CASE OF STEFANETTI AND OTHERS v. ITALY
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions;Possessions);Pecuniary damage - award;Just satisfaction partially reserved
András Sajó;Egidijus Kūris;Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
5. Maggio and Others v. Italy (nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, 31 May 2011). 6. The applicants worked in Switzerland for the following periods of time, in total, over the relevant years: Mr Stefanetti: approximately 23 years between 1959 and 1996; Mr Rodelli: approximately 31 years between 1962 and 1996; Mr Negri: approximately 13 years between 1954 and 1997; Mr Della Nave: approximately 28 years between 1962 and 1989; Mr Del Maffeo: approximately 32.5 years between 1959 and 1996; Mr Cotta: approximately 26 years between 1962 and 1987; Mr Curti: approximately 28 years between 1962 and 1997; Mr Andreola: approximately 10.5 years between 1967 and 1977. 7. In 1982 Italy changed its pension system from a contributory one, where the amount received in pension was dependent on the contributions paid, to an earnings- or remuneration-based (“retributivo”) one. 8. The applicants, who had transferred to Italy the contributions they had paid in Switzerland, requested the Istituto Nazionale della Previdenza Sociale (“INPS”) to calculate their pensions, in accordance with the 1962 Italo-Swiss Convention on Social Security (see Relevant domestic law and practice below), on the basis of the contributions paid in Switzerland for work they had done there over a number years (see appended table for details). As a basis for the calculation of their pensions (in respect of their average remuneration over the last ten years), the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a readjustment on the basis of the contribution rate applied in Switzerland (8%) and that applied in Italy (32.7%), which meant that the calculation had as its basis a pseudo-salary with the result that the applicants received a lower pension than expected. According to the applicants, their pension was approximately a third of what it should have been. 9. As an example, the pension the applicants actually received in 2010 and an estimation, calculated by them, of what they should have received in that same year had this method of calculation not been applied is appended. 10. Consequently, in 2006 the applicants instituted judicial proceedings, contending that this was contrary to the spirit of the Italo-Swiss Convention. Various individuals in the applicants’ position had done the same and had been successful. The domestic courts had determined that people who had worked in Switzerland and had subsequently transferred their contributions to Italy should benefit from the remuneration-based pension calculations based on the wages they had earned in Switzerland, irrespective of the fact that the transferred contributions had been paid at a much lower Swiss rate. 11. While their proceedings were still pending, Law no. 296/2006 (see Relevant domestic law and practice below) entered into force on 1 January 2007. 12. The applicants’ claims were rejected in separate judgments of the Sondrio Tribunal (filed in the relevant registry as mentioned below), in view of the entry into force of Law no. 296/2006: Judgment (no. 149/09) of 30 November 2009 in respect of Mr Stefanetti; Judgment (no. 96/09) of 27 October 2009 in respect of Mr Rodelli; Judgment (no. 09/10) of 28 January 2010 in respect of Mr Negri; Judgment (no. 104/09) of 27 October 2009 in respect of Mr Della Nave; Judgment (no. 09/10) of 28 January 2010 in respect of Mr Del Maffeo; Judgment (no. 166/09) of 10 December 2010 in respect of Mr Cotta; Judgment (no. 112/09) of 10 November 2009 in respect of Mr Del Curti; Judgment (no. 96/09) of 27 October 2009 in respect of Mr Andreola. None of the applicants appealed further, deeming it to be futile given that Law no. 296/2006 had been found legitimate by the Constitutional Court in its judgment of 23 May 2008, no. 172 (see Relevant Domestic Law and Practice below), which other courts were then bound to uphold.