years when employed.
The applicant submitted that on account of the foregoing, he had had a reasonable expectation to be admitted to the farmers’ scheme. His claims were supported by the Ombudsman who in his letter of 16 September 1998 urged the Minister of Agriculture to amend the 1990 Act discriminating against foreign farmers. The Minister in his reply of 30 September 1998 indicated that the relevant law would be changed with effect from January 1999 so as to allow farmers of foreign nationality permanently residing in Poland to join the scheme.
3. The Court’s assessment
The Court has to determine whether Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 is applicable to the present case.
It recalls that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions (see, among many authorities, Şahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003-VIII). 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 Convention Articles (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, § 71; Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B, § 22; and Petrovic v. Austria, judgment of 27 March 1998, Reports of Judgments and Decisions 1998-II, § 22).
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 Convention Article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court’s case-law. It was expressed for the first time in the Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (Merits) (judgment of 23 July 1968, Series A no. 6, § 9), when the Court noted that the right to obtain from the public authorities the creation of a particular kind of educational establishment could not be inferred from Article 2 of Protocol No. 1, and continued as follows:
“... nevertheless, a State which had set up such an establishment could not, in laying down entrance requirements, take discriminatory measures within the meaning of Article 14.”
The Court recalls that the principles which apply generally in cases under Article 1 of Protocol No. 1 are equally relevant when it comes to welfare benefits. In particular, Article 1 of Protocol No. 1 does not create a right to acquire property. This provision places no restriction on the Contracting State’s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit—whether conditional or not on the prior payment of contributions—that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 54, ECHR 2005-...).
In cases concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question. Although Article 1 of Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14 (see Stec and Others (dec.) [GC], cited above, § 55). It is moreover important to adopt an interpretation of Article 1 of Protocol No. 1 which avoids inequalities of treatment based on distinctions which, at the present day, appear illogical or unsustainable (Stec and Others (dec.) [GC], cited above, § 49).
Turning to the present case, the Court notes that the applicant came to Poland in 1980 and has had a permanent residence card since 1983. For a number of years he was employed and was making contributions to the general social security fund, in respect of, inter alia, his retirement pension. The law regulating that fund did not provide for restrictions on access to it by foreign nationals, save for one negligible exception (see paragraph 24 above, relevant domestic law).
The issue which arises in the present case is whether the applicant’s interests related to his social security cover fall within the scope of Article 1 of Protocol No. 1. The Government argued that that was not the case. However, the Court notes that the applicant contributed for a number of years to the general social security fund and accrued some proprietary interest in this respect. It is noteworthy that after he had bought a farm the applicant could not continue to be covered by the general scheme and consequently had not been attached to any social security scheme. In particular, the applicant could not continue making contributions towards his retirement pension.
The Court notes that the applicant was refused admission to the farmers’ scheme solely on the ground of his nationality, notwithstanding the fact that he had had a permanent residence status and had been previously affiliated to the general social security scheme. The refusal to admit the applicant to the farmers’ scheme left him bereft of insurance against sickness, occupational injury and, as noted above, prevented him from contributing towards his retirement pension. The Court also notes that the applicant, when in employment, supported through payment of taxes the farmers’ scheme.
The Court observes that the specific feature of this case is that the applicant was denied access to the farmers’ scheme on a discriminatory ground covered by Article 14 rather than being denied all or a part of a particular benefit for that same reason (see Stec and Others (dec.) [GC], cited above, § 55). However, in the Court’s view, this is not a material difference. The applicant in the present case was prevented from joining the farmers’ scheme and consequently denied the right to draw benefits from it on the ground of his nationality alone. Had it not been for the nationality condition, the applicant could have been admitted to the farmers’ scheme and thus could make contributions to it and claim relevant benefits (mutatis mutandis, Gaygusuz v. Austria, judgment of 16 September 1996, Reports 1996-IV, p. 1142, § 40-41 and Willis v. United Kingdom, no. 36042/97, § 34, ECHR 2002-IV). Furthermore, it has not been argued that the applicant did not satisfy the other statutory conditions for admission to the farmers’ scheme and thus his eligibility to obtain benefits provided by that scheme.
Having regard to the foregoing the Court finds that the applicant’s interests related to the farmers’ scheme and the ensuing right to derive social security benefits from it may be considered to fall within the scope of Article 1 of Protocol No. 1 to the Convention, and of the right to property which it guarantees. Accordingly, Article 14 is applicable.
B. Compliance with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1
1. The Government’s submissions
The Government denied that domestic law gave rise to any discrimination contrary to Article 14. The legislation concerning admission to the farmers’ scheme included objective criteria and applied to everyone without any arbitrary exceptions. The distinction between nationals and non-nationals was introduced in pursuance of the general interest and did not contravene the principle of proportionality. Having regard to the social vulnerability of farmers, as well as the tradition of State support for Polish farmers, the Government found no persuasive ground to believe that they were bound under the Convention to provide support to foreign nationals by admitting them to the farmers’ scheme prior to 2004.
The Government asserted that the distinction at issue pursued the legitimate aim of protecting a vulnerable group by allowing its members to have access to and benefit from the scheme on payment of a modest contribution. They observed that the creation of the farmers’ scheme was the expression of the State’s policy to support an underdeveloped and economically inefficient sector of the economy. In this respect, the condition of Polish nationality prior to 2004 played a vital role in directing State support to those in particular need, i.e. Polish farmers who had always been financially disadvantaged in comparison to other sectors of society. The Government emphasised that the farmers’ scheme was 95% financed from the budget. That constituted a heavy burden for taxpayers and the economy alike. The Government submitted that contributions made by farmers to the scheme constituted only a small fraction of the contributions paid by persons covered under the general social security scheme. It would be unjustified to claim that such an expensive social security scheme should have been opened up to anyone willing to be covered by it.
Furthermore, the Government maintained that the Polish State could not be held responsible for attempting to reconcile its budgetary considerations with the social and financial difficulties encountered by the agricultural sector. They submitted that currently about 16% of the population in Poland were considered as employed in agriculture, whereas their contribution to the country’s GDP did not exceed 3%. It was thus obvious that the State budget and taxpayers were contributing heavily to the farmers’ scheme. Moreover, there were sound reasons to believe that expanding the scheme to include foreign nationals would be against the long-term aim of reducing its costs and would unjustifiably favour foreign nationals.
In view of the above, the Government argued that the distinction at issue did not go beyond the margin of appreciation enjoyed by the authorities in the sphere of social policy. They claimed that there was a reasonable relationship of proportionality between the conditions of admission to the farmers’ scheme and the aim of State support for a socially and economically vulnerable sector of society.
The Government noted that the applicant did not apply for Polish nationality despite having lived in Poland for over 18 years, which prior to 2004 would have enabled him to join the farmers’ scheme.
2. The applicant’s submissions
The applicant claimed that by depriving him of a possibility to join the farmers’ scheme solely on account of his foreign nationality, while he met the other statutory conditions, the authorities violated the prohibition of discrimination. The difference in treatment to which he was subjected had no objective and reasonable justification. He submitted that the problem of providing social security cover to foreign nationals under the farmers’ scheme was a marginal one. There were only a very limited number of cases of this kind which in no way could affect the country’s economy or its social security system.
Furthermore, the applicant emphasised that the relevant law abolished the nationality criterion in 2004. In the subsequent period the farmers’ social security scheme did not collapse and nor did the situation of farmers, referred to by the Government as “a socially vulnerable group”, change considerably. The applicant submitted that the farmers’ scheme was also susceptible to abuse in that persons who should otherwise be making higher contributions to the general social security scheme could join the farmers’ scheme which provided them with comprehensive social security cover in exchange for smaller contributions. The authorities had ignored the potential for abuse.
The applicant rejected the Government’s submission that he should have applied for Polish nationality to enable him to join the farmers’ scheme. He considered it unacceptable to be obliged to change his nationality in order to obtain social security cover.
3. The Court’s assessment
The Court considers, in the light of the parties’ submissions, that the application raises complex issues of fact and law under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, the determination of which requires a separate examination of the merits. On that account, it will discontinue the application of Article 29 § 3 of the Convention to the case.
The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. The Court observes in this connection that the Government have conceded that the applicant exhausted all domestic remedies. The application must therefore be declared admissible.
For these reasons, the Court by a majority
Declares the application admissible.
T.L. Early Nicolas Bratza
LUCZAK v. POLAND DECISION
LUCZAK v. POLAND DECISION