Lexploria

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)

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KOSTER-VAN MASTRIGT v. THE NETHERLANDS

KOSTER-VAN MASTRIGT v. THE NETHERLANDS

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