WALDEN v. LIECHTENSTEIN
Inadmissible
Matti Pellonpää
The applicant is a German citizen born in 1928 and residing in Liechtenstein since 1967. In the proceedings before the Court he is represented by Mr G. Marxer, a lawyer practising in Vaduz. A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant's wife retired in 1985 and received a single old age pension (einfache Altersrente). Since 1 January 1991, the monthly allocation amounted to 1,880 Swiss Francs (SFR). The applicant retired in 1993. On 7 December 1993 the Liechtenstein Old Age Pension Insurance Institution (Alters und Hinterlassenenversicherung) fixed a common married couple's pension (Ehepaar-Altersrente) for the applicant and his wife in the amount of SFR 1,880 per month. In accordance with the relevant legislation, the husband is entitled to receive the married couple's pension, while the wife's former claim to a single old age pension ceases and is replaced by a derived right to payment of half of the common pension. Further, the married couple's pension is calculated on the basis of the husband's contribution years. It is 150% of the husband's single pension. As the applicant's insurance period was shorter than his wife's, the resulting amount was lower than his wife's single pension. According to the relevant provisions a compensation was added to arrive at the amount of his wife's former pension. On 13 December 1993 the applicant filed an objection (Vorstellung) against the above decision. He argued that the method of calculation applied rendered his own contributions null and void as the married couple's pension was no higher than his wife's single pension. Further, he held that he and his wife were discriminated against in relation to other married couples. He requested two separate pensions to be paid instead of the common pension. On 20 January 1994 the Liechtenstein Old Age Pension Insurance Institution dismissed the applicant's objection. As to the applicant's first argument it observed that the Liechtenstein pension scheme was based on the principle of social solidarity. Thus, it did not grant pension claims in direct relation to the contributions paid. As to the applicant's second argument, the Insurance Institution agreed that there was unequal treatment of men and women as only the husband was entitled to the married couple's pension, which was calculated solely on the basis of the husband's contribution years. Moreover, in a case like the applicant's where the husband had an incomplete insurance career while his wife's was complete, a lower married couple's pension was paid than in the opposite case. However, the legal provisions were clear and precise and did not permit any other interpretation. The question could, thus, only be resolved by an amendment of the law. Such an amendment was envisaged for December 1996. On 21 September 1994 the Liechtenstein Court of Appeal (Obergericht), upon the applicant's appeal, confirmed the Insurance Institution's decision as being in conformity with existing legislation even if it was contrary to the principle of non-discrimination. It also refused the applicant's motion to interrupt the proceedings and to request the State Court (Staatsgerichshof) to examine the constitutionality of the contested provisions of the Old Age Pension Act. It found that in the event of an abrogation of these provisions the applicant's claims would not find any other legal basis without further initiative of the legislator. On 15 May 1995 the Liechtenstein Supreme Court (Oberster Gerichtshof) dismissed the applicant's appeal on points of law. It stated that the unequal treatment of husband and wife in the current pension scheme could not be remedied by the courts, but required an amendment of the relevant law by the legislator. On 23 October 1995 the applicant, after having lodged a complaint with the State Court, challenged State Court judge Hoch for bias on the ground that the latter had written a dissertation on social security law, which had been partly financed and distributed by the Old Age Pension Insurance Institution. On 24 May 1996 the Liechtenstein State Court, sitting as a Constitutional Court (Verfassungsgerichtshof), rejected the applicant's challenge for bias and partly granted his constitutional complaint. As to the applicant's challenge for bias, the State Court found that the past financial support and distribution of a dissertation by a public law institution did not create such a personal link as to affect a judge's impartiality. As to the applicant's complaint, the State Court found that the applicant's constitutional rights were violated by the Supreme Court's decision. The married couples' pension system, based on a traditional view of marriage, was unconstitutional as being contrary to the principle of non-discrimination on the basis of gender, in particular as only the husband's contribution years were decisive for the calculation of the married couple's pension. Moreover, it was unconstitutional as being contrary to the general principle of equal treatment, in that married and unmarried couples were treated differently with regard to their pension benefits.  However, the State Court rejected the applicant's request to quash the contested judgment and to set aside the relevant provisions in the Old Age Pension Act. It noted that it would, technically speaking, be possible to set aside a number of provisions with the result that the applicant and his wife would each be entitled to a single old age pension. However, this would cause massive disadvantages to others, in particular to married couples where the wife did not have an own insurance career. The situation was even more complex in view of the Social Security Agreement between Liechtenstein and Switzerland which could only operate if the requirements for pension claims were more or less identical in both States. In conclusion, the State Court did not see itself in a position to set aside the contested provisions, given the complexity of social security law and the statutory time-limit of a maximum of six months for suspending an abrogation. The State Court went on to say that despite these considerations the continuing application of unconstitutional legislation for a protracted period would be unacceptable. However, a comprehensive legal reform with the explicit aim of guaranteeing gender equality in social security law was already being prepared and Parliament had requested the Government to submit all necessary amendments of social security law before the end of 1996. Moreover, the draft amendment of the Old Age Pension Act included provisions according to which couples in the position of the applicant and his wife would be entitled to two single pensions. Having regard to the time-table for the pending reform, the above-mentioned maximum time-limit of six months for enacting new legislation could possibly be complied with. Nevertheless, it was not justified to annul the unconstitutional provisions with a six-months suspension as the envisaged date of entry into force, namely 1 January 1997, would become illusory if for instance a referendum was requested. In this case, the annulment would become effective and would entail all the negative consequences described above. In fact, the amendment to the Old Age Pension Act was adopted in September 1996 (see below). According to its provisions the applicant and his wife each receive a single pension of SFR 1,086 and 1,990, respectively, as of 1 January 1997. B. Relevant Domestic Law The Liechtenstein Old Age Pension Act (Gesetz über die Alters- und Hinterlassenenversicherung) of 14 December 1952, Law Gazette (LGBl) 1952/29, before its amendment, provided for common married couple's pensions which were to be paid as soon as both spouses reached the retirement age. When a common pension was paid the wife's claim for pension payments expired. Only the husband's contribution years were decisive for the calculation of the married couple's pension. By amendment of 18 September 1996, Law Gazette 1996/192, to the Old Age Pension Act, the married couple's pension system was replaced by a scheme providing single pensions for both spouses. Married couple's pensions existing at the time of the amendment were transformed into two single pensions as of 1 January 1997, subject to the clause that the total amount of both pensions was not to be lower that the previous married couple's pension.