Case: Fábián v. Hungary
Judgement date: 5 September 2017 (Grand Chamber)
Topic: Work-related rights
Aspect: Pensions

Summary of the facts:
This case concerned the suspension of the applicant’s old-age pension on the grounds that he continued to be employed in the public sector. The applicant complained about the suspension of disbursement of his pension. He also alleged that he had been subjected to an unjustified difference in treatment compared with pension recipients working in the private sector and those working in certain categories within the public sector.

Summary of the Court's findings:
The Grand Chamber held that there had been no violation of Article 1 (protection of property) of Protocol No. 1 to the Convention, that there had been no violation of Article 14 (prohibition of discrimination) of the Convention, taken in conjunction with Article 1 of Protocol No. 1 as concerned the applicant’s complaint about the difference in treatment with pensioners working in the private sector, and that his complaint relating to an allegedly unjustified difference in treatment between pensioners employed in different categories within the public sector had been introduced out of time and was therefore inadmissible. In its judgment, the Grand Chamber found in particular that a fair balance had been struck between the demands of the general interest of the community and the requirements of the protection of the fundamental rights of the applicant, who had not been made to bear an excessive individual burden. The Court observed that the Contracting States enjoyed a wide margin of appreciation with regard to the funding methods of public pension schemes, and noted that the interference in question had pursued an aim in the general interest, namely protecting the public purse and ensuring the long-term sustainability of the Hungarian pension system. The Court also noted that the suspension of disbursement of the applicant’s pension had been temporary. Furthermore, he had been able to choose between discontinuing his employment in the civil service and continuing to receive his pension, or remaining in that employment and having his pension payments suspended, and had opted for the latter. Moreover, the applicant had not been left without any means of subsistence as he had continued to receive his salary. The Court also found that the applicant had not demonstrated that, as a member of the civil service whose employment, remuneration and social benefits were dependent on the State budget, he had been in a relevantly similar situation to pensioners employed in the private sector, whose salaries were funded through private budgets outside the State’s direct control.

The facts:
I. THE CIRCUMSTANCES OF THE CASE
10. The applicant was born in 1953 and lives in Budapest.
11. He had been employed as a police officer when, having reached an age when he was entitled to do so, he took early retirement and started receiving a “service pension” ( szolgálati nyugdíj ) from 1 January 2000, when he was nearly 47 years old. The applicant, however, continued to work: he was employed in the private sector between 2000 and 2012 and from 1 July 2012 until 31 March 2015 he worked, as a civil servant, as the head of the Road Maintenance Department of the Budapest XIII District Municipality. The applicant paid the statutory contributions to the State old-age pension scheme from the first day of his employment (1 August 1973) until 31 March 2015.
12. On 28 November 2011 Parliament enacted Act no. CLXVII, which entered into force on 1 January 2012. According to section 5(1) of that law, service pensions like that of the applicant were converted into a “service allowance” ( szolgálati járandóság ), provided that the person concerned was born in or after 1955. Pursuant to section 3(2 ) ( b) of the same Act, for recipients of a service pension who, like the applicant, were born in or before 1954, the service pension was to be converted into an old-age pension.
13. On 1 January 2013 an amendment to Act no. LXXXI of 1997 on Social-Security Pensions (hereafter “the 1997 Pensions Act”) entered into force, according to which the disbursement of those old-age pensions whose beneficiaries were simultaneously employed in certain categories within the civil service would be suspended from 1 July 2013 onwards for the duration of their employment (see also paragraphs 23 - 28 below). No such restriction was put in place in respect of those who were in receipt of an old-age pension while being employed within the private sector.
14. On 18 February 2013 the National Pensions Administration ( Országos Nyugdíjbiztosítási Főigazgatóság ) sent a letter to the applicant in his capacity as the recipient of an old-age pension, informing him of the amended legislation and instructing him to make a declaration as to whether he was employed in the civil service, in one of the categories concerned by the amendment of 1 January 2013. By a letter of 29 April 2013 the applicant notified the National Pensions Administration of his employment situation. Subsequently, on 2 July 2013, the National Pensions Administration informed the applicant that the disbursement of his pension had been suspended as of 1 July 2013. At that time his pension amounted to 162,260 Hungarian forints (HUF; at that time approximately 550 euros (EUR)) per month.
15. On 15 July 2013 the applicant lodged an administrative appeal with the National Pensions Administration (see paragraph 21 below) against the suspension of his pension payments in which he argued that his pension constituted an acquired right and that he was being discriminated against since pensioners working in the private sector continued to receive their pensions.
16. The National Pensions Administration sought further information from the applicant on 23 July 2013. The applicant elaborated on his appeal on 1 August 2013, referring, inter alia, to an application filed by the Ombudsman with the Constitutional Court in May 2013 (AJB-726/2013). In that application the Ombudsman set out the complaints which had been made to his Office about the amendment of the 1997 Pensions Act and raised the issue of a difference in treatment between pensioners employed in the civil service and those employed in the private sector. As far as the Court is aware, this case is currently still pending before the Constitutional Court.
17. On 27 September 2013 the National Pensions Administration discontinued the proceedings concerning the applicant ’ s appeal, holding that the applicant had failed to provide the information sought from him on 23 July 2013.
18. The applicant ’ s employment with the Budapest XIII District Municipality came to an end on 31 March 2015. On 24 April 2015 the competent authority decided that the disbursement of his pension would be resumed. His pension was increased to HUF 177,705 (at that time approximately EUR 585).
III. COMPARATIVE -LAW MATERIAL
31. The Court conducted a comparative study of the legislation of 36 member States [1] of the Council of Europe.
A. Possibility of simultaneous receipt of a State pension and a salary
32. In almost all of the 36 States surveyed it is possible, in one way or another, to receive a State pension and a salary simultaneously. Only in the former Yugoslav Republic of Macedonia is the State pension suspended, without exception, if the person continues to work and receive a salary.
33. However, in the vast majority of States, some form of reduction or suspension of the pension is applied in various situations. These can broadly be divided into the following categories.
1. Beneficiaries of an early - retirement pension
34. Many States ’ legislation distinguishes between people who retire early and people who retire at the legal age of retirement (usually between 60 and 65). Thus, in Andorra, Croatia, the Czech Republic, Estonia, Latvia, Romania and Slovakia, payment of the State pension is suspended while the person continues to work, if he or she retired before reaching the statutory age of retirement. In Portugal, such suspension is applied for three years if the person continues to work for the same company or group of companies.
35. Meanwhile, in some States such as Austria, Denmark, Germany, Luxembourg, Poland and Sweden, an early - retirement pension is reduced or suspended only if the salary earned reaches a certain level. This reduction applies in Iceland not only to early - retirement pensions, but to all forms of pension. In Finland, a person ’ s early - retirement pension is not affected in any way by further employment.
2. Persons who continue to work in the public sector
36. In some of the States surveyed, the pension payment is suspended for people who continue to work in the public sector, whilst no obstacles apply in the private sector (see also paragraphs 38 - 43 below).
3. Beneficiaries of a disability or invalidity pension
37. There are some differences between how the States surveyed regulate salary earned simultaneously with a disability or invalidity pension. In some States such as Austria, reductions are applied if the total amount of pension and salary exceeds a certain threshold. In Croatia and Italy, the accumulation of pension and salary is not possible. On the other hand, pension payments are not suspended for disabled people in Ukraine. Accumulation is also possible in Romania for pensioners with a third - degree invalidity and blind persons.
B. Differences between employment in the private and public sectors when pension payments may be reduced or suspended
38. As stated above (paragraph 36 ), some States suspend State pension payments for people who continue to work in the public sector, whereas they may retain full payment if they continue to work in the private sector. For example, in Andorra, the retirement pension of a civil servant is suspended if that person continues to work as a civil servant or agent in the public administration. In Georgia, suspension of a pension would apply to all categories of jobs in the public sector. A person who continues to work in the private sector in Portugal may simultaneously receive a State pension, while the pension is suspended in the public sector. In Spain, Turkey and Ukraine, accumulation is possible for self-employed persons (up to a certain level), but not for most public - sector employees.
39. In Azerbaijan, while accumulation is possible without a suspension or reduction of the State pension, some categories of public - sector employees, including civil servants, are entitled to supplements to the pension. Supplements are calculated based on a certain percentage of the average salary during the employment period. These supplements will be reduced, or even suspended in some situations. However, they are not reduced or suspended if the person continues to work in the private sector.
40. The same goes for a special form of public - service pension in Denmark. Payment of the public - service pension is suspended if the person continues to work as a public servant, but not if he or she continues to work in the private sector.
41. In Italy, if the total amount of public - sector employees ’ earnings (including old-age pension) exceeds a certain ( quite high) threshold, their salary is reduced to the level of that threshold, while the amount of pension remains the same.
42. In Austria, conversely, public servants, but not private - sector employees, are exempted from the reduction applied to pension payments.
43. However, a majority of the States surveyed do not make a distinction between the public and private sectors regarding whether pension payments may be reduced or suspended.

Relevant law and the Court's assessment:
II. RELEVANT DOMESTIC LAW AND PRACTICE
19. The Fundamental Law of Hungary provides as follows:
Article XII
“(1) Everyone shall have the right to freely choose his or her work or occupation and to engage in entrepreneurial activities. Everyone shall be obliged to contribute to the enrichment of the community through his or her work, in accordance with his or her abilities and opportunities.
(2) Hungary shall strive to create the conditions to ensure that everyone who is able and willing to work has the opportunity to do so.”
20. At the relevant time, the employment of civil servants ( közalkalmazott ) was regulated by Act no. XXXIII of 1992 on the Legal Status of Civil Servants; the employment relationship of public officials ( köztisztviselő ), Government officials ( kormánytisztviselő ), officials in charge of public service administration ( közszolgálati ügykezelő ) and, in relation to some aspects, senior State officials ( állami vezető ) was governed by Act no. CXCIX of 2011 on Public Servants. Employment relationships in the private sector were governed by Act no. I of 2012 on the Labour Code.
21. The Hungarian compulsory social - security pension scheme is a contributory one. Persons in employment (be it in the public or private sector) pay a certain percentage – ten percent in 2013 – of their monthly income from work towards the scheme. Moreover, employers, private entrepreneurs and primary producers pay a social contribution tax of 27% of the amount of salaries paid, which goes, in whole or in part – the decision being made periodically on the basis of financial circumstances – towards the maintenance of the social - security pension system.
The Pension Fund ( Nyugdíjbiztosítási Alap ) thus obtained represents an item in the State budget. Pensions are paid from the Fund by the National Pensions Administration, which is a Government agency. If the Fund ’ s expenditures exceed its revenues, the State shall secure the necessary resources from the central budget.
22. The periods during which a person contributes to the scheme qualify as service time. The amount of pension paid out under the scheme, which is not subject to tax, is dependent on the service time and on that part of a person ’ s income which was subject to compulsory contributions.
23. In recent years, a number of measures were taken to terminate or reduce the concurrent receipt of State-paid pensions and State-paid salaries. Firstly, on 29 December 2012 Government Decree no. 1700/2012 on the principles of pension policy applicable to the civil service was issued. It prohibited the employment by central Government of persons entitled to an old-age pension, and stipulated that it was only in exceptional cases that vacancies could be filled by persons entitled to such a pension. Secondly, the 1997 Pensions Act was amended on 1 January 2013 to prohibit the simultaneous disbursement of remunerations financed by the central budget and old-age pensions or early - retirement pensions. This amendment applied, inter alia, to pensioners employed by local government bodies. A number of categories of persons in State employment were, however, exempted from the suspension of pension payments, such as members of Parliament, mayors, and judges and prosecutors on administrative leave, as well as persons employed in the public sector under the rules of the Labour Code who carried out tasks not related to the exercise of public powers.
24. Sections 83/C and 102/I of the 1997 Pensions Act as amended on 1 January 2013 provided as follows:
Section 83/C
“(1) The disbursement of an old-age pension shall be suspended ... if the pensioner concerned is employed as a civil servant, a government official, a senior State official, a public official, an official in charge of public service administration, a judge, an officer of the court, an officer of the prosecutor ’ s office, a professional member of an armed service, or a professional member or contractor of the Hungarian Defence Force.
...
(3) For the period of suspension of the old-age pension the person concerned shall qualify as a pensioner.
(4) Disbursement of the old-age pension may be continued at the pensioner ’ s request, if the beneficiary proves that the employment in subsection (1) above has been terminated.
....”
Section 102/I
“(1) Beneficiaries of an old-age pension working in any of the employments listed in section 83/C(1) on 1 January 2013 shall notify the pensions disbursement agency thereof by 30 April 2013.
(2) The old-age pension of persons working in any of the employments listed in section 83/C(1) on 1 January 2013 shall be suspended from 1 July 2013, provided that such employment is maintained on that date.”
25. The lawmaker ’ s explanation of section 83/C contains the following passage:
“The amendment introduced the prohibition of double compensation in respect of the employment relationships of civil servants, government officials, senior State officials, public officials, officials in charge of public service administration, judges, officers of the court or the prosecutor ’ s office, professional members of an armed service, as well as professional members and contractors of the Hungarian Defence Force. Accordingly, persons working in such employments may not receive an old-age pension ... in addition to their remuneration, with the result that such payments must be suspended by the pension disbursement agency for the term of the employment.”
26. In the decision to suspend pension payments under section 83/ C( 1) no account is taken of the amount of salary being earned by the person concerned.
27. Beneficiaries of pension payments under the compulsory social ‑ security pension scheme who are at the same time in employment contribute to the scheme in the same way as other employed persons (see paragraph 21 above). They may request a yearly increase of their monthly pension payment in an amount of 0.5% of one-twelfth of their income from work carried out during a calendar year. If disbursement of the pension has been suspended under section 83/ C( 1) of the 1997 Pensions Act, the payment of any such yearly increases is suspended as well. Once disbursement resumes, the yearly increases will be added to the amount of pension that was received prior to the suspension.
28. According to data supplied by the Government, the number of persons in receipt of an old-age pension on 1 July 2013 was 2,007,426. The pension payments of a maximum number of 5,288 persons were suspended at any one time in the course of 2013 under section 83/ C( 1) of the 1997 Pensions Act. The maximum number of persons concerned at any one time in 2014 was 4,545; in 2015 4,212; and, in the period between January and August 2016, 3,945. Between March 2013 and August 2016 an amount of HUF 30,602,215,675 ( at the last - mentioned date approximately EUR 98 million) was not disbursed as a result of the amendment of the 1997 Pensions Act. However, persons who worked in the public health - care sector and who had their pension payments suspended pursuant to section 83/C(1) of the 1997 Pensions Act (3,169 persons between July 2013 and August 2016) were provided by the National Health Fund with monthly compensation equal to the amount of their pension. Between July 2013 and August 2016 such compensation amounted to HUF 25,190,700,000 ( at the last - mentioned date approximately EUR 8 1 million), which reduced the total amount of savings in State expenditure to HUF 5,411,515,675 (approximately EUR 17 million in August 2016 ).
29. Act no. CLXXVIII of 2012 on the amendment of certain tax-related legislation amended the 1997 Pensions Act and entered into force in January 2013. This amendment abolished the previously existing ceiling in respect of statutory contributions to the pension scheme, in order to increase the revenues of the Pension Fund.
30. In 2000 the general statutory retirement age for men in Hungary was 62; an old-age pension could be drawn by those who had reached that age and had completed at least twenty years ’ service. That age was subsequently, and gradually, raised to 63 for both men and women born in 1953.
Various early - retirement schemes used to be statutorily available, both in the public sector (including the armed forces, to which, in Hungary, also the police belong) and the private sector, and over the years a great number of persons opted to make use of such schemes. From 1 January 2012 onwards those schemes – inasmuch as new entrants were concerned – were abolished by the entry into force of Act no. CLXVII (see also paragraph 12 above ).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TAKEN ALONE
44. The applicant complained that the suspension of disbursement of his old-age pension amounted to a violation of Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. The Chamber judgment
45. In its judgment, the Chamber first examined the applicant ’ s complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. Having reached a finding of a violation in that respect, the Chamber considered that it was not necessary to examine whether the facts of the case also constituted a violation of Article 1 of Protocol No. 1 taken alone.
B. The parties ’ submissions to the Grand Chamber
1. The applicant
46. The applicant submitted that it followed from the Court ’ s case-law that, as a result of his regular contributions to the State pension scheme from the first day of his employment on 1 August 1973, he had acquired a property right in the form of a legitimate expectation, which therefore entailed the applicability of Article 1 of Protocol No. 1. Owing to the application of section 83/C of the 1997 Pensions Act, he had been deprived of his entire monthly pension. He argued that this deprivation could not be justified by the general interest and was not proportionate.
47. The applicant accepted that the Government enjoyed a wide margin of appreciation in assessing the requirements of the general interest. However, in his opinion, it was not enough for the Government merely to refer to the general interest without demonstrating that the impugned measure was actually required by that interest. He contended that in this regard the present case fell to be distinguished from the case with which the Government sought to compare it ( Panfile v. Romania ( dec. ), no. 13902/11, 20 March 2012 ), in that in Romania the legislative measure prohibiting the simultaneous receipt of a State-paid pension and a salary acquired through State employment had been taken at the height of the financial crisis, and had been lifted when that crisis had abated. In contrast, by the time the amended legislation had entered into force in Hungary (1 July 2013), Hungary had already ceased to be subject to the EU excessive deficit procedure, the release from which had been the aim of the legislation. In addition, the Government had declared in 2013 that the country ’ s economic situation was excellent, and also from their ambitious spending plans it appeared that they were of the view that the economic crisis was over.
48. The measure was in any event not fit for the purpose it claimed to pursue, since it only affected a small group of pensioners, bearing in mind that pensions continued to have to be paid to pensioners working in the private sector and to those pensioners employed in the public sector who had been exempted from the ban on accumulation of State-paid pensions and salaries. In addition, in the same year, 2013, the pension ceiling had been raised considerably: whereas it had previously not been possible for a monthly pension to exceed HUF 300,000 (at that time approximately EUR 1,020), the highest monthly pension paid out had now reached HUF 2,000,000 (currently approximately EUR 6,500). Having regard to those factors, the impugned measure could not even in theory have contributed to helping Hungary obtain release from the excessive deficit procedure. The savings actually made currently amounted to no more than 0.0001% of Hungary ’ s gross domestic product (GDP).
49. For the measure to have a genuine impact on the State budget, it should have provided for the suspension of pension payments to precisely those persons in State employment who had been exempted from such suspension, as it was they who were in receipt of substantially higher pensions than the persons, like the applicant, who had had their pension payments suspended. Moreover, those State employees ’ earnings were also considerably higher than the applicant ’ s salary and the suspension of their pension payments would thus not have had the same impact on them as it had had on the applicant, who had only taken up employment after his retirement out of financial necessity. In that connection he submitted that his pension had been lower than the general monthly salary before tax in Hungary which, according to Hungary ’ s Central Statistical Office, had stood at HUF 229,700 a month (at that time approximately EUR 780) between January and November 2013.
50. No account had, however, been taken of his income when it was decided that the disbursement of his pension was to be suspended. This also distinguished the case from Panfile, since in Romania the ban on the accumulation of State-paid pensions and salaries only applied if a person ’ s pension exceeded the national average salary before tax.
51. The applicant had, moreover, taken out a bank loan on the basis of his income consisting of his pension and his salary, and, following the suspension of his pension payments, had encountered problems reimbursing that loan. The loss of half his income had caused, and continued to cause, serious repercussions for his circumstances and those of his family. The applicant concluded that he had been made to bear an excessive and individual burden.
52. Finally, the applicant disputed the Government ’ s claim that other Council of Europe member States had identical or even similar legislation in place.
2. The Government
53. The Government acknowledged that the pension right at issue in the applicant ’ s case was a pecuniary right for the purposes of Article 1 of Protocol No. 1. While they accepted that the impugned measure constituted interference with the peaceful enjoyment by the applicant of that right, they disputed that it amounted to a total deprivation of his entitlements.
54. The Government further argued that the interference was legitimate and served the general interest. At the hearing before the Grand Chamber they submitted that, owing to an imbalance in the ratio of pension recipients as opposed to pension contributors – caused, inter alia, by an ageing population and the statutory availability of early-retirement schemes – the Hungarian State pension system had been facing serious challenges, with the situation being exacerbated by the 2008 global economic crisis. A number of measures had therefore been taken in order to reform the pension system. One such measure had been the abolition in 2013 of the ceiling on monthly pension contributions (see paragraph 29 above), which had been incorrectly described by the applicant as the elimination of the maximum amount that could be received by way of a monthly pension; in fact, the law in force prior to the measure had not contained such a maximum. In the short run, the abolition of the ceiling on pension contributions had resulted in a significant increase in the revenues of the Pension Fund and, while in the long run it might also lead to an increase in expenditure, important constraints – such as a highly degressive calculation of pension amounts – were in place to prevent such a development.
55. Apart from reforming the pension system, the Government had also taken action in the field of employment policy, aimed at both the reduction of public debt and ensuring a fairer system of burden sharing and distribution of public funds. In 2012, compulsory retirement at the statutory pensionable age with a prohibition on resuming employment had been introduced in the civil service sector by Decree 1700/2012 (see paragraph 23 above) as a means of downsizing that service, where appropriate, and reducing youth unemployment. That decree was applicable only to central Government – that is, ministries and their subordinate bodies – and could thus not impose any obligation on local government bodies to dismiss persons in receipt of pension benefits in their employ. It was to the latter category of employees that the measure at issue in the present case applied; they were given the choice between either discontinuing their employment and continuing to receive their pension, or continuing their employment and having their pension payments suspended. This measure was thus part of a package of measures aimed at securing the long-term sustainability of the pension system, reducing public debt and facilitating the closure of the EU excessive deficit procedure that had been initiated against Hungary (by the Council of the European Union in accordance with Article 126 of the Treaty on the Functioning of the European Union).
56. According to the Government, the interference at issue had, moreover, been proportionate. In this connection they referred to the case of Panfile, cited above, which, like the present case, also concerned an applicant who – at the time a law had entered into force prohibiting the concurrent receipt of a pension and a State-paid salary – had been in receipt of pension benefits while simultaneously being in State employment. In that case the Court had noted that, since Mr Panfile had had the choice between continuing to receive his monthly pension and terminating his employment, or having the pension payment suspended while continuing to work for the State, he had not suffered a total deprivation of his entitlements, neither had he been divested of all means of subsistence. In the present case, however, the Chamber had not considered it necessary to examine the applicant ’ s complaint under Article 1 of Protocol No. 1 taken alone. The principle of consistency required that such an examination be carried out in the present case also. That examination should lead, so the Government argued, to the same conclusion as the Court had reached in Panfile : the applicant had had the choice between receiving his pension or continuing to work, and it was to be assumed that he had elected to stay in employment because his salary was higher than his pension. As his pension had amounted to HUF 162,260 (at that time approximately EUR 5 5 0 ), he must have been in receipt of a monthly salary higher than the average salary in Hungary in 2013 (which had been HUF 151,118 (at that time approximately EUR 515)). For those reasons it could not be said that the applicant had been made to bear an excessive individual burden.
57. Finally, the Government argued that the Chamber judgment in the present case might entail serious consequences for the social - security systems of a number of member States of the Council of Europe, as in some of those member States (they named seven) national law prescribed the reduction or suspension of pension allowances where the beneficiary was in simultaneous receipt of a salary.
C. The third-party intervener ’ s arguments
58. The submissions of the European Trade Union Confederation (ETUC ) contained information on legislation in force in the member States of the Council of Europe relating to the accumulation of old-age pension benefits with earnings from work, from which they concluded that the great majority of member States allowed such accumulation.
59. The ETUC further signalled a growing trend among states towards enshrining the fundamental right to social security in national constitutions. Accordingly, so they argued, any restriction of that right required precise justification.
D. The Grand Chamber ’ s assessment
1. Applicability of Article 1 of Protocol No. 1 and the existence of interference
60. The Court reiterates that Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules. The first rule, which is set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property. The second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions. The third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose. However, the rules are not “ distinct ” in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, Sargsyan v. Azerbaijan [GC], no. 40167/06, § 217, ECHR 2015, and James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98).
61. The Court notes from the outset that at the relevant time the applicant was in receipt of an old-age pension. His entitlement to that pension sprang from paragraph 3(2 ) ( b) of Act no. CLXVII: having been born before 1954, he satisfied the legal requirement for his service pension, of which he had been a recipient since 2000, to be converted into an old-age pension when that Act entered into force on 1 January 2012 (see paragraphs 10 and 12 above).
62. In the proceedings before the Court there was agreement between the parties that the applicant ’ s pension entitlements constituted a possession within the meaning of Article 1 of Protocol No. 1 and that suspension of his pension entitlement by virtue of the amendment of 1 January 2013 to the 1997 Pensions Act entailed interference with the applicant ’ s rights as protected by this provision. The Court sees no reason to disagree.
63. On the other hand, the Government disputed the applicant ’ s claim that the matter ought to be considered under the second rule mentioned above, that is to say, that the suspension in fact amounted to a deprivation of property within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1.
64. The Court has previously held that the modification or discontinuance of supplementary retirement benefits constituted “neither an expropriation nor a measure to control the use of property” (see Aizpurua Ortiz and Others v. Spain, no. 42430/05, § 48, 2 February 2010), and that the reduction of a pension by way of forfeiture was “neither a control of use nor a deprivation of property” (see Banfield v. the United Kingdom ( dec. ), no. 6223/04, ECHR 2005 ‑ XI ). As it did in those two cases, the Court considers that the interference with the applicant ’ s property rights in the present case falls to be considered under the first rule mentioned above, namely the general principle of peaceful enjoyment of property (see also Lakićević and Others v. Montenegro and Serbia, nos. 27458/06 and 3 others, § 64, 13 December 2011, and Panfile, cited above, § 19).
2. Compliance with Article 1 of Protocol No. 1
(a) Relevant principles
65. The principles relevant to the present case have recently been set out by the Grand Chamber in its judgment in Béláné Nagy ( Béláné Nagy v. Hungary [GC], no. 53080/13, ECHR 2016 ):
“112. An essential condition for an interference with a right protected by Article 1 of Protocol No. 1 to be deemed compatible with this provision is that it should be lawful. The rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Iatridis, cited above, § 58; Wieczorek, cited above, § 58; and Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 96, 25 October 2012).
113. Moreover, any interference by a public authority with the peaceful enjoyment of possessions can only be justified if it serves a legitimate public (or general) interest. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is ‘ in the public interest ’. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures interfering with the peaceful enjoyment of possessions. The notion of ‘ public interest ’ is necessarily extensive. In particular, the decision to enact laws concerning social-insurance benefits will commonly involve consideration of economic and social issues. The Court finds it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one and will respect the legislature ’ s judgment as to what is ‘ in the public interest ’ unless that judgment is manifestly without reasonable foundation (see, mutatis mutandis, The former King of Greece and Others v. Greece [GC], no. 25701/94, § 87, ECHR 2000-XII; Wieczorek, cited above, § 59; Frimu and Others v. Romania ( dec. ), nos. 45312/11, 45581/11, 45583/11, 45587/11 and 45588/11, § 40, 7 February 2012; Panfile v. Romania ( dec. ), no. 13902/11, 20 March 2012, and Gogitidze and Others v. Georgia, no. 36862/05, § 96, 12 May 2015).
114. This is particularly so, for instance, when passing laws in the context of a change of political and economic regime (see Valkov and Others, cited above, § 91 ); the adoption of policies to protect the public purse (see N.K.M. v. Hungary, no. 66529/11, §§ 49 and 61, 14 May 2013); or to reallocate funds (see Savickas and Others v. Lithuania ( dec. ), no. 66365/09, 15 October 2013); or of austerity measures prompted by a major economic crisis (see Koufaki and ADEDY v. Greece ( dec. ), nos. 57665/12 and 57657/12, §§ 37 and 39, 7 May 2013; see also da Conceição Mateus and Santos Januário v. Portugal ( dec. ) nos. 62235/12 and 57725/12, § 22, 8 October 2013; da Silva Carvalho Rico v. Portugal ( dec. ), § 37, no. 13341/14, 1 September 2015).
115. In addition, Article 1 of Protocol No. 1 requires that any interference be reasonably proportionate to the aim sought to be realised (see Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, §§ 81 ‑ 94, ECHR 2005 ‑ VI). The requisite fair balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52; Kjartan Ásmundsson, cited above, § 45; Sargsyan, cited above, § 241; Maggio and Others, cited above, § 63; and Stefanetti and Others, cited above, § 66).
116. In considering whether the interference imposed an excessive individual burden the Court will have regard to the particular context in which the issue arises, namely that of a social-security scheme. Such schemes are an expression of a society ’ s solidarity with its vulnerable members (see Maggio and Others, § 61, and Stefanetti and Others, § 55, both cited above, and also, mutatis mutandis, Goudswaard -Van der Lans v. the Netherlands ( dec. ), no. 75255/01, ECHR 2005-XI).
117. The Court reiterates that the deprivation of the entirety of a pension is likely to breach the provisions of Article 1 of Protocol No. 1 and that, conversely, reasonable reductions to a pension or related benefits are likely not to do so. However, the fair balance test cannot be based solely on the amount or percentage of the reduction suffered, in the abstract. In a number of cases the Court has endeavoured to assess all the relevant elements against the specific background (see Stefanetti and Others, cited above, § 59, with examples and further references; see also Domalewski v. Poland ( dec. ), no. 34610/97, ECHR 1999 ‑ V). In so doing, the Court has attached importance to such factors as the discriminatory nature of the loss of entitlement (see Kjartan Ásmundsson, cited above, § 43); the absence of transitional measures (see Moskal, cited above, § 74, where the applicant was faced, practically from one day to the next, with the total loss of her early-retirement pension, which constituted her sole source of income, and with poor prospects of being able to adapt to the change); the arbitrariness of the condition (see Klein, cited above, § 46), as well as the applicant ’ s good faith (see Moskal, cited above, § 44).
118. An important consideration is whether the applicant ’ s right to derive benefits from the social-insurance scheme in question has been infringed in a manner resulting in the impairment of the essence of his or her pension rights (see Domalewski, cited above; Kjartan Ásmundsson, cited above, § 39; Wieczorek, cited above, § 57; Rasmussen, cited above, § 75; Valkov and Others, cited above, §§ 91 and 97; Maggio and Others, cited above, § 63; and Stefanetti and Others, cited above, § 55). ”
(b) Application of these principles to the present case
( i ) Whether the interference was “lawful”
66. The lawfulness of the interference, in terms of domestic law, is not in dispute: the Court is satisfied that it was prescribed by section 83/C of the 1997 Pensions Act (see paragraph 24 above).
(ii) Whether the interference was “in accordance with the general interest”
67. Bearing in mind the wide margin of appreciation of the State in the field of social security and pensions, the Court finds no reason to doubt that the prohibition on the simultaneous disbursement of salaries and pensions to which the applicant was subjected served the general interest of the protection of the public purse. As submitted by the Government and not disputed by the applicant, the suspension of pension payments at issue was, inter alia, also part of a package of measures aimed at assuring the long-term sustainability of the Hungarian pension system and reducing public debt.
68. Moreover, the Court cannot agree with the applicant ’ s argument that the legislative interference at issue affected so few people that its impact on the State budget was minimal, and that other measures would have resulted in more meaningful savings. In this connection it reiterates that, provided that the legislature chose a method that could be regarded as reasonable and suited to achieving the legitimate aim being pursued, it is not for the Court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way (see James and Others, cited above, § 51).
(iii) Whether the interference was proportionate
69. The next question to be addressed by the Court is whether the interference struck a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights.
70. In this connection, the Court notes at the outset that the issue in the present case arises in the particular context of a social - security scheme. As already set out above (see paragraph 65 ), such schemes are an expression of a society ’ s commitment to the principle of social solidarity with its vulnerable members. The scheme at issue in the present case is a contributory old-age pension scheme. Such pensions are in general disbursed in order to provide compensation for reduced earning capacity as a person gets older. However, when a person in receipt of an old-age pension continues or resumes work – and particularly, like the applicant in the present case, when he or she has not yet reached the statutory retirement age – his or her working life is apparently not yet over and earning capacity still exists.
71. The applicant took early retirement in 2000, when he was close to 47 years old, and has been a beneficiary of pension payments ever since, except for the period during which disbursement was suspended, that is from 1 July 2013 until 31 March 2015. It therefore appears that the applicant became entitled to a pension on the basis of contributions made over a far shorter period of time than that for which contributions are generally paid by persons who become entitled to an old-age pension only upon reaching the statutory retirement age (see paragraph 30 above). Thereafter he continued to contribute to the Pension Fund as a result of the fact that he carried on working in both the private and the public sector after taking early retirement and leaving the police force in 2000.
72. The Court reiterates that the funding methods of public pension schemes vary considerably from one Contracting State to another, as does the emphasis on the principle of solidarity between contributors and beneficiaries in national pension systems (see Valkov and Others v. Bulgaria, nos. 2033/04 and 8 others, §§ 92 and 98, 2 5 October 2011, and Stec and Others v. the United Kingdom ( dec. ) [GC], nos. 65731/01 and 65900/01, § 50, ECHR 2005 ‑ X). As such matters involve social and economic policies, they fall in principle within the wide national margin of appreciation accorded to States in this area (see, among many authorities, Béláné Nagy, cited above, § 113; Valkov and Others, cited above, § 92; and James and Others, cited above, § 46).
73. In examining whether the national authorities acted within their margin of appreciation in the instant case, the Court will have particular regard to the following factors which, from an analysis of its case-law in cases relating to the reduction, suspension or discontinuance of social-security pensions, may be identified as being of relevance, namely the extent of the loss of benefits, whether there was an element of choice, and the extent of the loss of means of subsistence.
( α ) Extent of loss of benefits
74. The case at hand does not concern either the permanent, complete loss of the applicant ’ s pension entitlements (compare and distinguish Béláné Nagy, cited above, § 123; Apostolakis v. Greece, no. 39574/07, 22 October 2009; and Kjartan Ásmundsson v. Iceland, no. 60669/00, ECHR 2004 ‑ IX ) or the reduction thereof (compare da Silva Carvalho Rico v. Portugal ( dec. ), no. 13341/14, 1 September 2015; Poulain v. France ( dec. ), no. 52273/08, 8 February 2011; and Lenz v. Germany ( dec. ), no. 40862/98, ECHR 2001 ‑ X ), but rather the suspension of his monthly pension payments (see Panfile and Lakićević and Others, both cited above ). Although the applicant thus did not receive his pension for the duration of that suspension, the Court nevertheless considers that this did not amount to a total loss of his entitlements to an old-age pension. The suspension was of a temporary nature in that disbursement would be (and was) resumed when the applicant left State employment; it did, therefore, not strike at the very substance of his right and the essence of the right was not impaired.
75. Moreover, a similar suspension was at stake in the cases of Panfile and Lakićević and Others ( both cited above ). The fact that the former case was declared inadmissible and that a violation of Article 1 of Protocol No. 1 was found in the latter suggests that the extent of the loss of benefits – a temporary suspension, as in the present case – is not, in itself, decisive. Indeed, the Court has already held that the fair balance test cannot be based solely on the amount or percentage of the loss suffered but must be examined in the light of all the relevant factors (see Béláné Nagy, cited above, § 117, and Stefanetti and Others v. Italy, nos. 21838/10 and 7 others, §§ 59 ‑ 60, 15 April 2014 ).
( β ) Element of choice
76. This brings the Court to the second factor: was there anything the applicant could have done in order to avoid or prevent the disbursement of his pension being suspended? In this connection the Court observes at the outset that there is no suggestion that when the applicant started his employment at Budapest XIII District Municipality on 1 July 2012 he had any inkling of the changes to the pension system that were afoot. It would therefore be disingenuous to hold that he could have avoided being affected by the amended legislation simply by electing not to re-enter State employment (contrast and compare Mauriello v. Italy ( dec. ), no. 14862/07, § 39, 13 September 2016, and Torri and Others v. Italy ( dec. ), nos. 11838/07 and 12302/07, § 37, 24 January 2012). But once the legislation at issue had entered into force, it was not the case that the disbursement of the applicant ’ s pension was suspended without his having any choice in the matter. In similar fashion to the applicant in Panfile (cited above, § 23), and as the Government also pointed out (see paragraphs 55 - 56 above), the applicant was able to choose between discontinuing his employment in the civil service and continuing to receive his pension, or remaining in that employment and having his pension payments suspended. He opted for the latter.
77. In addition, the Court notes that as a result of the applicant ’ s electing to stay in employment, he continued to make contributions to the Pension Fund, which resulted in an increase in his pension once pension payments were resumed (see paragraphs 18 and 27 above).
( γ ) Extent of loss of means of subsistence
78. The extent to which a person ’ s means of subsistence or living standard are affected by the discontinuance, reduction or suspension of pension payments constitutes an important factor in the Court ’ s assessment of the proportionality of such measures. Thus, an excessive individual burden was found to have been imposed in cases in which, inter alia, the withdrawal or discontinuance of a pension amounted to the total loss of an applicant ’ s sole source of income (see Béláné Nagy, cited above, § 123; Apostolakis, cited above, § 39; and Moskal v. Poland, no. 10373/05, § 74, 15 September 2009), and those in which a suspended pension constituted a considerable part of the monthly income before tax of the applicants, who worked on a part-time basis only (see Lakićević and Others, cited above, § 70 ). By the same token, the Court has held that a fair balance was struck in a number of cases because, inter alia, the cap on pensions complained about did not totally divest the applicants – who were among the top earners of the persons in receipt of a retirement pension in Bulgaria – of their only means of subsistence (see Valkov and Others, cited above, § 97), or because it was considered that the Contracting State concerned had been entitled to take into account the other sources of income of the applicant – who also received benefits under private pension schemes – when establishing the amount of a widow ’ s allowance (see Matheis v. Germany ( dec. ), no. 73711/01, 1 February 2005). The Court applied a similar approach in the case relied on by the Government, that is, Panfile, in which, after the loss of his job due to the introduction of legal provisions preventing him from receiving concomitantly a pension and a salary, the applicant continued to receive a full monthly pension, whose level was higher than the level of the national average salary before tax ( see Panfile, cited above, § 23).
79. Turning to the circumstances of the present case, it is clear that when the applicant ’ s old-age pension payments were suspended he continued to receive his salary. He has not disclosed in the proceedings before the Court the amount of the monthly salary he was earning at the relevant time, but he indicated that the suspension of his pension payments resulted in the loss of about half his income. The Government posited that the applicant ’ s salary must have been higher than the amount of old-age pension he was receiving monthly (HUF 162,260; approximately EUR 550 at the relevant time; see paragraph 14 above ), as he chose to stay on in his post and to continue receiving his salary rather than opt for the continued disbursement of his pension. This was not disputed by the applicant.
80. Having regard to the material in its possession relating to average salaries and taxes (see paragraphs 22, 49 and 56 above), the Court is satisfied that the applicant was left with an income in the range of the average salary after tax in Hungary.
81. It is true that the disbursement of the applicant ’ s old-age pension would also have been suspended had his salary been much lower than the average salary, or if the applicant had been in part-time employment only, in which circumstances his pension would have constituted a considerably greater part of his income than was actually the case. However, it is not the Court ’ s task to examine the domestic legislation in the abstract: it should limit its examination to the manner in which that legislation was applied to the applicant in the particular circumstances (see Sahin v. Germany [GC], no. 30943/96, § 87, ECHR 2003 ‑ VIII).
82. The Court considers that the suspension of the applicant ’ s pension payments by no means left him devoid of all means of subsistence. Moreover, the applicant has not argued that he risked falling below the subsistence threshold.
(iv) Alleged discriminatory aspect
83. Finally, owing to the fact that the application of the impugned measure on the applicant was less individualised than was the case with the measure at issue in Kjartan Ásmundsson (cited above), the Court considers that an examination of the allegedly discriminatory nature of the suspension of the applicant ’ s pension payments is to be conducted below within the framework of the applicant ’ s complaint under Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1.
(v) Conclusion
84. On the basis of the foregoing, and once more bearing in mind the State ’ s wide margin of appreciation in the matter and the legitimate aims of protecting the public purse and ensuring the long-term sustainability of the Hungarian pension system, the Court finds that a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the applicant ’ s fundamental rights, and that he was not made to bear an excessive individual burden.
85. Accordingly, there has been no violation of Article 1 of Protocol No. 1 taken alone.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1
86. The applicant further complained of an unjustified difference in treatment in that the suspension of old-age pension payments to which he was subjected on account of his employment in the public sector did not apply, firstly, to old-age pension recipients working in the private sector and, secondly, to old-age pension recipients working in certain categories within the public sector. He relied on Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1.
A. Preliminary issue
87. The complaint relating to discrimination as set out in the application form of 5 December 2013, by means of which the present case was lodged with the Court, referred only to an allegedly unjustified difference of treatment between pensioners employed in the public sector and those employed in the private sector. In his reply dated 9 February 2015 to the observations of the Government (see paragraph 4 above), the applicant mentioned for the first time a similarly unjustified difference of treatment within the public sector in that certain State employees were exempted from the ban on accumulation of old-age pensions and State-paid salaries (see paragraph 23 above).
88. The question arises whether the second instance of discrimination complained of, that is, the alleged discrimination between different categories of State employees, was lodged with the Court in compliance with the six-month rule set out in Article 35 § 1 of the Convention. However, any exploration of that matter should be preceded by an examination of the question whether the Court is competent at this stage of the proceedings to deal with this issue, bearing in mind that the complaint relating to the alleged second instance of discrimination was declared admissible by the Chamber and the Government did not address the issue until requested to do so in the proceedings before the Grand Chamber (see paragraph 8 above).
1. Whether or not the Court has jurisdiction to examine the issue of the applicant ’ s compliance with the six-month rule
89. The Court reiterates firstly that the Grand Chamber is not, either by the Convention or the Rules of Court, precluded from deciding questions concerning the admissibility of an application under Article 35 § 4 of the Convention, since that provision enables the Court to dismiss applications it considers inadmissible “at any stage of the proceedings”. Thus, even at the merits stage the Court may reconsider a decision to declare an application admissible if it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see Blečić v. Croatia [GC], no. 59532/00, § 65, ECHR 2006 ‑ III, with further references).
90. Secondly, the fact that the Government did not raise any alleged failure by the applicant to comply with the six-month rule, either in the proceedings before the Chamber or in their request for referral of the case to the Grand Chamber, does not prevent the Grand Chamber from ruling on it. According to the case-law, it is not open to the Court to set aside the application of the six-month rule solely because a Government have not made a preliminary objection to that effect ( see Blečić, cited above, § 68). In the present instance the Court sees no need to examine whether the Government are estopped from making the above objection since it finds in any event that it concerns a matter which goes to the Court ’ s jurisdiction and which it is not prevented from examining of its own motion (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 70, ECHR 2016 (extracts), and Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012 ).
2. Compliance with the six-month rule
(a) The parties ’ submissions to the Grand Chamber
( i ) The Government
91. The Government argued that the period of six months had started to run at the latest on 27 September 2013 when the National Pensions Administration discontinued the examination of the applicant ’ s appeal (see paragraph 17 above). In view of the fact that the complaint alleging discrimination between public servants was lodged with the Court only on 9 February 2015 in the applicant ’ s observations in reply to those of the Government – hence, more than six months after the applicant had become aware of the alleged violation – that complaint must, so the Government submitted, be declared inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention.
(ii) The applicant
92. According to the applicant, the running of the six-month period had started on 1 July 2013, when the payment of his pension had been suspended (see paragraph 14 above). The discrimination between pensioners employed in the public and private sectors, as well as the discrimination between different categories of employees within the public sector, was contained in the amendment to the 1997 Pensions Act itself. Therefore, the applicant ’ s complaint that the suspension of his pension constituted discriminatory treatment contrary to Article 14, which he lodged within six months of the aforementioned date, related to both forms of discrimination.
(b) The Grand Chamber ’ s assessment
( i ) Relevant principles
93. The principles relevant to the issue under consideration were set out by the Grand Chamber in its judgment in Sabri Güneş, cited above :
“39. The six-month time-limit provided for by Article 35 § 1 has a number of aims. Its primary purpose is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time (see P.M. v. the United Kingdom ( dec. ), no. 6638/03, 24 August 2004). It also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see O ’ Loughlin and Others v. the United Kingdom ( dec. ), no. 23274/04, 25 August 2005) and facilitates the establishment of facts in a case, since with the passage of time, any fair examination of the issues raised is rendered problematic (see Nee v. Ireland ( dec. ), no. 52787/99, 30 January 2003).
40. That rule marks out the temporal limit of the supervision exercised by the Court and signals, both to individuals and State authorities, the period beyond which such supervision is no longer possible (see Walker v. the United Kingdom ( dec. ), no. 34979/97, ECHR 2000 ‑ I). The existence of such a time-limit is justified by the wish of the High Contracting Parties to prevent past judgments being constantly called into question and constitutes a legitimate concern for order, stability and peace (see De Becker v. Belgium ( dec. ), no. 214/56, 9 June 1958).
41. Article 35 § 1 contains an autonomous rule which has to be interpreted and applied in such a manner as to ensure to any applicant claiming to be the victim of a violation by one of the Contracting Parties of one of the rights set forth in the Convention and its Protocols the effective exercise of the right of individual petition pursuant to Article 35 § 1 of the Convention (see Worm v. Austria ( dec. ), no. 22714/93, 27 November 1995).
42. The Court reiterates that with regard to procedure and time-limits, legal certainty constitutes a binding requirement which ensures the equality of litigants before the law. That principle is implicit in all the Convention ’ s Articles and constitutes one of the fundamental elements of the rule of law (see, among other authorities, Beian v. Romania (no. 1), no. 30658/05, § 39, ECHR 2007 ‑ V (extracts)).”
94. Moreover, some indication of the factual basis of the complaint and the nature of the alleged violation of the Convention is required to introduce a complaint and interrupt the running of the six-month period (see Abuyeva and Others v. Russia, no. 27065/05, § 222, 2 December 2010, and Allan v. the United Kingdom ( dec. ), no. 48539/99, 28 August 2001). As regards complaints that were not included in the initial communication, the running of the six-month period is not interrupted until the date when such complaints are first submitted to the Court (see Allan, cited above). Allegations made after the expiry of the six-month time-limit can only be examined by the Court if they constitute legal submissions relating to, or particular aspects of, the initial complaints that were introduced within the time-limit (see Kurnaz and Others v. Turkey ( dec. ), no. 36672/97, 7 December 2004, and Sâmbata Bihor Greco-Catholic Parish v. Romania ( dec. ), no. 48107/99, 25 May 2004).
( ii ) Application of these principles to the present case
95. The Court will examine whether the applicant ’ s submissions relating to the allegedly unjustified difference in treatment between pensioners employed in different categories within the public sector, as set out in his observations of 9 February 2015, should be considered as legal submissions in respect of his initial complaint and/ or as a particular aspect of that complaint to which the six-month rule would not apply, rather than as a separate complaint introduced at a later stage.
96. It considers that the nature of a violation alleged under Article 14 requires that a complaint brought under this heading should provide at least an indication of the person or group of persons in comparison with whom the applicant claims he or she was treated differently, as well as of the ground of the distinction that was allegedly applied. The complaint should thus contain the parameters required to define the scope of the issue to be examined by the Court, and also by the Government should the Court decide to invite them to submit their observations on the admissibility and/or merits of the complaint. In this connection it is further to be borne in mind that justifications for differences in treatment may well vary depending on the comparator group or groups and/or the ground or grounds of distinction at issue. For these reasons, the Court cannot accept that the mere fact that a complaint under Article 14 of the Convention was included in the application form is sufficient to constitute introduction of all subsequent complaints made under that provision.
97. The Court notes that the allegation raised in the present case concerning the difference in treatment between various categories of State employees in receipt of an old-age pension was not mentioned in any communication received from the applicant prior to 9 February 2015, not even as part of the background facts of the case. In the opinion of the Court, this complaint is distinct from the one relating to the alleged difference of treatment between pensioners employed in the private sector and those employed in the public sector. Nor can it be regarded as so closely connected to the original complaint that it cannot be examined separately.
98. Consequently, the Court concludes that the complaint concerning a difference in treatment between pensioners employed by the State was introduced in the applicant ’ s submissions of 9 February 2015. Regardless of whether the six-month period started running on 1 July 2013, when the applicant ’ s pension payments were suspended, or on 27 September 2013, when the National Pensions Administration discontinued the examination of the applicant ’ s appeal, the Grand Chamber, unlike the Chamber, concludes that this part of the application was introduced outside the six-month time-limit and is therefore inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.
99. Accordingly, the Grand Chamber has no jurisdiction to entertain this complaint and will confine its examination below to the merits of the applicant ’ s grievance relating to the alleged discrimination between State and private - sector employees in receipt of an old-age pension.
B. Merits
100. The Court will examine the applicant ’ s complaint under Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1, alleging that, as a person in receipt of an old-age pension and working in the civil service, he was treated differently from recipients of an old-age pension working in the private sector. He submitted that the latter continued to receive their pensions whilst his pension payments were suspended for the continued duration of his employment in the civil service.
Article 14 of the Convention provides :
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
1. The Chamber judgment
101. In so far as the matter complained of by the applicant falls within the Court ’ s jurisdiction as delimited in paragraph 99 above, the Grand Chamber notes that the Chamber, being satisfied that the subject - matter of the case fell within the ambit of Article 1 of Protocol No. 1, found Article 14 of the Convention to be applicable. This was because the applicant had been denied payment of his pension on the ground of his being employed in the civil service, which was covered by the term “other status” for the purposes of Article 14. Moreover, the Chamber was of the view that retirees working in the civil service and those working in the private sector were in an analogous situation seen from the perspective of the core argument advanced by the Government, namely that employed persons do not require a substitute for salary.
102. The Chamber went on to consider that the impugned measure was capable, to some extent, of reducing public spending, and it therefore accepted that the aim of the legislation underlying the differential treatment in question – namely the protection of the “public purse” – could be regarded as legitimate. However, it found that the difference in treatment between retirees employed in the civil service and retirees employed in the private sector, with regard to entitlement to the continued receipt of an old-age pension, was not based on any “objective and reasonable justification”, as members of both groups earned salaries and the pensions paid out to retirees employed in the private sector could therefore also be regarded as redundant public expenditure. For these reasons, it found that there had been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.
2. The parties ’ submissions to the Grand Chamber
(a) The applicant
103. The applicant submitted that, since the respondent State had put in place a compulsory pension scheme, it followed from the Court ’ s established case-law that his complaint of interference with his rights under that scheme fell within the scope of Article 1 of Protocol No. 1, and that any amendment of the scheme accordingly had to be compatible with Article 14 of the Convention. He maintained that he had been in the same situation as other recipients of an old-age State pension and that disbursement of his pension had been suspended solely on account of the fact that he was simultaneously employed in the civil service, which was a ground amounting to “other status” for the purposes of Article 14.
104. Contrary to what the Government claimed, there were no other member States of the Council of Europe which made a similar distinction between persons employed in the public and private sectors when it came to paying out pensions. Where any such distinctions were made, they related to the payment of early - retirement pensions and, as such, were of no relevance to the present case.
105. The applicant further contended that there was no objective and reasonable justification for the difference in treatment.
106. Firstly, it did not pursue a legitimate aim. Since considerable numbers of pensioners in post-retirement employment were exempted from the ban, the aim of putting an end to the simultaneous receipt of State-paid pensions and salaries could not be achieved by the enactment of section 83/C of the 1997 Pensions Act. It could, furthermore, not be accepted that a prohibition on the accumulation of pension and salary was as such in the general interest, without an indication, which the Government had failed to provide, of the use to which the money saved had been put.
The applicant acknowledged that the protection of a country ’ s economic system might constitute a legitimate aim for general measures of economic strategy in a serious economic crisis. But Hungary, having been affected by the global financial crisis (as had the whole of Europe) in 2008, did not require protection of the economic system five years later, at a time when the EU excessive deficit procedure had been closed, the economic crisis declared over, and the pension ceiling quashed. In addition, the prohibition was not temporary but continued to apply despite an improved economic situation.
107. Secondly, there was no reasonable relationship of proportionality between the means employed and the aim sought to be achieved. Only a very small group of pensioners was affected by the prohibition on accumulation of salaries and pensions, and the savings made were insignificant, whereas the applicant had had to bear a total deprivation of his pension. Moreover, the applicant could not have been expected to give up his job and seek employment in the private sector, as such an argument would render Article 14 devoid of substance.
(b) The Government
108. The Government argued that persons having taken up post-retirement employment in the private sector did not draw their salary from the public budget and did not therefore benefit from a double income from public sources. They were of the view that this essential distinction between pensioners employed in the private sector and pensioners employed in the civil service was of such significance that, despite the other features which the two groups had in common, it was decisive in concluding, in the context of the contested legislation, that they were not in an analogous situation. The Government pointed out that this had also been the approach taken by the Court in the case of Panfile (cited above, § 28). In its judgment in the present case, the Chamber had not provided any specific justification for its departure from this case-law.
109. There were also, seen from the perspective of the reasons behind the introduction of the ban on accumulating pensions and salaries, other features which set employees in the civil service apart from those in the private sector. Thus, in respect of public employees, the State was in the position not only of regulator in the field of employment policy, but also of employer. The State could therefore directly implement its employment policy with regard to its employees without having to consider possible interference with private - law relationships as it would with regard to persons working in the private sector.
110. A further difference, so the Government submitted, lay in the fact that public servants had a special duty of loyalty to the State and were under an obligation to observe certain ethical norms not applicable to those employed in the private sector. The suspension of pension payments corresponded to an ethical obligation not to abuse the law. Even though the receipt of retirement benefits without retiring was not illegal, it was unethical in the sense that it maximised personal advantages to the detriment of the community.
(c) The third-party intervener ’ s arguments
111. Taking the view that the right to social security was a fundamental social right of special importance, the ETUC submitted that there should be no discrimination in allocating benefits to different categories of insured persons.
3. The Grand Chamber ’ s assessment
(a) Relevant principles
112. The Court has consistently held that Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide (see, among many other authorities, Biao v. Denmark [GC], no. 38590/10, § 88, ECHR 2016; İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 158, ECHR 2016; Carson and Others v. the United Kingdom [GC], no. 42184/05, § 63, ECHR 2010; and E.B. v. France [GC], no. 43546/02, §§ 47-48, 22 January 2008 ).
113. In order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see, amongst many authorities, Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 64, ECHR 2017; X and Others v. Austria [GC], no. 19010/07, § 98, ECHR 2013; and Konstantin Markin v. Russia [GC], no. 30078/06, § 125, ECHR 2012 (extracts) ). In other words, the requirement to demonstrate an analogous position does not require that the comparator groups be identical. An applicant must demonstrate that, having regard to the particular nature of his or her complaint, he or she was in a relevantly similar situation to others treated differently (see Clift v. the United Kingdom, no. 7205/07, § 66, 13 July 2010). However, not every difference in treatment will amount to a violation of Article 14. Firstly, the Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “ status ”, are capable of amounting to discrimination within the meaning of Article 14 (see Carson and Others, cited above, § 61, and Eweida and Others v. the United Kingdom, nos. 48420/10 and 3 others, § 86, ECHR 2013 (extracts) ). Secondly, a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Fabris v. France [GC], no. 16574/08, § 56, ECHR 2013 (extracts); Topčić -Rosenberg v. Croatia, no. 19391/11, § 36, 14 November 2013; and Weller v. Hungary, no. 44399/05, § 27, 31 March 2009).
114. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of the margin will vary according to the circumstances, the subject - matter and the background (see Stummer v. Austria [GC], no. 37452/02, § 88, ECHR 2011).
115. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy for example (see Hämäläinen v. Finland [GC], no. 37359/09, § 109, ECHR 2014). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” (see Carson and Others, cited above, § 61). Any measures taken on such grounds, including the reduction of the amount of pension normally payable to the qualifying population, must nevertheless be implemented in a non-discriminatory manner and comply with the requirements of proportionality (see Lakićević and Others, cited above, § 59, and Stec and Others, cited above, § 55 ). In any case, irrespective of the scope of the State ’ s margin of appreciation, the final decision as to the observance of the Convention ’ s requirements rests with the Court (see, inter alia, Konstantin Markin, cited above, § 126).
116. Lastly, as regards the burden of proof in relation to Article 14 of the Convention, the Court has held that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (see Khamtokhu and Aksenchik, cited above, § 65; Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 85, ECHR 2013 (extracts); and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 177, ECHR 2007 ‑ IV ).
117. In cases, such as the present one, concerning a complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question. Although Protocol No. 1 does not include the right to receive a social - security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14 (see Stec and Others, cited above, § 55, with further references).
(b) Application of these principles to the present case
( i ) Applicability of Article 14
118. From the principles stated in paragraphs 112 and 117 above, it follows that the applicant ’ s complaint clearly falls within the ambit of Article 1 of Protocol No. 1 and that Article 14 is applicable. Indeed, this was not in dispute between the parties.
(ii) Existence of an analogous or relevantly similar situation
119. As already indicated in paragraph 113 above, the first issue to be examined is whether the applicant, as a person in receipt of an old-age pension subsequently employed in the civil service, was in an analogous or relevantly similar situation compared with a person in receipt of an old-age pension subsequently employed in the private sector.
120. Whereas the applicant claimed that he was indeed in a relevantly similar situation to recipients of old-age pensions with subsequent employment in the private sector, the Government disputed that claim, placing reliance on, in particular, the Court ’ s decision in Panfile (cited above).
(α) General considerations
121. The Court reiterates that a difference in treatment may raise an issue from the point of view of the prohibition of discrimination as provided for in Article 14 of the Convention only if the persons subjected to different treatment are in a relevantly similar situation, taking into account the elements that characterise their circumstances in the particular context. The Court notes that the elements which characterise different situations, and determine their comparability, must be assessed in the light of the subject-matter and purpose of the measure which makes the distinction in question.
122. As a general starting - point the Court considers, firstly, that the Contracting Parties, by necessity, enjoy wide latitude in organising State functions and public services, including such matters as regulating access to employment in the public sector and the terms and conditions governing such employment, in the context of their obligations under the Convention.
Secondly, for institutional and functional reasons, employment in the public sector and in the private sector may typically be subject to substantial legal and factual differences, not least in fields involving the exercise of sovereign State power and the provision of essential public services. Civil servants, unlike persons employed in the private sector, may be engaged in the exercise of the State ’ s sovereign power, and therefore their functions as well as the duty of loyalty owed to their employer may be of a different nature, although the extent to which this is the case may depend on the specific functions they have to perform.
Thirdly, as a result of the above, it cannot be assumed that the terms and conditions of employment, including the financial ones, or the eligibility for social benefits linked to employment, will be similar in the civil service and in the private sector, nor can it therefore be presumed that these categories of employees will be in relevantly similar situations in this regard. Another important difference in this context is that the salaries as well as the employment-linked social benefits of State employees, unlike those of private- sector employees, are paid by the State.
123. Each of the three kinds of considerations mentioned above is widely reflected in various ways in a long-standing line of case-law recognising a distinction between civil servants and private employees as two categories that are not comparable.
124. The first of these may be seen in Valkov and Others (cited above, § 117), where the Court held, in the context of a cap on pensions examined under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1, that it was not for an international court to pronounce on the question whether the authorities of a Contracting State had made a valid distinction between the character of the respective employments of two groups. Decisions involving such distinctions were policy judgments which were in principle reserved for the national authorities, which had direct democratic legitimation and were better placed than an international court to evaluate local needs and conditions. The Court also noted that on a number of occasions the Court and the former Commission had countenanced the distinctions that some Contracting States drew, for pension purposes, between civil servants and private employees (ibid., § 117, with further references).
125. An example of the second type of factors taken into account as relevant considerations may be found in Heinisch v. Germany (no. 28274/08, § 64, ECHR 2011 (extracts)), albeit in a context unrelated to the prohibition of discrimination laid down in Article 14. In that case the Court, in examining the necessity of a restriction on free speech under Article 10 § 2 of the Convention, held that the duty of loyalty which employees owed to their employer might be more pronounced in the case of civil servants and employees in the public sector compared with employees in private-law employment relationships.
Also of interest in this connection is the fact that, whilst the above line of authority concerns the interpretation and application of substantive Convention guarantees (that is, Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 in the first case, and Article 10 in the second case) with regard to differential treatment of employees placed in distinct categories under domestic law, the Court has accepted certain distinctions also for the purposes of the due process guarantee in the context of the applicability of the civil limb of Article 6 § 1 to disputes regarding civil servants. Thus, when developing the former Pellegrin doctrine (see Pellegrin v. France [GC], no. 28541/95, § 67, ECHR 1999 ‑ VIII) into what later became known as the Eskelinen test (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007 ‑ II), the Court recognised the State ’ s interest in controlling access to a court when it comes to certain categories of staff, stating that “it is primarily for the Contracting States, in particular the competent national legislature, not the Court, to identify expressly those areas of public service involving the exercise of the discretionary powers intrinsic to State sovereignty where the interests of the individual must give way” (ibid., § 61).
Although these findings in Heinisch and Eskelinen were not formulated with a view to an assessment of whether or not a difference of treatment raised an issue under Article 14 of the Convention, they do nonetheless shed light on the Court ’ s assessment of the distinctive features of civil servants ’ role in the exercise of public powers and functions in contrast to that of other categories of employees.
126. The third type of factor was relied on by the Court in Panfile (cited above), when disposing of a complaint under Article 14 of the Convention taken together with Article 1 of Protocol No. 1, where a distinction between the sources of the salaries of employees in the public and private sectors (respectively from State funds and from private funds ) led it to conclude that those two categories of persons could hardly be regarded as being in an analogous or relevantly similar situation within the meaning of Article 14 (see Panfile, cited above, § 28).
127. Whilst the above analysis shows the importance of the three aforementioned considerations in the Court ’ s case-law, the present case has revealed a need to take yet a further – fourth – factor into account, namely the role of the State when acting in its capacity as employer. This role is distinct from the one the State assumes when acting in its capacity as regulator of the minimum conditions of employment and of the provision of social - welfare benefits linked to employment in sectors outside its direct control. In particular, as employers, the State and its organs are not in a comparable position to private - sector entities either from the perspective of the institutional framework they operate under or in terms of the financial and economic fundamentals of their activities; the funding bases are radically different, as are the options available for taking measures to counter financial difficulties and crises.
128. Finally, it should also be observed that even when confronted with issues of comparisons between professionals belonging to different categories, irrespective of public and private - sector divides as referred to above, the Convention institutions have been disinclined to view different types of functions as giving rise to analogous or relevantly similar situations. Thus, in Valkov and Others (cited above, § 117), the Court was not prepared to draw any conclusions from the applicants ’ arguments regarding the nature of the tasks performed by members of the groups invoked as comparators. It referred to a number of previous rulings in which no similarity had been found between the disparate situations in question, on the basis that “each one [was] characterised by a corpus of rights and obligations of which it would be artificial to isolate one specific aspect” (see Van der Mussele v. Belgium, 23 November 1983, § 46, Series A no. 70, where the treatment of lawyers in private practice acting in legal - aid cases was compared to that of judicial and para -judicial professions and where the requirement for lawyers to provide services free of charge to indigent persons was compared to the absence of such a requirement for medical practitioners, veterinary surgeons, pharmacists and dentists; see also Allesch and Others v. Austria, no. 18168/91, Commission decision of 1 December 1993, unreported, concerning the comparison of the pension entitlements of engineers with those of other liberal professions; and Liebscher and Others v. Austria, no. 25170/94, Commission decision of 12 April 1996, unreported, on issues concerning the comparison of lawyers in private practice with chartered public accountants regarding the possibility to establish limited - liability companies).
129. Thus, it is in the light of the general considerations highlighted above that the Court will assess the circumstances of the present case, while bearing in mind that it is incumbent on the applicant, who alleges the differential treatment, to demonstrate the existence of an “analogous or relevantly similar situation” (see paragraph 113 above).
(β) Whether the applicant was in an analogous or relevantly similar situation
130. Turning to the circumstances of the present case, the Court observes that it concerns old-age pensions under the Hungarian compulsory social - security pension scheme, to which both State employees and private - sector employees were affiliated and to which they contributed in the same way and to the same extent. This scheme provided for pension entitlements for both groups, regardless of whether they had previously worked in the public or the private sector (see paragraphs 21 - 22 above). Accordingly, old-age pensions disbursed to employees in the public sector originated from the same source as pension payments to employees working in the private sector. Nevertheless, this is not in itself sufficient to establish that the situations of persons in receipt of a pension and employed in the civil service after retirement and those in receipt of a pension but re-employed in the private sector were relevantly similar for the purposes of the assessment of the present case.
131. The Court observes firstly that, following the entry into force of section 83/C of the 1997 Pensions Act, it was the applicant ’ s post-retirement employment in the civil service that entailed the suspension of his pension payments. It was precisely the fact that, as a civil servant, he was in receipt of a salary from the State that was incompatible with the simultaneous disbursement of an old-age pension from the same source. As a matter of financial, social and employment policy, the impugned bar on simultaneous accumulation of pension and salary from the State budget had been introduced as part of legislative measures aimed at correcting financially unsustainable features in the pension system of the respondent State. Steps taken to reform deficient pension schemes had, in turn, been part of action taken with the aim of reducing public expenditure and debt. This did not prevent the accumulation of pension and salary for persons employed in the private sector, whose salaries, in contrast to those of persons employed in the civil service, were funded not by the State but through private budgets outside the latter ’ s direct control. As already stated in paragraph 126 above, it was the distinction between the sources of the salaries of employees in the public and private sectors that led the Court to conclude in Panfile that those two categories of persons could hardly be regarded as being in an analogous or relevantly similar situation within the meaning of Article 14.
132. The Court further notes that, under Hungarian national law, employment in the civil service and employment in the private sector were treated as distinct categories (see paragraph 20 above). Moreover, the applicant ’ s specific profession within the civil service was difficult to compare with any in the private sector and no relevant comparisons were suggested by him. Finally, as regards his employment relationship, the State did not function only as regulator and standard-setter but was also his employer. In line with the considerations stated in paragraph 127 above, the Court regards it as significant that it was for the State to lay down, in that capacity as employer, the terms of employment for its personnel and, as manager of the Pension Fund, the conditions for disbursement of pensions.
(iii) Conclusion
133. Taking all these aspects of the present case into account, the Court finds that the applicant has not demonstrated that, as a member of the civil service whose employment, remuneration and social benefits were dependent on the State budget, he was in a relevantly similar situation to pensioners employed in the private sector.
134. It follows that there has been no discrimination and, therefore, no violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1.