JOINT CONCURRING OPINION OF JUDGES O ’ LEARY AND KOSKELO

A. Introduction

1. While we agree entirely with the majority judgment as regards the finding of no violation of Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention, we feel compelled to write a separate, concurring opinion as regards the majority ’ s reasoning in relation to the discrimination complaint brought under the latter provisions.

2. We regret that the Grand Chamber has not seized the opportunity to refine or elaborate sufficiently the Court ’ s case-law on comparators for the purposes of Article 14 of the Convention. The existing case-law is underdeveloped and, at times, unclear, with the comparability test often glossed over and emphasis placed principally, if not exclusively, on justification and/or proportionality [2] . We are not suggesting that a domestic court, faced with a claim of differential treatment on a prohibited ground, should always follow a rigid three-stage assessment of comparability, justification and proportionality in that order [3] . However, we would suggest that the present case demonstrates particularly well why insufficient attention from the Court to the question of the comparator, and insufficient rigour in its definition, can give rise to problems, not least in the fields of social security and pensions.

3. Before addressing the questions relating to comparability raised by the majority judgment, some clarification regarding the facts of the present case is necessary.

B. Background to the domestic case giving rise to the complaint before the Grand Chamber

4. When the Grand Chamber is called on to examine, under Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention, the consequences for an applicant of legislative pension reform which is just one part of a very complex domestic whole, it is not only desirable, but necessary, that the Court has at its disposal all relevant information relating to the national pension regime, the impugned reform and the particular circumstances of the applicant. Where the success or failure of a discrimination claim depends, as a first step, on the establishment of an appropriate and relevant comparator, such detail is not merely useful, it is essential.

5. However, the case file before the Grand Chamber, like that before the Chamber, remained sadly lacking in detail. This was no doubt due to the absence of any analysis by a domestic court of the legal questions before this Court. The only appeal introduced by the applicant at domestic level was an administrative one before a government agency, the National Pensions Administration (see paragraphs 16-17 and 21 of the majority judgment). Once the latter discontinued the applicant ’ s case due to a failure on his part to provide necessary information, the case was pursued no further at domestic level. The respondent Government did not raise before the Court any preliminary objection under Article 35 § 1 of the Convention for failure to exhaust domestic remedies and the Court does not, under its current practice, raise such an objection of its own motion [4] . Under these circumstances, the Court was confronted with a dearth of information of central importance to its assessment under Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14. In our view, the quality of the legal analysis in which it engaged inevitably suffered as a consequence.

6. The majority judgment does provide something of an overview of the circumstances of the case. The applicant was 47 years old when, in 2000, after 27 years of service and one year before some very generous early ‑ retirement schemes were abolished, he chose to avail himself of one such scheme open to members of the police force [5] . The statutory retirement age in Hungary varied, at the relevant time, between 62 and 63. The applicant only reached this statutory retirement age in 2016, three years after his case had been lodged before the Court. The majority judgment indicates that both (certain) public and (some) private-sector employees used to be eligible for early-retirement pensions [6] . However, the terms and conditions of eligibility for such pensions are nowhere further elaborated [7] . It is noteworthy that the applicant could have continued to work in the police force beyond the age of 47 and, had he done so, he would have continued to contribute to his pension, which would have continued to increase [8] . It is also relevant, as the respondent Government pointed out, that neither the applicant nor his (State) employer had ever paid any additional pension contribution in order to cover the additional cost of the preferential treatment embodied in the longer disbursement period. In receipt of his early-retirement pension, he continued to work, first in the private sector for twelve years and subsequently in the civil service. It was when he was re ‑ employed in the latter in 2012 that the impugned pension reform measure was adopted. The latter provided for suspension of the applicant ’ s pension entitlement for as long as his employment in the civil service continued. To continue receiving his pension he had to stop working in the civil service or return to employment in the private sector. In short, receipt of both a State ‑ funded pension and a State ‑ funded salary was excluded. Some of this information could only be pieced together following the oral submissions of the respondent Government at the hearing on 9 November 2016 and in response to detailed questions posed to both parties by judges of the Court. The evidentiary problems to which this situation gives rise are patent.

C. No violation of Article 1 of Protocol No. 1

7. As indicated previously, we subscribe fully to the majority ’ s finding of no violation of Article 1 of Protocol No. 1 in the circumstances of the present case [9] . We will refer below to elements of the reasoning relating to this complaint only to the extent that they are relevant to the assessment of comparability.

D. Analysis of discrimination under Article 14 of the Convention and the question of comparators

Component parts of an Article 14 discrimination assessment

8. According to the Court ’ s established case-law, there can be no room for the application of Article 14 of the Convention unless the facts at issue fall within the ambit of one or more Convention provisions [10] . Even if a case is within the ambit, Article 14 does not prohibit every difference in treatment in the exercise of rights and freedoms: “[t]he competent national authorities are frequently confronted with situations and problems which, on account of the differences inherent therein, call for different legal solutions; moreover certain legal inequalities tend only to correct factual inequalities [11] .” Thus, in order for an issue to arise under Article 14, “there must be a difference in the treatment of persons in analogous, or relevantly similar, situations [12] .” If that is the case, the difference in treatment in question will be considered discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised [13] . Lastly, it is important to remember that the list of prohibited grounds in Article 14 is long and, more importantly, open-ended due to the reference to “other status” and the Court ’ s generous, expansive approach thereto [14] .

Importance of the comparability test

9. In almost any case where discrimination is alleged, it is of crucial importance to adopt and apply a sufficiently well-elaborated and rigorous analytical framework. Otherwise the risk of arriving at erroneous conclusions is high. This risk can materialise in both ways: the assessment of the relevant facts with reference to an inadequate analytical framework may result in a failure to recognise differential treatment where such a finding is justified (“false negative”), or it may result in a finding of differential treatment in circumstances where such a finding is not well ‑ founded (“false positive”).

10. For this Court, the need to demonstrate analytical rigour when it comes to the question of comparability derives, firstly, from its own preference under Article 14 for the Aristotelian principle of treating like with like. The success of a discrimination complaint depends first and foremost on when persons are deemed to be in situations that are alike. The choice of comparator will often change the outcome of the case, and the judicial choice of comparators is sometimes criticised for being arbitrary or lacking in a consistent rationale. Well-founded criticism of this weakness should spur the Court to present clearly the objective basis on which it determines questions of comparability [15] . Secondly, the long and open-ended list of prohibited grounds in Article 14 means that a lack of rigour in cases where the comparator is central mean all “eggs” are placed in the justification and reasonableness basket. When that happens, as it did at Chamber level in the instant case, it may be all too easy for a lacklustre defence by a respondent Government on the question of objective and reasonable justification to lead to the finding of a violation. This may have far-reaching repercussions not only in the respondent State but also in numerous other States where similar social-security and pension reform is also being implemented [16] .

11. As stated previously, the domestic courts may, depending on the circumstances of a given case, the prohibited ground involved, or the extent of the required judicial scrutiny of the justification advanced, prefer to assume comparability and transpose what would have been relevant factors thereunder to their focus on justification and proportionality. However, a case like this, in which the applicant ’ s administrative appeal was the only aborted occasion afforded a domestic authority to address the present complaints, demonstrates why the Court should not.

12. Thus the first, critical, question in an Article 14 analysis is whether two persons or groups of persons are in an analogous or relevantly similar situation. As indicated above, it is only where this condition is fulfilled that an issue arises under Article 14. The Court has often formulated the basic principle along the lines expressed in § 66 of Clift (cited above): “The applicant must demonstrate that, having regard to the particular nature of his complaint, he was in a relevantly similar situation to others treated differently.” This line of authority cannot, in our view, be taken to mean that the comparator by reference to which an alleged differential treatment must be judged is that dictated exclusively by the applicant or the manner in which he or she has framed the complaint. The identification of the factors that characterise situations in a particular context is an issue that goes to the assessment of the merits of the case. The Court cannot, in answering this legal question, confine its analysis simply to the elements as they may have been relied on by the complainant in a discrimination case. Like can only be compared with like, but what is relevantly “like” or “unlike” must often, necessarily, depend heavily on the circumstances, both factual and legal, in any given case.

13. The clarification of the Clift formula in paragraph 121 of the majority judgment – so that comparability is to be assessed “taking into account the elements that characterise their circumstances in the particular context” and “in the light of the subject-matter and purpose of the measure which makes the distinction in question” – is therefore to be welcomed. It reflects the finer, more contextual analysis applied already in some Article 14 cases but not in all [17] . Incidentally, it also reflects the well-established language of the case-law of the Court of Justice of the European Union on the general principle of equality [18] . The characterising elements must be considered by taking into account the subject-matter and purpose of the measure from which the alleged difference in treatment is said to derive [19] .

Simplicity of the applicant ’ s “but for” argument

14. The simplicity of the applicant ’ s “but for” argument in the present case is a good example of the risks to which an approach which is too vague, general or unspecific may give rise. The applicant claimed that, as a recipient of a pension who continued to be employed in the civil service in return for a State salary, he was the subject of discrimination when compared with other pension recipients who continued to work in the private sector [20] .

15. Formulated simply in this way, and given the suspension of pension entitlement for the first group as distinct from the latter, one could be inclined to agree with the applicant. His grievance, thus formulated was: but for my continued employment in the civil service, I would have continued to receive my pension just like those with post-retirement employment in the private sector. Persons who continue in post-retirement employment being in a relevantly similar situation, according to the applicant ’ s “but for” argument, differential treatment would be established and the assessment under Article 14 would then proceed to an examination of any objective justification advanced by the respondent State and the proportionality of the impugned measure.

Factors absent from the analysis of the comparator in the majority judgment

16. In our view, it was vital that, unlike the Chamber, the majority rightly chose to examine in some more detail the question of the comparator. This led to the finding that, contrary to the applicant ’ s submissions, the two groups on which he sought to rely were deemed not to be in analogous or relevantly similar situations [21] .

17. The analysis of the majority is limited, however, to the question whether the situations of persons with post-retirement employment in the civil service and in the private sector were comparable having regard to the impugned measure by which pension disbursements in parallel with salaries were suspended for the former but not for the latter. In other words, their assessment is undertaken solely by reference to the two categories of employees as they were or were not impacted by the impugned measure [22] .

18. Concentrating on impact might, for the purposes of certain cases, be regarded as sufficient to support a finding that the applicant and his chosen comparators were not similarly situated. We nevertheless consider – especially with a view to the further refinement of the case-law in this area – that it may be, and in this case was, equally important for the purposes of comparability not to overlook the basis on which the pension entitlements accrued in the first place. In our view, elements of the dissent demonstrate further why the majority judgment is weaker on this point than it needed to be.

19. In a case such as the present one, which concerns measures taken in the field of pensions and social-security benefits, the factors that characterise the situations of persons affected by such measures must, in principle, include not only the beneficiaries ’ circumstances at the point in time where the impugned measures took effect and the impact of those measures but also the factors that determine the nature of the entitlements or benefits at the outset, the basis on which those entitlements have accrued and the State guarantee which supports them. More specifically, as like must be compared with like, entitlement to or eligibility for different types of pension benefits, such as old-age pension, disability pension or early-retirement pension cannot, at least not automatically, be considered as giving rise to relevantly similar situations, given their distinct purposes, the conditions to which they are subject and the distinct rights to which they give rise. Even where the pension entitlements are covered by the same general pension scheme [23] , a situation of early retirement at an active age and while the person remains fit to work cannot be assimilated with the situation of persons receiving pensions under different circumstances, subject to different conditions and at a different age. The Court has, on previous occasions, stressed the artificiality of emphasising the similarities between different groups on which an applicant relies while ignoring the distinctions between them for the purposes of Article 14 [24] .

20. Interestingly, when excluding a vio lation of Article 1 of Protocol No. 1 standing alone the Grand Chamber does mention a number of points which highlight relevant distinctions between the various types of pensions involved. Thus, in paragraph 70 of the majority judgment, it emphasises that there may be differences amongst those who are in receipt of a pension (sometimes referred to as an old-age pension, sometimes referenced more generally). Persons, like the applicant, who have not reached the statutory retirement age continue to be in a position to work and have an earning capacity. Furthermore, in paragraph 71 of the majority judgment, an important consequence of early retirement is referred to. Those who receive early ‑ retirement pensions do so on the basis of a far shorter contribution period – both by them and their (State) employer − than those who continue to work until the statutory retirement age. In our view, these factors considered relevant to the analysis under Article 1 of Protocol No. 1 are also relevant to the subsequent analysis of comparability under that provision in conjunction with Article 14.

21. In the present context, however, the majority appear to consider that since the applicant ’ s early-retirement pension (“service pension”) had been converted into an old-age pension in 2012 [25] , this was sufficient to remove the need for any further consideration of whether the original basis and terms of the pension entitlement were also relevant to the analysis of comparability. The trouble is, however, that the Grand Chamber has not been provided with any specific information as to the concrete effect, in legal and financial terms, of the “conversion” that took place in 2012. In our view, the majority dispensed with this issue too easily.

22. One of the key factors in the present case is that the applicant became eligible for early retirement at the age of 47 and chose to avail of it. In this context, we note the Government ’ s observation according to which employees of the armed forces (including the police) had become, by way of a derogation from general pension rules, entitled to their pension decades earlier than at the applicable statutory retirement age. Those pensions were not meant to secure the beneficiaries ’ livelihood in their old age but to provide them with an opportunity to retire at an active age [26] .

23. In this context, it is also relevant to note that although all employees were covered within the framework of a single Pension Fund, into which the contributions levied on them were paid, the reality of the Hungarian “pay as you go” system, as stated by the Government, was that the system was underfunded and its deficits had to be covered by the central State budget [27] . It is obvious that entitlements to early retirement, whereby contributions stop as early as the disbursement of benefits begins, cause relatively larger deficits and, conversely, draw more on the supplementary funding from the State budget than pension entitlements based on longer contribution periods and later commencement of benefit disbursements. Thus, by virtue of and since his early retirement, the applicant had in fact enjoyed benefits subsidised from State funds over a longer period of time than persons in receipt of entitlements from other schemes. This is another reason why, in the context of measures designed to address such imbalances and resulting expenditures from the State budget, it is problematic in a comparability analysis to overlook differences in the various pension entitlement schemes and the financial in- and outflows arising from them.

24. Although it appears from the materials before the Court that some forms of early retirement had also been available in other sectors, we note that the applicant in his submissions made no reference to any early ‑ retirement arrangements in the private sector similar to the one from which he benefited. In this context we recall that under the Court ’ s established case-law, it is for the applicant to demonstrate that he was in a relevantly similar situation to others treated differently [28] . We therefore conclude that the applicant has failed to demonstrate that, as regards his initial entitlement to receipt of pension benefits, his situation as a beneficiary of disbursements following early retirement was relevantly similar to persons employed in the private sector and in receipt of a pension on the basis of that employment.

E. Concluding remarks

25. As regards the analysis of whether, in the context of the present case, persons with post-retirement employment in the civil service and those with post-retirement employment in the private sector can be regarded as being in relevantly similar situations, we should stress that we are broadly in agreement with the analysis presented in the majority judgment [29] . We think, however, that it would have been preferable for the Grand Chamber to address the question of comparability in greater detail and with reference to all the differences, past and present, which characterise the situation of the applicant and those who belong to his chosen comparator group. By encouraging more rigour, when necessary, in the approach to comparability, we are not suggesting either that that test be used to shut down, prematurely, viable claims or shift the burden of proof unduly to complainants. However, where the generously interpreted “other status” category is involved and perhaps in particular where complex issues of social security, pensions and employment are at stake, glossing over comparability and examining only proportionality is a risky way for this Court to proceed.

26. In addition, we consider it important to underline that a finding of no comparability in the instant case should not be understood as implying, in general, that employment in the civil service and employment in the private sector cannot, under any circumstances, be considered to give rise to relevantly similar situations. Such a wide-ranging conclusion would be wrong. As we have underlined above, the question of whether or not two persons or groups are in a comparable situation for the purposes of an analysis of differential treatment and discrimination must be analysed in the light of the elements that characterise their circumstances in a given context, taking into account the subject-matter and purpose of the norms that give rise to the alleged difference in treatment. In other words, the analysis is both specific and contextual. There may well be circumstances where employment in the civil service and in the private sector would have to be regarded as comparable.