CONCURRING OPINION OF JUDGE GARLICKI JOINED BY JUDGE PAVLOVSCHI

The problem in this case is how to end an annuity contract concluded for the life of a beneficiary. I believe that there may be extraordinary situations (in particular, resulting from economic crises and inflation) in which a State ’ s decision allowing such termination would not be, per se, incompatible with the Convention. While, as in respect to all interferences with property rights, the State has to preserve a fair balance between the interests of both parties, it does not mean that the State is not allowed to act at all.

The most appropriate instrument for the State action is, at least within the Continental tradition, a legislative intervention. But, in most legal systems, a precedential ruling of the Supreme Court may have the same effect and not offend against the “prescribed-by-law” requirement. The principle of legal certainty requires that such a ruling has only prospective effect and, in any case, it must not affect earlier judgments and decisions in individual cases. But, like a new law, such a ruling can bring a change into the legal system and can oblige all courts to follow it in their future judgments.

This was what happened in the Macovei case. The 2002 judgment of the Supreme Court opened the possibility of terminating, unilaterally, existing annuity contracts. It did not quash judgments that had been adopted earlier in individual cases; those judgments remained valid and enforceable in respect to ASITO ’ s obligation to pay the pension arrears and to continue the execution of the contracts. What changed was that ASITO was allowed to institute new judicial proceedings in order to have the contracts terminated. But such termination could have only a prospective effect.

That is why I am not persuaded that the majority ’ s reliance on Brumarescu (and, in consequence, also on Rosca and Popov) was really appropriate. Brumarescu dealt with the “extraordinary appeal” procedure whereby it was possible to quash (with an ex tunc effect) a final judgment to the detriment of a party who had already “won” the case. In the present case, the Supreme Court intervention had an impact on the final judgments in individual cases, but only that it permitted termination of the existing contracts. This could give rise to problems under Article 1 of Protocol No. 1, but it was less objectionable under Article 6 § 1 of the Convention. A final judicial decision may protect contracts against any retroactive modifications. It cannot, however, offer to such contracts a perpetual immunity against regulatory interventions, providing the “fair balance” requirements have been observed by the State.

Those requirements were not observed in the Macovei case. Even if there had been sufficient grounds to terminate the existing contracts, the domestic authorities could have adopted solutions offering more protection to the applicants. The extinguishment of contracts could have been extended in

time, the State could elaborate a friendly settlement scheme and, if the ASITO company was genuinely unable to meet its obligations, bankruptcy proceedings could be instituted. None of those possibilities, however, has been explored. Instead, the authorities chose the “simplest solution”, that put the entire burden on the applicants and absolve the company from any liability.

To conclude: I am in full agreement with the majority ’ s finding of a violation of Article 1 of Protocol No. 1. I am less impressed by the majority ’ s interpretation of Article 6 § 1, in particular, its failure to distinguish this case from the Brumarescu precedent. This case offered a good opportunity to go beyond Brumarescu and to clarify another important aspect of legal certainty.