FIRST SECTION

DECISION

Application no. 13266/16 Jadwiga Barbara SZWEBLIK against Poland

The European Court of Human Rights (First Section), sitting on 28 March 2023 as a Committee composed of:

Lətif Hüseynov , President , Krzysztof Wojtyczek, Erik Wennerström , judges , and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 13266/16) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 March 2016 by a Polish national, Ms Jadwiga Barbara Szweblik (“the applicant”), who was born in 1951 and lives in Goleszów;

the decision to give notice of the application to the Polish Government (“the Government”), represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the refusal to return to the applicant the social security contributions which were unduly paid by her in the 1990s.

2. On 19 February 1992 the applicant, a psychologist, informed the Rybnik Social Security Board ( Zakład Ubezpieczeń Społecznych – “the Board”) that she no longer worked for her former employer and had instead registered as an entrepreneur. The applicant failed to inform the Board that she nevertheless continued to be employed until 31 July 2001, on a half-time basis, by a public hospital which had been paying social security contributions on her behalf.

3. Between 1 March 1992 and 31 December 1998, the applicant paid monthly social security and health insurance contributions as an entrepreneur. According to a statement issued by the Board on 14 July 2016, during that period the applicant paid 15,334 Polish zlotys (PLN) in contributions as an entrepreneur.

4. On 23 March 2012 the Board issued a decision by which it declared that between 1 March 1992 and 31 December 1998 the applicant had not in fact been insured as an entrepreneur because she had continued working half ‑ time as an employee. According to the law, persons who engaged in business activity while being employed on at least a half-time basis were only insured as an employee. In consequence, the Board excluded the applicant from the social security scheme for entrepreneurs in respect of that period. The applicant appealed against that decision.

5. On 28 June 2012 the Bielsko–Biała Regional Court ( Sąd Okręgowy ) dismissed her appeal. The court reiterated that, under the domestic law, the applicant had had no obligation to pay social security contributions as an entrepreneur since she had already been insured as an employee. The applicant lodged a further appeal.

6. On 23 May 2013 the Katowice Court of Appeal ( SÄ…d Apelacyjny ) dismissed her appeal. It held that the Board had the right to verify insurance entitlements at any time, even after a significant period of time had elapsed. It also noted that the Board had been unable to establish whether the applicant had been simultaneously employed and registered as an entrepreneur because prior to 1 January 1999 there had been no individual accounts for insured persons.

7. On 18 July 2013 the Board, relying on a five-year time-bar, refused to return to the applicant the contributions which she had paid from 1 March 1992 to 31 December 1998. The applicant appealed.

8. On 20 November 2013 the Bielsko–Biała Regional Court dismissed her appeal. The applicant lodged a further appeal.

9. On 21 August 2015 the Katowice Court of Appeal dismissed her appeal. The court established that between 1992 and 1998 the applicant had been unduly paying social security contributions. The authorities were correct in assessing that the reimbursement of those contributions had been time-barred. Since the domestic law had changed in this respect the court applied the five-year time-limit to the appropriate part of the period and the ten-year time-limit to the period in 1998. In any event the claim had been time-barred. The court also noted that the applicant’s pension rights had not been affected as the authorities had taken into account the contributions paid by her as an entrepreneur both for the calculation of the period of insurance and as regards the accumulated capital. On 2 October 2015 a copy of the judgment with reasons was sent to the applicant.

10. The applicant began receiving her retirement pension in 2006. On 20 October 2011 the Board issued a decision in which it determined the amount of the applicant’s pension and the amount of capital accumulated by her so far. When calculating those amounts, the Board took into account all of the applicant’s contributions, including those she had paid as an entrepreneur in the years 1992-1998.

11. The applicant complained under Article 1 of Protocol No. 1 to the Convention about violations of her property rights as she had been excluded from the social security scheme for entrepreneurs after a significant period of time and the unduly paid social security contributions had not been returned to her.

THE COURT’S ASSESSMENT

12. The Government raised several preliminary objections, in particular regarding non-compliance with the six-month rule in connection with the applicant’s complaint about being excluded from the social security scheme for entrepreneurs.

13. The Government further submitted that the application was incompatible ratione materiae with the provisions of the Convention and the Protocols thereto and manifestly ill-founded as the applicant had not been deprived of any possessions. They underlined that the applicant had been excluded ex lege from the social security scheme for entrepreneurs in the period between 1 March 1992 and 31 December 1998 because during that period she had remained employed. The decision of the Board, upheld by the courts, had been merely declaratory and had brought her legal status into line with the facts. The domestic decisions had not had any negative financial consequences for the applicant. Her pension rights, including the initial capital she had accumulated, had been determined on 20 October 2011, prior to the decision excluding her from the social security scheme for entrepreneurs. At that time the authority had taken into account the contributions paid by her as an entrepreneur. No subsequent decision recalculating the pension had been taken. Thus, the decision of 23 March 2012 had had no effect on the determination of the amount of the initial capital accumulated by the applicant or the calculation of the pension that she had since been receiving.

14. The applicant in general disagreed with the Government. She submitted that she had been retroactively removed from the social security scheme for entrepreneurs to which she had been contributing. Moreover, she had been refused reimbursement of unduly paid social security contributions, which amounted to a breach of her Convention rights.

15. The Court notes that the core of the applicant’s complaint was that, after a significant period of time, she had been excluded from the social security scheme for entrepreneurs to which she had been contributing for some six years in the 1990s. However, the final decision on the matter of the applicant’s social security cover was issued by the Katowice Court of Appeal on 23 May 2013. The applicant lodged her application with the Court on 4 March 2016. Accordingly, this complaint has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

16. Secondly, the applicant complained that the social security contributions unduly paid by her between 1992 and 1998 had not been returned to her. The domestic courts examined the relevant legislation and concluded that her claim was time-barred and as such could not have been examined on the merits. The Court reiterates that the domestic authorities are better placed to evaluate the facts of the case and the domestic law applicable. Moreover, it notes that the domestic courts took into account the fact that, although the decision of 23 March 2012 had formally excluded the applicant from the scheme for entrepreneurs, it had led to no negative consequences for her. The contributions paid by the applicant as an entrepreneur had been taken into account both for the calculation of the period of insurance and as regards the accumulated capital (see paragraph 9 above). As explained by the Government and not contested by the applicant, her pension rights had been established before the Board issued the decision of 23 March 2012. All her pension rights, including the amount of the initial capital, had therefore already been calculated and included the sums paid by her unduly as an entrepreneur. The applicant thus continues to receive a higher pension than would otherwise have been the case, calculated on the basis of all contributions paid by her.

17. The Court thus cannot find that the applicant has been made to bear an excessive burden. Nor it can be said that the applicant’s right to derive benefits from the social security scheme in question has been infringed in a manner resulting in the impairment of the essence of her pension rights (see Cichopek and Others v. Poland (dec.), nos. 15189/10 and others, § 153, 14 May 2013).

18. It follows that the application must be rejected for being manifestly ill-founded in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 April 2023.

Liv Tigerstedt Lətif Hüseynov Deputy Registrar President