ITEMID: 001-104945
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF MAGGIO AND OTHERS v. ITALY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;No violation of P1-1;No violation of Art. 14+P1-1;Pecuniary and non-pecuniary damage - award
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi
TEXT: 6. The applicants were born in 1938, 1942, 1939, 1942 and 1940 respectively, and live in Italy.
7. Mr Maggio worked in Switzerland from 1980 to 1992.
8. On 25 June 1997 Mr Maggio requested the Istituto Nazionale della Previdenza Sociale (“INPS”), an Italian welfare entity, to re-examine his old-age pension and to liquidate it on the basis of the real remuneration received (“retribuzione effettiva”) during his years of employment in Switzerland, in accordance with the 1962 Italo-Swiss Convention.
9. On an unspecified date the INPS rejected his request, since the calculation had to be based on the remuneration received in Switzerland and then be re-adjusted on the basis of the tables supplied in Circular no. 324 of 4 January 1978.
10. Mr Maggio instituted proceedings before the Lecce Tribunal, claiming that the payment of old-age pensions had to be calculated on the basis of the real remuneration received (in the last five years of employment) and of the contributions paid in part in Switzerland and in part in Italy.
11. By a judgment filed in the registry on 8 May 2002, his claim was rejected.
12. Mr Maggio appealed to the Lecce Court of Appeal which, by a judgment filed in the registry on 30 October 2003, rejected his claim. It took into consideration a technical expert report in relation to Article 23 of the Italo-Swiss Convention (see Relevant Domestic Law below), which provided for the transfer of contributions paid in Switzerland to the Italian insurance scheme for use in the calculation of old-age pensions, and guaranteed the benefits of Italian legislation. Consequently, it held that the pension calculation was to be made on the basis of Italian criteria, even though they were less favourable than the Swiss ones. Indeed, Italian law (decree of 27 April 1968 no. 488) provided for a calculation based on higher contributory rates than those in Switzerland, thus providing a lower pension than that expected by Mr Maggio.
13. By a judgment of 11 December 2008 filed in the registry on 13 February 2009, the Court of Cassation dismissed Mr Maggio’s claim, after rejecting his request for a preliminary reference to the ECJ. It held that the criteria used by the Court of Appeal were eventually acknowledged in Article 1, paragraph 777, of Law no. 296 of 27 December 2006 (“Law 296/2006”), which had retroactive effect. This Law had not been found to be unconstitutional by the Constitutional Court in a judgment of 23 May 2008 (see Relevant Domestic Law below).
14. In 2005 Mr Gabrieli requested the INPS to establish his pension on the basis of the contributions paid in Switzerland for work he had performed there between November 1963 and June 2001. As a basis for the calculation of his pension, the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a re-adjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which led to a reduction of 25% in the basic amount used to calculate the pension and therefore a reduction in the pension itself. Consequently, in 2006 Mr Gabrieli instituted judicial proceedings.
15. By a judgment of the Brescia Tribunal (Labour Section) of 2 October 2006, Mr Gabrieli’s claim was upheld on the basis of the relevant Court of Cassation case-law at the time (see Relevant Domestic Law below).
16. The INPS appealed.
17. By a judgment of 7 August 2007, the Brescia Court of Appeal reversed the first-instance judgment in view of the entry into force of Law 296/2006. Mr Gabrieli Thus, the judgment became final on 7 August 2008.
18. Mr Faccioli was entitled to an old-age pension from 1 April 1999.
19. In 2006 Mr Faccioli requested the INPS to establish his pension on the basis of the contributions paid in Switzerland for work he had performed there between 1 December 1958 and 31 March 1999. As a basis for the calculation of his pension, the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a re-adjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which led to a reduction of 25% in the basic amount used to calculate the pension and therefore a reduction in the pension itself. Consequently, in 2006 Mr Faccioli instituted judicial proceedings.
20. By a judgment of the Brescia Tribunal (Labour Section) of 20 October 2008, Mr Faccioli’s claims were rejected in view of Law 296/2006 and the subsequent Constitutional Court judgment. Mr Faccioli did not appeal, deeming it to be futile in view of the relevant case-law at the time.
21. Ms Forgioli was entitled to an old-age pension from 1 April 1995 and to a survivor’s pension, as a widow, her husband having become a pensioner on 1 April 1997, from the date of her husband’s death.
22. In 2006 Ms Forgioli requested the INPS to establish her pension on the basis of the contributions paid in Switzerland for work she had performed there between 1 August 1959 and 30 November 1994, and those paid by her husband. As a basis for the calculation of the relevant pensions, the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a re-adjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which led to a reduction of 25% in the basic amount used to calculate the pension and therefore a reduction in the pension itself. Consequently, in 2006 Ms Forgioli instituted judicial proceedings.
23. By a judgment of the Brescia Tribunal (Labour Section) of 20 October 2008, Ms Forgioli’s claims were rejected in view of Law 296/2006 and the subsequent Constitutional Court judgment. Ms Forgioli did not appeal, deeming it to be futile in view of the relevant case-law at the time.
24. Ms Zanardini was entitled to an old-age pension from 1 August 1997.
25. In 2006 Ms Zanardini requested the INPS to establish her pension on the basis of the contributions paid in Switzerland for work she had performed there between March 1960 and July 1997. As a basis for the calculation of her pension, the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a re-adjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which led to a reduction of 25% in the basic amount used to calculate the pension and therefore a reduction in the pension itself. Consequently, in 2006 Ms Zanardini instituted judicial proceedings.
26. By a judgment of the Brescia Tribunal (Labour Section) of 20 October 2008, Ms Zanardini’s claims were rejected in view of Law 296/2006 and the subsequent Constitutional Court judgment. Ms Zanardini did not appeal, deeming it to be futile in view of the relevant case-law at the time.
27. Article 23 of the transitional provisions of the Italo-Swiss Convention on Social Security, of 14 December 1962, provides, in so far as relevant, as follows (unofficial translation):
“1. In so far as Switzerland is concerned, performance shall be in accordance with the provisions of this Convention, even in cases where the insured event occurred before the entry into force of the Convention. Old-age and survivors’ ordinary annuities will, however, only apply in accordance with these provisions if the insured event took place before 21 December 1959, and if the contributions were not or will not be transferred or reimbursed in accordance with the Convention of 17 October 1951, or paragraph 5 of this Article. (...)
2. In so far as Italy is concerned, performance shall be in accordance with the provisions of this Convention where the insured event occurred on or after the date of its entry into force. Nevertheless, when the insured event occurred before that date, performance shall take place in accordance with the present Convention from the date of its entry into force, if it would not have been possible to grant such a pension due to the insufficiency of the insurance periods, and only if the contributions have not been reimbursed by the Italian social insurance scheme.
3. With the exception of the above provisions, periods of insurance, of contributions and of residence occurring before the entry into force of this Convention will be taken into consideration.
5. For a period of five years from the entry into force of this Convention, upon the attainment of pensionable age under Italian law, Italian citizens may request, in derogation of Article 7, that the contributions paid by them and their employers into the Swiss old-age and survivors insurance schemes be transferred to the Italian insurance scheme, on condition that they have left Switzerland for permanent settlement in Italy or in a third country prior to the end of the year in which their pensionable age was reached. Article 5 (4) and (5) of the Convention of 17 October 1951 will apply to the use of such transferred contributions, eventual reimbursements and the effects of such transfers.”
28. In so far as relevant, Article 5 of the Italo-Swiss Convention on Social Insurance of 17 October 1951 provides (unofficial translation):
“...(4) Italian citizens not covered by the preceding sub-paragraph (*) or their survivors, may request contributions paid by them and their employers into the Swiss old-age and survivors’ insurance to be transferred to the Italian social welfare insurance scheme as indicated in Article 1 (*). The latter will use the said contributions to ensure that the insured person obtains the benefits derived from Italian law quoted in Article 1 (*) and any other dispositions issued by the Italian authorities. In the event that, under the relevant Italian legal provisions, the insured person cannot assert a right to a pension, the Italian social welfare services will reimburse, upon request, the transferred contributions.
(5) Transfer of contributions as provided for in the above sub-paragraph may be requested:
(a) if the Italian citizen has left Switzerland at least ten years before,
(b) on the occurrence of the insured event.
The Italian citizen whose contributions have been transferred to the Italian social insurance scheme cannot assert any right in respect of the Swiss old-age and survivors’ insurance on the basis of such contributions. Such a person, or his [or her] survivors, may expect an ordinary annuity from the Swiss old-age and survivors insurance scheme only ... [under] the conditions set out in the first paragraph (*).”
29. It is noted that the articles marked (*) were repealed by Article 26 (3) of the 1962 Convention, except for the purposes of the above cited Article 23 (5).
30. The transitional provision of Article 23 of the 1961 Convention became definitive by means of the additional agreement of 4 July 1969, whose Article 1 (1) and (3) reads:
“On reaching pensionable age under Italian law, and where they have not already been in receipt of a pension, Italian citizens may request, in derogation of Article 7, that the contributions paid by them and their employers into the Swiss old-age and survivors’ insurance scheme be transferred to the Italian insurance scheme, on condition that they have left Switzerland for permanent settlement in Italy ...”
“The Italian social welfare entities must use such contributions in favour of the insured or his or her heirs in such a way as to ensure the attainment of the advantages derived from Italian law, as cited in Article 1 of the Convention, in accordance with the specific arrangements issued by the Italian authorities. If no advantage can be attained on the basis of such arrangements, the Italian social welfare entities must reimburse the transferred contributions to the interested parties.”
31. The Court of Cassation’s judgment of 6 March 2004, and other analogous jurisprudence at the material time, established that, in the absence of specific legislation regulating the transfer of contributions, the method of calculation in determining workers’ pensions should be based on the real remuneration received by that person, including any work undertaken in Switzerland, irrespective of the fact that contributions paid in Switzerland and transferred to Italy had been calculated on the basis of much lower rates than those established under Italian legislation.
32. Article 1, paragraph 777, of Law 296/2006, which entered into force on 1 January 2007, provides (unofficial translation):
“Article 5 (2) of Presidential Decree no. 488 of 27 April 1968 and subsequent modifications must be interpreted to the effect that, in the event of transfer of contributions paid to foreign welfare entities to the Italian obligatory general insurance scheme, as a consequence of international social security treaties and conventions, the pensionable remuneration relative to the employment period abroad is calculated by multiplying the amount of transferred contributions by a hundred and dividing the result by the contribution rates for the invalidity, old-age and survivors insurance scheme, as applicable during the relevant contributory period. More favourable pension treatment already liquidated before the entry into force of the current law is exempted.”
33. By a writ of 5 March 2007, the Court of Cassation questioned the legitimacy of Law 296/2006 and remitted the case to the Constitutional Court. The Constitutional Court gave judgment on 23 May 2008, holding, in sum, as follows.
34. Although interpretative, Law 296/2006 was innovative. There had been no conflicting case-law on the pension regime but a single well established interpretation, according to which the Italian worker could ask to transfer his or her contributions, paid in Switzerland, to the INPS, in order to obtain the advantages provided by Italian law on invalidity, old-age and survivors’ insurance, including that of remuneration-based pension calculations, on the basis of the wages earned in Switzerland, irrespective of the fact that the transferred contributions had been paid at a much lower Swiss rate.
35. The Constitutional Court noted that the laws defining pension remuneration were part of a welfare system which balanced available resources and the services supplied. A change in calculating pensions from the contributory criterion to the remuneration-based one (“retributivo”), was not to the detriment of the financial sustainability of the system. Thus, the changes brought about by the impugned Law sought to bring the relationship between pensionable remuneration and contributions in line with the system in force in Italy during the same period of time. The Law provided that remuneration received abroad (used as a basis for pension calculations) was to be adjusted by applying the same percentage ratios used for pension contributions paid in Italy during the same period. Thus, the norm made explicit what had been in the original interpretative provisions. Consequently, there had been no breach of the principle of legal certainty. Nor was the norm discriminatory since the acquired and more favourable rights of earlier pensioners were, by then, unassailable. Furthermore, the Law did not discriminate against people who had worked abroad, because it simply ensured an overall balance in the welfare system, and avoided the situation whereby persons who had made small contributions to a foreign pension scheme could receive the same pension as those who had paid the much higher Italian contributions. The contested Law did not provide for any ex post reductions, as it merely imposed an interpretation which could already have been inferred from the original provisions. Lastly, this system still allowed for a sufficient and satisfactory pension, adequate for the lifestyle of a worker. Accordingly, the claim of unconstitutionality of the said Law was manifestly ill-founded.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-57907
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF SCHOUTEN AND MELDRUM v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 7. Mr Schouten is a Netherlands national who lives in Zoetermeer. He made his application in his capacity as sole managing director of Praktijk mevrouw Breevaart B.V. ("Breevaart"), a limited liability company under Netherlands law which has its registered office in Hendrik Ido Ambacht. The Government, the Commission and the company Breevaart having apparently accepted that for present purposes Mr Schouten may be identified with the company, the Court will hereinafter generally refer to Mr Schouten only.
8. Breevaart owned a physiotherapy practice, including the practice’s premises and equipment. When Breevaart’s then sole managing director and shareholder died in 1984, the practice was carried on by three physiotherapists who had been her associates. Mr Schouten, having apparently become managing director of the company, entered into an arrangement with the physiotherapists. Under this arrangement, Mr Schouten concluded contracts with the various health-insurance funds (ziekenfondsen) but the physiotherapists themselves invoiced the health-insurance funds. Mr Schouten was entitled to 35% of each fee for making the premises and equipment available to the physiotherapists. The physiotherapists were entitled to separate remuneration for the day-to-day running of the practice; the funds made their payments to Mr Schouten, from whom the physiotherapists received the sums due to them.
In March 1987 the physiotherapists bought the practice, including the premises and the equipment, from the company, and in June of that year they formed a partnership. Both these operations were made retrospectively effective from 1 January 1987. The arrangement with Mr Schouten thus ceased to be valid.
9. In March 1987 the Occupational Association for Health and Mental and Social Well-being (Bedrijfsvereniging voor de Gezondheid, Geestelijke en Maatschappelijke Belangen - "the BVG") sent Mr Schouten a demand for payment of contributions in respect of the physiotherapists under the Health Insurance Act (Ziektewet), the Medical Assistance Fund Act (Ziekenfondswet), the Unemployment Insurance Act (Werkloosheidswet) and the Occupational Disability Insurance Act (Wet op de arbeidsongeschiktheidsverzekering) for the years 1984, 1985, 1986 and 1987.
10. On 27 March 1987 Mr Schouten lodged an objection to the BVG’s demand and requested formal confirmation (voor beroep vatbare beschikking) of its decision, with a view to lodging an appeal.
11. The BVG gave such confirmation on 9 December 1988 with the reasons for its decision.
Basing itself on the circumstances outlined in paragraph 8 above, the BVG took the view that, although the contractual relationship between the physiotherapists and Mr Schouten could not be classified as a contract of employment, it was the "social equivalent" (maatschappelijk gelijkgesteld) of such a contract.
The physiotherapists were thus regarded not as independent practitioners but as employees of Mr Schouten, who consequently was under a legal obligation to pay social-security contributions for them. As to the year 1987, the BVG did not consider itself bound by the retrospective effect of the two agreements.
12. Mr Schouten appealed to the Rotterdam Appeals Tribunal (Raad van Beroep) on 21 December 1988, without setting out any grounds. He asked for an extension of time for submitting such grounds until 1 June 1989; the reasons given were, firstly, that in view of the December holidays it would not be possible to prepare the necessary documents and, secondly, that proceedings in another case pending before the Central Appeals Tribunal (Centrale Raad van Beroep) raised very similar issues and he wished to be able to amend his reasoning in the light of the judgment in that case.
An extension was granted until 15 September 1989.
The BVG withdrew its claims concerning the year 1987 in a letter of 10 July 1989.
13. Mr Schouten supplemented his notice of appeal with a statement of grounds on 11 September 1989. In addition to making submissions relating to the independence of the physiotherapists he argued that the BVG’s decision was vitiated because Article 6 (art. 6) of the Convention had been violated: firstly, the lapse of time - one year and nine months - between the request for formal confirmation of the BVG’s initial decision and delivery of that confirmation had been longer than could be considered "reasonable", and secondly, the fact that by withholding formal confirmation an occupational association (bedrijfsvereniging) could delay an appellant’s access to a tribunal indefinitely constituted a breach of the principle of "fair play".
14. The Appeals Tribunal held a hearing on 13 December 1989 and delivered its judgment on the same day.
It held that, although the contractual relationship between Mr Schouten and the physiotherapists could not be classified as an "employment relationship", it should, under the case-law of the Central Appeals Tribunal, be considered the "social equivalent" of one; the physiotherapists were therefore to be regarded as Mr Schouten’s "employees" for the purposes of the relevant social-security legislation and Mr Schouten was therefore required to pay contributions for them.
As to Mr Schouten’s arguments based on Article 6 (art. 6) of the Convention, the Appeals Tribunal held that it was wrong for an administrative authority to withhold formal confirmation without good reason, especially if it did so for a very long time, as the BVG had done in the instant case. Nevertheless, even if Article 6 (art. 6) were applicable and had been violated, the applicant could not derive from it rights which were at variance with binding provisions of Netherlands law (dwingend recht).
15. Mr Schouten lodged a notice of appeal with the Central Appeals Tribunal on 15 January 1990, requesting an extension of time for filing his arguments; the reason given for this request was the need to obtain and study a copy of a judgment of the Central Appeals Tribunal itself which had been cited in the judgment of the Appeals Tribunal.
16. Mr Schouten filed his written arguments with the Central Appeals Tribunal on 25 April 1990. He argued, inter alia, that the Appeals Tribunal had erred in not considering the case under Article 6 (art. 6); the Convention was directly applicable in the Netherlands, taking precedence over national law, and not only had formal confirmation not been provided within a "reasonable time" but the fact that appellants were subject to strict time-limits to request formal confirmation whereas occupational associations were subject to none for responding resulted in clear procedural inequality. The conduct of the BVG, which was open to criticism, should be sanctioned and the obvious sanction was to quash its decision.
17. The Central Appeals Tribunal gave judgment on 10 July 1991.
It found that at the material time the physiotherapists could properly be treated as "employees" for the purposes of the relevant social-security legislation.
Referring to its previous case-law, it further held that it was unnecessary to address the question of the applicability of Article 6 (art. 6) of the Convention. The wording of the Article (art. 6) was of no help in the matter, and the tribunal was not aware of "any relevant decision of the European Court of Human Rights". In any case, where formal confirmation of a decision had been delayed, the Central Appeals Tribunal had regard primarily to general principles of good governance (algemene beginselen van behoorlijk bestuur) and, where necessary, to the principle of "fair play".
The Central Appeals Tribunal agreed with Mr Schouten that it had taken the BVG a very long time to provide formal confirmation of its decision. The excuses advanced by the BVG - an investigation into Mr Schouten’s practice, and in general an excessive number of cases involving physiotherapy practices - were not in themselves sufficient; since the Appeals Act (Beroepswet) did not provide for interim measures or an appeal in the event of failure to react within a reasonable time, such delay seriously impeded access to a tribunal. However, it did not appear from the case file that Mr Schouten had sought to obtain the formal confirmation sooner.
Mr Schouten had not in his appeal relied on a general interest in legal certainty or cited a financial interest, namely that the BVG could claim interest (rente) on the sums due. In any event, while those sums remained unpaid, any interest payable to the BVG was to some extent offset by the - admittedly lower - interest that Mr Schouten could obtain on the sums in question in the meantime.
The right of access to a tribunal was relevant only in relation to the dispute over the fixing of the social-security contributions. The right in question "could not automatically be transposed" in such a way as to deprive the BVG of the right to fix such contributions. Mr Schouten’s application to have the decision in question set aside, despite the fact that the contributions themselves had been fixed in due time, therefore had to be refused.
Finally, the Central Appeals Tribunal found no violation of the principles of "fair play" and "equality of arms", since it did not appear that while the BVG was preparing its decision or in the course of the proceedings Mr Schouten had not had sufficient opportunity to put forward his arguments. The inequality as regards time-limits did not in itself constitute a breach of those principles as in such cases decisions had to be taken with due care.
The appeal was therefore dismissed.
18. Mr Meldrum is a Netherlands citizen born in 1947. He lives in Dordrecht where he works as a physiotherapist.
19. Until 1 December 1986 Mr Meldrum had an arrangement with a number of other physiotherapists which in its essentials was identical with that of Mr Schouten (see paragraph 8 above).
On 1 December 1986 a contract of employment between Mr Meldrum and the other physiotherapists entered into force and the above arrangement came to an end.
20. In October 1987 the BVG sent Mr Meldrum a demand for payment of contributions in respect of the other physiotherapists under the Health Insurance Act, the Medical Assistance Fund Act, the Unemployment Insurance Act and the Occupational Disability Insurance Act for the years 1984, 1985 and 1986.
21. In a letter of 4 December 1987 Mr Meldrum lodged an objection to the BVG’s demand and requested formal confirmation of its decision, with a view to lodging an appeal.
22. The BVG gave this confirmation on 1 May 1989. Its reasoning did not differ materially from that indicated in the case of Mr Schouten (see paragraph 11 above).
23. Mr Meldrum appealed to the Rotterdam Appeals Tribunal on 18 May 1989, asking to be allowed until 15 September 1989 to supplement his notice of appeal. The reasons he gave were, firstly, that he wished to submit figures calculated by an accountant and to refer to a judgment in a case then pending before the Central Appeals Tribunal in which similar questions were being addressed and, secondly, the approach of the summer holidays. This request was allowed. Mr Meldrum supplemented his notice of appeal on 11 September 1989.
The BVG submitted its reply on 16 November 1989.
24. At the Appeals Tribunal hearing (the date of which is not known) the applicant stated that he expected the case to be taken to the European Court of Human Rights and he requested the tribunal to give as detailed a judgment as possible.
25. The Appeals Tribunal gave judgment on 2 July 1990.
Referring to the Central Appeals Tribunal’s case-law, the Appeals Tribunal ruled that under the relevant social-security legislation Mr Meldrum was liable to pay contributions for the other physiotherapists.
The delay in question had not, in the Appeals Tribunal’s view, caused Mr Meldrum any prejudice, and the principles of "fair play" and a "fair hearing" had therefore not been violated.
As regards Mr Meldrum’s arguments concerning the determination of his rights within a "reasonable time", the Appeals Tribunal inferred that he assumed that under Article 6 (art. 6) time-limits were "absolute". However, the case-law of the European Court indicated that the factual situation was of relevance in deciding whether a given decision had been taken within a reasonable time. Exceeding what might generally be considered a reasonable time in the determination of a dispute could not have the effect that an administrative authority which complied with legal time-limits was deprived of its right to claim social-security contributions. In any case, although a speedier decision would have been preferable, the lapse of time in issue did not go beyond what was reasonable for the purposes of Article 6 (art. 6).
The Appeals Tribunal added that the approach adopted by the BVG in cases of this nature had given rise to an unnecessary number of appeals, partly because of the "persistent attitude of the interested parties", but that it did not appear, in this case or others, that the BVG had made statements or acted in such a way as to create legitimate expectations on the basis of which the Appeals Tribunal could decide that rights to demand payment of social-security contributions over the relevant period had lapsed.
The appeal was accordingly dismissed.
26. Mr Meldrum lodged an appeal with the Central Appeals Tribunal on 26 July 1990.
He contested the assertion that the delay in sending him formal confirmation of the BVG’s decision had caused him no prejudice. He submitted that by the time he was finally allowed access to the Appeals Tribunal, the case-law had already been established and was difficult to change; the case-law in relation to physiotherapists might have developed differently if the right arguments had been adduced at an earlier stage. If he had been one of the first to appeal, the substance of his arguments would have been addressed and would not have met with a standardised response.
Lastly, he reiterated his arguments based on the principle of "fair play". Since an appellant had to observe a time-limit of only two months, whereas the defendant administrative authority could stall proceedings indefinitely, it was possible for the latter to choose "pilot cases" which would then form the basis of a body of case-law favourable to the defendant administrative authority and providing precedent for other cases.
27. Following a hearing on 6 February 1991, at which Mr Meldrum was not represented, the Central Appeals Tribunal gave judgment on 13 March 1991.
It rejected Mr Meldrum’s arguments concerning the independence of the other physiotherapists and found that the relationship between them and Mr Meldrum was such as to require him to pay social-security contributions for them.
As to Mr Meldrum’s arguments based on Article 6 (art. 6), it left open the question whether the case concerned "civil rights and obligations"; in cases of this nature the reasonable time requirement did not apply to the phase preceding appeal to an administrative tribunal under the Appeals Act. It recognised that procrastination by an administrative authority might possibly hinder an appellant’s access to a tribunal but expressed no opinion as to whether such a right of access flowed directly from Article 6 (art. 6).
There was nothing in the file to suggest that the applicant had taken any action to expedite delivery of the formal confirmation. In view, inter alia, of the necessity for further investigations and correspondence and the fact that it appeared that the delay was connected with the large number of requests for formal confirmation, the Central Appeals Tribunal came to the conclusion that the BVG, in not providing such formal confirmation until 1 May 1989 - far too long after the applicant’s request - could not be said to have actually hindered any attempts by the applicant to obtain access to a tribunal earlier.
As to the argument that the delay in providing formal confirmation had been prejudicial to his procedural position, the Central Appeals Tribunal noted that Mr Meldrum’s case raised no issues that had not been addressed in earlier cases.
Furthermore, the BVG’s demands for payment of contributions for 1984, 1985 and 1986, based as they were on binding legal provisions, did not violate any general principle of good governance in such a way that the BVG should thereby have divested itself of its legal obligation to make such demands.
The appeal was accordingly dismissed. However, the Appeals Tribunal’s judgment had been based on figures which were corrected by the BVG of its own motion in the course of the proceedings before the Central Appeals Tribunal, so that as a matter of form the judgment of the Appeals Tribunal had to be partly set aside.
28. Pursuant to section 2 of the Social Security (Organisation) Act (Organisatiewet sociale verzekeringen) it falls to the occupational associations to implement the Health Insurance Act, the Medical Assistance Fund Act, the Unemployment Insurance Act and the Occupational Disability Insurance Act.
One occupational association exists for each of the various sectors of economic life. An occupational association is an association (vereniging) under private law set up by employers’ and employees’ organisations considered by the Minister of Social Affairs and Employment (Minister van Sociale Zaken en Werkgelegenheid) to be sufficiently representative of the sector concerned; its purpose is defined as being to implement the relevant social-security legislation, it must be a non-profit-making body and its statutes must satisfy certain requirements (section 4(1) of the Social Security (Organisation) Act).
An employer is automatically a member of the occupational association corresponding to the sector of the economy to which the work carried out by his employees belongs (section 7(1) of the Social Security (Organisation) Act).
29. The occupational associations are supervised by the Social Security Council (Sociale Verzekeringsraad). This body has legal personality under public law (section 35(1) of the Social Security (Organisation) Act). Its president and one-third of its members are appointed directly by the Minister of Social Affairs and Employment for a term of three years; one-third of its members are appointed for the same term by employers’ organisations and one-third by employees’ organisations, the organisations in both instances being those considered by the Minister to be sufficiently representative (section 35(2)-(6) of the Social Security (Organisation) Act).
The Social Security Council is empowered to adopt regulations for co-ordinating the implementation of the social-security legislation (section 48 of the Social Security (Organisation) Act); it also has the power to recommend to the Minister of Social Affairs and Employment the suspension or annulment of decisions of occupational associations (section 49). It is responsible to the Minister and must follow his instructions (section 41).
30. Employers must provide the occupational associations with information concerning the wages (loon) paid to their employees; the occupational associations then determine the contributions to be paid under the relevant social-security legislation in respect of each employee. These contributions are paid by the employers to their respective occupational association (section 11 of the Social Security (Co-ordination) Act - Coördinatiewet Sociale Verzekeringen). Section 4 of the Social Security (Co-ordination) Act gives the following definition of "wages":
"1. Everything enjoyed under an employer/employee relationship (dienstbetrekking) shall constitute wages.
2. Wages shall include entitlements - whether conditional or coming into existence in the course of time - to one or more benefits or grants (uitkeringen of verstrekkingen), in so far as these are not covered by contributions paid by the employee."
This definition is virtually identical with that given in section 10 of the Wages (Tax Deduction) Act (Wet op de loonbelasting), the only difference being that the latter Act also includes in its definition everything enjoyed under an employer/employee relationship which no longer exists.
31. If, for whatever reason, the employer does not pay the contributions within a time-limit set by the occupational associations, the latter may charge interest on the outstanding amount. This interest is calculated at the statutory rate, which in recent years has fluctuated between 8 and 12% (section 14 of the Social Security (Co-ordination) Act).
According to the case-law of the Central Appeals Tribunal, the interest is to be calculated from the day on which the occupational association fixed the amount to be paid, not the day on which the amount was notified to the employer (judgment of the Central Appeals Tribunal of 5 January 1976, Rechtspraak sociaal verzekeringsrecht, (Social security reports - RSV) 1976, no. 184).
32. At the relevant time, section 5(d) of the Health Insurance Act, section 5(d) of the Unemployment Insurance Act, section 5(d) of the Occupational Disability Insurance Act, and section 3(1) of the Medical Assistance Fund Act taken in conjunction with section 5(d) of the Health Insurance Act empowered the Minister of Social Affairs and Employment to define as work relationships, by delegated legislation, several types of relationship that could be considered the "social equivalent" thereof. In pursuance of these provisions, the Minister defined as a work relationship the relationship involving someone who regularly performs work in person for at least two days a week in return for a gross income exceeding a given proportion of the statutory minimum wage (section 2(1) of the Royal Decree of 14 December 1973, Staatsblad - Official Gazette - 627).
33. The Health Insurance Act sets up an insurance scheme (verzekering) which is compulsory for all employees (section 20). Under this scheme, the employee has a right to sick-pay (ziekengeld) in the event of inability to perform his or her work due to illness, pregnancy or disability (section 19). The employee may receive sick-pay for a period of up to fifty-two weeks (section 29(2)), or for sixteen weeks (which do not count towards the period of fifty-two weeks) in the case of pregnancy (section 29(7)).
34. The insurance scheme set up by the Medical Assistance Fund Act is compulsory for all employees whose wages do not exceed a certain annual figure (section 3); its benefits are also enjoyed by their spouses and dependants (section 4). To be entitled to the benefits, the employee must apply for registration with a health insurance fund, which is under an obligation to register him (section 5(1)).
The health insurance funds pay for medical assistance provided by medical practitioners, hospitals and some private institutions; for certain medicines prescribed by doctors; and transport by ambulance (sections 8 - 8i), in so far as these costs are not borne by other bodies under other legislation.
35. The insurance scheme set up under the Unemployment Insurance Act, to which people employed in the Netherlands belong as of right, confers an entitlement to unemployment pay on employees who, for a reason not connected with abnormal natural occurrences such as floods or extremes of cold, lose their employment or a significant part of it along with their right to wages in respect of the employment lost and who are available for employment (sections 15, 16 and 18).
36. The Occupational Disability Insurance Act provides compulsory insurance for an employee who, through illness or disability, is wholly or partly unable to earn through work an income comparable to that which a healthy person with similar training and experience might earn at the employee’s place of employment or last place of employment or in the vicinity thereof (section 18(1)). The entitlement to disability pay begins fifty-two weeks after the employee becomes disabled (section 19(1)), payments during the intervening period normally being made under the Health Insurance Act (see paragraph 33 above).
37. Contributions to all the above schemes are fixed by and paid to the occupational associations. Although some of the Acts involved lay down that contributions are due in whole or in part by the employee, it is in all cases the employer who is responsible to the occupational association for making the payments (and who must therefore deduct the employee’s share from his pay).
38. At the material time, a common feature of all the above social-security legislation was the rule that an interested party who wished to contest a decision of an occupational association concerning contributions must request formal confirmation in writing. Such formal confirmation, which included the grounds on which the decision was based, was an admissibility requirement for an appeal to a tribunal.
39. None of these Acts specified time-limits for requesting formal confirmation. However, the Central Appeals Tribunal ruled that this should be done within a "reasonable time", which that tribunal construed to mean generally within two months (see, inter alia, its judgment of 19 March 1974, RSV 1974, no. 288). An occupational association might declare inadmissible such a request if it was filed too late. A decision of the occupational association declaring a request for formal confirmation inadmissible was itself a decision of which formal confirmation might be requested with a view to an appeal.
There was no statutory time-limit within which formal confirmation had to be given.
40. In a case concerning the Work Centres Act (Wet op de sociale werkplaatsen) - an Act which provided that decisions on certain applications should be taken within five weeks - the plaintiff instituted summary proceedings when, two months after the time-limit, the municipality of Amsterdam had still not given a decision. His purpose was to obtain a judgment ordering the municipality to give a decision on his application. The action was eventually dismissed on appeal. The Supreme Court, in its judgment of 21 June 1985, upheld this dismissal, holding that the mere fact of exceeding the time-limit was not sufficient to render the municipality liable in negligence. Furthermore, the municipality was entitled to invoke its financial constraints and inadequate staffing levels as an excuse for its inability to deal with the plaintiff’s request.
The author of a commentary on the judgment as reported in Nederlandse Jurisprudentie (Netherlands Law Reports - NJ) 1986, 526, Professor M. Scheltema, observed that the Supreme Court had much reduced the effectiveness of summary proceedings as a remedy against failure by a public authority to give a decision in a case in which the Appeals Act applied.
41. When formal confirmation had been given, an appeal lay to the Appeals Tribunal. It had to be lodged within one month (section 83 of the Appeals Act).
From the Appeals Tribunal a further appeal lay to the Central Appeals Tribunal (section 145 of the Appeals Act); it too had to be lodged within one month.
42. On 1 January 1994 the General Administrative Code entered into force (see the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 15, para. 39). It lays down new uniform rules of administrative procedure which apply also to cases such as the present one.
Anyone wishing to challenge a decision of an occupational association concerning contributions under social-security schemes may lodge an administrative objection (bezwaarschrift) with that body, provided that he or she does so within six weeks (section 6:7).
If the occupational association fails to decide within a reasonable time, or refuses to do so, the party seeking review may lodge an appeal with the Regional Court (arrondissementsrechtbank) without waiting any longer for a decision (sections 6:2, 6:12 and 8.1.1.1). It is thus no longer necessary to request formal confirmation of a decision of an occupational association.
A further appeal lies to the Central Appeals Tribunal (section 18 of the Appeals Act).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4758
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: McTEAR v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants are British national, born in 1945 and living in Beith, Ayrshire, Scotland.
She is represented before the Court by Cameron S. Fyfe, a lawyer practising at Ross Harper, Solicitors, in Glasgow, Scotland.
A.
The applicant is unemployed and in receipt of income support. The applicant raised an action for damages for negligence against Imperial Tobacco Limited in the Court of Session, Edinburgh, in respect of the illness and subsequent death of her late husband. The applicant alleged that her late husband (M), who smoked cigarettes from 1966 to 1992 manufactured by Imperial Tobacco Limited (“the defenders”), was not initially warned by the defenders that the consumption of these cigarettes would be injurious to his health. It was alleged that the defenders had a duty to warn smokers that smoking was addictive and could cause lung cancer. The defenders had failed to do so and, but for that failure, M would not have started to smoke. In 1971 the defenders arranged for warnings about injury to health to be put on their cigarette packets. By that time, however, M was addicted to nicotine and, despite advice from his doctor, could not give up his smoking habit until 1992. In 1992 he was diagnosed as suffering from inoperable lung cancer. The defenders denied the applicant's claims and denied that causation had been proved, alleging inter alia contributory negligence.
Since January 1993 M, and following his death, the applicant, attempted to obtain the facility of legal aid from the Scottish Legal Aid Board (“the Board”) in order to allow them to be represented by solicitors and counsel in their court action. Every attempt to secure legal aid to sue the defenders for negligence has been unsuccessful, but legal aid was granted to pursue a judicial review of the Board's decision to refuse legal aid.
It was in July 1992 that M began his claim. On 8 January 1993 a legal aid application was lodged on behalf of M, along with a supportive opinion from senior counsel. On 16 and 17 March 1993 M gave evidence on commission which was subject to cross-examination. On 23 March 1993 M died, aged 48, before the cross-examination stage of the commission had been completed.
On 10 May 1993, M's counsel prepared a note, following the commission, giving his opinion as to the likely success of M's case which was to be pursued, following his death, by the applicant. In this opinion he referred to and quoted from a letter sent to the legal aid board in England by a respected academic on the subject of a causal link between tobacco and cancer. In this opinion counsel stated that there would be medical evidence from the applicant's General Practitioner, his consultant and a professor. The anti-smoking campaign had also collected good statistics on the matter.
On 25 May 1993 the Board wrote to M's solicitors (“the solicitors”) to confirm that they believed there were difficulties with the subjects of volenti, the value of the claim, the likely cost of the case and liability.
On 8 July 1993 the Board wrote to the solicitors refusing the application. In summary the reasons were as follows:
1. It was not reasonable to grant legal aid.
2. M continued to smoke for more than 20 years after warnings were put on cigarette packets.
3. His daily consumption of cigarettes actually increased in his later years.
4. M was able to stop in the later years of his life (once he contracted lung cancer).
5. There was wide publicity of the dangers of smoking in the 1960s and the evidence given by M on commission before his death was at times 'rather vague'.
6. There were difficult questions of volenti, causation and substantial contributory negligence. The case would be difficult, complex, lengthy and expensive.
7. It would not be reasonable to hazard such a large sum of money on such a limited prospect of successfully gaining any worthwhile return.
On 4 October 1993, the applicant, M's widow, lodged an appeal against the decision to refuse legal aid. The Board arranged a hearing to deal with the appeal which was attended by the applicant's solicitor and her senior counsel. On 19 October 1993 the Board wrote to the applicant's solicitors confirming that her appeal was unsuccessful.
In December 1993, the applicant was granted legal aid to proceed in the Court of Session with a judicial review of the Board's decision to refuse her appeal. Counsel submitted an opinion in support of the applicant's case in spite of some unhelpful comments made by M on commission prior to his death. On 15 February 1995, Lord Kirkwood in the Court of Session refused the petition for judicial review but indicated that he may have come to a different decision if the case could have been regarded as a test case.
On 9 April 1996, Lord Gill ruled against a motion for caution requested by the defenders. He noted that the decision of the Board to refuse legal aid was based on the criterion of reasonableness and not lack of probable cause. He noted that the Board was entitled, having considered the general assessment of the applicant's prospects, to consider whether the apparent prospects justified the potential costs to public funds. The defenders claimed they wished to obtain security because of the size of their probable expenses (£2 million on preliminary preparations alone) and the applicant's lack of means. Lord Gill noted that whatever the intention behind the motion the inevitable effect of its being granted would be that the action would come to an end. The fact that the Board considered the grant of legal aid to be unreasonable from its point of view did not mean it was unreasonable from the court's point of view that the action should be pursued. Therefore the motion was denied.
On 10 June 1996, the applicant lodged a fresh legal aid application which detailed five new reasons why she considered legal aid should be granted namely:
1. The defenders had lodged a motion for caution which in effect asked the applicant to produce £2 million to cover their expenses. Their motion was refused by Lord Gill whose judgement was sympathetic to the applicant's case.
2. The case could now be regarded as a test case or a class action as the applicant's solicitors had lodged twelve other writs in court and received instructions from twenty other clients with similar claims.
3. Legal aid had been granted to a limited extent in England.
4. For the first time a major tobacco company, Liggett, had conceded a case in the United States of America.
5. A refusal to grant legal aid would amount to a breach of Article 6 § 1 of the Convention.
On 29 August 1996, the applicant's solicitors wrote to the Board with 3 further reasons why they considered that legal aid should be granted. Firstly, there had been a recent and very similar case in Florida called McGrady Carter which was successful. Secondly, the arguments used by the applicant were very similar to those used by the plaintiff in the McGrady case. Finally, there was a proposal in the United States of America for legislation banning any further law suits against tobacco companies if these companies settled all existing actions and made payment towards the medical costs of the smoking related diseases and the costs of anti-smoking campaigns.
On 1 November 1996, the Board wrote to the applicant's solicitors, confirming that legal aid had been refused. On 24 February 1997, following the applicant's application for an appeal against this decision, the Board arranged a hearing at which the applicant was represented by her solicitor and her senior counsel. On 18 March 1997 the Board wrote to the applicant's solicitors confirming the refusal of the appeal. On 15 May 1997 the applicant applied for legal aid to cover judicial review of the Board's decision to refuse her legal aid. This application was refused by the sheriff at Edinburgh on 22 December 1997.
The applicant's court action is still proceeding as the applicant's solicitors and counsel are prepared to act for her at present for no fee.
B. Relevant domestic law and practice
The relevant domestic legislation is section 14 (1)(b) of the Legal Aid Act (Scotland) Act 1986.


ITEMID: 001-100005
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: SHAMSI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicant, Mr Maher Muhilddin Gazel Al Shamsi, is an Egyptian national who was born in 1966 and lives in Eskişehir. He was represented before the Court by Mr A. Baba, a lawyer practising in Istanbul.
The applicant claims that he was accused of involvement in terrorism while in Egypt. He escaped prison in 1991 and subsequently fled the country. Thereafter he lived in Jordan, Syria and Lebanon respectively. He requested refugee status from the United Nations High Commissioner for Refugees (“the UNHCR”) in Beirut and his request was rejected. He fled to Turkey on 9 September 2007.
On 16 November 2007 the applicant was arrested in Hatay. He claimed before the Court that his asylum requests were not taken into account at the time of his arrest. The Government asserted that the applicant had not initially claimed asylum. He had stated before the national authorities that he had left Egypt for economic reasons and had paid money to human smugglers to be brought to Istanbul where he aimed to find work. In support of their observations the Government submitted the applicant's statement taken on the day he was arrested. The document is signed, inter alia, by the applicant as well as a translator.
On 18 February 2008 the applicant contacted a lawyer who works with the UNHCR in Turkey and stated that he was denied access to the asylum procedure. On 5 March 2008 he contacted the UNHCR office in Ankara and requested to be recognised as a refugee.
On 20 March 2008 the applicant requested an interim measure from the Court under Rule 39 § 1 of the Rules of Court. He alleged that his deportation to Egypt would expose him to the risk of unfair trial and subsequent imprisonment, ill-treatment or even death. In this connection the applicant invoked Articles 2, 3, 5 and 6 of the Convention. On the same day the Court decided to indicate the interim measure until further notice. The Government were asked a number of questions and both parties were requested to submit relevant documents.
On 25 March 2009 the UNHCR interviewed the applicant. The refugee status assessment proceedings are pending before the UNHCR.
On 25 March and 9 April 2008 the applicant requested asylum from the Istanbul Security Directorate and the Governorship of Istanbul, respectively.
On 5 May 2008 the authorities notified the applicant through the assistance of a translator that he was granted a temporary residence permit in Eskişehir. It appears from the case file that the applicant's wife and children who were in Syria joined him in Eskişehir and were issued with asylum seeker certificates by the UNHCR on 20 June 2008. The applicant's children were registered in local schools.


ITEMID: 001-23345
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: MULTIGESTION v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Multigestion, is a company incorporated under French law, with its registered office in Paris. It was represented before the Court by Mr J. Vogel, of the Paris Bar.
The applicant company is an approved management company, belonging to the group of management companies of the UFG company, which is itself a subsidiary of the Crédit Mutuel group. The applicant company manages two non-trading real-estate investment companies – Multimmobilier 1 and Multimmobilier 2. Also part of the UFG group are a company called Multimmo, which manages among other companies the non-trading real-estate investment company Crédit Mutuel Pierre 4, and another called Multimmo Transactions, whose object is to take part in property promotion campaigns.
Acting on an anonymous tip-off, the Chairman of the Stock Exchange Regulatory Authority (Commission des opérations de bourse – “the COB”) decided, on 23 August 1995, to open an investigation into the management of the three non-trading real estate investment companies mentioned above and into the transactions carried out on their behalf.
On 11 June 1996 the COB decided to open proceedings with a view to imposing penalties on the applicant company.
The Chairman of the COB informed the applicant company of the complaints against it on 16 July 1996. It was suspected of using its authority to act not in the collective interest of investors but for purposes other than those for which the authority had been given.
On 11 April 1997 a decision taken by the COB on 3 April 1997 was served on the applicant company. The COB had imposed a fine of 7,500,000 French francs and ordered publication of the decision in the COB’s monthly bulletin and in the Official Gazette.
On 24 April 1997 the applicant company gave notice of intention to appeal against the above decision, producing a statement of the grounds of appeal within the time allowed, on 16 May 1997. It did not plead the COB’s partiality on account of the fact that the same person had been its chairman when important decisions were being taken at both the investigation stage and the trial stage, the presence of the reporting commissioner (the rapporteur) at the deliberations or the fact that it had not had access to his written report. It did, however, plead an infringement of the presumption of innocence on account of the fact that the burden of proof had been reversed, and it contested the COB’s submissions.
Ruling in connection with another case and, according to the applicant company, against all expectations, the Paris Court of Appeal held on 7 May 1997 that the penalties imposed by the COB were contrary to Article 6 of the Convention when, in particular, the rapporteur took part in the deliberations. That decision was published in the Recueil Dalloz of 19 June 1997. On 5 February 1999 the Court of Cassation dismissed an appeal on points of law against the above judgment. Following that change in the case-law the COB modified its working practices.
On 10 September 1997 the COB submitted its observations on the applicant company’s appeal.
On 9 October 1997 the applicant company produced a reply in which it submitted a new ground of appeal, pleading infringement by the COB of the principles of fairness and impartiality. It referred in particular to the Paris Court of Appeal’s judgment of 7 May 1997.
On 16 December 1997 the Paris Court of Appeal noted of its own motion that the applicant company had not submitted the above ground of appeal within the one-month period allowed by law. It therefore invited the parties to present further submissions on its admissibility.
The applicant company attempted to establish that Article 8 of Decree no. 90-263 of 23 March 1990 did not bar the raising of a ground of appeal based on public-policy considerations after expiry of the one-month time-limit.
On 24 March 1998 the Court of Appeal declared the ground of appeal relating to the unfairness of the procedure before the COB inadmissible, as being out of time, and dismissed the application to set aside the COB’s decision of 3 April 1997.
The applicant company appealed on points of law against the above judgment. In support of its appeal it argued that Article 8 of Decree no. 90263 of 23 March 1990 “necessarily [said nothing about] what [was] to be done with grounds of appeal based on public-policy considerations, which [could] be submitted at any stage of the proceedings” and that “courts [had] a duty to note of their own motion arguments grounded on public policy whenever such arguments [were] apparent from the documents submitted to them, and particularly from the decision referred to them”. It also argued that there had been no legal basis for the sanction imposed by the COB, since the burden of proof had been reversed, or for the Court of Appeal’s decision, given that it had upheld the sanction imposed without verifying whether all the elements of the offence had been made out.
In a judgment of 25 January 2000 the Court of Cassation dismissed the applicant company’s appeal on points of law against the judgment of 24 March 1998. It held that although the ground of appeal relating to a violation of Article 6 of the Convention had been based on public-policy considerations it had been out of time and therefore inadmissible. It dismissed the other two points of law raised by the applicant company as manifestly ill-founded.
...
Article 8 of Decree no. 90-263 of 23 March 1990
“An appeal must be lodged by means of a written declaration deposited in four copies with the registry of the Paris Court of Appeal in exchange for a certificate of receipt.
An appeal shall be inadmissible by default if the declaration does not contain the information required by Article 648 of the New Code of Civil Procedure and state the object of the appeal.
Where the declaration does not contain a statement of the grounds of appeal, the appellant must, on pain of the same sanction, file such statement with the registry within a month of filing the declaration. ...”
...


ITEMID: 001-105207
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: NOWEL AND OTHERS v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicants, Mr Jan Nowel, Krzysztof Masalski and Wacław Janas, are Polish nationals who live in Maćkowa Ruda. They were represented before the Court by Mr J. Janas, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
2. On 2 March 1864 Tsar Alexander II, then King of Poland, had issued a decree (ukaz) granting the inhabitants of the Rosochaty Róg village a profit à prendre which amounted to a right to fish from shore in the Wigry and Uszknikajcie Lakes. The right was approved on 6 March 1869 by the Central Commission for Peasant Affairs and entered in the Suwałki land register in 1875. The right to fish was enjoyed only by those peasants who had the right entered in their so-called “liquidation tables”, and after their death by their legal heirs.
3. In 1918 Poland regained independence.
4. On 19 September 1922 the Waters Act was adopted (ustawa wodna) which introduced a general rule that all waters were public unless they constituted private property pursuant to the Act or pursuant to special legal titles. Subsequently, further numerous legal acts were adopted aimed at nationalisation of waters.
5. The applicants are owners of land adjacent to Wigry Lake.
6. In 1999 they filed a statement of claim with the Suwałki Regional Court (Sąd Okręgowy) against the Wigry National Park in which they referred to the Tsar’s decree of 1869, granting the inhabitants of the Rosochaty Róg village a profit à prendre which amounted to a right to fish in Wigry Lake. They stressed that the owners of the land adjacent to the lake had benefited from the right to fish in the lake until 1996, when the director of the Wigry National Park had prohibited the applicants from fishing there.
7. On 18 October 2000 the Suwałki Regional Court delivered a judgment in which it found that since 1869 the applicants had had a right to fish in the lake, which had not been revoked by any of the subsequent legal regulations. The court specified that the right was limited to the right to fish from the shore, without using boats or platforms. In addition, the fishermen had to respect the fish-protection periods.
8. On 15 February 2001 the Białystok Court of Appeal (Sąd Apelacyjny) upheld the firstinstance judgment. The judgment is final.
9. In 2002 the applicants filed another statement of claim against the Wigry National Park in which they asked the court to declare that their fishing rights comprised also the right to fish from a platform and while standing in the water.
10. On 15 April 2003 the Suwałki Regional Court gave judgment. It confirmed that the applicants had a right to fish for their own needs in Wigry Lake and that they could exercise that right from their land, from a platform or while standing in the water.
11. On 24 July 2003 the Bialystok Court of Appeal upheld that decision.
12. On the defendant’s appeal, on 22 December 2004 the Supreme Court (Sąd Najwyższy) quashed both judgments and dismissed the claim. It held that since 1962 at the latest – when the new Waters Act had come into force - the applicants’ right to fish in Wigry Lake had expired. The court stressed that by virtue of sections 1 and 2 of that Act all waters in Poland had been nationalised. It further considered that nationalisation constituted a primary method of acquiring property so that ownership of the waters had been transferred to the State without any servitudes.
13. The Supreme Court, inter alia, found:
“The lower courts omitted the consequences for the existence of the claimants’ fishing rights which follow from sections 1 and 2 of the Waters Act 1962.
In accordance with the unanimous opinion of the legal doctrine and of the jurisprudence this Act led to nationalisation of waters. (...) In line with the generally accepted approach the nationalisation constitutes a primary method of acquiring property which signifies that the title to property is transferred to the State free from any servitudes, unless the nationalisation act provides for an exception in this respect. (...)
Thus, it can be reasonably argued that private waters were nationalised free from any servitudes. Although, generally speaking, in the present case the right to fish encumbered the State object from the outset, nevertheless the primary goal of the nationalisation of waters (rationalisation of their use) argues in favour of the view that this nationalisation, a fortiori, led to the expiry of the property rights (prawa rzeczowe) encumbering State waters. Thus, even if the fishing rights had not expired earlier, they did so on the date of the entry into force of the Waters Act 1962.”
14. The applicants subsequently filed a constitutional complaint. On 19 October 2005 the Constitutional Court refused to examine it. The applicants appealed. On 14 February 2006 the Constitutional Court allowed their appeal and decided to consider their case.
15. The applicants subsequently filed a request with the Supreme Court, for the reopening of the proceedings that had been terminated on 22 December 2004.
16. On 18 April 2007, upon a question of law referred by the Ombudsman relating to fishing rights in other lakes, the Supreme Court adopted a resolution (III CZP 139/06) and stressed that the fishing rights had been unenforceable since 1932 (see paragraph 23 above).
17. On 18 April 2008 the Supreme Court rejected the applicants’ request for reopening.
18. On 7 May 2008 the Constitutional Court issued a decision in which it discontinued the proceedings in the applicants’ case on formal grounds. It held that the constitutional complaint had not concerned an alleged unconstitutionality of a legal provision but rather a flawed application by the Supreme Court of the Waters Act to the facts of the case. One of the judges in his dissenting opinion considered that even assuming that the applicants’ right to fish in Wigry Lake was a property right, it had been limited by the Nature Conservation Act of 16 April 2004.
19. On 7 March 1932 the Fisheries Act was adopted (ustawa o rybołóstwie). The Act stipulated that the right to fish was linked to the ownership of the waters in question. In public waters the right belonged to the State.
20. By sections 1 and 2 of the Waters Act 1962 (prawo wodne) all waters in Poland were nationalised. The Act is no longer in force. Currently, the legal status of inland waters is regulated by the Waters Act of 18 July 2001 which entered into force on 1 January 2002.
21. Section 15 (1) paragraph 2 of the Nature Conservation Act (ustawa o ochronie przyrody) of 16 April 2004, as worded at the material time, provided that fishing was prohibited in natural parks, with the exception of areas specifically designated in the conservation plans. The Act was amended and this provision repealed on 15 November 2008. Section 15 (1) paragraph14 now provides:
“Catching fish and other water-borne living organisms with the exception of areas specifically designated in the conservation plans [is prohibited]”.
22. On 9 November 2006 the Ombudsman referred to the Supreme Court a question of law (pytanie prawne) as to whether the fishing rights granted in 1864 (to fish in certain Mazury lakes) had expired in 1962 with the adoption of the new Waters Act. The Ombudsman referred to the divergent practice of the domestic courts and the Supreme Court in examining such claims.
23. In its resolution of 18 April 2007 (III CZP 139/06), adopted by a bench of seven judges, the Supreme Court dealt with this question. The court referred to the Fisheries Act 1932 and concluded that the fishing rights granted in 1864 had not expired in 1962. However, they had been unenforceable since the entry into force of the Fisheries Act 1932.