CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 25 octobre 2011

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page-break-inside:avoid; page-break-after:avoid } .s31E56244 { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid } .sF8DCB537 { width:16.53pt; display:inline-block } .s25347E17 { width:182.43pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA2C2D4B0 { margin-top:12pt; margin-bottom:36pt; text-align:right } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 }       FOURTH SECTION             CASE OF VALKOV AND OTHERS v. BULGARIA   (Applications nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05)           JUDGMENT       STRASBOURG   25 October 2011   FINAL   08/03/2012   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision . In the case of Valkov and Others v. Bulgaria , The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Nicolas Bratza, President ,   Lech Garlicki,   Päivi Hirvelä,   George Nicolaou,   Nebojša Vučinić,   Vincent A. De Gaetano, judges ,   Pavlina Panova, ad hoc judge , and Lawrence Early, Section Registrar , Having deliberated in private on 4 October 2011, delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in nine applications (nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by nine Bulgarian nationals, Mr Valko Stanilov Valkov, Mr Vasil Kirilov Galabov, Mr Atanas Vladimirov Gonevski, Mr Ivan Zahariev Slavkov, Mr Boyko Dimitrov Sodev, Mr   Vacho Dimitrov Baev, Mr Georgi Sotirov Atanasov, Mr Stoyan Hristov Stoyanov, and Mr Lali Nanev Avreiski (“the applicants”), on 6 January, 14   May, 29 June and 7 December 2004 respectively. 2.     All applicants save for Mr Atanasov were represented by Mr   M.   Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. Mr   Atanasov was represented by Mr Ts. Tsekov, a lawyer practising in Montana. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice. 3.     The applicants alleged, in particular, that a statutory cap on their retirement pensions was in breach of their rights under Article 1 of Protocol   No. 1, and that they were victims of a two ‑ fold discrimination, in breach of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1: firstly, in relation to those pensioners whose pensions fell below the cap, and secondly, in relation to certain high ‑ ranking officials whose pensions were exempted from the cap. 4.     On 10 November 2009 the Court (Fifth Section) decided to join the applications, declared them partly inadmissible, and decided to give the Government notice of the complaints concerning the pensions cap and the alleged discrimination. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1 of the Convention). 5.     Following the re ‑ composition of the Court’s sections on 1 February 2011, the application was transferred to the Fourth Section. 6.     On 13 April 2011 Zdravka Kalaydjieva, the judge elected in respect of the Republic of Bulgaria, withdrew from sitting in the case. On 15 April 2011 the President of the Fourth Section appointed Pavlina Panova as an ad   hoc judge from the list of three persons whom Bulgaria had designated as eligible to serve as such judges (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7 .     The applicants are all pensioners who retired on various dates between 1979 and 2002. Whenever the nominal monthly amount of their pensions exceeded the maximum amount of pension specified until the end of 1999 in section 47c of the Pensions Act 1957 (see paragraph 27 below) and since the beginning of 2000 in paragraph 6 of the provisional and concluding provisions of the Social Security Code 1999 (see paragraphs 31 ‑ 33 below), their pensions were capped. 8 .     In practice, that worked as follows. In individual decisions relating to each of the applicants, the National Social Security Institute (“the NSSI”) calculated their monthly pensions under the general rules laid down first in the Act and then in the Code, and then capped the pensions by reference to the above ‑ mentioned provisions. Whenever the pensions were updated or recalculated, the same process was repeated. A.     Retired Air Force pilots 9 .     The following applicants are retired pilots from the Air Force. During their employment they received higher salaries than the average for the country. 10 .     Mr Valkov, who was born in 1928, started receiving a retirement pension in April 1979. In that year, the competent pension authority set his monthly pension at 330.20 old Bulgarian levs (BGL). Mr Valkov did not provide information about the actual amount of his monthly pension between June 1992 and the end of 1999; it appears that its nominal amount at the end of 1999 was 327.40 new Bulgarian levs (BGN) [1] (the equivalent of 167.40 euros (EUR) [2] ), and that it was therefore affected by the cap under section 47c of the Pensions Act 1957 (see paragraphs 27 and 28 below). When the Social Security Code 1999 came into force on 1 January 2000, Mr   Valkov’s pension was recalculated in accordance with the new rules. With effect from 27 April 2004, he was granted an additional invalidity pension, amounting to BGN 13.75 (EUR 7.03). 11 .     In summary, Mr Valkov’s monthly pension after 1 January 2000 was as follows: Order of the NSSI dated For the period after Pension(s) under the general rules Capped amount of pension 3 July 2000, rect’d 12 January 2001 1 January 2000 BGN 622.97 (EUR 318.52) BGN 160 (EUR 81.81) 5 June 2001 1 June 2001 BGN 685.27 (EUR 350.37) BGN 176 (EUR 89.99) 3 June 2002 1 June 2002 BGN 726.39 (EUR 371.40) BGN 233.20 (EUR 119.23) 3 June 2003 1 June 2003 BGN 771.43 (EUR 394.43) BGN 250 (EUR 127.82) Amendment of paragraph 6 of 1   January 2004 1 January 2004 BGN 771.43 (EUR 394.43) BGN 420 (EUR 214.74) 19 May 2004 27 April 2004 BGN 785.18 (EUR 401.46) BGN 420 (EUR 214.74) July 2004 1 June 2004 BGN 832.30 (EUR 425.55) BGN 420 (EUR 214.74) 19 May 2005 1 June 2005 BGN 891.46 (EUR 455.80) BGN 420 (EUR 214.74) 3 February 2006 1 January 2006 BGN 927.29 (EUR 474.12) BGN 455 (EUR 232.64) 2 July 2007 1 July 2007 BGN 1,020.02 (EUR 521.53) BGN 490 (EUR 250.53) 1 July 2008 1 July 2008 BGN 1,238.15 (EUR 633.06) BGN 490 (EUR 250.53) 1 April 2009 1 April 2009 BGN 1,541 (EUR 787.90) BGN 700 (EUR 357.90) 12 .     Mr Galabov, who was born in 1954, started receiving a retirement pension in 1999. It was as follows: Order of the NSSI dated For the period after Pension(s) under the general rules Capped amount of pension 7 July 1999 1 December 1998 BGL 356,160 (EUR 182.10) BGL 103,950 (EUR 53.15) 7 July 1999 1 July 1999 BGL 400,170 (EUR 204.60) BGL 111,000 (EUR 56.75) 3 July 2000, rect’d 22 May 2002 1 January 2000 BGN 616.86 (EUR 315.40) BGN 160 (EUR 81.81) 22 May 2002 1 June 2001 BGN 678.55 (EUR 346.94) BGN 176 (EUR 89.99) 2 July 2001, rect’d 22 May 2002 1 July 2001 BGN 680.72 (EUR 348.05) BGN 176 (EUR 89.99) 22 May 2002 1 January 2002 BGN 680.72 (EUR 348.05) BGN 220 (EUR 112.48) 22 May 2002 1 June 2002 BGN 721.56 (EUR 368.93) BGN 233.20 (EUR 119.23) 3 June 2002 1 June 2002 BGN 779.07 (EUR 368.93) BGN 186.56 (EUR 95.39) 3 June 2003 1 June 2003 BGN 766.30 (EUR 391.80) BGN 250 (EUR 127.82) Amendment of paragraph 6 of 1   January 2004 1 January 2004 BGN 766.30 (EUR 391.80) BGN 420 (EUR 214.74) 1 June 2004 1 June 2004 BGN 812.28 (EUR 415.31) BGN 420 (EUR 214.74) 1 June 2005 1 June 2005 BGN 869.14 (EUR 444.38) BGN 420 (EUR 214.74) 1 March 2006 1 January 2006 BGN 903.91 (EUR 462.16) BGN 455 (EUR 232.64) 2 July 2007 1 July 2007 BGN 994.30 (EUR 508.38) BGN 490 (EUR 250.53) 1 October 2007 1 October 2007 BGN 1,093.73 (EUR 559.22) BGN 490 (EUR 250.53) 1 July 2008 1 July 2008 BGN 1,206.93 (EUR 617.09) BGN 490 (EUR 250.53) 1 October 2008 1 October 2008 BGN 1,368.52 (EUR 699.71) BGN 490 (EUR 250.53) 5 December 2008 27 November 2008 BGN 1,499.28 (EUR 766.57) BGN 490 (EUR 250.53) 1 April 2009 1 April 2009 BGN 1,649.39 (EUR 843.32) BGN 700 (EUR 357.90) 13 .     Mr Sodev, who was born in 1949, started receiving a retirement pension in 2001. It was as follows: Order of the NSSI dated For the period after Pension(s) under the general rules Capped amount of pension 13 August 2001 1 June 2001 BGN 915.61 (EUR 468.14) BGN 176 (EUR 89.99) 3 June 2002 1 June 2002 BGN 970.55 (EUR 496.23) BGN 233.20 (EUR 119.23) 12 February 2003 15 January 2003 BGN 999.56 (EUR 511.07) BGN 233.20 (EUR 119.23) 3 June 2003 1 June 2003 BGN 1,061.53 (EUR 542.75) BGN 250 (EUR 127.82) Amendment of paragraph 6 of 1   January 2004 1 January 2004 BGN 1,061.53 (EUR 542.75) BGN 420 (EUR 214.74) 1 June 2004 1 June 2004 BGN 1,125.22 (EUR 575.32) BGN 420 (EUR 214.74) 1 June 2005 1 June 2005 BGN 1,203.99 (EUR 615.59) BGN 420 (EUR 214.74) 1 March 2006 1 January 2006 BGN 1,252.15 (EUR 640.21) BGN 455 (EUR 232.64) 29 March 2006 14 March 2006 BGN 1,351.70 (EUR 691.11) BGN 455 (EUR 232.64) 7 March 2007 19 February 2007 BGN 1,366.22 (EUR 698.58) BGN 455 (EUR 232.64) 2 July 2007 1 July 2007 BGN 1,502.84 (EUR 768.39) BGN 490 (EUR 250.53) 1 October 2007 1 October 2007 BGN 1,653.12 (EUR 845.23) BGN 490 (EUR 250.53) 19 March 2008 22 February 2008 BGN 1,670.72 (EUR 854.23) BGN 490 (EUR 250.53) 1 July 2008 1 July 2008 BGN 1,843.64 (EUR 942.64) BGN 490 (EUR 250.53) 26 March 2009 20 February 2009 BGN 2,049.34 (EUR 1,047.81) BGN 700 (EUR 357.90) 1 July 2009 1 July 2009 BGN 2,233.78 (EUR 1,142.11) BGN 700 (EUR 357.90) 14 .     Mr Stoyanov, who was born in 1950, started receiving a retirement pension in 2002. It was as follows: Order of the NSSI dated For the period after Pension(s) under the general rules Capped amount of pension 12 September 2002 14 June 2002 BGN 871.32 (EUR 445.50) BGN 233.20 (EUR 119.13) 3 June 2003 1 June 2003 BGN 925.34 (EUR 473.12) BGN 250 (EUR 127.82) Amendment of paragraph 6 of 1   January 2004 1 January 2004 BGN 925.34 (EUR 473.12) BGN 420 (EUR 214.74) 1 June 2004 1 June 2004 BGN 980.86 (EUR 501.51) BGN 420 (EUR 214.74) n/a 1 June 2005 BGN 1,049.52 (EUR 536.61) BGN 420 (EUR 214.74) n/a 1 January 2006 BGN 1,091.50 (EUR 558.08) BGN 455 (EUR 232.64) n/a 1 January 2007 BGN 1,091.50 (EUR 558.08) BGN 490 (EUR 250.53) n/a 1 July 2007 BGN 1,200.65 (EUR 613.88) BGN 490 (EUR 250.53) n/a 1 October 2007 BGN 1,320.72 (EUR 675.27) BGN 490 (EUR 250.53) n/a 1 July 2008 BGN 1,457.41 (EUR 745.16) BGN 490 (EUR 250.53) n/a 1 April 2009 BGN 1,603.25 (EUR 819.73) BGN 700 (EUR 357.90) n/a 1 July 2009 BGN 1,747.54 (EUR 893.50) BGN 700 (EUR 357.90) 15 .     Mr Avreiski, who was born in 1950, started receiving a retirement pension in 2002. It was as follows: Order of the NSSI dated For the period after Pension(s) under the general rules Capped amount of pension 3 September 2002 15 June 2002 BGN 699.69 (EUR 357.75) BGN 233.20 (EUR 119.23) 3 June 2003 1 June 2003 BGN 743.07 (EUR 379.93) BGN 250 (EUR 127.82) Amendment of paragraph 6 of 1   January 2004 1 January 2004 BGN 743.07 (EUR 379.93) BGN 420 (EUR 214.74) 1 June 2004 1 June 2004 BGN 787.65 (EUR 402.72) BGN 420 (EUR 214.74) n/a 1 June 2005 BGN 842.79 (EUR 430.91) BGN 420 (EUR 214.74) n/a 1 January 2006 BGN 876.50 (EUR 448.15) BGN 455 (EUR 232.64) n/a 1 July 2007 BGN 964.15 (EUR 492.96) BGN 490 (EUR 250.53) n/a 1 October 2007 BGN 1,060.57 (EUR 542.26) BGN 490 (EUR 250.53) n/a 1 July 2008 BGN 1,170.34 (EUR 598.39) BGN 490 (EUR 250.53) n/a 1 October 2008 BGN 1,170.34 (EUR 598.39) BGN 490 (EUR 250.53) n/a 1 April 2009 BGN 1,287.45 (EUR 658.26) BGN 700 (EUR 357.90) n/a 1 July 2009 BGN 1,403.32 (EUR 717.51) BGN 700 (EUR 357.90) B.     Retired sappers 16 .     The following applicants were sappers from the Border Police Service. They also received higher salaries than the average for the country. 17 .     Mr Gonevski, who was born in 1944, started receiving a retirement pension in 2001. It was as follows: Order of the NSSI dated For the period after Pension(s) under the general rules Capped amount of pension 10 April 2002 27 November 2001 BGN 949.96 (EUR 485.71) BGN 176 (EUR 89.99) 3 June 2002 1 June 2002 BGN 1,006.96 (EUR 514.85) BGN 200 (EUR 102.26) 3 June 2003 1 June 2003 BGN 1,069.39 (EUR 546.77) BGN 200 (EUR 102.26) Amendment of paragraph 6 of 1   January 2004 1 January 2004 BGN 1,069.39 (EUR 546.77) BGN 420 (EUR 214.74) 1 June 2004 1 June 2004 BGN 1,133.55 (EUR 579.57) BGN 420 (EUR 214.74) 1 June 2005 1 June 2005 BGN 1,212.90 (EUR 620.15) BGN 420 (EUR 214.74) 1 March 2006 1 January 2006 BGN 1,261.42 (EUR 644.95) BGN 455 (EUR 232.64) 2 July 2007 1 July 2007 BGN 1,387.56 (EUR 709.45) BGN 490 (EUR 250.53) 1 October 2007 1 October 2007 BGN 1,526.32 (EUR 780.40) BGN 490 (EUR 250.53) 1 July 2008 1 July 2008 BGN 1,684.29 (EUR 861.16) BGN 490 (EUR 250.53) 25 July 2008 17 July 2008 BGN 2,068.32 (EUR 1,057.52) BGN 490 (EUR 250.53) 27 February 2009 24 February 2009 BGN 2,100.36 (EUR 1,073.90) BGN 490 (EUR 250.53) 1 April 2009 1 April 2009 BGN 2,310.48 (EUR 1,181.33) BGN 700 (EUR 357.90) 1 July 2009 1 July 2009 BGN 2,518.42 (EUR 1,287.65) BGN 700 (EUR 357.90) 22 January 2010 20 January 2010 BGN 2,556.83 (EUR 1,307.29) BGN 700 (EUR 357.90) 18 .     Mr Slavkov, who was born in 1950, started receiving a retirement pension in 2000. It was as follows: Order of the NSSI dated For the period after Pension(s) under the general rules Capped amount of pension 11 August 2000 1 February 2000 BGN 772.74 (EUR 395.10) BGN 160 (EUR 81.81) 5 June 2001 1 June 2001 BGN 850.01 (EUR 434.60) BGN 176 (EUR 89.99) 3 June 2002 1 June 2002 BGN 901.01 (EUR 460.68) BGN 186.56 (EUR 95.39) 3 June 2003 1 June 2003 BGN 956.87 (EUR 489.24) BGN 200 (EUR 102.26) Amendment of paragraph 6 of 1   January 2004 1 January 2004 BGN 956.87 (EUR 488.80) BGN 420 (EUR 214.74) 1 June 2004 1 June 2004 BGN 1,013.74 (EUR 518.32) BGN 420 (EUR 214.74) 1 June 2005 1 June 2005 BGN 1,084.70 (EUR 554.60) BGN 420 (EUR 214.74) 1 March 2006 1 January 2006 BGN 1,128.09 (EUR 576.78) BGN 455 (EUR 232.64) 2 July 2007 1 July 2007 BGN 1,240.90 (EUR 634.46) BGN 490 (EUR 250.53) 1 October 2007 1 October 2007 BGN 1,364.99 (EUR 697.91) BGN 490 (EUR 250.53) 1 July 2008 1 July 2008 BGN 1,506.27 (EUR 770.14) BGN 490 (EUR 250.53) 1 October 2008 1 October 2008 BGN 1,707.96 (EUR 873.27) BGN 490 (EUR 250.53) 1 April 2009 1 April 2009 BGN 1,878.84 (EUR 960.64) BGN 700 (EUR 357.90) 1 July 2009 1 July 2009 BGN 2,047.94 (EUR 1,047.10) BGN 700 (EUR 357.90) 19 .     Mr Baev, who was born in 1954, started receiving a retirement pension in 2000. It was as follows: Order of the NSSI dated For the period after Pension(s) under the general rules Capped amount of pension 11 August 2000 1 March 2000 BGN 560.92 (EUR 286.79) BGN 160 (EUR 81.81) 5 June 2001 1 June 2001 BGN 617.01 (EUR 315.47) BGN 176 (EUR 89.99) 3 June 2002 1 June 2002 BGN 654.03 (EUR 334.40) BGN 186.56 (EUR 95.39) 3 June 2003 1 June 2003 BGN 694.58 (EUR 355.13) BGN 200 (EUR 102.26) Amendment of paragraph 6 of 1   January 2004 1 January 2004 BGN 694.58 (EUR 355.13) BGN 420 (EUR 214.74) 1 June 2004 1 June 2004 BGN 736.25 (EUR 376.44) BGN 420 (EUR 214.74) 1 June 2005 1 June 2005 BGN 787.79 (EUR 402.79) BGN 420 (EUR 214.74) 1 March 2006 1 January 2006 BGN 819.30 (EUR 418.90) BGN 455 (EUR 232.64) 2 July 2007 1 July 2007 BGN 901.23 (EUR 460.79) BGN 490 (EUR 250.53) 1 October 2007 1 October 2007 BGN 991.35 (EUR 506.87) BGN 490 (EUR 250.53) 1 July 2008 1 July 2008 BGN 1,093.95 (EUR 559.33) BGN 490 (EUR 250.53) 1 October 2008 1 October 2008 BGN 1,240.43 (EUR 634.22) BGN 490 (EUR 250.53) 1 April 2009 1 April 2009 BGN 1,364.26 (EUR 697.53) BGN 700 (EUR 357.90) 1 July 2009 1 July 2009 BGN 1,487.04 (EUR 760.31) BGN 700 (EUR 357.90) C.     Mr Atanasov 20 .     Mr Atanasov, who was born in 1935, did not specify what his employment had been; he merely stated that it had entailed “hard physical labour”. He started receiving a retirement pension in 1995. He did not provide information about the actual amount of his monthly pension between that time and the end of 1999; it appears that its nominal amount at the end of 1999 was BGN 285.71 (EUR 146.08), and that it was therefore affected by the cap under section 47c of the Pensions Act 1957 (see paragraphs 27 and 28 below). When the Social Security Code 1999 came into force on 1 January 2000, Mr Atanasov’s pension was recalculated in accordance with the new rules. 21 .     In summary, Mr Atanasov’s pension after 1 January 2000 was as follows: Order of the NSSI dated For the period after Pension(s) under the general rules Capped amount of pension n/a 1 January 2000 BGN 310.79 (EUR 158.91) BGN 160 (EUR 81.81) n/a 1 June 2001 BGN 341.87 (EUR 174.80) BGN 176 (EUR 89.99) n/a 1 June 2002 BGN 362.38 (EUR 185.28) BGN 186.56 (EUR 95.39) n/a 1 June 2003 BGN 384.85 (EUR 196.77) BGN 200 (EUR 102.26) n/a 1 June 2004 BGN 407.94 (EUR 208.58) n/a n/a 1 June 2005 BGN 436.50 (EUR 223.18) BGN 420 (EUR 214.74) n/a 1 January 2006 BGN 453.96 (EUR 232.11) n/a n/a 1 July 2007 BGN 499.36 (EUR 255.32) BGN 490.00 (EUR 250.53) n/a 1 October 2007 BGN 549.30 (EUR 280.85) BGN 490.00 (EUR 250.53) n/a 1 July 2008 BGN 606.15 (EUR 309.92) BGN 490.00 (EUR 250.53) n/a 1 October 2008 BGN 687.30 (EUR 351.41) BGN 490.00 (EUR 250.53) n/a 1 April 2009 BGN 755.89 (EUR 386.48) BGN 700 (EUR 357.90) n/a 1 July 2009 BGN 832.92 (EUR 425.87) BGN 700 (EUR 357.90) II.     RELEVANT DOMESTIC LAW A.     The 1991 Constitution 22 .     Article 6 § 2 of the 1991 Constitution provides as follows: “All citizens shall be equal before the law. There shall be no restrictions of rights or privileges on grounds of race, nationality, ethnic identity, sex, origin, religion, education, opinions, political affiliations, or personal, social or property status. 23 .     Article 51 of the Constitution provides as follows: “1.     Citizens shall have the right to social security and social assistance. 2.     Individuals who are temporarily unemployed shall be provided with social security under the conditions and procedures provided for by law. 3.     Elderly people who are without relatives and who are unable to support themselves with their own assets, and individuals with physical or mental disabilities shall be under the special protection of the State and society.” 24 .     Article 57 § 1 of the Constitution stipulates that the citizens’ fundamental rights are irrevocable. B.     Caps on pensions 1.     Under the Pensions Act 1957 25 .     Section 47(5) of the Pensions Act 1957, in force until February 1991, provided that a retired person could not receive a pension exceeding his or her highest monthly wage during the last ten years of his or her employment. 26 .     In January 1990 section 47b(2) of the Pensions Act 1957 was amended to provide that the amount of the one or more monthly pensions received could not exceed BGL 500. The cap also applied to pensions that had already been granted (paragraph 3 of the transitional and concluding provisions of the Act for the amendment of the Pensions Act). 27 .     Section 47c of the Pensions Act 1957, inserted in June 1992, capped the amount that could be paid to an individual as a result of his or her entitlement to one or more pensions at three times the amount of the social pension. 28 .     The amount of the social pension was set by the Council of Ministers pursuant to a proposal by the NSSI (sections 45a(4) and 46b(4) of the Pensions Act 1957). It was superseded by the social pension for old age under Article 89 of the Social Security Code 1999 (see paragraph 32 below). Its amount, and the corresponding capped pensions, were as follows:   Period Social pension Pensions cap 1 January – 31 March 1996 BGL 1,210 BGL 3,630 1 April – 30 June 1996 BGL 1,800 BGL 5,400 1 July – 31 September 1996 BGL 2,160 BGL 6,480 1 October 1996 – 30 April 1997 BGL 2,808 BGL 8,424 1 – 8 May 1997 BGL 14,040 BGL 42,120 9 May – 30 June 1997 BGL 16,300 BGL 48,900 1 July – 31 September 1997 BGL 27,000 BGL 81,000 1 October – 31 December 1997 BGL 28,900 BGL 86,700 1 January – 30 June 1998 BGL 30,350 BGL 91,050 1 July – 31 December 1998 BGL 33,000 BGL 99,000 1 January – 30 June 1999 BGL 34,650 BGL 103,950 1 July – 31 December 1999 BGL 37,000 (BGN 37) BGL 111,000 (BGN 111) 29 .     In December 1997 the Chief Prosecutor challenged section 47c before the Constitutional Court, arguing that it ran counter to Articles 51 § 1 and 57 § 1 of the Constitution (see paragraphs 23 and 24 above) and to Article 9 of the International Covenant on Economic, Social and Cultural Rights. In a judgment of 15 July 1998 (реш. № 21 от 15 юли 1998 г. по к.   д. № 18 от 1997 г., обн., ДВ, бр. 83 от 21 юли 1998 г.) the Constitutional Court rejected the challenge by seven votes to five. It held as follows: “The provision [in issue], the new section 47c of the Pensions Act, was [inserted in 1992]. It introduced the impugned pensions cap based on the social pension. In turn, the social pension is set by the Council of Ministers on the basis of a proposal by the [NSSI] (section 45a(1)). It should be noted, for the record, that even before section 47c was added the Pensions Act, which has been amended and supplemented many times, contained provisions that in one way or another set limits on the maximum amount [of pension]. Thus, section 47b(2), [added in 1990 and subsequently repealed], provided that the amount of one pension or the sum total of several pensions could not exceed [BGL]   500 per month. Another example is section 47(5) of the Pensions Act [as in force between 1967 and 1991]. Under the rule laid down in section 47c of the Pensions Act, a class of individuals receive the same amount of pension irrespective of the differences between their employment remunerations, their lengths of service or their social security contributions. While the amount of the pensions of most pensioners depends on those parameters, the amount of the pensions of the persons concerned [by the cap] does not. The question thus arises whether the resulting levelling makes the impugned rule unconstitutional. The answer cannot be affirmative. The allegations that Articles 51 § 1 and 57 § 1 of the Constitution have been breached are groundless. Why is that? Article 51 § 1 of the Constitution proclaims the right to social security and social assistance. The right to a pension, being part of the right to social security, is comprised and enshrined in that provision. It is one of the citizens’ fundamental rights and is irrevocable. However, the constitutional provision does not lay down the conditions under which that right arises and the way in which it is to be exercised. It follows that the framers of the Constitution have left those matters, which include the amount of the pension, to be regulated by statute. The legislature is entitled to determine the matter at its discretion, provided the concrete solution proposed does not run counter to the principles and requirements of the [Constitution]. The legislature did so by adopting section 47c of the Pensions Act. Article 57 § 1 of the Constitution has not been breached either. That provision is entirely irrelevant, because the impugned section 47c of the Pensions Act does not concern a revocation of rights. ... It is true that section 47c of the Pensions Act places citizens in two groups, based on the manner of calculating their pensions. For the first of those groups, the pension is based on certain [individual circumstances], whereas for the second the amount is the same for all. That unequal situation is not a function of any of the statuses ‘set out in Article 6 § 2 of the Constitution in an exhaustive manner’ ... Therefore, the constitutional principle of equality of citizens before the law has not been breached. It is in addition alleged that section 47c of the Pensions Act results in an injustice for those affected by it. That argument is likewise ill ‑ founded. On the contrary, the provision results in justice. One could talk about injustice if it did not exist. The cap set out in section 47c of the Pensions Act could be linked with the so ‑ called minimum amount of pension. Not only is that minimum, guaranteed by law, not unconstitutional, but it is recommended by some conventions of the International Labour Organisation: for instance, Article 7 of Convention No. 35 on Old ‑ Age Insurance (Industry, etc.), [1933]; Article 7 of Convention No. 38 on Invalidity Insurance (Agriculture), [1933]; Article 9 of Convention No. 39 on Survivors’ Insurance (Industry, etc.), [1933]. Those conventions allow the amount of pension to be a fixed sum, or a percentage of the remuneration taken into account for insurance purposes, or to vary with the amount of the contributions paid. The existence of limits on the maximum or the minimum amount of pension, as well as their mutual dependence, are a result of the pension system operating in our country. It can be described, in financial terms, as a ‘pay ‑ as ‑ you ‑ go’ system. Such a system requires a cap on the maximum amount of pension – it serves to guarantee the minimum amount of pension and to contribute to its growth. That function shows that the impugned provision is consistent with the requirements of social justice, as laid down in the Preamble to the [Constitution]. Those reasons lead [this court] to conclude that the current wording of section 47c of the Pensions Act does not run counter to any constitutional provision. The request must therefore be dismissed. In those circumstances ..., there is no need to rule on the previous wording of the same provision. At the same time, [this court] finds that the current constitutional arrangements do not rule out the impugned legislative solution being repealed in the future, but actually make it desirable in the context of the comprehensive reform of social security in this country. ... The rule contained in [Article 9 of the International Covenant on Economic, Social and Cultural Rights] corresponds to that contained in Article 51 § 1 of the [Constitution]. [Article 5 § 1 of the Covenant] is likewise reflected in Article 57 § 1 of the [Constitution]. In those circumstances, and bearing in mind that section 47c of the Pensions Act is not unconstitutional and that the above ‑ mentioned provisions of the [Covenant] have been reflected in the Constitution, [this court comes to the conclusion] that section 47c of the Pensions Act is not contrary to the Covenant provisions either.” 30 .     The five dissenting judges were of the view that the cap was contrary to the constitutional principle of justice because it disregarded the individual contribution of each person to the public good. 2.     Under the Social Security Code 1999 31 .     Paragraph 6(1) of the transitional and concluding provisions of the Social Security Code 1999, which came into force on 1 January 2000 and superseded the Pensions Act 1957, read as follows: “Up to 31 December 2003 inclusively, the amount of the one or more pensions received ... shall not exceed four times the social pension for old age.” 32 .     The social pension for old age, which superseded the social pension under section 45a of the Pensions Act 1957 (see paragraph 28 above) is currently governed by Article 89 of the Code (repealed with effect from 1   January 2012). It is set by the Council of Ministers on the basis of a proposal by the NSSI and the Ministry of Labour and Social Policy (Article   89 § 2 of the Code). Its amount, and the corresponding amount of the pensions cap, were as follows: Period Social pension Pensions cap 1 January 2000 – 31 May 2001 BGN 40 BGN 160 (EUR 81.81) 1 June 2001 – 31 May 2002 BGN 44 BGN 176 (EUR 89.99) 1 June 2002 – 31 May 2003 BGN 46.64 BGN 186.56 (EUR 95.39) 1 June 2003 – end of 2003 BGN 50 BGN 200 (EUR 102.26) 33 .     As an exception to that general rule, paragraph 6(6) of the transitional and concluding provisions of the Code, in force between 1   January 2002 and 31 December 2003, capped the pensions received by retired military personnel or personnel from certain other national security institutions at five times the social pension for old age. In a judgment of 23   February 2004 (реш. № 1579 от 23 февруари 2004 г. по адм. д. №   5004/2003 г., ВАС, І о.) the Supreme Administrative Court held that the exemption was strictly personal and did not apply to the heirs of the persons mentioned in paragraph 6(6). 34 .     On 23 December 2003, a few days before the date on which the cap was due to expire (see paragraph 31 above), Parliament amended paragraph   6(1) with effect from 1 January 2004 to read as follows: “The maximum amount of the one or more pensions received, granted before 31   December 2009 ..., shall be equal to thirty ‑ five per cent of the maximum income for social security purposes for each calendar year [see paragraph 54 below], [as] fixed by the annual State social security budget Act.” It appears that the percentage was set at 35% because that is equivalent to the expected average pension replacement rate in Bulgaria (the ratio between a retiree’s preretirement income and his or her pension – see paragraph 48 below). 35 .     With effect from 1 January 2005, the basis for calculating the cap was changed to the maximum monthly income for social security purposes for the previous calendar year (see paragraph 54 below). 36 .     With effect from 1 January 2007, the date for recalculating the cap was moved from 1 January to 1 July. In 2009, the cap was exceptionally set at BGN 700 with effect from 1 April of that year (paragraph 22h(1) of the transitional and concluding provisions of the Code). 37 .     Thus, during the period 2004 ‑ 11 the cap was as follows: Year Amount of the cap 2004 BGN 420 (EUR 214.74) 2005 BGN 420 (EUR 214.74) 2006 BGN 455 (EUR 232.64) 2007 BGN 490 (EUR 250.53) 2008 BGN 490 (EUR 250.53) 2009 BGN 700 (EUR 357.90) 2010 BGN 700 (EUR 357.90) 2011 BGN 700 (EUR 357.90) 38 .     With effect from 1 January 2010, the cap was extended to all pensions granted before 31 December 2011. The explanatory notes to the draft bill that the Government laid before Parliament related the content of the proposed amendment without further explanations. 39 .     With effect from 1 January 2011, the cap was extended to all pensions granted before 31 December 2013. The explanatory notes to the draft bill that the Government laid before Parliament said that the proposal was to abolish the cap in respect of pensions granted after 1 January 2014 and gradually to increase it in respect of pensions granted before that date. 40 .     The cap does not apply to individuals who have held the posts of President or Vice ‑ President of the Republic of Bulgaria, Speaker of the National Assembly, Prime Minister, or judge in the Constitutional Court (paragraph 6(3) of the transitional and concluding provisions of the Code). Nor does it apply to military invalids who have reached the general retirement age (paragraph 6(5) of the transitional and concluding provisions of the Code). In a judgment of 2 October 2001 (реш. № 7218 от 2   октомври 2001 г. по адм. д. № 1127/2001 г., ВАС, I о.) the Supreme Administrative Court held that this exemption is strictly personal and does not apply to the heirs of the persons mentioned in paragraph 6(3). 41 .     In 2001 an individual whose pension had been capped in application of paragraph 6(1) sought judicial review of the NSSI’s decision in relation to his pension. In a final decision of 18 March 2002 (реш. № 2491 от 18   март 2002 г. по адм. д. № 6065/2001 г., ВАС, І о.) the Supreme Administrative Court dismissed his application, holding that the NSSI had properly applied the substantive law and that the courts were not competent to rule on the constitutionality of statutory provisions such as paragraph 6. 42 .     In December 2004 an association of pensioners affected by the cap asked the Chief Prosecutor to refer paragraph 6(1) to the Constitutional Court. In a letter of 10 February 2005 the Chief Prosecutor’s Office informed the association that the Chief Prosecutor had turned down the request because he considered that the pensions cap did not fall foul of the Constitution. 43 .     In February 2008 a pensioner affected by the cap asked the Ombudsman of the Republic of Bulgaria to refer paragraph 6 to the Constitutional Court. In July 2008 the Ombudsman refused, saying that the cap appeared reasonable, and that in any event the matter had been settled with the Constitutional Court’s judgment of 15 July 1998 (see paragraph 29 above) and could not be revisited. 44 .     In 2009 another individual whose pension had been reduced from BGN 995.29 to BGN 700 in application of paragraph 6 sought judicial review of the NSSI’s decision in relation to his pension. In a judgment of 9   December 2009 (реш. № 96 от 9 декември 2009 г. по адм. д. №   5932/2009 г., САС, І о., 14 състав) the Sofia Administrative Court dismissed the application. The litigant appealed on points of law, asserting, inter alia , that the cap was contrary to the Constitution and to Article 1 of Protocol No. 1 to the Convention. He requested the Supreme Administrative Court to stay the proceedings and refer the constitutionality of paragraphs   6(1) and 22h(1) of the Code (see paragraphs 34 and 36 above) to the Constitutional Court. 45 .     On 7 August 2010 (опр. от 7 август 2010 г. по хода на адм. д. №   1407/2010 г., ВАС, VІ о.) the Supreme Administrative Court acceded to the referral request, stayed the proceedings and referred to the Constitutional Court the question whether the impugned provisions were compatible with the Constitution, Article 14 of the Convention, and Article   1 of Protocol No. 1. 46 .     In a decision of 10 February 2011 (опр. № 1 от 10 февруари 2011   г. по к. д. № 18/2010 г.) the Constitutional Court, over the dissent of one judge, refused to take the matter up for consideration. It held that, in so far as it concerned the compatibility of the pensions cap with the Constitution, the subject matter of the case was essentially the same as that of the case that it had decided in 1998 (see paragraph 29 above). It was immaterial that the two cases concerned different legal provisions. The court went on to hold, in relation to the alleged incompatibility of the cap with Article 1 of Protocol No. 1, that under the Constitution the Supreme Administrative Court was not competent to refer to it the alleged incompatibility of statutory provisions with international treaties. 47 .     In view of that decision, on 28 February 2011 (опр. от 28 февруари 2011 г. по хода на адм. д. № 1407/2010 г., ВАС, VІ о.) the Supreme Administrative Court decided to resume the proceedings. It heard the case on 21 April 2011. The litigant argued, inter alia , that paragraph 6(1) was in breach of Bulgaria’s international obligations and that it was still open to the court to rule on that issue. The prosecutor who took part in the proceedings ex officio argued, inter alia , that the pensions cap did not run counter to the Constitution or to Article 1 of Protocol No. 1. 48 .     In a final judgment of 7 July 2011 (реш. № 10139 от 7 юли 2011 г. по адм. д. № 1407/2010 г., ВАС, VІ о.) the Supreme Administrative Court upheld the lower court’s decision and thus the NSSI’s decision to cap the litigant’s pension. It held that the NSSI had correctly applied the statutory rules, which required it to apply a ceiling to the pension. That ceiling was set at 35% of the maximum income for social security purposes (see paragraph 54 below) because that was the average pension replacement rate in Bulgaria. The previous version of the cap had been upheld by the Constitutional Court (see paragraph 29 above) and could therefore not be regarded as unconstitutional. Nor did it run counter to any international treaties to which Bulgaria was party, or to European Union law. C.     General rules on the amounts and funding of retirement pensions 1.     Under the Pensions Act 1957 and related legislation 49 .     Between 1957 and the end of 1999, the pension system in Bulgaria was a monopillar system; the Pensions Act 1957 made provision for just one tier of retirement pension (sections 2 ‑ 11). Until 1995, the pension fund’s budget was part of the general State budget (Article 170 of the Labour Code 1951). After that, the pension scheme continued to be based on an unfunded, pay ‑ as ‑ you ‑ go model, but the pension fund was separated from the State budget and its management was entrusted to the newly created NSSI (sections 1 ‑ 13 of the Social Security Fund Act 1995). Before March 1996, social security contributions were charged only to employers, not employees, and employers were barred from deducting those contributions from the remuneration paid to employees (Article 148 of the Labour Code 1951, as worded from its adoption in 1951 until the beginning of March 1996). In March 1996 contributions began to be charged, in specified proportions, to both employers and employees (Articles 147, 147a and 148 of the Labour Code 1951, as amended with effect from 1 March 1996). 50 .     An individual became entitled to a retirement pension after a specified number of years of contributions (as a general rule, twenty-five years for men and twenty years for women – section 2(1)(c) of the Pensions Act 1957; there were more favourable conditions for certain categories of work – section 2(1)(a) and (b)). The pension age was sixty years for men and fifty ‑ five years for women (ibid.). However, the age requirement did not apply to military personnel, police, and some other categories of civil servants, who could, in addition, retire after a shorter period of contributions (twenty years – sections 6(1) and 7(1) of the Act). Air Force pilots could retire after ten years of service (section 6(2) of the Act). As a rule, the amount of an individual’s retirement pension was calculated as a percentage of the average gross monthly earnings for three years picked by the pensioner out of his or her last fifteen years of service (section 11(1) of the Pensions Act 1957, as in force between 1967 and 1996). In 1996, that basis was changed to three years of the pensioner’s choice until 1 January 1997, plus the entire period of service after that. 51 .     Pensions were not subject to taxation (section 2(1)(c) of the Income Tax Act 1950). 2.     Under the Social Security Code 1999 52 .     The Social Security Code 1999 came into force on 1 January 2000 and brought about significant changes in the retirement pension model. It makes provision for a multipillar pension system, with three tiers of general retirement pension. The first ‑ tier, or basic, pension scheme is mandatory, public, and defined ‑ benefit. It is based on an unfunded, pay ‑ as ‑ you ‑ go model (Articles 21 and 22 of the Code), and consists of public pension funds managed by the NSSI. The general fund’s main sources of financing are social security contributions and subsidies from the State budget (Article   21 of the Code). Contributions are charged to both employers and employees, in a specified proportion, with the exception of judges, prosecutors, investigators, civil servants, police, national security agents, and military personnel, whose contributions are fully covered by the State budget (Article 6 §§ 3 and 5 of the Code). The part of the contributions payable by employers cannot be deducted from remunerations under any form (Article 6 § 12 of the Code). The amount of the annual State subsidy to the fund is fixed in the annual State social security budget Act (Article 21 § 4 (b) of the Code). Apart from retirement pensions, the fund is used to pay out survivor’s and disability pensions, as well as certain health ‑ related benefits (Article 22 of the Code). The second ‑ tier scheme is also mandatory. It applies to all individuals born on or after