Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12264/86

by Sture STIGSON

against Sweden

The European Commission of Human Rights sitting in private

on 13 July 1988, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C. L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 June 1986 by

Sture STIGSON against Sweden and registered on 2 July 1986 under file

No. 12264/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant is a Swedish citizen, born in 1918. He is the

retired director of the Swedish National Board for Technical

Development. He resides at Lidingö, Sweden.

The applicant served in the Swedish army in the years 1938 to

1941. In 1942 he entered the Royal Värmland's Regiment as a reserve

officer and his remuneration when on active duty and also after having

fulfilled his duties as a reserve officer was set out in the Swedish

Royal Ordinance no. 364 of 1927. Section 29 of the Ordinance reads as

follows:

"Early retired officers and officers appointed in the reserve

corps, civil military (civilmilitär) persons of a comparative

position and non-commissioned officers (underofficer) who

have, in an appropriate manner, fulfilled the prescribed

service or who have, as a result of injury or illness

inflicted during service, been unable to fulfil the said

service, are awarded an annual pension after having reached

the age of 55, totalling 900 Swedish crowns for an officer (or

equal) and for a non-commissioned officer totalling 672

Swedish crowns. However, those who have been appointed in the

reserve officers' corps are, after the age of 42, under the

conditions indicated, entitled to receive, instead of the

pension, an amount corresponding to 5 % of the capitalised

value of the pension."

In 1961 the applicant was informed by the National Pension

Board (Statens pensionsanstalt) that he had fulfilled his duties

according to the 1927 Ordinance and that he was entitled to either the

pension or the capitalised sum. The applicant chose the pension

system which meant that he would receive a monthly sum as from the

year in which he reached the age of 55, which would be in 1973.

Following the introduction in 1960 of the general additional

pension (ATP) it was decided by the Swedish Royal Ordinance 1962:661

that the reserve officers pension should be co-ordinated with the new

additional pension in accordance with the Social Insurance Act (lagen

om allmän försäkring).

On 13 November 1973, the year in which the applicant reached

the age of 55, the applicant received from the appropriate defence

authority a letter whereby he was informed that he was now entitled to

receive the pension in accordance with the 1927 Ordinance. He was

furthermore informed that the pension now amounted to 405 Swedish

crowns per month. The applicant received the pension as from 6

December 1973 and by the time he reached the age of 65, in December

1983, the amount had reached 1,011 Swedish crowns per month due to a

specific index regulation.

It appears that the applicant retired in 1983 and on

retirement he was entitled to an old age pension as well as the

general additional pension (ATP). The latter had, as mentioned above,

been introduced in 1960 and furthermore, by Royal Ordinance no. 661 of

1962, it had been decided to co-ordinate the reserve officers pension

and the ATP pension. The applicant realised that upon retirement and

upon receiving the ATP pension his reserve officers pension was

reduced as from December 1983. He therefore complained to the National

Salaries and Pensions Board (Statens löne- och pensionsverk) which

rejected his complaints on 17 February 1984. In its decision the

National Salaries and Pensions Board stated as follows:

"As from 6 December 1973 you received a reserve officers

pension in accordance with the Ordinance 1927:364 regarding

officers and civil military personnel in the army's reserves.

In accordance with the Royal Ordinance 1962:661 (as

amended through Royal Ordinance 1970:509 and Ordinance

1977:9) the reserve officers pension shall be reduced

in view of (co-ordinated with) the general additional

pension (ATP) in accordance with the Social Insurance Act.

It follows from the provisions that the reserve officers

pension must be reduced by 10 % of the ATP. In your case

you will receive 1,011 - 659 (10% of ATP) = 352 crowns.

As the co-ordination is carried out in accordance with the

applicable provisions the National Salaries and Pensions Board

has no intention to change its decision that the reserve

officers pension and the general additional pension should be

co-ordinated as indicated above."

Realising that his reserve officers pension had been reduced

by approximately two-thirds the applicant complained about this

decision to the Administrative Court of Appeal (kammarrätten).

Referring to the factual circumstances of the case the applicant

pointed out that the contract between him and the State and the

latter's obligation to pay in accordance with the 1927 Ordinance had

come into effect in 1961, which was before the act on co-ordination of

pensions had entered into force. He maintained therefore that the law

could not apply retroactively to his situation. Furthermore, he

maintained that his so-called reserve officers pension was no pension

but merely a part of a contract and should not therefore be

co-ordinated with the ATP pension. Accordingly he requested the Court

of Appeal to overrule the decision of the National Salaries and

Pensions Board and to award him his full reserve officers pension.

In its judgment of 19 December 1984 the Administrative Court

of Appeal stated as follows:

"The Administrative Court of Appeal, which notes that the

Ordinance 1962:661 entered into force on 1 January 1963 and

contains provisions concerning co-ordination of the reserve

officers pension and the ATP as from this day onwards, does

not change the decision complained of."

The applicant complained to the Supreme Administrative Court

(regeringsrätten) maintaining in substance the position taken before

the Administrative Court of Appeal. On 30 December 1985, however, the

Supreme Administrative Court refused to grant leave to appeal.

COMPLAINTS

The applicant invokes Article 1 of Protocol No. 1 (P1-1) to the

Convention. He maintains that by co-ordinating the reserve officers

pension and the ATP, and thereby reducing his reserve officers pension

he has been deprived of his possessions by the respondent Government

without this being in the public interest or for tax purposes. He

maintains that the so-called reserve officers pension is not at all a

pension but a clear remuneration and part of the contract which he

entered into with the Government when he became a reserve officer. In

any event he maintains that the introduction of co-ordination of

pensions in 1963 could not apply to him since his entitlements entered

into force already in 1961.

THE LAW

The applicant has complained that he has been deprived of his

possessions contrary to Article 1 of Protocol No. 1 (P1-1) to the Convention

when his reserve officers pension was co-ordinated with the ATP,

thereby reducing the amount he received from the former.

Article 1 of Protocol No. 1 (P1-1) to the Convention provides that

any person is entitled to peaceful enjoyment of his possessions and

that no one shall be deprived of his possessions except in the public

interest and subject to conditions provided for by law and by the

general principles of international law.

According to the Commission's constant case-law the right to a

pension is not as such guaranteed by the Convention (cf. for example

Müller v. Austria, Comm. Report 1.10.75, para. 27, D.R. 3 p. 25, and

No. 7624/76, Dec. 6.7.77, D.R. 19 p. 100). However, the Commission

has considered that the right to a pension which is based on

employment can in certain circumstances be assimilated to a property

right. This may be the case where special contributions have been

paid or the employer, as in the present case, has given a more general

undertaking to pay a pension on conditions which can be considered to

be part of the employment contract (cf. No. 10671/83, Dec. 4.3.85,

unpublished).

For the purposes of the present case, and having regard to

the relevant provision of the Swedish Royal Ordinance of 1927, the

Commission would not exclude that the applicant, when entering the

Royal Värmland's Regiment as a reserve officer and after fulfilling

the requirements of Section 29 of the Ordinance, acquired a property

right within the meaning of Article 1 of Protocol No. 1 (P1-1) to the

Convention.

In the present case the Commission recalls, however, that the

applicant's right to benefit from the acquired right under the Royal

Ordinance of 1927 is left intact and it is merely the amount in

question which has been reduced. This reduction is solely due to the

fact that the applicant, after reaching a certain age, became entitled

to both ATP and old age pensions and since the Swedish Parliament had

introduced legislation which should co-ordinate the benefits received

through the various pension schemes available in Sweden.

It follows from the above that the applicant in essence asks

for full benefits from all the pension schemes applicable to him. The

Commission does not find, however, that the authorities, when applying

the legal provisions concerning co-ordination of the pension schemes,

can be considered to have deprived the applicant of a property right

which he previously had. If the applicant's submissions were to be

accepted, he should, under Article 1 of Protocol No. 1 (P1-1), be entitled to

full benefits for his service as a reserve officer irrespective of the

benefits that could be derived from other pension systems. The

Commission considers, however, that it cannot be in conflict with

Article 1 of Protocol No. 1 (P1-1) to the Convention that a co-ordination is

made between different pension systems.

Accordingly, having regard to the above considerations, the

Commission finds that there is no appearance of a violation of Article

1 of Protocol No. 1 (P1-1) to the Convention, or of any other Article 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

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRUGER) (C. A. NØRGAARD)

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STIGSON v. Sweden

STIGSON v. Sweden

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