SECOND SECTION

Application no. 60934/13 Gábor SOMORJAI against Hungary lodged on 23 September 2013

STATEMENT OF FACTS

The applicant, Mr Gábor Somorjai , is a Hungarian national, who was born in 1939 and lives in Vác .

A. The circumstances of the case

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

The applicant was awarded a disability pension in 1995. Since he had acquired service period both in Hungary and in Austria, his pension was established accordingly, both under the Social Security Act and the Social Security Agreement between Hungary and Austria. As of 1 May 2004 (the date of Hungary ’ s accession to the European Union (EU) ), the monthly amount of his pension was 74,361 Hungarian forints (HUF), approximately 250 euros (EUR).

On 18 April 2006 he requested the review of his pension rights with reference to Article 94 (5) of Regulation 1408/71/EEC of the Council of t he European Communities on the Application of Social Security S chemes to Employed Persons and their Families Moving within the Community. This provision stipulates that the rights of a person to whom a pension was awarded prior to the entry into force of the Regulation may, on the application of the person concerned, be reviewed, taking into account the provisions of this Regulation. In regard to the applicant, the date of “entry into force” was Hungary ’ s EU accession.

The applicant ’ s monthly pension was reviewed and increased to HUF 135,450 (approximately EUR 450). However, the applicant challenged th is administrative decision before the Budapest Labour Court , because the Pension Authority had calculated an overlapping period ( during which the applicant had worked in Austria but was obliged to pay social security contributions also in Hungary) as a mere Hungarian service period with a very low average salary.

The Budapest Labour Court confirmed the decision but, on 3 June 2009, the Sup reme Court overturned the first- instance judgment and ordered new proceedings with the taking into account of the Community law principle of prevention of overlapping of benefits.

In the case remitted to it, the Labour Court quashed the decision of the Pension Authority and instructed it to recalculate the amount of the applicant ’ s pension according to the Community rules (without counting the overlapping time as a mere Hungarian service period). The judgment became final on 1 9 March 2010 (no. 8.M.3105/2009/13.).

On 7 July 2010 the Pension Authority adopted a new decision according to the instructions of the Budapest Labour Court and increased the applicant ’ s monthly pension to HUF 139,545 (approx. EUR 465). The decision ordered the payment , in arrears, of the difference between the pension due and the amount actually paid beforehand. However, the Social Security Act provides that if the Pension Authority had made a mistake to the detriment of an applicant, the difference shall be paid only for the five years preceding the date when the mistake was discovered (i.e. for the statutory limitation period). Therefore, payment of the difference was ordered for the period after 19 March 2005 only.

Claiming the difference for the whole period after Hungary ’ s EU accession, the applicant requested a court review of the administrative decision of 7 July 2010 . He referred to Article 94 (6) of the Regulation which stipulates that :

“[I]f an application referred to in paragraph 4 or 5 is submitted within two years from the date of entry into force of this Regulation, the rights acquired under this Regulation shall have effect from that date, and the provisions of the legislation of any Member State concerning the forfeiture or limitation of rights may not be invoked against the persons concerned . ”

However, both the Budapest Labour Court and the Kúria confirmed the decision. The final judgment was adopted on 26 June 2013 (no. Mfv.III . 10.258/2012/4.). The judgments reaso ned that the Regulation concerned only the acquisition of the rights but not the actual payment of the allowances. In the courts ’ view, the applicant had indeed acquire d a right to an amended pension as of 1 May 2004 and his rights in this regard were not subject to any forfeiture or limitation , and it was only the actual payment o f the increased amount which had been limited. Therefore, in the courts ’ opinion, the relevant provision s of the Hungarian Act and those of the Regulation we re not in collision.

Despite the presence of an issue of potential collision between the national and the EU law, t he Kúria did not refer a preliminary question to the Court of Justice of the European Union, and that without any reference to the criteria introduced by the CILFIT judgment of the Court of Justice of the European Union (“ECJ”) (see below) .

B. Relevant domestic and European Union law

1. Domestic law

Section 155/A of the Code of Civil Procedure provides as follows:

“ (1) The court may request the European Court of Justice for a preliminary ruling in accordance with the rules laid down in the Treaty establishing the European Community.

(2) The court shall make a reference for a preliminary ruling by order ( végzés ) and shall [simultaneously] stay the proceedings. In the order, the court shall establish the question for which a preliminary ruling is requested and describe the circumstances of the case and the relevant domestic law inasmuch as it is necessary for answering the question referred to the European Court of Justice. The order shall be notified to the European Court of Justice and, for information, to the Minister in charge of justice at the same time.

(3) No appeal lies against a court decision making a reference for a preliminary ruling or dismissing a request for a reference for a preliminary ruling .”

2. European Union law

Article 267 of the Treaty on the Functioning of the European Union [1] provides for preliminary rulings of the ECJ as follows:

“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union ...;

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.”

In the case of S.r.l . CILFIT and Lanificio di Gavardo S.p.a . v. Ministry of Health (283/81, Rec. 1982, p. 3415), the ECJ received a request from the Italian Court of Cassation for a preliminary ruling. This request concerned the question as to whether the third paragraph of Article 177 of the EEC Treaty [2] laid down an obligation to refer a matter, which precluded the national court from determining whether the question raised was justified, or whether it made that obligation conditional on the prior finding of a reasonable interpretative doubt.

In its judgment the Court of Justice explained, firstly, as follows:

“... 6. The second paragraph of that article [Article 267] provides that any court or tribunal of a Member State may , if it considers that a decision on a question of interpretation is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. The third paragraph of that article provides that, where a question of interpretation is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall , bring the matter before the Court of Justice.

7. That obligation to refer a matter to the Court of Justice is based on cooperation, established with a view to ensuring the proper application and uniform interpretation of Community law in all the Member States, between national courts, in their capacity as courts responsible for the application of Community law, and the Court of Justice. More particularly, the third paragraph of Article [267] seeks to prevent the occurrence within the Community of divergences in judicial decisions on questions of Community law. The scope of that obligation must therefore be assessed, in view of those objectives, by reference to the powers of the national courts, on the one hand, and those of the Court of Justice, on the other, where such a question of interpretation is raised within the meaning of Article [267].

8. In this connection, it is necessary to define the meaning for the purposes of Community law of the expression “where any such question is raised” in order to determine the circumstances in which a national court or tribunal against whose decisions there is no judicial remedy under national law is obliged to bring a matter before the Court of Justice.

9. In this regard, it must in the first place be pointed out that Article [267] does not constitute a means of redress available to the parties to a case pending before a national court or tribunal. Therefore the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of Community law does not mean that the court or tribunal concerned is compelled to consider that a question has been raised within the meaning of Article [267]. ...”

The ECJ went on to observe that courts or tribunals against whose decisions there was no judicial remedy had the same discretion as any other national court or tribunal to ascertain “whether a decision on a question of Community law [was] necessary to enable them to give judgment”. It concluded that they were not obliged to refer a question of interpretation of Community law raised before them in the following situations: (1) where the question was not relevant, in the sense that the answer to the question, regardless of what it might be, could in no way affect the outcome of the case; (2) where the question was materially identical to a question which had already been the subject of a preliminary ruling in a similar case, or where previous decisions of the Court had already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decisions, even though the questions at issue were not strictly identical; or (3) where the correct application of Community law was so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised was to be resolved (bearing in mind that before it came to this conclusion the national court or tribunal had to be convinced that the matter was equally obvious to the courts of the other member States and to the Court of Justice, and only if those conditions were satisfied could the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it).

The judgment then concluded as follows (point 21):

“... the third paragraph of Article [267] of the [ Treaty on the Functioning of the European Union ] is to be interpreted as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community.”

COMPLAINTS

In substance, t he applicant complains of a violation of his right to a fair trial. He submits that the domestic authorities and the Kúria in particular did not take due account of the European Union law which should govern his case, including the request for a preliminary ruling, and whose interpretation is the prerogative of the European Court of Justice .

He also complains about the length of the proceedings.

He relies on Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention , in particular from the perspective of the application of EU law (see Ullens de Schooten and Rezabek v. Belgium , nos. 3989/07 and 38353/07, 20 September 2011 ) ?

2. Was the length of the proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

[1] F o rmerly, Article 177 of the Treaty establishing the European Economic Community (“EEC Treaty”) and then Article 234 of the Treaty E sta blishing the European Community (“EC Treaty”).

[2] Now Article 267 of the Treaty on the Functioning of the European Union.