CASE OF VALKOV AND OTHERS v. BULGARIA

Conclusion No violation of P1-1 ; No violation of Art. 14+P1-1
FOURTH SECTION
CASE OF VALKOV AND OTHERS v. BULGARIA
(Applications nos. 2033/04, 19125/04, 19475/04, 19490/04,
19495/04, 19497/04, 24729/04, 171/05 and 2041/05)
JUDGMENT
STRASBOURG
25 October 2011
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Valkov and Others v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Päivi Hirvelä,
George Nicolaou,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
Pavlina Panova, ad hoc judge,
and Lawrence Early, Section Registrar,
Having deliberated in private on 4 October 2011, delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in nine applications (nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by nine Bulgarian nationals, OMISSIS (“the applicants”), on 6 January, 14 May, 29 June and 7 December 2004 respectively.
2. All applicants save for Mr A. were represented by Mr M. E.and Ms K. B., lawyers practising in Plovdiv. Mr A. was represented by Mr Ts. T., a lawyer practising in Montana. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.
3. The applicants alleged, in particular, that a statutory cap on their retirement pensions was in breach of their rights under Article 1 of Protocol No. 1, and that they were victims of a two-fold discrimination, in breach of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1: firstly, in relation to those pensioners whose pensions fell below the cap, and secondly, in relation to certain high-ranking officials whose pensions were exempted from the cap.
4. On 10 November 2009 the Court (Fifth Section) decided to join the applications, declared them partly inadmissible, and decided to give the Government notice of the complaints concerning the pensions cap and the alleged discrimination. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1 of the Convention).
5. Following the re-composition of the Court’s sections on 1 February 2011, the application was transferred to the Fourth Section.
6. On 13 April 2011 Zdravka Kalaydjieva, the judge elected in respect of the Republic of Bulgaria, withdrew from sitting in the case. On 15 April 2011 the President of the Fourth Section appointed Pavlina Panova as an ad hoc judge from the list of three persons whom Bulgaria had designated as eligible to serve as such judges (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicants are all pensioners who retired on various dates between 1979 and 2002. Whenever the nominal monthly amount of their pensions exceeded the maximum amount of pension specified until the end of 1999 in section 47c of the Pensions Act 1957 (see paragraph 27 below) and since the beginning of 2000 in paragraph 6 of the provisional and concluding provisions of the Social Security Code 1999 (see paragraphs 31-33 below), their pensions were capped.
8. In practice, that worked as follows. In individual decisions relating to each of the applicants, the National Social Security Institute (“the NSSI”) calculated their monthly pensions under the general rules laid down first in the Act and then in the Code, and then capped the pensions by reference to the above-mentioned provisions. Whenever the pensions were updated or recalculated, the same process was repeated.
A. Retired Air Force pilots
9. The following applicants are retired pilots from the Air Force. During their employment they received higher salaries than the average for the country.
10. Mr V., who was born in 1928, started receiving a retirement pension in April 1979. In that year, the competent pension authority set his monthly pension at 330.20 old Bulgarian levs (BGL). Mr V. did not provide information about the actual amount of his monthly pension between June 1992 and the end of 1999; it appears that its nominal amount at the end of 1999 was 327.40 new Bulgarian levs (BGN)1 (the equivalent of 167.40 euros (EUR)2), and that it was therefore affected by the cap under section 47c of the Pensions Act 1957 (see paragraphs 27 and 28 below). When the Social Security Code 1999 came into force on 1 January 2000, Mr V.’s pension was recalculated in accordance with the new rules. With effect from 27 April 2004, he was granted an additional invalidity pension, amounting to BGN 13.75 (EUR 7.03).
11. In summary, Mr V.’s monthly pension after 1 January 2000 was as follows:
Order of the
NSSI dated For the
period after Pension(s) under the general rules Capped amount of pension
3 July 2000, rect’d 12 January 2001 1 January 2000 BGN 622.97
(EUR 318.52) BGN 160
(EUR 81.81)
5 June 2001 1 June 2001 BGN 685.27
(EUR 350.37) BGN 176
(EUR 89.99)
3 June 2002 1 June 2002 BGN 726.39
(EUR 371.40) BGN 233.20
(EUR 119.23)
3 June 2003 1 June 2003 BGN 771.43
(EUR 394.43) BGN 250
(EUR 127.82)
Amendment of paragraph 6 of 1 January 2004 1 January 2004 BGN 771.43
(EUR 394.43) BGN 420
(EUR 214.74)
19 May 2004 27 April 2004 BGN 785.18
(EUR 401.46) BGN 420
(EUR 214.74)
July 2004 1 June 2004 BGN 832.30
(EUR 425.55) BGN 420
(EUR 214.74)
19 May 2005 1 June 2005 BGN 891.46
(EUR 455.80) BGN 420
(EUR 214.74)
3 February 2006 1 January 2006 BGN 927.29
(EUR 474.12) BGN 455
(EUR 232.64)
2 July 2007 1 July 2007 BGN 1,020.02
(EUR 521.53) BGN 490
(EUR 250.53)
1 July 2008 1 July 2008 BGN 1,238.15
(EUR 633.06) BGN 490
(EUR 250.53)
1 April 2009 1 April 2009 BGN 1,541
(EUR 787.90) BGN 700
(EUR 357.90)
12. Mr G., who was born in 1954, started receiving a retirement pension in 1999. It was as follows:
Order of the
NSSI dated For the
period after Pension(s) under the general rules Capped amount of pension
7 July 1999 1 December 1998 BGL 356,160 (EUR 182.10) BGL 103,950
(EUR 53.15)
7 July 1999 1 July 1999 BGL 400,170
(EUR 204.60) BGL 111,000
(EUR 56.75)
3 July 2000, rect’d 22 May 2002 1 January 2000 BGN 616.86
(EUR 315.40) BGN 160
(EUR 81.81)
22 May 2002 1 June 2001 BGN 678.55
(EUR 346.94) BGN 176
(EUR 89.99)
2 July 2001, rect’d 22 May 2002 1 July 2001 BGN 680.72
(EUR 348.05) BGN 176
(EUR 89.99)
22 May 2002 1 January 2002 BGN 680.72
(EUR 348.05) BGN 220
(EUR 112.48)
22 May 2002 1 June 2002 BGN 721.56
(EUR 368.93) BGN 233.20
(EUR 119.23)
3 June 2002 1 June 2002 BGN 779.07
(EUR 368.93) BGN 186.56
(EUR 95.39)
3 June 2003 1 June 2003 BGN 766.30
(EUR 391.80) BGN 250
(EUR 127.82)
Amendment of paragraph 6 of 1 January 2004 1 January 2004 BGN 766.30
(EUR 391.80) BGN 420
(EUR 214.74)
1 June 2004 1 June 2004 BGN 812.28
(EUR 415.31) BGN 420
(EUR 214.74)
1 June 2005 1 June 2005 BGN 869.14
(EUR 444.38) BGN 420
(EUR 214.74)
1 March 2006 1 January 2006 BGN 903.91
(EUR 462.16) BGN 455
(EUR 232.64)
2 July 2007 1 July 2007 BGN 994.30
(EUR 508.38) BGN 490
(EUR 250.53)
1 October 2007 1 October 2007 BGN 1,093.73
(EUR 559.22) BGN 490
(EUR 250.53)
1 July 2008 1 July 2008 BGN 1,206.93
(EUR 617.09) BGN 490
(EUR 250.53)
1 October 2008 1 October 2008 BGN 1,368.52
(EUR 699.71) BGN 490
(EUR 250.53)
5 December 2008 27 November 2008 BGN 1,499.28
(EUR 766.57) BGN 490
(EUR 250.53)
1 April 2009 1 April 2009 BGN 1,649.39
(EUR 843.32) BGN 700
(EUR 357.90)
13. Mr Sodev, who was born in 1949, started receiving a retirement pension in 2001. It was as follows:
Order of the
NSSI dated For the
period after Pension(s) under the general rules Capped amount of pension
13 August 2001 1 June 2001 BGN 915.61
(EUR 468.14) BGN 176
(EUR 89.99)
3 June 2002 1 June 2002 BGN 970.55
(EUR 496.23) BGN 233.20
(EUR 119.23)
12 February 2003 15 January 2003 BGN 999.56
(EUR 511.07) BGN 233.20
(EUR 119.23)
3 June 2003 1 June 2003 BGN 1,061.53
(EUR 542.75) BGN 250
(EUR 127.82)
Amendment of paragraph 6 of 1 January 2004 1 January 2004 BGN 1,061.53
(EUR 542.75) BGN 420
(EUR 214.74)
1 June 2004 1 June 2004 BGN 1,125.22
(EUR 575.32) BGN 420
(EUR 214.74)
1 June 2005 1 June 2005 BGN 1,203.99
(EUR 615.59) BGN 420
(EUR 214.74)
1 March 2006 1 January 2006 BGN 1,252.15
(EUR 640.21) BGN 455
(EUR 232.64)
29 March 2006 14 March 2006 BGN 1,351.70
(EUR 691.11) BGN 455
(EUR 232.64)
7 March 2007 19 February 2007 BGN 1,366.22
(EUR 698.58) BGN 455
(EUR 232.64)
2 July 2007 1 July 2007 BGN 1,502.84
(EUR 768.39) BGN 490
(EUR 250.53)
1 October 2007 1 October 2007 BGN 1,653.12
(EUR 845.23) BGN 490
(EUR 250.53)
19 March 2008 22 February 2008 BGN 1,670.72
(EUR 854.23) BGN 490
(EUR 250.53)
1 July 2008 1 July 2008 BGN 1,843.64
(EUR 942.64) BGN 490
(EUR 250.53)
26 March 2009 20 February 2009 BGN 2,049.34
(EUR 1,047.81) BGN 700
(EUR 357.90)
1 July 2009 1 July 2009 BGN 2,233.78
(EUR 1,142.11) BGN 700
(EUR 357.90)
14. Mr S., who was born in 1950, started receiving a retirement pension in 2002. It was as follows:
Order of the
NSSI dated For the
period after Pension(s) under the general rules Capped amount of pension
12 September 2002 14 June 2002 BGN 871.32
(EUR 445.50) BGN 233.20
(EUR 119.13)
3 June 2003 1 June 2003 BGN 925.34
(EUR 473.12) BGN 250
(EUR 127.82)
Amendment of paragraph 6 of 1 January 2004 1 January 2004 BGN 925.34
(EUR 473.12) BGN 420
(EUR 214.74)
1 June 2004 1 June 2004 BGN 980.86
(EUR 501.51) BGN 420
(EUR 214.74)
n/a 1 June 2005 BGN 1,049.52
(EUR 536.61) BGN 420
(EUR 214.74)
n/a 1 January 2006 BGN 1,091.50
(EUR 558.08) BGN 455
(EUR 232.64)
n/a 1 January 2007 BGN 1,091.50
(EUR 558.08) BGN 490
(EUR 250.53)
n/a 1 July 2007 BGN 1,200.65
(EUR 613.88) BGN 490
(EUR 250.53)
n/a 1 October 2007 BGN 1,320.72
(EUR 675.27) BGN 490
(EUR 250.53)
n/a 1 July 2008 BGN 1,457.41
(EUR 745.16) BGN 490
(EUR 250.53)
n/a 1 April 2009 BGN 1,603.25
(EUR 819.73) BGN 700
(EUR 357.90)
n/a 1 July 2009 BGN 1,747.54
(EUR 893.50) BGN 700
(EUR 357.90)
15. Mr A., who was born in 1950, started receiving a retirement pension in 2002. It was as follows:
Order of the
NSSI dated For the
period after Pension(s) under the general rules Capped amount of pension
3 September 2002 15 June 2002 BGN 699.69
(EUR 357.75) BGN 233.20
(EUR 119.23)
3 June 2003 1 June 2003 BGN 743.07
(EUR 379.93) BGN 250
(EUR 127.82)
Amendment of paragraph 6 of 1 January 2004 1 January 2004 BGN 743.07
(EUR 379.93) BGN 420
(EUR 214.74)
1 June 2004 1 June 2004 BGN 787.65
(EUR 402.72) BGN 420
(EUR 214.74)
n/a 1 June 2005 BGN 842.79
(EUR 430.91) BGN 420
(EUR 214.74)
n/a 1 January 2006 BGN 876.50
(EUR 448.15) BGN 455
(EUR 232.64)
n/a 1 July 2007 BGN 964.15
(EUR 492.96) BGN 490
(EUR 250.53)
n/a 1 October 2007 BGN 1,060.57
(EUR 542.26) BGN 490
(EUR 250.53)
n/a 1 July 2008 BGN 1,170.34
(EUR 598.39) BGN 490
(EUR 250.53)
n/a 1 October 2008 BGN 1,170.34
(EUR 598.39) BGN 490
(EUR 250.53)
n/a 1 April 2009 BGN 1,287.45
(EUR 658.26) BGN 700
(EUR 357.90)
n/a 1 July 2009 BGN 1,403.32
(EUR 717.51) BGN 700
(EUR 357.90)
B. Retired sappers
16. The following applicants were sappers from the Border Police Service. They also received higher salaries than the average for the country.
17. Mr G., who was born in 1944, started receiving a retirement pension in 2001. It was as follows:
Order of the
NSSI dated For the
period after Pension(s) under the general rules Capped amount of pension
10 April 2002 27 November 2001 BGN 949.96
(EUR 485.71) BGN 176
(EUR 89.99)
3 June 2002 1 June 2002 BGN 1,006.96
(EUR 514.85) BGN 200
(EUR 102.26)
3 June 2003 1 June 2003 BGN 1,069.39
(EUR 546.77) BGN 200
(EUR 102.26)
Amendment of paragraph 6 of 1 January 2004 1 January 2004 BGN 1,069.39
(EUR 546.77) BGN 420
(EUR 214.74)
1 June 2004 1 June 2004 BGN 1,133.55
(EUR 579.57) BGN 420
(EUR 214.74)
1 June 2005 1 June 2005 BGN 1,212.90
(EUR 620.15) BGN 420
(EUR 214.74)
1 March 2006 1 January 2006 BGN 1,261.42
(EUR 644.95) BGN 455
(EUR 232.64)
2 July 2007 1 July 2007 BGN 1,387.56
(EUR 709.45) BGN 490
(EUR 250.53)
1 October 2007 1 October 2007 BGN 1,526.32
(EUR 780.40) BGN 490
(EUR 250.53)
1 July 2008 1 July 2008 BGN 1,684.29
(EUR 861.16) BGN 490
(EUR 250.53)
25 July 2008 17 July 2008 BGN 2,068.32
(EUR 1,057.52) BGN 490
(EUR 250.53)
27 February 2009 24 February 2009 BGN 2,100.36
(EUR 1,073.90) BGN 490
(EUR 250.53)
1 April 2009 1 April 2009 BGN 2,310.48
(EUR 1,181.33) BGN 700
(EUR 357.90)
1 July 2009 1 July 2009 BGN 2,518.42
(EUR 1,287.65) BGN 700
(EUR 357.90)
22 January 2010 20 January 2010 BGN 2,556.83
(EUR 1,307.29) BGN 700
(EUR 357.90)
18. Mr S., who was born in 1950, started receiving a retirement pension in 2000. It was as follows:
Order of the
NSSI dated For the
period after Pension(s) under the general rules Capped amount of pension
11 August 2000 1 February 2000 BGN 772.74
(EUR 395.10) BGN 160
(EUR 81.81)
5 June 2001 1 June 2001 BGN 850.01
(EUR 434.60) BGN 176
(EUR 89.99)
3 June 2002 1 June 2002 BGN 901.01
(EUR 460.68) BGN 186.56
(EUR 95.39)
3 June 2003 1 June 2003 BGN 956.87
(EUR 489.24) BGN 200
(EUR 102.26)
Amendment of paragraph 6 of 1 January 2004 1 January 2004 BGN 956.87
(EUR 488.80) BGN 420
(EUR 214.74)
1 June 2004 1 June 2004 BGN 1,013.74
(EUR 518.32) BGN 420
(EUR 214.74)
1 June 2005 1 June 2005 BGN 1,084.70
(EUR 554.60) BGN 420
(EUR 214.74)
1 March 2006 1 January 2006 BGN 1,128.09
(EUR 576.78) BGN 455
(EUR 232.64)
2 July 2007 1 July 2007 BGN 1,240.90
(EUR 634.46) BGN 490
(EUR 250.53)
1 October 2007 1 October 2007 BGN 1,364.99
(EUR 697.91) BGN 490
(EUR 250.53)
1 July 2008 1 July 2008 BGN 1,506.27
(EUR 770.14) BGN 490
(EUR 250.53)
1 October 2008 1 October 2008 BGN 1,707.96
(EUR 873.27) BGN 490
(EUR 250.53)
1 April 2009 1 April 2009 BGN 1,878.84
(EUR 960.64) BGN 700
(EUR 357.90)
1 July 2009 1 July 2009 BGN 2,047.94
(EUR 1,047.10) BGN 700
(EUR 357.90)
19. Mr Baev, who was born in 1954, started receiving a retirement pension in 2000. It was as follows:
Order of the
NSSI dated For the
period after Pension(s) under the general rules Capped amount of pension
11 August 2000 1 March 2000 BGN 560.92
(EUR 286.79) BGN 160
(EUR 81.81)
5 June 2001 1 June 2001 BGN 617.01
(EUR 315.47) BGN 176
(EUR 89.99)
3 June 2002 1 June 2002 BGN 654.03
(EUR 334.40) BGN 186.56
(EUR 95.39)
3 June 2003 1 June 2003 BGN 694.58
(EUR 355.13) BGN 200
(EUR 102.26)
Amendment of paragraph 6 of 1 January 2004 1 January 2004 BGN 694.58
(EUR 355.13) BGN 420
(EUR 214.74)
1 June 2004 1 June 2004 BGN 736.25
(EUR 376.44) BGN 420
(EUR 214.74)
1 June 2005 1 June 2005 BGN 787.79
(EUR 402.79) BGN 420
(EUR 214.74)
1 March 2006 1 January 2006 BGN 819.30
(EUR 418.90) BGN 455
(EUR 232.64)
2 July 2007 1 July 2007 BGN 901.23
(EUR 460.79) BGN 490
(EUR 250.53)
1 October 2007 1 October 2007 BGN 991.35
(EUR 506.87) BGN 490
(EUR 250.53)
1 July 2008 1 July 2008 BGN 1,093.95
(EUR 559.33) BGN 490
(EUR 250.53)
1 October 2008 1 October 2008 BGN 1,240.43
(EUR 634.22) BGN 490
(EUR 250.53)
1 April 2009 1 April 2009 BGN 1,364.26
(EUR 697.53) BGN 700
(EUR 357.90)
1 July 2009 1 July 2009 BGN 1,487.04
(EUR 760.31) BGN 700
(EUR 357.90)
C. Mr A.
20. Mr At., who was born in 1935, did not specify what his employment had been; he merely stated that it had entailed “hard physical labour”. He started receiving a retirement pension in 1995. He did not provide information about the actual amount of his monthly pension between that time and the end of 1999; it appears that its nominal amount at the end of 1999 was BGN 285.71 (EUR 146.08), and that it was therefore affected by the cap under section 47c of the Pensions Act 1957 (see paragraphs 27 and 28 below). When the Social Security Code 1999 came into force on 1 January 2000, Mr A.’s pension was recalculated in accordance with the new rules.
21. In summary, Mr A.’s pension after 1 January 2000 was as follows:
Order of the
NSSI dated For the
period after Pension(s) under the general rules Capped amount of pension
n/a 1 January 2000 BGN 310.79
(EUR 158.91) BGN 160
(EUR 81.81)
n/a 1 June 2001 BGN 341.87
(EUR 174.80) BGN 176
(EUR 89.99)
n/a 1 June 2002 BGN 362.38
(EUR 185.28) BGN 186.56
(EUR 95.39)
n/a 1 June 2003 BGN 384.85
(EUR 196.77) BGN 200
(EUR 102.26)
n/a 1 June 2004 BGN 407.94
(EUR 208.58) n/a
n/a 1 June 2005 BGN 436.50
(EUR 223.18) BGN 420
(EUR 214.74)
n/a 1 January 2006 BGN 453.96
(EUR 232.11) n/a
n/a 1 July 2007 BGN 499.36
(EUR 255.32) BGN 490.00
(EUR 250.53)
n/a 1 October 2007 BGN 549.30
(EUR 280.85) BGN 490.00
(EUR 250.53)
n/a 1 July 2008 BGN 606.15
(EUR 309.92) BGN 490.00
(EUR 250.53)
n/a 1 October 2008 BGN 687.30
(EUR 351.41) BGN 490.00
(EUR 250.53)
n/a 1 April 2009 BGN 755.89
(EUR 386.48) BGN 700
(EUR 357.90)
n/a 1 July 2009 BGN 832.92
(EUR 425.87) BGN 700
(EUR 357.90)
II. RELEVANT DOMESTIC LAW
A. The 1991 Constitution
22. Article 6 § 2 of the 1991 Constitution provides as follows:
“All citizens shall be equal before the law. There shall be no restrictions of rights or privileges on grounds of race, nationality, ethnic identity, sex, origin, religion, education, opinions, political affiliations, or personal, social or property status.
23. Article 51 of the Constitution provides as follows:
“1. Citizens shall have the right to social security and social assistance.
2. Individuals who are temporarily unemployed shall be provided with social security under the conditions and procedures provided for by law.
3. Elderly people who are without relatives and who are unable to support themselves with their own assets, and individuals with physical or mental disabilities shall be under the special protection of the State and society.”
24. Article 57 § 1 of the Constitution stipulates that the citizens’ fundamental rights are irrevocable.
B. Caps on pensions
1. Under the Pensions Act 1957
25. Section 47(5) of the Pensions Act 1957, in force until February 1991, provided that a retired person could not receive a pension exceeding his or her highest monthly wage during the last ten years of his or her employment.
26. In January 1990 section 47b(2) of the Pensions Act 1957 was amended to provide that the amount of the one or more monthly pensions received could not exceed BGL 500. The cap also applied to pensions that had already been granted (paragraph 3 of the transitional and concluding provisions of the Act for the amendment of the Pensions Act).
27. Section 47c of the Pensions Act 1957, inserted in June 1992, capped the amount that could be paid to an individual as a result of his or her entitlement to one or more pensions at three times the amount of the social pension.
28. The amount of the social pension was set by the Council of Ministers pursuant to a proposal by the NSSI (sections 45a(4) and 46b(4) of the Pensions Act 1957). It was superseded by the social pension for old age under Article 89 of the Social Security Code 1999 (see paragraph 32 below). Its amount, and the corresponding capped pensions, were as follows:
Period Social pension Pensions cap
1 January – 31 March 1996 BGL 1,210 BGL 3,630
1 April – 30 June 1996 BGL 1,800 BGL 5,400
1 July – 31 September 1996 BGL 2,160 BGL 6,480
1 October 1996 – 30 April 1997 BGL 2,808 BGL 8,424
1 – 8 May 1997 BGL 14,040 BGL 42,120
9 May – 30 June 1997 BGL 16,300 BGL 48,900
1 July – 31 September 1997 BGL 27,000 BGL 81,000
1 October – 31 December 1997 BGL 28,900 BGL 86,700
1 January – 30 June 1998 BGL 30,350 BGL 91,050
1 July – 31 December 1998 BGL 33,000 BGL 99,000
1 January – 30 June 1999 BGL 34,650 BGL 103,950
1 July – 31 December 1999 BGL 37,000
(BGN 37) BGL 111,000
(BGN 111)
29. In December 1997 the Chief Prosecutor challenged section 47c before the Constitutional Court, arguing that it ran counter to Articles 51 § 1 and 57 § 1 of the Constitution (see paragraphs 23 and 24 above) and to Article 9 of the International Covenant on Economic, Social and Cultural Rights. In a judgment of 15 July 1998 (реш. № 21 от 15 юли 1998 г. по к. д. № 18 от 1997 г., обн., ДВ, бр. 83 от 21 юли 1998 г.) the Constitutional Court rejected the challenge by seven votes to five. It held as follows:
“The provision [in issue], the new section 47c of the Pensions Act, was [inserted in 1992]. It introduced the impugned pensions cap based on the social pension. In turn, the social pension is set by the Council of Ministers on the basis of a proposal by the [NSSI] (section 45a(1)).
It should be noted, for the record, that even before section 47c was added the Pensions Act, which has been amended and supplemented many times, contained provisions that in one way or another set limits on the maximum amount [of pension]. Thus, section 47b(2), [added in 1990 and subsequently repealed], provided that the amount of one pension or the sum total of several pensions could not exceed [BGL] 500 per month. Another example is section 47(5) of the Pensions Act [as in force between 1967 and 1991].
Under the rule laid down in section 47c of the Pensions Act, a class of individuals receive the same amount of pension irrespective of the differences between their employment remunerations, their lengths of service or their social security contributions. While the amount of the pensions of most pensioners depends on those parameters, the amount of the pensions of the persons concerned [by the cap] does not. The question thus arises whether the resulting levelling makes the impugned rule unconstitutional.
The answer cannot be affirmative. The allegations that Articles 51 § 1 and 57 § 1 of the Constitution have been breached are groundless.
Why is that?
Article 51 § 1 of the Constitution proclaims the right to social security and social assistance. The right to a pension, being part of the right to social security, is comprised and enshrined in that provision. It is one of the citizens’ fundamental rights and is irrevocable.
However, the constitutional provision does not lay down the conditions under which that right arises and the way in which it is to be exercised. It follows that the framers of the Constitution have left those matters, which include the amount of the pension, to be regulated by statute. The legislature is entitled to determine the matter at its discretion, provided the concrete solution proposed does not run counter to the principles and requirements of the [Constitution]. The legislature did so by adopting section 47c of the Pensions Act.
Article 57 § 1 of the Constitution has not been breached either. That provision is entirely irrelevant, because the impugned section 47c of the Pensions Act does not concern a revocation of rights.
…
It is true that section 47c of the Pensions Act places citizens in two groups, based on the manner of calculating their pensions. For the first of those groups, the pension is based on certain [individual circumstances], whereas for the second the amount is the same for all.
That unequal situation is not a function of any of the statuses ‘set out in Article 6 § 2 of the Constitution in an exhaustive manner’ … Therefore, the constitutional principle of equality of citizens before the law has not been breached.
It is in addition alleged that section 47c of the Pensions Act results in an injustice for those affected by it. That argument is likewise ill-founded. On the contrary, the provision results in justice. One could talk about injustice if it did not exist.
The cap set out in section 47c of the Pensions Act could be linked with the so-called minimum amount of pension. Not only is that minimum, guaranteed by law, not unconstitutional, but it is recommended by some conventions of the International Labour Organisation: for instance, Article 7 of Convention No. 35 on Old-Age Insurance (Industry, etc.), [1933]; Article 7 of Convention No. 38 on Invalidity Insurance (Agriculture), [1933]; Article 9 of Convention No. 39 on Survivors’ Insurance (Industry, etc.), [1933]. Those conventions allow the amount of pension to be a fixed sum, or a percentage of the remuneration taken into account for insurance purposes, or to vary with the amount of the contributions paid.
The existence of limits on the maximum or the minimum amount of pension, as well as their mutual dependence, are a result of the pension system operating in our country. It can be described, in financial terms, as a ‘pay-as-you-go’ system. Such a system requires a cap on the maximum amount of pension – it serves to guarantee the minimum amount of pension and to contribute to its growth. That function shows that the impugned provision is consistent with the requirements of social justice, as laid down in the Preamble to the [Constitution].
Those reasons lead [this court] to conclude that the current wording of section 47c of the Pensions Act does not run counter to any constitutional provision. The request must therefore be dismissed.
In those circumstances …, there is no need to rule on the previous wording of the same provision.
At the same time, [this court] finds that the current constitutional arrangements do not rule out the impugned legislative solution being repealed in the future, but actually make it desirable in the context of the comprehensive reform of social security in this country. …
The rule contained in [Article 9 of the International Covenant on Economic, Social and Cultural Rights] corresponds to that contained in Article 51 § 1 of the [Constitution]. [Article 5 § 1 of the Covenant] is likewise reflected in Article 57 § 1 of the [Constitution].
In those circumstances, and bearing in mind that section 47c of the Pensions Act is not unconstitutional and that the above-mentioned provisions of the [Covenant] have been reflected in the Constitution, [this court comes to the conclusion] that section 47c of the Pensions Act is not contrary to the Covenant provisions either.”
30. The five dissenting judges were of the view that the cap was contrary to the constitutional principle of justice because it disregarded the individual contribution of each person to the public good.
2. Under the Social Security Code 1999
31. Paragraph 6(1) of the transitional and concluding provisions of the Social Security Code 1999, which came into force on 1 January 2000 and superseded the Pensions Act 1957, read as follows:
“Up to 31 December 2003 inclusively, the amount of the one or more pensions received … shall not exceed four times the social pension for old age.”
32. The social pension for old age, which superseded the social pension under section 45a of the Pensions Act 1957 (see paragraph 28 above) is currently governed by Article 89 of the Code (repealed with effect from 1 January 2012). It is set by the Council of Ministers on the basis of a proposal by the NSSI and the Ministry of Labour and Social Policy (Article 89 § 2 of the Code). Its amount, and the corresponding amount of the pensions cap, were as follows:
Period Social pension Pensions cap
1 January 2000 – 31 May 2001 BGN 40 BGN 160 (EUR 81.81)
1 June 2001 – 31 May 2002 BGN 44 BGN 176 (EUR 89.99)
1 June 2002 – 31 May 2003 BGN 46.64 BGN 186.56 (EUR 95.39)
1 June 2003 – end of 2003 BGN 50 BGN 200 (EUR 102.26)
33. As an exception to that general rule, paragraph 6(6) of the transitional and concluding provisions of the Code, in force between 1 January 2002 and 31 December 2003, capped the pensions received by retired military personnel or personnel from certain other national security institutions at five times the social pension for old age. In a judgment of 23 February 2004 (реш. № 1579 от 23 февруари 2004 г. по адм. д. № 5004/2003 г., ВАС, І о.) the Supreme Administrative Court held that the exemption was strictly personal and did not apply to the heirs of the persons mentioned in paragraph 6(6).
34. On 23 December 2003, a few days before the date on which the cap was due to expire (see paragraph 31 above), Parliament amended paragraph 6(1) with effect from 1 January 2004 to read as follows:
“The maximum amount of the one or more pensions received, granted before 31 December 2009 …, shall be equal to thirty-five per cent of the maximum income for social security purposes for each calendar year [see paragraph 54 below], [as] fixed by the annual State social security budget Act.”
It appears that the percentage was set at 35% because that is equivalent to the expected average pension replacement rate in Bulgaria (the ratio between a retiree’s preretirement income and his or her pension – see paragraph 48 below).
35. With effect from 1 January 2005, the basis for calculating the cap was changed to the maximum monthly income for social security purposes for the previous calendar year (see paragraph 54 below).
36. With effect from 1 January 2007, the date for recalculating the cap was moved from 1 January to 1 July. In 2009, the cap was exceptionally set at BGN 700 with effect from 1 April of that year (paragraph 22h(1) of the transitional and concluding provisions of the Code).
37. Thus, during the period 2004-11 the cap was as follows:
Year Amount of the cap
2004 BGN 420 (EUR 214.74)
2005 BGN 420 (EUR 214.74)
2006 BGN 455 (EUR 232.64)
2007 BGN 490 (EUR 250.53)
2008 BGN 490 (EUR 250.53)
2009 BGN 700 (EUR 357.90)
2010 BGN 700 (EUR 357.90)
2011 BGN 700 (EUR 357.90)
38. With effect from 1 January 2010, the cap was extended to all pensions granted before 31 December 2011. The explanatory notes to the draft bill that the Government laid before Parliament related the content of the proposed amendment without further explanations.
39. With effect from 1 January 2011, the cap was extended to all pensions granted before 31 December 2013. The explanatory notes to the draft bill that the Government laid before Parliament said that the proposal was to abolish the cap in respect of pensions granted after 1 January 2014 and gradually to increase it in respect of pensions granted before that date.
40. The cap does not apply to individuals who have held the posts of President or Vice-President of the Republic of Bulgaria, Speaker of the National Assembly, Prime Minister, or judge in the Constitutional Court (paragraph 6(3) of the transitional and concluding provisions of the Code). Nor does it apply to military invalids who have reached the general retirement age (paragraph 6(5) of the transitional and concluding provisions of the Code). In a judgment of 2 October 2001 (реш. № 7218 от 2 октомври 2001 г. по адм. д. № 1127/2001 г., ВАС, I о.) the Supreme Administrative Court held that this exemption is strictly personal and does not apply to the heirs of the persons mentioned in paragraph 6(3).
41. In 2001 an individual whose pension had been capped in application of paragraph 6(1) sought judicial review of the NSSI’s decision in relation to his pension. In a final decision of 18 March 2002 (реш. № 2491 от 18 март 2002 г. по адм. д. № 6065/2001 г., ВАС, І о.) the Supreme Administrative Court dismissed his application, holding that the NSSI had properly applied the substantive law and that the courts were not competent to rule on the constitutionality of statutory provisions such as paragraph 6.
42. In December 2004 an association of pensioners affected by the cap asked the Chief Prosecutor to refer paragraph 6(1) to the Constitutional Court. In a letter of 10 February 2005 the Chief Prosecutor’s Office informed the association that the Chief Prosecutor had turned down the request because he considered that the pensions cap did not fall foul of the Constitution.
43. In February 2008 a pensioner affected by the cap asked the Ombudsman of the Republic of Bulgaria to refer paragraph 6 to the Constitutional Court. In July 2008 the Ombudsman refused, saying that the cap appeared reasonable, and that in any event the matter had been settled with the Constitutional Court’s judgment of 15 July 1998 (see paragraph 29 above) and could not be revisited.
44. In 2009 another individual whose pension had been reduced from BGN 995.29 to BGN 700 in application of paragraph 6 sought judicial review of the NSSI’s decision in relation to his pension. In a judgment of 9 December 2009 (реш. № 96 от 9 декември 2009 г. по адм. д. № 5932/2009 г., САС, І о., 14 състав) the Sofia Administrative Court dismissed the application. The litigant appealed on points of law, asserting, inter alia, that the cap was contrary to the Constitution and to Article 1 of Protocol No. 1 to the Convention. He requested the Supreme Administrative Court to stay the proceedings and refer the constitutionality of paragraphs 6(1) and 22h(1) of the Code (see paragraphs 34 and 36 above) to the Constitutional Court.
45. On 7 August 2010 (опр. от 7 август 2010 г. по хода на адм. д. № 1407/2010 г., ВАС, VІ о.) the Supreme Administrative Court acceded to the referral request, stayed the proceedings and referred to the Constitutional Court the question whether the impugned provisions were compatible with the Constitution, Article 14 of the Convention, and Article 1 of Protocol No. 1.
46. In a decision of 10 February 2011 (опр. № 1 от 10 февруари 2011 г. по к. д. № 18/2010 г.) the Constitutional Court, over the dissent of one judge, refused to take the matter up for consideration. It held that, in so far as it concerned the compatibility of the pensions cap with the Constitution, the subject matter of the case was essentially the same as that of the case that it had decided in 1998 (see paragraph 29 above). It was immaterial that the two cases concerned different legal provisions. The court went on to hold, in relation to the alleged incompatibility of the cap with Article 1 of Protocol No. 1, that under the Constitution the Supreme Administrative Court was not competent to refer to it the alleged incompatibility of statutory provisions with international treaties.
47. In view of that decision, on 28 February 2011 (опр. от 28 февруари 2011 г. по хода на адм. д. № 1407/2010 г., ВАС, VІ о.) the Supreme Administrative Court decided to resume the proceedings. It heard the case on 21 April 2011. The litigant argued, inter alia, that paragraph 6(1) was in breach of Bulgaria’s international obligations and that it was still open to the court to rule on that issue. The prosecutor who took part in the proceedings ex officio argued, inter alia, that the pensions cap did not run counter to the Constitution or to Article 1 of Protocol No. 1.
48. In a final judgment of 7 July 2011 (реш. № 10139 от 7 юли 2011 г. по адм. д. № 1407/2010 г., ВАС, VІ о.) the Supreme Administrative Court upheld the lower court’s decision and thus the NSSI’s decision to cap the litigant’s pension. It held that the NSSI had correctly applied the statutory rules, which required it to apply a ceiling to the pension. That ceiling was set at 35% of the maximum income for social security purposes (see paragraph 54 below) because that was the average pension replacement rate in Bulgaria. The previous version of the cap had been upheld by the Constitutional Court (see paragraph 29 above) and could therefore not be regarded as unconstitutional. Nor did it run counter to any international treaties to which Bulgaria was party, or to European Union law.
C. General rules on the amounts and funding of retirement pensions
1. Under the Pensions Act 1957 and related legislation
49. Between 1957 and the end of 1999, the pension system in Bulgaria was a monopillar system; the Pensions Act 1957 made provision for just one tier of retirement pension (sections 2-11). Until 1995, the pension fund’s budget was part of the general State budget (Article 170 of the Labour Code 1951). After that, the pension scheme continued to be based on an unfunded, pay-as-you-go model, but the pension fund was separated from the State budget and its management was entrusted to the newly created NSSI (sections 1-13 of the Social Security Fund Act 1995). Before March 1996, social security contributions were charged only to employers, not employees, and employers were barred from deducting those contributions from the remuneration paid to employees (Article 148 of the Labour Code 1951, as worded from its adoption in 1951 until the beginning of March 1996). In March 1996 contributions began to be charged, in specified proportions, to both employers and employees (Articles 147, 147a and 148 of the Labour Code 1951, as amended with effect from 1 March 1996).
50. An individual became entitled to a retirement pension after a specified number of years of contributions (as a general rule, twenty-five years for men and twenty years for women – section 2(1)(c) of the Pensions Act 1957; there were more favourable conditions for certain categories of work – section 2(1)(a) and (b)). The pension age was sixty years for men and fifty-five years for women (ibid.). However, the age requirement did not apply to military personnel, police, and some other categories of civil servants, who could, in addition, retire after a shorter period of contributions (twenty years – sections 6(1) and 7(1) of the Act). Air Force pilots could retire after ten years of service (section 6(2) of the Act). As a rule, the amount of an individual’s retirement pension was calculated as a percentage of the average gross monthly earnings for three years picked by the pensioner out of his or her last fifteen years of service (section 11(1) of the Pensions Act 1957, as in force between 1967 and 1996). In 1996, that basis was changed to three years of the pensioner’s choice until 1 January 1997, plus the entire period of service after that.
51. Pensions were not subject to taxation (section 2(1)(c) of the Income Tax Act 1950).
2. Under the Social Security Code 1999
52. The Social Security Code 1999 came into force on 1 January 2000 and brought about significant changes in the retirement pension model. It makes provision for a multipillar pension system, with three tiers of general retirement pension. The first-tier, or basic, pension scheme is mandatory, public, and defined-benefit. It is based on an unfunded, pay-as-you-go model (Articles 21 and 22 of the Code), and consists of public pension funds managed by the NSSI. The general fund’s main sources of financing are social security contributions and subsidies from the State budget (Article 21 of the Code). Contributions are charged to both employers and employees, in a specified proportion, with the exception of judges, prosecutors, investigators, civil servants, police, national security agents, and military personnel, whose contributions are fully covered by the State budget (Article 6 §§ 3 and 5 of the Code). The part of the contributions payable by employers cannot be deducted from remunerations under any form (Article 6 § 12 of the Code). The amount of the annual State subsidy to the fund is fixed in the annual State social security budget Act (Article 21 § 4 (b) of the Code). Apart from retirement pensions, the fund is used to pay out survivor’s and disability pensions, as well as certain health-related benefits (Article 22 of the Code). The second-tier scheme is also mandatory. It applies to all individuals born on or after 1 January 1960, and is a funded defined-contribution scheme, with contributions fixed by law and going into funds consisting of individual accounts and managed by private companies subject to special regulation (Articles 120a-123i and 124-203 of the Code). The second-tier scheme is open only to individuals born on or after the above-mentioned date because at the time when it started operating (1 January 2002) they were aged forty-two years or less and could thus be expected to make contributions for a longer period of time and build up the funds on which the scheme relies (Средкова, К., Осигурително право, 3 издание, Сиби, 2008, стр. 216; Мръчков, В., Осигурително право, 5 издание, Сиби, 2010, стр. 380 и 389). The third-tier scheme is voluntary and open to all persons above the age of sixteen. It is also a funded defined-contribution scheme, with contributions going into funds consisting of individual accounts and managed by private companies subject to special regulation. However, unlike the second-tier scheme, the amount of the contributions is not fixed by law but freely decided upon by the persons concerned (Articles 120a-123i, 209-59 and 317-43 of the Code).3
53. An individual becomes entitled to a retirement pension after a specified number of years of contributions (currently thirty-seven for men and thirty-four for women, set gradually to rise to forty and thirty-seven years, respectively – Article 68 §§ 1 and 2 of the Code). The pension age is currently sixty-three years for men and sixty years for women, set gradually to rise to sixty-five and sixty-three years, respectively (Article 68 § 1 of the Code). However, the age requirement does not apply to military personnel, police, and some other categories of civil servants, who can, in addition, retire after a shorter period of contributions (Article 69 of the Code). Air Force pilots can retire after fifteen years of service (Article 69 § 3, subsequently § 4, of the Code). The amount of the basic, or first-tier, retirement pension is calculated in the manner laid down in Articles 70 and 70a of the Code. It is a function of the length of service (“осигурителен стаж”) and the average monthly income for social security purposes (“средномесечен осигурителен доход”), multiplied by an individual coefficient. The coefficient is based on the ratio between the retiree’s monthly earnings and the average monthly salary (for the period before 1 January 1997) and the average monthly income for social security purposes (for the period after 1 January 1997). For the period before 1 January 1997, the calculation is based on the retiree’s monthly earnings during three consecutive years of his or her choice out of the last fifteen years of service. For the period after 1 January 1997, the calculation is based on the retiree’s monthly earnings during the entire period of service between that date and the date of retirement.
54. The monthly income for social security purposes (“осигурителен доход”) is used as the basis for calculating not only pensions and welfare benefits, but also social security contributions. It has a lower and an upper limit. The upper limit serves to cap the amount of the monthly social security contributions. In 2000-01, that limit was ten times the minimum monthly salary4 (Article 9 § 2 of the Code, as worded until 31 December 2001). Since 2002, it has been fixed in monetary terms in the annual State social security budget Act (Article 6 § 2 (1) of the Code, as worded after 1 January 2002). In 2002 it was BGN 850 (section 8(4) of the State social security budget Act for 2002). In 2003 it became BGN 1,000 (section 8(5) of the State social security budget Act for 2003). In 2004 it became BGN 1,200 (section 8(5) of the State social security budget Act for 2004). In 2005 it became BGN 1,300 (section 8(5) of the social security budget Act for 2005). In 2006 and 2007 it became BGN 1,400 (section 8(5) of the social security budget Acts for 2006 and 2007). In 2008-11 it became BGN 2,000 (section 8(5) (later (4)) of the State social security budget Acts for 2008-11).
55. Pensions received under the first- and second-tier schemes are not subject to taxation (section 12(1)(2) of the Physical Persons Income Taxation Act 1997, superseded on 1 January 2007 by section 13(1)(6) of the Physical Persons Income Tax Act 2006).
D. The Protection Against Discrimination Act 2003
1. General prohibition of discrimination
56. Section 4 of the Protection Against Discrimination Act 2003, which came into force on 1 January 2004, prohibits any direct or indirect discrimination on the basis of gender, race, nationality, ethnicity, human genome, citizenship, origin, religion or belief, education, convictions, political affiliation, personal or social status, disability, age, sexual orientation, marital status, property status, or on any other grounds established by law or by an international treaty to which Bulgaria is party.
2. Commission for Protection Against Discrimination
57. The authority responsible for ensuring compliance with the Act and with other statutes containing equal-treatment provisions is the Commission for Protection Against Discrimination (section 40).
58. Section 47 empowers the Commission to, inter alia, make recommendations for the enactment, repeal or amendment of statutes and regulations (subsection 8).
59. In a decision of 17 September 2009 (реш. № 163 от 17 септември 2009 г. по пр. № 56/2008 г.), given in proceedings brought by a number of individuals affected by the pensions cap under paragraph 6(1) of the transitional and concluding provisions of the Social Security Code 1999 (see paragraphs 31-39 above), the Commission found that the cap amounted to indirect discrimination on the basis of property status and was in breach of the principle of equal treatment of the pensioners affected by it. In the view of the Commission, those who had had higher salaries and had accordingly paid higher pension contributions, and had done so for a longer period of time, were just as entitled to the full amount of their pensions as those who did not fall into that group. The Commission went on to note that paragraph 6(1), as amended in 2004, envisaged that pensioners whose pensions were granted from 1 January 2010 onwards would not face a cap on their pension. That difference in treatment lacked an objective justification and was also in breach of the principle of equal treatment. In view of those considerations, the Commission recommended to Parliament to repeal paragraph 6(1).
60. On the other hand, the Commission found that paragraph 6(5) of the transitional and concluding provisions of the Code (see paragraph 40 above) did not amount to discriminatory treatment under the Act, because it was necessary and objectively justified in view of the special status of the persons to whom it provided an advantage and of the restrictions that those persons faced in carrying out their public duties.
61. In a decision of 18 May 2010 (реш. № 117 от 18 май 2010 г. по пр. № 122/2009 г.) the Commission again found that the existence of a cap on pensions granted before a certain date (at that time, the end of 2011 – see paragraph 38 above) and the lack of such a cap on pensions granted after that date lacked an objective justification and amounted to indirect discrimination. The Commission recommended to the Council of Ministers to table a bill in Parliament for the amendment of paragraph 6(1).
3. Liability for acts of discrimination
62. Under section 71(1) of the Act, a person who considers that his or her right to equal treatment stemming from the Act or from other statutes has been violated can bring a claim, seeking declaratory or injunctive relief or an award of damages.
63. Under section 73 of the Act, a person who considers that an administrative decision has breached his or her right to equal treatment stemming from the Act or from other statutes can seek judicial review of the decision.
64. Under section 74(1) of the Act, a person who has obtained a favourable ruling by the Commission for Protection Against Discrimination and seeks compensation for damage suffered as a result of the violation of his or her right to equal treatment stemming from the Act or from other statutes can bring a tort claim against the persons or authorities that have caused the damage. If the damage stems from unlawful decisions, actions or omissions of State authorities or officials, the claim must be brought under the State Responsibility for Damage Act 1988 (section 74(2)).
III. RELEVANT STATISTICAL INFORMATION
65. According to information published by the NSSI and the National Statistical Institute, the overall number of pensioners in Bulgaria, the number of pensioners affected by the pensions cap, and the annual amount of money “saved” by the NSSI’s budget as a result of the cap were as follows:
Year Overall number
of pensioners Number of pensioners
with capped pensions Annual “savings”
1999 n/a 201,786 BGN 70,411,978
2000 n/a 140,413 BGN 105,130,340
2001 2,372,268 156,344 BGN 128,338151
2002 2,349,045 162,508 BGN 142,604,831
2003 2,343,896 164,536 BGN 154,964,256
2004 2,320,444 15,929 BGN 19,091,520
2005 2,301,669 23,519 BGN 29,030,701
2006 2,271,192 21,088 BGN 27,240,041
2007 2,233,697 37,182 BGN 56,264,707
2008 2,200,595 73,175 BGN 85,676,442
2009 2,189,131 42,615 BGN 94,173,582
2010 2,194,274 46,540 n/a
IV. RELEVANT COMPARATIVE MATERIAL
66. The World Bank and the Organisation for Economic Cooperation and Development (“OECD”) have published comparative studies of the pension systems of various countries, including a number of Contracting States. Among them are Pensions Panorama: Retirement-Income Systems in 53 Countries, The World Bank (2007), and Pensions at a Glance 2011: Retirement-income Systems in OECD and G20 Countries, OECD (2011), OECD Publishing. The first study found, inter alia, that most high-income OECD countries do not require high earners to make pension contributions on their entire earnings. Usually, a limit is set on the earnings used to calculate both contribution liability and pension benefits. The study also found that the average ceiling on public (first-tier) pensions in sixteen high-income OECD countries is 190% of average economy-wide earnings. The overall (first- and second-tier) pension ceiling for seventeen high-income OECD countries averages 275% of average earnings (pp. 13-18). The second study also noted that most OECD countries have set a limit on the earnings used to calculate both contribution liabilities and pension benefits, and that the average ceiling on public pensions for twenty-one countries is 185% of average economy-wide earnings, excluding four countries that have no ceiling on public pensions (p. 110).
67. Based on a detailed cross-country analysis of pension entitlements, the first study came to the conclusion that “different countries’ pension systems strike very different balances between the goals of adequacy – guaranteeing that all older people meet a minimum standard of living – and insurance – ensuring a certain standard of living in retirement relative to that when working”. For instance, OECD counties could be divided in four groups. The first comprised those (including Denmark and Ireland) in which there was little or no link between pensions and preretirement earnings. The second consisted of those (including Belgium, Iceland, and the United Kingdom) in which that link was weak. The third group (including France, Norway, Portugal, and Switzerland) lay toward the middle. The countries in the fourth group (including Austria, Finland, Germany, Greece, Italy, Luxembourg, the Netherlands, Spain, and Sweden) had a very strong link between pensions and preretirement earnings. The same divisions could be observed in Eastern Europe, where Bulgaria, Croatia, the Czech Republic, Lithuania and Turkey had a weaker link between pensions and preretirement earnings, and Estonia, Hungary, Latvia, Poland and the Slovak Republic had a stronger one (pp. 31-45).
68. The second study calculated, inter alia, pension entitlements in OECD countries and several other major economies (pp. 115-43). As part of that exercise, it measured the progressivity of the mandatory parts of the countries’ pension systems, or, in other words, the link between pensions and preretirement earnings. The results showed that some countries, such as Ireland and the United Kingdom, have highly progressive systems (in which the link between preretirement incomes and pensions is very weak), whereas others, such as Finland, Greece, Hungary, Italy, the Netherlands, Poland, Portugal and the Slovak Republic, have almost entirely proportional systems (in which the link between preretirement incomes and pensions is very strong) and therefore limited progressivity. The study said that “[a] high score [on the progressivity index] is not necessarily ‘better’ than a low score or vice versa. Countries with a high score simply have different objectives than countries with a low score.” (pp. 136-37).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
69. The applicants complained that the cap on their retirement pensions was in breach of their rights under Article 1 of Protocol No. 1, which provides as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. Admissibility
70. The Government submitted that if they considered that their pensions had been set by the NSSI at variance with their statutory entitlement, the applicants could have sought judicial review of the NSSI’s decisions concerning their individual pensions. In addition they could have petitioned the competent authorities to request the Constitutional Court to review the constitutionality of paragraph 6(1) of the transitional and concluding provisions of the Social Security Code 1999.
71. The applicants submitted that in proceedings for judicial review of individual decisions of the NSSI the courts could not scrutinise statutes as such. According to the Supreme Administrative Court’s established case-law, only the Constitutional Court was competent to rule on their constitutionality. The Government had not pointed to any examples where the Bulgarian courts had set aside a decision of the NSSI capping a pension by reference to paragraph 6(1) of the transitional and concluding provisions of the Social Security Code 1999. Furthermore, under Bulgarian law private persons could not bring proceedings before the Constitutional Court. When two non-governmental organisations had asked the Ombudsman to refer paragraph 6(1) to the Constitutional Court, the Ombudsman had refused, saying that the matter had already been resolved by that court in 1998.
72. Concerning the first limb of the Government’s objection, the Court observes that the cap on pensions currently flows directly from the express wording of paragraph 6(1) of the transitional and concluding provisions of the Social Security Code 1999; until 31 December 1999 it was based on the express wording of section 47c of the Pensions Act 1957 (see paragraphs 27, 31 and 34 above). It was not disputed that in its decisions fixing the pension of each of the applicants the NSSI, which had no discretion in the matter, applied those provisions correctly. In that regard, the present cases are no different from the two cases from 2001 and 2010 in which the Supreme Administrative Court dismissed applications for judicial review of pension-capping decisions of the NSSI, holding that those decisions were lawful (see paragraphs 41 and 48 above). It follows that applications for judicial review of the NSSI’s decisions were not an effective remedy that the applicants had to use (see, mutatis mutandis, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 42 in limine, ECHR 1999-V; Urbárska Obec Trenčianske Biskupice v. Slovakia, no. 74258/01, § 86, 27 November 2007; and Ognyan Asenov v. Bulgaria, no. 38157/04, § 32, 17 February 2011).
73. The second limb of the objection does not stand up to examination either. In Bulgaria, there is no possibility for private persons themselves to bring proceedings before the Constitutional Court. The Court has, in line with its earlier case-law on that point (see Brozicek v. Italy, 19 December 1989, § 34, Series A no. 167; Padovani v. Italy, 26 February 1993, § 20, Series A no. 257-B; Spadea and Scalabrino v. Italy, 28 September 1995, § 24, Series A no. 315-B; and Immobiliare Saffi, cited above, § 42 in fine), already held that the possibility to request the bodies or the officials entitled to bring such proceedings to do so is not an effective remedy for the purposes of Articles 13 or 35 § 1 of the Convention, because the persons concerned cannot directly compel the institution of proceedings before the Constitutional Court, whereas under this Court’s settled case-law a remedy can be considered effective only if the applicant is able to initiate the procedure directly (see Petkov and Others v. Bulgaria, nos. 77568/01, 178/02 and 505/02, § 82, ECHR 2009-…, with further references). The Court reaffirmed that ruling in Nozharova v. Bulgaria ((dec.), nos. 44096/05 et al., 25 August 2009). It sees no reason to deviate from it in the present case, in which several such requests were turned down (see paragraphs 42 and 43 above). The fact that in August 2010 the Supreme Administrative Court acceded to a request to refer the pensions cap to the Constitutional Court (see paragraphs 44 and 45 above) does not alter that position, because the referral was a result of the exercise of that court’s discretionary power in that respect. In any event, the Constitutional Court refused to accept the matter for examination, noting that it had already ruled on the constitutionality of the cap in 1998 and that the Supreme Administrative Court was not competent to refer to it the alleged incompatibility of statutory provisions with international treaties (see paragraph 46 above).
74. The Government’s objection of non-exhaustion of domestic remedies must therefore be rejected.
75. The Court further finds that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. Any issues having to do with its compatibility ratione materiae with the provisions of the Convention are more appropriately addressed at the merits stage (see, mutatis mutandis, Maggio and Others v. Italy, nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, § 36, 31 May 2011). The complaint must therefore be declared admissible.
B. Merits
1. The parties’ submissions
76. The Government submitted that the cap on the maximum amount of pension had been prompted by financial considerations. Such a cap had existed under different forms ever since the adoption of the Pensions Act 1957. Pensions in Bulgaria were based on the principle of social solidarity, which required that all those who reached a certain age be provided with a pension, but also that the personal input of each individual be taken into account in fixing its amount. A pension ceiling was not a uniquely Bulgarian occurrence, but existed in a number of countries, such as Germany, without being regarded as infringing the principles of social justice or equal treatment. Moreover, it could not be overlooked that the Social Security Code 1999 had made provision for a second-tier pension, based on individual contributions, in respect of persons born on or after 1 January 1960. It was also noteworthy that recently the maximum amount of pension had been increased to BGN 700.
77. The Government agreed that social security rights fell within the ambit of Article 1 of Protocol No. 1, but pointed out that that provision did not guarantee a particular amount of pension, and did not require States to choose a particular social security model. Even if it was theoretically possible to pay the applicants the full nominal amount of their pensions, there existed a number of factors that would make that difficult to achieve in practice. The population was getting older and the ratio between pensioners and persons in active employment was deteriorating. If the authorities opted to pay the full amount of pension, even if it exceeded the cap, it could result in a shortfall of funds to pay the pensions of others who had contributed less to the funding of the pension system. That could lead to a breach of the principle of equal treatment, which guaranteed a minimum revenue for each pensioner. All the more so in the midst of a severe economic and demographic crisis. The applicants could not maintain that they had had a legitimate expectation that they would receive the full amount of their pensions after 31 December 2003, because it was impossible to predict how the legislation would evolve in the future. Legislation was a product of social developments, which were rapidly changing. It was for the applicants to show that the cap on their pensions had caused them to suffer an individual and excessive burden.
78. In the Government’s view, the capping of pensions to 35% of the maximum monthly income for social security purposes was in the public interest. The pension system in Bulgaria was based on a pay-as-you-go model, and the legislature’s intent was to guarantee a minimum amount of pension and the potential for it to increase. The existence of a pensions ceiling went hand in hand with the existence of a maximum income for social security purposes. It was intended to guarantee social justice, and was necessary for the sound financial management of the pension system. The Constitutional Court had made those points in its 1998 decision.
79. The applicants submitted that they had had a legitimate expectation that they would receive the full amount of their pensions, based on the contributions they had been required to make throughout their employment. After the entry into force of paragraph 6(1) of the transitional and concluding provisions of the Social Security Code 1999, they had expected that the cap on the maximum amount of pension would be lifted on 31 December 2003 and that from that date on they would receive the full amount of their pensions. The ensuing postponement of the lifting of the cap had accordingly amounted to an interference with their possessions.
80. The applicants did not dispute that that interference was lawful, but argued that it lacked a reasonable foundation. It was true that the Constitutional Court had held that the introduction of a pensions cap was a matter for the legislature’s discretion. However, the 2004 draft bill for the amendment of the Social Security Code 1999, which had permanently capped the pensions of all pensioners whose rights had accrued before 31 December 2009, had not been accompanied by any explanatory notes or by any debate in Parliament. The same went for the 2009 amendments to the Code. The assertions that the pensions ceiling was tied to the minimum amount of pension, helped to maintain it, and furthered social justice were not true. Even if it could be accepted that such a cap had been warranted to help the poorest pensioners scrape through the profound social and economic changes of the 1990s, it could not be maintained forever.
81. The real reasons for maintaining the cap could be gleaned from a number of interviews and public statements by officials, such as the director of the NSSI and several successive mini