DISSENTING OPINION OF JUDGE GARLICKI

To my regret, I cannot subscribe to the Chamber ' s finding of no violation.

This case is about the exclusion of pensioners living abroad from the index-linked up-rating scheme applicable to all pensioners in the United Kingdom . It is not contested that there is a clear difference between various categories of pensioners depending on their actual country of residence. It is further not contested that, in the circumstances of this case, the fact that residence was applied as a criterion for the differential treatment brings the case within the scope of Article 14.

In my opinion, however, the difference in treatment has no objective and reasonable justification. There is some force in the arguments submitted by the majority which, to a large extent, reproduce the position taken by the majority of the House of Lords. There are, however, at least four arguments that may warrant another conclusion.

First, the State pension scheme is compulsory and is based upon the principle of contributions. Even if there is no automatic connection between the amount of contributions and the amount of the future pension, the very idea is the distribution of obligations: those who work have to contribute to the State pension fund and the State has to pay pensions to those who are no longer of working age. Ms Carson, as well as the other applicants, fulfilled her side of the deal in full: for most of her working life she paid contributions (as well as taxes) and those contributions were gladly accepted by the State. Her contributions were spent (as we should hope) on the pensions of current pensioners and also on the annual indexation of their pensions. There was no difference at all between her and other persons working in the UK at that time. Now she is no longer of working age, it is time for the State to meet its obligations. However, the State treats her differently from other fellow contributors solely because of her new place of residence. The fact that she does not reside in the UK does not incur any additional costs for the State. While it is true that she is no longer a UK taxpayer, there are no prohibitions – under our Convention – on imposing a UK tax on her UK-based income, whatever its amount. But unlike those who have remained in the UK , she has been deprived of the index-linking privilege. Considerations of social justice and equity require that persons who have duly contributed towards the pensions of others should not be treated differently in the subsequent calculation of their own pension. Differential treatment based solely on current residence has no link to the contributory nature of pensions and, therefore, is deprived of a reasonable justification.

Secondly, one of the arguments raised by both the House of Lords and our Court concerns the economic differences between the UK and the actual

countries of residence. It is true that there are different levels of inflation, different paces of growth and different exchange rates in relation to the UK currency. But there is a common feature for all countries involved, and this feature is inflation. Thus, it is difficult to accept that the situation of UK residents is basically different from that of non-UK residents. The legislature has, of course, no obligation to up-rate pensions according to inflation in the host country. It is also entitled to adjust indexation to take into account differences between particular countries, but it cannot simply ignore the very existence of inflation as a common economic characteristic of the modern world. Such a regulation penalises persons who, after having fulfilled their side of the contributory scheme, move abroad. Such penalisation runs counter to the principle of individual freedom and, therefore, cannot be regarded as reasonably justified.

Third, the existing system is not based upon any cogent scheme. As was observed by the domestic authorities (see paragraph 47 of the judgment), it would be difficult “to defend the logic of the present situation ... There is no consistent pattern”. In consequence, the situation of British pensioners varies from country to country. This makes the majority ' s references to the margin-of-appreciation doctrine (see paragraph 81 of the judgment) less convincing. Under this doctrine, the State is allowed to devise its own ways of addressing social and economic problems. Had the UK developed a coherent and logical solution to the issue of index-linking for foreign residents, it would have been easier to accept it. But the doctrine of the margin of appreciation cannot legitimise a situation of an illogical and, therefore, arbitrary nature.

Finally, I have complete respect for the House of Lords ' position that the matter is more legislative than judicial in nature. However, such an argument, while convincing at the domestic level, cannot prevail before our Court. A violation that results from legislative omissions is still within the reach of European supervision.

This Court has on several occasions found that nationality-based differentiations in social benefits are inherently suspect. Particularly in Gaygusuz v. Austria ( 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV ) , Koua Pouirrez v. France ( no. 40892/98, ECHR 2003 ‑ X ) and Luczak v. Poland ( no. 77782/01, ECHR 2007 ‑ ...) , differentiation between residents based on nationality (citizenship) was found to be in violation of Article 14. I am not convinced that the differentiation between nationals based on place of residence is so fundamentally different that Ms Carson should enjoy lesser protection than that offered to the applicants in the above-mentioned cases.