CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 juillet 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                            AS TO THE ADMISSIBILITY OF                         Application No. 12264/86                       by Sture STIGSON                       against Sweden             The European Commission of Human Rights sitting in private on 13 July 1988, the following members being present:                 MM. C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C. L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 10 June 1986 by Sture STIGSON against Sweden and registered on 2 July 1986 under file No. 12264/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:     THE FACTS             The facts of the case, as submitted by the applicant, may be summarised as follows.           The applicant is a Swedish citizen, born in 1918.   He is the retired director of the Swedish National Board for Technical Development.   He resides at Lidingö, Sweden.           The applicant served in the Swedish army in the years 1938 to 1941.   In 1942 he entered the Royal Värmland's Regiment as a reserve officer and his remuneration when on active duty and also after having fulfilled his duties as a reserve officer was set out in the Swedish Royal Ordinance no. 364 of 1927.   Section 29 of the Ordinance reads as follows:   "Early retired officers and officers appointed in the reserve corps, civil military (civilmilitär) persons of a comparative position and non-commissioned officers (underofficer) who have, in an appropriate manner, fulfilled the prescribed service or who have, as a result of injury or illness inflicted during service, been unable to fulfil the said service, are awarded an annual pension after having reached the age of 55, totalling 900 Swedish crowns for an officer (or equal) and for a non-commissioned officer totalling 672 Swedish crowns.   However, those who have been appointed in the reserve officers' corps are, after the age of 42, under the conditions indicated, entitled to receive, instead of the pension, an amount corresponding to 5 % of the capitalised value of the pension."           In 1961 the applicant was informed by the National Pension Board (Statens pensionsanstalt) that he had fulfilled his duties according to the 1927 Ordinance and that he was entitled to either the pension or the capitalised sum.   The applicant chose the pension system which meant that he would receive a monthly sum as from the year in which he reached the age of 55, which would be in 1973.           Following the introduction in 1960 of the general additional pension (ATP) it was decided by the Swedish Royal Ordinance 1962:661 that the reserve officers pension should be co-ordinated with the new additional pension in accordance with the Social Insurance Act (lagen om allmän försäkring).           On 13 November 1973, the year in which the applicant reached the age of 55, the applicant received from the appropriate defence authority a letter whereby he was informed that he was now entitled to receive the pension in accordance with the 1927 Ordinance.   He was furthermore informed that the pension now amounted to 405 Swedish crowns per month.   The applicant received the pension as from 6 December 1973 and by the time he reached the age of 65, in December 1983, the amount had reached 1,011 Swedish crowns per month due to a specific index regulation.           It appears that the applicant retired in 1983 and on retirement he was entitled to an old age pension as well as the general additional pension (ATP).   The latter had, as mentioned above, been introduced in 1960 and furthermore, by Royal Ordinance no. 661 of 1962, it had been decided to co-ordinate the reserve officers pension and the ATP pension.   The applicant realised that upon retirement and upon receiving the ATP pension his reserve officers pension was reduced as from December 1983.   He therefore complained to the National Salaries and Pensions Board (Statens löne- och pensionsverk) which rejected his complaints on 17 February 1984.   In its decision the National Salaries and Pensions Board stated as follows:   "As from 6 December 1973 you received a reserve officers pension in accordance with the Ordinance 1927:364 regarding officers and civil military personnel in the army's reserves.   In accordance with the Royal Ordinance 1962:661 (as amended through Royal Ordinance 1970:509 and Ordinance 1977:9) the reserve officers pension shall be reduced in view of (co-ordinated with) the general additional pension (ATP) in accordance with the Social Insurance Act. It follows from the provisions that the reserve officers pension must be reduced by 10 % of the ATP.   In your case you will receive 1,011 - 659 (10% of ATP) = 352 crowns.   As the co-ordination is carried out in accordance with the applicable provisions the National Salaries and Pensions Board has no intention to change its decision that the reserve officers pension and the general additional pension should be co-ordinated as indicated above."           Realising that his reserve officers pension had been reduced by approximately two-thirds the applicant complained about this decision to the Administrative Court of Appeal (kammarrätten). Referring to the factual circumstances of the case the applicant pointed out that the contract between him and the State and the latter's obligation to pay in accordance with the 1927 Ordinance had come into effect in 1961, which was before the act on co-ordination of pensions had entered into force.   He maintained therefore that the law could not apply retroactively to his situation.   Furthermore, he maintained that his so-called reserve officers pension was no pension but merely a part of a contract and should not therefore be co-ordinated with the ATP pension.   Accordingly he requested the Court of Appeal to overrule the decision of the National Salaries and Pensions Board and to award him his full reserve officers pension.           In its judgment of 19 December 1984 the Administrative Court of Appeal stated as follows:   "The Administrative Court of Appeal, which notes that the Ordinance 1962:661 entered into force on 1 January 1963 and contains provisions concerning co-ordination of the reserve officers pension and the ATP as from this day onwards, does not change the decision complained of."           The applicant complained to the Supreme Administrative Court (regeringsrätten) maintaining in substance the position taken before the Administrative Court of Appeal.   On 30 December 1985, however, the Supreme Administrative Court refused to grant leave to appeal.     COMPLAINTS           The applicant invokes Article 1 of Protocol No. 1 (P1-1) to the Convention.   He maintains that by co-ordinating the reserve officers pension and the ATP, and thereby reducing his reserve officers pension he has been deprived of his possessions by the respondent Government without this being in the public interest or for tax purposes.   He maintains that the so-called reserve officers pension is not at all a pension but a clear remuneration and part of the contract which he entered into with the Government when he became a reserve officer.   In any event he maintains that the introduction of co-ordination of pensions in 1963 could not apply to him since his entitlements entered into force already in 1961.     THE LAW           The applicant has complained that he has been deprived of his possessions contrary to Article 1 of Protocol No. 1 (P1-1) to the Convention when his reserve officers pension was co-ordinated with the ATP, thereby reducing the amount he received from the former.           Article 1 of Protocol No. 1 (P1-1) to the Convention provides that any person is entitled to peaceful enjoyment of his possessions and that no one shall be deprived of his possessions except in the public interest and subject to conditions provided for by law and by the general principles of international law.           According to the Commission's constant case-law the right to a pension is not as such guaranteed by the Convention (cf. for example Müller v.   Austria, Comm.   Report 1.10.75, para. 27, D.R. 3 p. 25, and No. 7624/76, Dec. 6.7.77, D.R. 19 p. 100).   However, the Commission has considered that the right to a pension which is based on employment can in certain circumstances be assimilated to a property right.   This may be the case where special contributions have been paid or the employer, as in the present case, has given a more general undertaking to pay a pension on conditions which can be considered to be part of the employment contract (cf.   No. 10671/83, Dec. 4.3.85, unpublished).           For the purposes of the present case, and having regard to the relevant provision of the Swedish Royal Ordinance of 1927, the Commission would not exclude that the applicant, when entering the Royal Värmland's Regiment as a reserve officer and after fulfilling the requirements of Section 29 of the Ordinance, acquired a property right within the meaning of Article 1 of Protocol No. 1 (P1-1) to the Convention.           In the present case the Commission recalls, however, that the applicant's right to benefit from the acquired right under the Royal Ordinance of 1927 is left intact and it is merely the amount in question which has been reduced.   This reduction is solely due to the fact that the applicant, after reaching a certain age, became entitled to both ATP and old age pensions and since the Swedish Parliament had introduced legislation which should co-ordinate the benefits received through the various pension schemes available in Sweden.           It follows from the above that the applicant in essence asks for full benefits from all the pension schemes applicable to him.   The Commission does not find, however, that the authorities, when applying the legal provisions concerning co-ordination of the pension schemes, can be considered to have deprived the applicant of a property right which he previously had.   If the applicant's submissions were to be accepted, he should, under Article 1 of Protocol No. 1 (P1-1), be entitled to full benefits for his service as a reserve officer irrespective of the benefits that could be derived from other pension systems.   The Commission considers, however, that it cannot be in conflict with Article 1 of Protocol No. 1 (P1-1) to the Convention that a co-ordination is made between different pension systems.           Accordingly, having regard to the above considerations, the Commission finds that there is no appearance of a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention, or of any other Article of the Convention.           It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission             DECLARES THE APPLICATION INADMISSIBLE     Secretary to the Commission              President of the Commission                (H. C. KRUGER)                            (C. A. NØRGAARD)