JOINT DISSENTING OPINION OF JUDGES SAJÓ , VEHABOVI Ć, TURKOVIĆ, LUBARDA, GROZEV AND MOUROU-VIKSTR ö M

1 . While we voted with the majority for a finding of no violation of Article 1 of Protocol No. 1, we were unable to subscribe to their conclusion that there had been no violation of Article 14 read in conjunction with Article 1 of Protocol No. 1. Two distinct issues needed to be addressed in the analysis under Article 14. The first one was whether the applicant was in an analogous situation to the suggested comparator group. If this was indeed the case, the second issue to be addressed was whether the difference in treatment was justified. The majority rejected the applicant ’ s complaint already in answering the first question. They held that the applicant was not in an analogous situation compared with individuals who, like him, were in receipt of an old-age pension but who, unlike him, were in private employment (see paragraphs 121-33 of the judgment). We respectfully disagree. Consequently, in our view, an analysis was required as to the necessity of the different treatment, namely whether it was objectively and reasonably justified. As the respondent Government did not present sufficiently strong arguments to justify the different treatment, we voted for a finding of a violation o f Article 14.

2 . We turn first to the question whether the applicant was in an analogous or relevantly similar situation to individuals in receipt of an old ‑ age pension, but who were employed in the private sector. It was not in dispute between the parties that the applicant was treated differently from such individuals and that the different treatment was based precisely on the post-retirement employment of those individuals, and specifically whether they were employed in the public or private sector. The difference in treatment consisted in the fact that the applicant had his pension payments suspended whereas those working in the private sector did not. Thus the pertinent question is whether the two groups, the one to which the applicant belonged comprising individuals in receipt of an old-age pension and working for the public sector, and the comparator group comprising individuals in receipt of an old-age pension and working for the private sector, were in an analogous or relevantly similar situation.

3 . The majority took the view that the fact that one group was employed after retirement in the private sector and the other in the public sector was a sufficient ground for finding that the two groups were not comparable. We find that approach inconsistent with the Court ’ s case-law, as it confuses the analysis of the difference in treatment, in the form of suspension of the old ‑ age pensions of those in public employment, with the factors which were decisive for entitlement to an old-age pension. Only the latter, in our view, should have been taken into account in establishing whether the applicant was in an analogous or relevantly similar situation to the comparator group. The fact that the applicant was in public employment and not in private employment after becoming entitled to an old-age pension was irrelevant for the purposes of his entitlement to such a pension. The public versus private-employment distinction thus constituted the different treatment in the otherwise identical entitlement to an old-age pension of the two groups that had to be compared. The measure contested by the applicant was precisely the suspension of his entitlement to an old-age pension, and the analysis of comparability of the two groups should have been based only on the factors giving rise to such entitlement. The difference between individuals in public and private-sector employment is certainly not irrelevant, but it should have been taken into account only in the analysis of whether this difference in treatment was justified or not.

4 . In arriving at its conclusion that the applicant was not in an analogous or relevantly similar situation to the suggested comparator, the majority drew on a distinction between civil servants and employees in the private sector made by the Court in judgments such as Valkov and Others v. Bulgaria (nos. 2033/04 and 8 others , §§ 92 and 98, 25 October 2011); Heinisch v. Germany (no. 28274/08, § 64, ECHR 2011 , (extracts) ); and Vilho Eskelinen and Others v. Finland ( [GC], no. 63235/00, § 62, ECHR 2007 ‑ II) . It is true that the Court held in those cases that the different treatment of private and public-sector employees in the enjoyment of their rights under the Convention was justified under certain circumstances. We do not believe, however, that this acceptable differentiation of the Convention rights of private and public-sector employees can justify the conclusion that the two categories in the present case were not in an analogous or relevantly similar situation. While the judgments of the Court that were cited undoubtedly drew a distinction between the Convention rights of public and private-sector employees, the reliance on such a distinction in the present case reveals confusion as to the relevant circumstances required for the comparison. This approach fails to recognise that in the cases relied on by the majority the distinction between public and private-sector employees was a pre-existing feature which defined the very content of the right at issue. Whether pension rights, the right to free speech or the right of access to court were at stake, the very essence of the rights at issue in those cases emanated from the specific characteristics of the public service, and as a result the very essence of the right was defined differently, precisely because of the inherent differences between public and private-sector employment. This was the case even in Panfile , albeit that the Court did not rely on this in reaching its decision. The applicant ’ s right to an old-age pension in that case stemmed from special legislation on military personnel (see Panfile v. Romania ( dec. ), no. 13902/11, § 3, 20 March 2012). In the present case, however, the underlying right, the applicant ’ s entitlement to an old-age pension, was in no way affected by the difference between public and private-sector employment. On the contrary, that right was identical for both groups.

5 . The Court has established in its case-law that in order for an issue to arise under Article 14, an applicant must demonstrate that he or she was in a relevantly similar situation to others treated differently, having regard to the particular nature of his or her complaint (see Clift v. the United Kingdom , no. 7205/07, § 66, 13 July 2010). Whether we take this as the applicable standard under Article 14, or the reformulate d standard set out in paragraph 121 of the present judgment, namely “elements that characterise their circumstances in the particular context”, what should have been compared in the present case was the position of the applicant and the members of the comparator group prior to the impugned measure, namely suspension of the old-age pension on the basis of the distinction between public and private-sector employment.

6 . Taking this approach, we cannot help but notice that the applicant ’ s entitlement to an old-age pension in the instant case sprang from exactly the same State old-age pension scheme as that of the comparator group. Both categories had contributed to the scheme in exactly the same manner. As described in paragraph 21 of the judgment, the Hungarian social-security pension scheme is a compulsory, contributory system. Every employee, no matter whether in the public or the private sector, contributes in the same way to the system, which is funded by means of a certain percentage withdrawn from the employee ’ s monthly income and an employer ’ s contribution of 27% of the amount of the employee ’ s salary.

7 . The fact that the applicant took early retirement, before later becoming entitled to an old-age pension, was likewise of no significance for his entitlement to such a pension. He continued to work after his early retirement, and he continued to contribute to the old-age pension scheme in exactly the same manner as any other employee (see paragraph 27 of the judgment). Similarly, the fact that he had contributed to the scheme prior to his early retirement whilst in State employment was of no significance, as he would have found himself in exactly the same position had he previously been employed in the private sector.

8 . Thus, the starting position of the applicant and of individuals in the comparator group was, prior to the suspension of the applicant ’ s pension payments, exactly the same. This situation has a clear parallel with the facts in the case of Andrejeva v. Latvia ([GC], no. 55707/00, § 91, ECHR 2009), in which the Court found a violation of Article 14. In that case the Court held that the prohibition of discrimination enshrined in Article 14 of the Convention was meaningful only if, in each particular case, the applicant ’ s personal situation in relation to the criteria listed in that provision was taken into account exactly as it stood. To hold that the applicant ’ s employment in the public sector while he was in receipt of an old-age pension was decisive for defining whether he was in an analogous situation to the comparator group also runs counter to other decisions of this Court. If this approach had been taken in Gaygusuz v. Austria (16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV), the conclusion would have had to be that the applicant was not in a relevantly similar situation to other persons entitled to emergency assistance in Austria, because, unlike those other persons, he was not an Austrian national.

9 . In the absence of any structural differences between private and public-sector employees in the national pension system, and taking into account the fact that it applied to both categories alike and that the entitlement of the applicant to an old-age pension was based on the same rules and contributions to the system, we conclude that he was in an analogous situation to individuals in the comparator group.

10 . As the parties agreed that the different treatment of the applicant was based on “other status” within the meaning of Article 14, the next relevant question is whether this different treatment was objectively and reasonably justified. T he burden of proof, as the Court has held on many occasions, is on the respondent Government, who have to demonstrate that the difference in treatment was justified (see Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 65, ECHR 2017 ; Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 85, ECHR 2013 (extracts); and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 177, ECHR 2007 ‑ IV). While in their oral pleadings the Government expanded on the justification for the different treatment, their written submissions focused on the need to make savings in a time of financial deficit. The Government ’ s main argument was that section 83/C(1) of the 1997 Pensions Act had been introduced in order to eliminate the simultaneous receipt of pensions and salaries in the public sector, as part of the measures aimed at reducing public debt and securing the closure of the EU excessive deficit procedure. The Government presented statistics about the overall number of individuals affected by the impugned measure and its financial impact. In their oral pleadings, the Government also suggested that the measure was justified as part of efforts to regulate the labour market and create opportunities for young unemployed persons. However, with respect to this argument the Government did not provide any assessment of the expected effect or statistics on the actual impact of the measure.

11 . It is well-established case-law of this Court that a difference in treatment is discriminatory if it has no objective and reasonable justification, in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised. It can be accepted in the present case that the impugned measure pursued a legitimate aim, for the same reasons for which it was accepted that it was in accordance with the general interest for the purposes of Article 1 of Protocol No. 1. Even if the EU excessive deficit procedure was already closed at the time of the adoption of the measure, as the applicant argued, the measure was still aimed at protecting the public purse. This is a legitimate aim, irrespective of the actual financial situation of the country, and one that falls within the economic sphere, where States have a wide margin of appreciation.

12 . Still, when considering the proportionality of the measure some account may be taken, despite the wide margin of appreciation, of the fact that Hungary was at the material time no longer facing a financial crisis. Moreover, the respondent Government presented no evidence that the national Pension Fund, in particular, had been experiencing any financial difficulties. Looking at the measure from this perspective, the number of persons affected and the extent of deprivation become even more important in the proportionality analysis.

13 . Starting with the number of persons affected, the small number of those affected is in fact striking. At any given time between 2013 and 2016, the years for which official figures were provided by the respondent Government, the overall number of individuals affected was between 776 and 1,376. It was 1,376 at the beginning of the period, going down to 776 in the year 2016. Although the overall number of individuals affected by section 83/ C( 1) of the 1997 Pensions Act was higher – between 4,545 and 3,945 – 3,169 of them were medical workers who were fully compensated for the loss of their old-age retirement pension (see paragraph 28 of the judgment). Thus, the number of individuals who were affected by the contested measure was indeed very small in proportion to the overall number of individuals entitled to an old-age pension. The overall number of individuals entitled to an old-age pension at the time was slightly more than two million.

14 . At the same time, this small number of individuals, between 776 and 1,376, was forced to bear a clearly disproportionate burden, namely the loss of their entire monthly pension. They lost their entire monthly pension, irrespective of the salary they were receiving. Although no exact numbers were provided by the parties, the Government did not dispute the applicant ’ s claim that the suspension of his pension had entailed the loss of roughly half of his income. And while it is true that the applicant was not left without any means of subsistence and there seemed to be no risk of him falling below the subsistence threshold, there can be little doubt that the impugned measure seriously affected his and his family ’ s way of life.

15 . The respondent Government failed to address and justify the fact that this rather small number of persons had to bear such a heavy burden. Particularly as the clearly modest savings to the public purse achieved through that measure might easily have been achieved by a more equal redistribution of the financial burden. The Court is thus faced with a situation which is remarkably similar to the one in Kjartan Ásmundsson v. Iceland (no. 60669/00, ECHR 2004 ‑ IX). Accordingly, like in that case we have come to the conclusion that no reasonable relationship of proportionality existed between the means employed and the aim sought to be realised, that the applicant was made to bear an excessive burden and that there has therefore been a violation of Article 14 in conjunction with Article 1 of Protocol No. 1.

[1] . Andorra, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Finland, Georgia, Germany, Greece, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Slovakia, Spain, Sweden, Switzerland, the f ormer Yugoslav Republic of Macedonia, Turkey, Ukraine and the United Kingdom.

[2] . See, for example, Spadea and Scalabrino v. Italy , 28 September 1995 , §§ 45-47 , Series A no. 315-B ; Chassagnou v. France [GC], nos. 25088/94 and 2 others, §§ 91-95 , E CHR 1999-III ; and Grande Oriente d’Italia di Palazzo Giustiniani v. Italy (no. 2) , no. 26740/02, §§ 48-57 , 31 May 2007 .

[3] . See, for example, the judgment of Baroness Hale in AL (Serbia) (FC) (Appellant) v. Secretary of State for the Home Department  2008  UKHL 42 for an explanation why such a rigid approach may be inapt or unnecessar y in many cases. See further C. McCruddon , “ Equality and Non-Discrimination ” in D. Feldman et al . , English Public Law , OUP, 2004, for differences in domestic and European discrimination provisions and the consequences for the different role played by the comparator thereunder.

[4] . See, for example, International Bank for Commerc e and Development and Others v. Bulgaria , no. 7031/05, 2 June 2016, § 131, and the case-law cited therein. In contrast, the Court has explicitly held that it is not open to it to set aside the application of some admissibility criteria, such as the six-month rule, solely because a Government has not made a preliminary objection to that effect (see, for example, Blečić v. Croatia [GC], no. 59532/00, §§ 67-68 , ECHR 2006-III ) . The rationale for the Court’s power to raise such a rule of its own motion is the need to prevent past decisions being called into question after an indefinite lapse of time and the fact that the rule marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible. Yet, as demonstrated in § 70 of the Grand Chamber judgment in Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, 25 March 2014 , the importance of the principle of exhaustion is no less compelling: “States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system … It should be emphasised that the Court is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions ” (emphasis added). It is worth considering whether the rule on exhaustion should not equally be considered a public policy rule which can be raised by the Court, where necessary, of its own motion.

[5] . For the relevance of choice, see paragraphs 76-77 of the majority judgment’s assessment under Article 1 of Protocol No 1.

[6] . See paragraph 30 of the majority judgment.

[7] . A similar tende ncy to vagueness and generalis ation can be detected in the comparative material presented in paragraphs 31 - 43 of the majority judgment.

[8] . See paragraph 22 of the majority judgment.

[9] . See paragraphs 60-84 of the majority judgment.

[10] . See Abdulaziz , C abales and Balkandali v. the United Kingdom , 28 May 1985, § 71, Series A no . 94 .

[11] . See Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits ) , 23 July 1968, § 10 , Series A no. 6 .

[12] . See the authorities cited in paragraph 113 of the majority judgment .

[13] . See, for example, Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51 , ECHR , 2006-VI .

[14] . The Court has found “other status”, inter alia , where the impugned distinction was based on military rank ( Engel and Others v. the Netherlands , 8 June 1976, Series A no. 22); the type of outline planning permission held by the applicant ( Pine Valley Developments Ltd and Others v. Ireland , 29 November 1991, Series A no. 222); whether the applicant’s landlord was the State or a private owner ( Larkos v. Cyprus [GC], no. 29515/95, ECHR 1999- I ) ; the kind of paternity the applicant enjoyed ( Paulík v. Slovakia , no. 10699/05, ECHR 2006- XI (extracts ) ); the type of sentence imposed on a prisoner ( Clift v. the United Kingdom , no. 7205/07, 13 July 2010 ); the nationality or immigration status of the applicant’s son ( Bah v. the United Kingdom , no. 56328/07, ECHR 2011) ; or ownership of large or small parcels of land ( Chassagnou , cited above).

[15] . See further M. Bell, “Direct Discrimination” in D. Schiek , L. Waddington and M. Bell, Cases, Materials and Texts on National, Supr anational and International Non ‑ Discrimination Law , Hart Publishing, 2007, p p . 205-215, or A. McColgan , “Cracking the Comparator Problem: Discrimination, ‘Equal’ Treatment and the Role of Comparisons” (2006) E.H.R.L.R. 650.

[16] . In the present case the Chamber (paragraphs 32-33 ) accepted the legitimate aim (which it identified as reduction in public spending) only to a limited extent. Since members of both groups earned salaries and the pensions paid out to those who continued to work in the private sector could also be regarded as redundant expenditure, the difference in treatment was not regarded by the Chamber as objectively and reasonably justified.

[17] . See, of particular interest for the present case, Panfile v. Romania ( dec. ), no. 13902/11 , § 28 , 20 March 2012 : “… the two categories of persons can hardly be regarded as being in an analogous or relevantly similar situation within the meaning of Article 14, since the essential distinction, relevant to the context in which the impugned measures were taken , is that they draw their incomes from different sources, namely a private budget and the State budget respectively. It should also be noted in that connection that the Court has on a number of occasions countenanced the distinctions that some Contracting States draw, for pension purposes, between civil servants and private employees (see Valkov and Others v. Bulgaria , nos. 2033/04 and 8 others, § 117 , 25 October 2011 , and the citations therein) ” (emphasis added) .

[18] . See, for example, Arcelor Atlantique , EU:C:2008:728 , para graph s 25-26: “The elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in the light of the subject-matter and purpose of the Community act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account … ” See also, in a similar vein , in the specific field of gender equality, Test- Achats , EU :C:2011:100 , para graph 29: “In that regard, it should be pointed out that the comparability of situations must be assessed in the light of the subject-matter and purpose of the EU measure which makes the distinction in question.”

[19] . For existing examples of this more nuanced/circumstantiated/detailed approach in the Court’s own case-law see Stummer v. Austria [GC], no. 37452/02, §§ 90-95 , ECHR 2011 ; Carson and Others v. the United Kingdom [GC], no. 42184/05, §§ 83 - 90 , ECHR 2010 ; B. v. the United Kingdom , no. 36571/06, 14 February 2012 ; Giavi v. Greece, no. 25816/09, §§ 50-53, 3 October 2013 ; Valkov and Others , cited above, § 117 ; and Stubbings and Others v. the United Kingdom , 22 October 1996, §§ 73-74 , Reports of Judgments and Decisions 1996-IV .

[20] . See paragraph 103 of the majority judgment.

[21] . See paragraphs 130 - 32 of the majority judgment.

[22] . It is of course the discriminatory effect of any impugned measure which must be justified, rather than the measure itself, but that is an assessment which follows after the establish ment of differential treatment.

[23] . T he applicant’s pension fund was, as he and the dissenting opinions indicate, common to both him and his comparator group. See below, paragraph 23, however, for an important qualification relating to the State’s liability for that fund.

[24] . See, for example, Stubbings , cited above, § 73. In our view, respectfully, this is the trap into which the joint dissenting opinion falls.

[25] . See paragraph 12 of the majority judgment.

[26] . See paragraph 20 of the Chamber judgment.

[27] . See paragraph 21 of the majority judgment.

[28] . See the case-law cited in paragraph 116 of the majority judgment.

[29] . See paragraphs 118-34 of the majority judgment.