CASE OF CATALDO AND OTHERS v. ITALY
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)
András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
5Maggio and Others v. Italy (nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, 31 May 2011). 6. In 1995, by means of the Dini reform, Italy changed its pension system from a retributive one, which applied the remuneration-based (“retributivo”) method of calculation, to a contributory one, where the amount received in pension was dependent on the contributions paid. 7. Mr Cataldo, who had transferred to Italy the contributions he had paid in Switzerland, requested the INPS to establish his pension 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 he had performed there between 1956 and 1994. As a basis for the calculation of his pension (in respect of the average remuneration of 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 existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which meant that the calculation had as its basis a pseudo-salary which amounted to approximately a quarter of the salary actually received by the applicant and therefore led to a reduction in the pension itself. 8. Consequently, in 2006 Mr Cataldo instituted judicial proceedings, contending that this was contrary to the spirit of the Italo-Swiss Convention. Various individuals in the same position had done the same and had been successful, the domestic courts having determined that persons having worked in Switzerland and who had subsequently transferred their contributions to Italy should benefit from the 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. 9. Pending the proceedings, Law no. 296/2006 (see Relevant Domestic Law and Practice below) entered into force on 1 January 2007. 10. By a judgment of the Lecco Tribunal (Labour and Welfare Section) of 27 February 2008, filed in the relevant registry on 6 May 2008, the court rejected Mr Cataldo’s claim in view of the entry into force of Law no. 296/2006. 11. Mr Cataldo did not appeal, deeming it to be futile given that the impugned law had been considered 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. 12. Mr Maggioni, who had transferred to Italy the contributions he had paid in Switzerland, requested the INPS to establish his pension in accordance with the 1962 Italo-Swiss Convention on Social Security on the basis of the contributions paid in Switzerland for work he had performed there between 1965 and 2000. As a basis for the calculation of his pension (in respect of the average remuneration of 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 existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which meant that the calculation had as its basis a pseudo-salary which amounted to approximately a quarter of the salary actually received by the applicant and therefore led to a reduction in the pension itself. 13. Consequently, in 2006 Mr Maggioni instituted judicial proceedings. 14. By a judgment of the Brescia Tribunal (Labour Section) of 26 June 2006, Mr Maggioni’s claim was upheld on the basis of the relevant Court of Cassation case-law at the time. 15. The INPS appealed. 16. By a judgment of 1 March 2007, filed in the relevant registry on 19 May 2007, the Milan Court of Appeal reversed the first-instance judgment in view of the entry into force of Law no. 17. Mr Ribulotta, who had transferred to Italy the contributions he had paid in Switzerland, requested the INPS to establish his pension in accordance with the 1962 Italo-Swiss Convention on Social Security on the basis of the contributions paid in Switzerland for work he had performed there between 1955 and 1991. As a basis for the calculation of his pension (in respect of the average remuneration of 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 existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which meant that the calculation had as its basis a pseudo-salary which amounted to approximately a quarter of the salary actually received by the applicant and therefore led to a reduction in the pension itself. 18. Consequently, in 2003 Mr Ribulotta instituted judicial proceedings. 19. By a judgment of the Varese Tribunal (Labour and Welfare Section) of 21 February 2006, Mr Ribulotta’s claim was upheld on the basis of the relevant Court of Cassation case-law at the time. 20. The INPS appealed. 21. By a judgment of 16 May 2008, filed in the relevant registry on 5 June 2008, the Milan Court of Appeal reversed the first-instance judgment in view of the entry into force of Law no. 296/2006. 22. 23. Mr Marinaro, who had transferred to Italy the contributions he had paid in Switzerland, requested the INPS to establish his pension in accordance with the 1962 Italo-Swiss Convention on Social Security on the basis of the contributions paid in Switzerland for work he had performed there between 1965 and 1994. As a basis for the calculation of his pension (in respect of the average remuneration of 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 existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which meant that the calculation had as its basis a pseudo-salary which amounted to approximately a quarter of the salary actually received by the applicant and therefore led to a reduction in the pension itself. 24. Consequently, in 2006 Mr Marinaro instituted judicial proceedings. 25. By a judgment of the Como Tribunal (Labour and Welfare Section) of 21 February 2006, Mr Marinaro’s claim was dismissed as being out of time. 26. Mr Marinaro appealed. 27. By a judgment of 7 July 2008, filed in the relevant registry on 17 July 2008, the Milan Court of Appeal reformed the first-instance judgment, considering that the applicant’s claims for the dues relating to the three years before he lodged his application could not be considered time-barred. However, it rejected the merits of the claim in view of the entry into force of Law no. 296/2006. 28. 29. Mr Centamore, who had transferred to Italy the contributions he had paid in Switzerland, requested the INPS to establish his pension in accordance with the 1962 Italo-Swiss Convention on Social Security on the basis of the contributions paid in Switzerland for work he had performed there between 1969 and 2000. As a basis for the calculation of his pension (in respect of the average remuneration of 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 existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which meant that the calculation had as its basis a pseudo-salary which amounted to approximately a quarter of the salary actually received by the applicant and therefore led to a reduction in the pension itself. 30. Consequently, in 2006 Mr Centamore instituted judicial proceedings. 31. By a judgment of the Busto Arsizio Tribunal (Labour and Welfare Section) of 9 June 2008, Mr Centamore’s claim was rejected in view of the entry into force of Law no. 296/2006. 32. 33. Mr Maccarinelli, who had transferred to Italy the contributions he had paid in Switzerland, requested the INPS to establish his pension in accordance with the 1962 Italo-Swiss Convention on Social Security on the basis of the contributions paid in Switzerland for work he had performed there between 1960 and 2000. As a basis for the calculation of his pension (in respect of the average remuneration of 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 existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which meant that the calculation had as its basis a pseudo-salary which amounted to approximately a quarter of the salary actually received by the applicant and therefore led to a reduction in the pension itself. 34. Consequently, in 2006 Mr Maccarinelli instituted judicial proceedings. 35. By a judgment of the Bresce Tribunal (Labour and Welfare Section) of 20 June 2008, filed in the relevant registry on 23 June 2008, Mr Maccarinelli’s claim was rejected in view of the entry into force of Law no. 296/2006. 36.