GELLÉRTHEGYI AND OTHERS v. HUNGARY
Inadmissible
Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Georges Ravarani
1. The applicant in application no. 78135/13, Mr István Gellérthegyi (hereinafter “the first applicant”), is a Hungarian national who was born in 1950 and lives in Budapest. He was represented before the Court by Mr A. Cech, a lawyer practising in Budapest. 2. The applicants in application no. 429/14, Mr Zoltán Balla and Ms Hajnalka Balláné Gál (hereinafter “the second and third applicant”), are Hungarian nationals who were born in 1956 and live in Budapest. 4. The applicants were employed as civil servants, notably as an associate professor of administrative law at Eötvös Loránd University and the National University of Public Service (as regards the first applicant), and as associate professors at the National University of Public Service (as regards the second and third applicants). 5. On a date not specified in the application, the applicants started receiving old-age pensions. It was disbursed to them alongside their salaries until 30 June 2013. 6. On 1 January 2013 an amendment to Act no. LXXXI of 1997 on Social-Security Pensions (hereinafter “the 1997 Pensions Act”) entered into force, pursuant 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. 7. A number of categories of persons in State employment were, however, exempted from the suspension of pension payments, such as members of Parliament and mayors, as well as persons employed in the public sector under the rules of the Labour Code (see Fábián v. Hungary [GC], no. 78117/13, § 23, 5 September 2017). Judges and prosecutors appointed to a stand-by post pursuant to Act no. XX of 2013 (see Baka v. Hungary [GC], no. 20261/12, § 54, ECHR 2016) were also exempted from the prohibition on double compensation (see paragraph 14 below). Although the suspension of pension payments also applied to health-care employees, given the importance of that sector their suspended pension payment could be compensated upon the decision of their employer by means of a salary supplement (see paragraph 15 below). 8. As of 1 July 2013, the disbursement of the applicants’ pension was suspended. 9. Partly following an application by the Ombudsman, the Constitutional Court embarked on the review of the impugned legislation’s constitutionality (see Fábián, cited above, § 16). 10. On 16 October 2017 the Constitutional Court found, in essence, that the rules concerning the ban on simultaneous receipt of a State pension and a salary 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; they therefore did not violate Article XIII of the Fundamental Law enshrining the protection of property. It further held that old-age pensioners employed, respectively, in the public and in the private sector were not in an analogous or relevantly similar situation. As regards the categories of public servants exempt from the ban on dual payment of State pensions and salaries (see paragraph 7 above), the Constitutional Court was of the view that the exception at issue was based on an objective and reasonable justification, notably on their specific legal status. Accordingly, the impugned legislation did not violate Article XV of the Fundamental Law enshrining the prohibition of discrimination (see paragraph 21 below). 11. Several elements of the relevant domestic law and practice as well as comparative-law material were set out in paragraphs 19 to 43 of the Fábián judgment (cited above). 12. Between 1 January 2013 (that is to say, its taking effect) and 1 April 2013, section 83/C of the 1997 Pensions Act read as follows (italics added): “(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 servant, 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 Forces.” 13. As of 2 April 2013, section 83/C of the 1997 Pensions Act was amended by Act no. XX of 2013 as follows (see Fábián, cited above, § 24; italics added): “(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 Forces.” 14. Section 102/J of the 1997 Pensions Act (not quoted in Fábián, cited above) provides as follows: “... [S]ections 83/C and 102/I are not applicable, as from the entry into force of Act no. XX of 2013 ... until 31 December 2022, to judges and prosecutors appointed to a stand-by post ...”. 15. Act LXXXIV of 2003 on Certain Questions Related to the Exercise of Health-care Activity, as amended on 29 April 2013, provides as follows: “(1) An employer may award a salary supplement ... to health-care employees who are employed as civil servants or who are in a Government or State-service relationship; and the disbursement of whose [old-age pension] is suspended pursuant to section 83/C of the [1997 Pensions Act] ... . (2) The ... net amount of the salary supplement awarded by the employer cannot exceed the [suspended amount of the old-age pension].” 16. The legal status of members of parliament is governed by the Fundamental Law and by Act no. XXXVI of 2012 on Parliament (hereinafter “the Parliament Act”). In so far as relevant, the Fundamental Law provides as follows: “(1) Members of parliament shall have equal rights and obligations, they shall perform their activities in the public interest, and they shall not be given instructions in that respect.” The Parliament Act provides, in particular: “(1) The term of office of members of parliament ... shall be considered, for social-security purposes, employment with a working time of forty hours per week and a service period giving rise to a pension entitlement. For the calculation of a service period as a Government official, State official, public servant, civil servant, judge or prosecutor, the duration of the above-mentioned employment shall be counted as service time spent in the relevant legal relationship.” “(1) Members of parliament are entitled, from their swearing-in until the end of their term of office, to a monthly honorarium, the amount of which equals the salary ... of a deputy State secretary, as it is regulated by the Public Servants Act.” 17. The legal status of mayors, deputy mayors, presidents and vice-presidents of county assemblies is regulated by Chapter VII/A of Act no. CXCIX of 2011 on Public Servants (hereinafter “the Public Servants Act”), which contains the following passages: “(1) The employment relationship of full-time mayors is a special public service relationship established between the body of local representatives and the mayor, [in principle] ... on the strength of [the latter’s] election.” “(1) The term of office of full-time mayors shall be calculated as the service period spent in public service, Government service or armed service and shall give rise to a pension entitlement.” “(1) If this Act does not stipulate otherwise, any reference to mayors shall be construed as including deputy mayors, presidents and vice-presidents of county assemblies, and the mayor and deputy mayors of Budapest.” 18. Mayors and local representatives (including members of county assemblies) are elected in accordance with the rules laid down in Act no. L of 2010 on the Election of Local Government Representatives and Mayors. Presidents of county assemblies are elected by the assemblies themselves from among their members, in accordance with Article 33 § 2 of the Fundamental Law. Deputy mayors and vice-presidents of county assemblies are also elected by the respective body of local representatives from among their members, in accordance with section 74 of Act no. CLXXXIX of 2011 on the Local Governments of Hungary. 19. The Constitutional Court Act (Act no. CLI of 2011) provides as follows: “Members of the Constitutional Court shall be independent, subordinated only to the Fundamental Law and Acts.” “(2) Under their term of office and for the purposes of entitlement to social-security benefits, members of the Constitutional Court shall be considered insured employees in public service, and their salary shall be considered income from an activity other than self-employment, comprising part of the contribution base. The term of office of members of the Constitutional Court shall be considered to be the time spent in public-service employment.” “(1) Members of the Constitutional Court shall not be held accountable in court or by other authorities during or after their term of office for the activities carried out or statements of fact or opinion made while exercising the competences of the Constitutional Court as defined in the Fundamental Law and in this Act, and no proceedings shall be initiated against the Constitutional Court for such statements of fact or opinion in court or before other authorities. This exemption shall not cover abuse of information classified top secret or secret, libel, defamation and the civil law liability of Members of the Constitutional Court.” “(2) This Act shall be considered a Cardinal Act pursuant to Article 24 (9) of the Fundamental Law.” 20. In connection with persons employed in the public service under the rules of the Labour Code, the Public Servants Act provides as follows: “(1) For tasks directly related to the exercise of public powers and powers of guidance, inspection and supervision of a public-service institution, as well as for administrative tasks, persons may be employed only as Government officials or public servants. (2) No contract for services, works contract or [ordinary labour-law] employment contract may be concluded for the completion of a task which shall exclusively be exercised by a person appointed as a Government official or public servant. ... (4) The proportion of persons ... employed by a public-service institution [under the Labour Code] in a given year ... shall not exceed 10% of the average yearly staff number. ... ... (9) The rules contained in subsections (1) to (4) above do not apply to the Office of the Parliament and to the Historical Archives of Hungarian State Security. (10) As an exception to the rule contained in subsection (1) above, procedural tasks at diplomatic or consular representations ... may also be carried out by individuals other than Government officials or public servants.” 21. The Constitutional Court’s decision of 16 October 2017 (decision no. 29/2017. (X. 31.) AB, see paragraph 10 above) contains the following passages concerning the allegedly unjustified difference in treatment between pensioners employed in different categories within the public sector: “77. It is apparent from the [impugned] rules of [the 1997 Pensions Act] that they do not apply to every person in State service but only to persons falling under the scope of specific legislative acts governing the status of certain categories of public servants. 78. For example, they do not apply to certain elected officials or to those who are employed [under the rules of the Labour Code], even if the employer is a budgetary institution. Although the rules could be extended to cover every position and every public servant, the exceptions are reasonably justified, on the one hand, by the fact that they are related to passive electoral rights and, on the other hand, by the specific legal status of certain appointed officials (section 102/J [of the 1997 Pensions Act]). 79. [Taking into account] the efforts to balance the pension system, the difference in treatment in question has a perceivable, objective and reasonable justification. Therefore it does not violate Article XV § 1 of the Fundamental Law.”