Overview of Recent Cases Before the European Court of Human Rights and the European Committee of Social Rights (January–June 2024)

O.R. v. Greece: ² Inhuman treatment and lack of protection on the part of the government for a minor

The case at hand concerned the living conditions of the applicant, an unaccompanied minor seeking international protection. The applicant remained for almost six months without accommodation, without access to basic necessities and without a permanent legal guardian appointed by the Greek authorities (para. 1). The ECtHR examined the case under Article 3 ECHR (para. 35).

The Court has held on numerous occasions that, in order to fall within the prohibition contained in Article 3 ECHR, the treatment must attain a minimum degree of severity. This assessment is relative and depends on all the facts of the case, in particular the duration of the treatment in question, its physical or mental effects and, sometimes, the sex, age and state of health of the victim (para. 56). States should take the necessary measures to ensure that individuals are not subjected to torture or to inhuman or degrading treatment or punishment. This obligation also applies to vulnerable persons, including minors, for whom the State should provide appropriate protection to prevent ill-treatment of which the authorities had or ought to have been aware (para. 57). In this case, the Court also recalled that it had already examined in previous cases the living conditions in Greece of asylum seekers who were left to their own devices and who had been living for many months in a situation of extreme destitution (para. 59 and the cases cited in that paragraph). ³

In the present case, the applicant presented himself to the Greek authorities on 19 December 2018, the same date on which he lodged his application for international protection. However, even before that date, the Greek authorities had been informed of his personal situation and his need for accommodation (on 24, 26 and 29 November 2018). After these dates, the applicant had repeatedly drawn the authorities’ attention to his situation and need for accommodation. On 19 December 2018, the authorities themselves also sent a request to the National Social Solidarity Service to look for accommodation. However, it was not until 16 May 2019 that the applicant was placed in a reception centre for unaccompanied minors in Athens (para. 61). The ECtHR underlined the complexity of the task faced by the Greek authorities, particularly in view of the number of unaccompanied minors entering the country. However, given the absolute nature of Article 3 ECHR, this does not relieve a State of its obligations under that provision (para. 62).

The ECtHR emphasised that the situation in which the applicant found himself was particularly serious, noting that the applicant had lived for almost six months without being able to meet his most basic needs, without being able to eat, wash or be housed, and that he was therefore in extreme material deprivation, even though the obligation to provide him with decent material conditions was incumbent on the Greek authorities by virtue of the national legislation transposing EU law (para. 63). The Court also referred to additional elements to underline the applicant's vulnerability and the lack of protection offered, such as the sexual harassment to which the applicant was subjected in a detention centre, the applicant's traumatic family history and the lack of support from the Public Prosecutor for Minors in his capacity as a temporary legal guardian. Consequently, the Court was not convinced that the competent authorities did everything that could reasonably be expected of them to fulfil the respondent State's obligation to provide him with care and protection (para. 68). The Court found a violation of Article 3 ECHR (para. 70).

Some brief comments can be made on this case, which does not come as a surprise. In its analysis of the case, the ECtHR built on an earlier line of jurisprudence, such as M.S.S. v. Greece. ⁴ These cases established the positive obligation to provide the necessary assistance to persons in extreme poverty. Unaccompanied minors, such as the applicant in the present case, are in an extremely vulnerable position. This is an element that the ECtHR took into account in its assessment.

Bernotas v. Lithuania: Obligation to reimburse the social security authorities for the lost working capacity pension paid to person whom the applicant had accidently injured ⁵

In the case of Bernotas v. Lithuania, the applicant challenged the obligation to reimburse the social security authorities for a disability pension paid to a person whom he had accidentally injured (para. 1). In January 2010, the applicant accidentally shot Ž.K. while cleaning his rifle after a hunt. He was ordered to compensate Z.K. for pecuniary and non-pecuniary damage. The Lithuanian Disability and Capacity for Work Service found that Ž.K.'s ability to work had been reduced by 60% as a result of the injuries sustained in the accident. He was entitled to a pension for loss of working capacity (para. 13). Pursuant to the Lithuanian Civil Code, the applicant was required to reimburse the Lithuanian Government for the payments made in respect of the pension for loss of working capacity (para. 17 and further). The applicant complained that it was unjustified and unreasonable to require him to reimburse the pension for loss of earning capacity paid to Ž.K. The ECtHR reviewed the complaint under Article 1 AP ECHR (para. 72).

In its analysis of Article 1 AP ECHR, the ECtHR first examined the extent to which the interference was provided for by law. The Court referred to the Lithuanian Civil Code, which provides that anyone who has caused pecuniary damage to another person is obliged to compensate that damage in full (para. 93). Moreover, both the Lithuanian Civil Code and the Law on State Social Insurance provide that social insurance institutions which have paid compensation to a person who has suffered damage as a result of the actions of another person may claim reimbursement of the sums paid from the person who caused the damage in question (para. 93). The Court went on to analyse whether the interference pursued a legitimate aim, which was the case (paras. 96-97).

As the final step of the test applied by the ECtHR under Article 1 AP ECHR, the Court examined whether the interference was proportionate to the aim pursued. The Court examined the arguments put forward by the applicant. Firstly, the applicant argued that he had already reimbursed Ž.K. during the criminal proceedings. The Court did not accept this argument, drawing a distinction between the pecuniary loss suffered by the victim at the time of the injury and the loss that occurs later, such as loss of earnings (para. 101). The Court also held that an invalidity pension was a form of social assistance granted by the State to citizens in need and that the payment of such social assistance should not be transferred to private individuals (para. 103). However, the Court referred to its previous case law and stated that Article 1 AP ECHR does not restrict the freedom of States to decide whether or not to establish any form of social security scheme or to choose the nature or amount of benefits to be provided under such a scheme. The Court did not address this argument further, stating that it could not examine the Lithuanian scheme in abstracto, but had to examine it in the light of the specific circumstances of the case (para. 104).

Other elements that the Court took into account in its assessment of the proportionality of the Lithuanian measure were the following: the repayment of the social security benefits was not a mandatory or automatic consequence of his conviction and the applicant had a reasonable opportunity to present his case to the competent authorities before the national courts in order to strike a fair balance between the conflicting interests (para. 105). Moreover, the amount of the loss of earning capacity pension was not determined automatically but on the basis of his individual circumstances and the actual damage suffered (para. 106). An improvement in the applicant's ability to work would also mean that he would have the right to ask the courts to reassess the amount of compensation due to him. The Court also underlined the fact that the applicant could request a reduction in the amount to be paid, taking into account, inter alia, his financial situation, the unintentional nature of the injury and the compensation already paid (para. 109). The applicant never made such requests, nor did he claim before the domestic authorities that reimbursement would be an excessive burden in view of his financial situation (para. 110). Moreover, the domestic authorities had shown flexibility in making the required payments (para. 111). Finally, the Court took into consideration the fact that the reimbursements were linked to the invalidity pension. For this reason, the Court did not find that the duration of the interference was sufficient to render the requirement disproportionate. The Court concluded that there had been no violation of Article 1 AP ECHR.

The following observations can be made on the case at hand. It illustrates the close relationship that can exist between social security law and the liability rules under civil law in case of wrongful conduct. In this case, the victim was entitled to social security benefits for loss of working capacity after being severely injured by the applicant. The Court had to review the right to reimbursement for the paid social security benefits under Lithuanian law in light of Article 1 AP ECHR. The Court did not find a violation of that provision, and stressed the wide discretion of Member States in social policies. The Court also underlined the flexibility granted by the Lithuanian administration, which seemed to have played a decisive role in reaching the Court's decision. Additionally, the fact that the applicant did not make use of that flexibility, showed that the legislation itself was not disproportionate, according to the Court.

Shylina v. Ukraine: ⁶ Payment of social security benefits to a specific bank account

The case of Shylina v. Ukraine concerned the applicant's complaints about the suspension of social benefits for internally displaced persons (hereinafter: IDPs). Following the occupation of Crimea by Russia and armed hostilities in parts of Donetsk and Luhansk, many residents, including the applicant, moved to government-controlled areas and were registered as IDPs. The legislation provided IDPs with the same social benefits as other Ukrainian citizens, as well as some special benefits. From 1 July 2016, IDPs were required to have an account with Oshchadbank and to undergo regular physical identification therein in order to receive these benefits (para. 5). The applicant had moved from Crimea in November 2014, was registered as an IDP and was entitled to a special monthly allowance for living expenses. She had been receiving this allowance into an account at a private bank (para. 6). In April 2016, her payments were suspended due to the lack of an Oshchadbank account (para. 7). A change in the applicable policy was made to allow the transfer of the granted allowances to another bank in government-controlled territory (para. 13). The Court examined the application under Article 1 AP ECHR and Article 14 ECHR (para. 23).

The ECtHR held that the suspension of social benefits constituted an interference with the applicant's right to peaceful enjoyment of his possessions on the basis of Article 1 AP ECHR (para. 32). The Court went on to examine whether the interference could be justified. The Court found that the suspension of payments was the result of the applicant's refusal to comply with the new requirements and was not an arbitrary denial of benefits. The applicant did not allege any objective difficulties in opening an Oshchadbank account, and her reasons for refusal were considered insufficient to constitute an excessive burden (paras. 43-44). The applicant only referred to the low services provided. The Court concluded that there was no risk of the applicant and her family losing their means of subsistence, as they could have ended the suspension by complying with the requirement (para. 45). Therefore, the obligation to open an account with Oshchadbank did not impose an individual and excessive burden on the applicant (para. 46). The Court also took into account the special nature of the benefit as a relocation allowance, to help cover living expenses as IDPs.

The ECtHR went on to examine whether there was a difference in treatment between the applicant and other social benefit recipients without IDP status, and between IDPs who complied with the requirements and those who did not. The Court found that the applicant, as an IDP in receipt of a special allowance, was not in a situation analogous to that of other social benefit recipients without IDP status (para. 59). The Court also found that there was no evidence of unequal treatment among the IDPs themselves (para. 61). Hence, there was no violation of Article 14 ECHR.

A few brief comments on this case. The issue did not concern the granting of a certain benefit, but its payment. The introduction of stringent conditions to access social security benefits can be considered an important restriction, limiting the access to social protection. In the case at hand, it concerned a special benefit for IDPs, which, unlike other social security benefits, was subject to some additional verification requirements. The ECtHR did not seem to be opposed against that idea. ⁷ The Court also took into account the fact that the requirement to open an account with the designated state bank was relaxed over the years. Whilst the Ukranian government would only pay the benefit on a bank account of the state bank, it had become possible to transfer the benefit to another account with a different bank. In the Court's view, the limited burden of opening a bank account with the Ukranian State Bank by the applicant was important. The Court referred to the situation in an earlier case, Croitoru v. Romania. ⁸ In that case, a Romanian citizen living abroad, who had lost all contact with his home country, was not found to be overburdened by the need to appoint a representative to collect the pension payments due to him, which he could do without having to travel to Romania. That burden can be considered heavier than in the present case: the Court therefore concluded relatively quickly that there had been no violation of the ECHR in the case at hand.

Đurić v. Serbia: ⁹ The need for flexible gathering of evidence in social security cases

The case of Đurić v. Serbia concerned the applicant's alleged entitlement to a disability allowance. The applicant complained of the unfairness of the administrative and judicial review procedures in this case. The applicant claimed that Article 6 ECHR and Article 14 ECHR, read in conjunction with Article 1 AP ECHR, had been violated (para. 2).

At the age of 13 (in 1996), the applicant had been seriously injured by an explosive device left behind after a previous armed conflict (para. 1). Three years later (in 1999), the applicant and his mother considered submitting an application for recognition as civilians disabled as a result of war. They did not apply, having been discouraged from doing so by the competent municipal authority (para. 9). Subsequently, in 2006, the applicant had applied for recognition of his status as a civilian person disabled in order to receive a number of related benefits. His application had been rejected by the domestic authorities (paras. 1 and 10 and further). Crucial to the reasoning of the Court was the absence of any written evidence from the time when the applicant had sustained his injuries which could reliably establish that the explosive device had indeed been an explosive remnant of war (paras. 17 and 19). The applicant could, however, submit other evidence (from a later date) (para. 22 and further).

The ECtHR first examined the alleged violation of Article 6 ECHR. The Court reiterated the principles developed under Article 6 as to the applicability of this provision (para. 49 and further). The Court stated that it was well established that disputes concerning entitlement to social security or welfare benefits, including, for example, sickness and disability benefits, generally fell within the scope of Article 6 § 1 ECHR (para. 56). The Court noted that the proceedings at issue concerned the applicant's application to be recognised as a civilian person disabled as a result of war, which in turn would have enabled him to obtain, on the basis of the relevant national legislation, a number of related benefits and/or allowances. At the same time, the applicant's injury as a result of the explosion was not disputed by the national authorities. Moreover, the only points in dispute were whether the blasting cap was in fact an explosive remnant of war and how that could be proved in the proceedings. The Court held that Article 6 ECHR applied in this situation (paras. 56-57).

As a second step, the Court considered whether Article 6 ECHR had been violated. The Court set out the general principles developed in previous case law on the adversarial principle and the principle of equality of arms (paras. 69 and further) and the right to a fair hearing (paras. 73 and further). The Court held that the right to a fair hearing, as guaranteed by Article 6 § 1 ECHR, includes the right of the parties to the proceedings to submit any observations which they consider relevant to their case (para. 69). The admissibility of evidence is primarily a matter for national law, but the Court's task under the ECHR is to ascertain whether the proceedings as a whole, including the way in which evidence was taken into account, were fair (para. 70). A fair balance should be struck between the parties: each party must be given a reasonable opportunity to present his case under conditions which do not place him at a substantial disadvantage vis-à-vis his opponents (para. 71). With regard to the right to be heard, the Court reiterated that this right is not only linked to the question whether the proceedings involve the examination of witnesses who will give oral evidence. It is also important that litigants have the opportunity to present their case orally before the national courts (para. 73). The Court has already accepted on several occasions that an oral hearing may not be necessary (para. 75). In particular, in disputes relating to social security, the Court has held that they are generally of a rather technical nature and that their outcome usually depends on the written opinions of medical experts. For this reason, the possibility of a hearing may be restricted (para. 76).

In a short judgment, the Court found that Article 6 ECHR had been violated. The ECtHR referred to the strict procedure under Serbian law. In order for a person to be recognised as a war-disabled person, the necessary proof could only be provided by written evidence dating back to the time of the injury. The Court held that this was a specific legal requirement which did not provide for any exceptions. According to the ECtHR, this lack of flexibility was even recognised by the national authorities (para. 78). The Court found that neither the applicant, who was a minor at the time and had acute medical problems, nor his parents, could be held responsible for the fact that the origin of the blasting caps could not be established when they were destroyed while in the custody of the State (para. 79). In this situation, the Court could not but conclude that the applicant was effectively faced with a legal and factual inability to have his claim properly examined (para. 80). The Court considered that, in the very specific circumstances of the present case, it would have been advantageous to hold an oral hearing and apply less strict rules on the evidence used by the applicant (para. 81).

The following comments can be made on the case at hand. This case examined the way in which evidence is gathered in social security cases. In this case, it was clear that the applicant had suffered a serious disability. There were doubts whether the nature of the disability stemmed from a war conflict. On that point, Serbian legislation applied a strict principle: only written evidence at the moment the disability occurred was accepted. The regulations did not allow for other evidence, such as in the form of an oral hearing. The ECtHR understands the need not to allow oral hearings in social security cases. ¹⁰ However, it should not lead to an overly rigid application of legislation. Particularly in social security cases, as is the case in this instance, the necessary flexibility should be shown, especially when it has a far-reaching impact on the protection offered.

Diaconeasa v. Romania: ¹¹ Withdrawal of support for a physically disabled individual

In Diaconeasa v. Romania, the application concerned the withdrawal by the authorities of the provision of a personal assistant to the applicant, a physically disabled person (para. 1). The applicant complained that the authorities’ refusal to provide her with a personal assistant was a disproportionate interference with her right to respect of her private life, since it forced her into isolation and deprived her of her autonomy. The Court examined the case in the light of Article 8 ECHR.

The applicant suffered a stroke in 2013, which left her unable to move, speak or take care of her basic needs (para. 5). In 2015 and 2016, the applicant received a certificate stating that she suffered from a severe disability requiring a personal assistant (para. 6). Despite the assessment of a neurologist, the competent commission carried out an assessment of the applicant's abilities in 2017 and found that, despite the severe disability and contrary to other evidence, the applicant did not need a personal assistant. It noted that the applicant received assistance from her two daughters and recommended that they continue to provide support (para. 9). The competent Court of Appeal confirmed the commission's decision of 2017 that the applicant did not need a personal assistant (para. 15). A new certificate was issued in 2019, in the same terms as in 2017, adding that the applicant's condition was permanent and did not require periodic assessment (para. 16). The applicant again brought proceedings before the national courts, which resulted in a similar outcome to that in 2017 (para. 18 and further).

In its analysis of Article 8 ECHR, the ECtHR reiterated that this provision does not merely oblige the State to refrain from such interference, but also imposes positive obligations (para. 47). The Court also referred to the wide margin of appreciation granted to States in the field of social policy, which is, however, limited in the case of particularly vulnerable groups in society who have suffered considerable discrimination in the past, such as disabled persons or elderly dependent persons. The Court added that only very weighty reasons can justify the restrictions in question (para. 48). The Court went on to discuss the extent to which the present case involved a positive or negative obligation on the part of the State (para. 49 and further). Since the Romanian authorities had initially provided the applicant with a personal assistant, the applicant did not complain of a lack of action as such, but rather of the commission's decision to reduce the level of care provided to her and no longer to provide her with a personal assistant (para. 50). The Court went on to examine the case as an interference with the applicant's right to respect of her private life (para. 51).

The ECtHR briefly considered whether the interference was provided for by law and whether it pursued a legitimate aim. Both conditions were met in the present case (para. 52 and 53). As regards the proportionality of the measure, the Court observed that the level of protection afforded was based on a complex and personalised assessment which determined the degree of disability of the person concerned (para. 55). Such an assessment must focus on medical data as well as other indicators of the individual's degree of autonomy and living conditions (para. 55). As part of its analysis, the ECtHR referred to the Convention on the Rights of Persons with Disabilities (hereinafter: CRPD), to which Romania is a party (para. 56). From the principles in Articles 19, 20 and 28, the importance of the equal rights of all persons with disabilities and their right to an adequate standard of living and social protection becomes clear. According to the ECtHR, States have an obligation to take effective and appropriate measures to enable persons with disabilities to live independently and be included in the community and to ensure their personal mobility (para. 57). The Court added that, in principle, it is not for the Court to substitute its own views for those of the national authorities and to interpret and apply national law. However, it is for the national courts to interpret national law in a way which is consistent with the obligations of States under the ECHR (para. 59).

In the present case, the ECtHR held that the competent Court of Appeal did not consider the applicant's situation and did not take into account in its decisions the medical, social and neurological assessments reflecting the applicant's need for assistance (para. 60). Neither the commission nor the Court of Appeal explored other practical arrangements; the Court added that, in the absence of a thorough domestic assessment, it could not accept that support provided spontaneously by family members could replace adequate disability benefits (para. 61). The Court concluded that the commission and the Court of Appeal failed to strike a fair balance between the competing public and private interests at stake, having regard to the applicant's interests and her general vulnerability. According to the Court, Article 8 ECHR was violated (para. 64-65).

The following comments can be made on the case at hand: the ECtHR had to review the protection previously afforded to a person with a disability. On the basis of an earlier decision, the applicant was entitled to a personal assistant. Despite the fact that her condition had not changed and that the necessary reports were still available to indicate the need for the protection of a personal assistant, this decision was overturned by the Romanian administration and was later confirmed by the competent Court of Appeal. In the decision, heavy emphasis was put on family care as an alternative to state support.

The Court emphasised the need to correctly apply and interpret the legislation, which should enable the applicant to receive the necessary basic care. This did not appear to be the case in this instance, and the administration did not pay sufficient attention to the legal requirements for assessing the condition of persons with disabilities and the care they require. The ECtHR also strongly emphasised that support cannot simply be replaced by support provided by family members: ‘the court cannot accept that support spontaneously given by family members could replace adequate disability benefits’ (para. 61). In this way, the ECtHR also addressed the often invisible and unpaid care provided by family members. The fact that a claimant may receive support from family members cannot simply be invoked to withhold certain support to which the individual is legally entitled. ¹²

In its assessment, the ECtHR was strongly guided by the rights recognised in the CRPD, to which Romania is a party, in particular the rights of all persons with disabilities and their right to an adequate standard of living and social protection. This is not new, as the ECtHR has also referred to the CRPD in previous case law and has used it to interpret the rights in the ECHR. ¹³ The ECtHR also emphasised the limited margin of discretion in such situations, referring to the vulnerability of persons with disabilities and the frequent discrimination that this group faced before. Again, an approach that can already be found in previous cases, although the rather ambiguous approach to disability has also been criticised in the past. ¹⁴

B.T. v. Russia: ¹⁵ Difference in treatment between men and women in case of parental leave

In the case of B.T. v. Russia, the ECtHR had to examine the difference in treatment between policemen and women. The applicant, a policeman, applied for parental leave until his daughter was three years old. He claimed that his wife refused to bring up their child and that she was undergoing medical treatment, leaving him as the primary caregiver (para. 12). His application was rejected, and the applicant was dismissed for absenteeism.

Under Russian law, male police offers were entitled to apply for parental leave if their children were left without maternal care for objective reasons. The right of male officers to parental leave is conditional on the absence of maternal care for their children for objective reasons, whereas female police officers are entitled to such leave unconditionally (para. 40). The applicant submitted that the refusal to grant him parental leave amounted to discrimination on grounds of sex in violation of Article 14 ECHR, read in conjunction with Article 8 ECHR (para. 28). He pointed out that his wife had formally refused to bring up the child and had initiated divorce proceedings, asking the court to grant the applicant primary custody, which indicated her unwillingness to participate in the child's upbringing.

The ECtHR first considered whether the case could fall within the scope of Article 8 ECHR. The Court referred to an earlier case (Markin v. Russia) ¹⁶ in which it had clearly held that parental leave schemes could fall within the scope of Article 8 ECHR. In that earlier case law, the Court found that parental leave schemes and allowances, unlike maternity leave, are intended to enable both parents to care for the child and therefore place men and women in a comparable situation. The Court repeated these findings in the present case (paras. 37-38). The Court then examined the Russian legislation in the present case in the light of Article 14 ECHR. The Court reiterated that there must be a difference in treatment between persons in a comparable situation (para. 38). With regard to parental leave and parental leave allowances, men were in a comparable situation to women. Indeed, unlike maternity leave, parental leave and parental leave allowances are intended to enable the parent concerned to remain at home to take personal care of an infant (para. 38).

The ECtHR went on to examine the extent to which the difference in treatment could be justified. The Court referred to an earlier case in which it had examined the difference in treatment between male and female police officers in Russia and where it had already found that the Russian legislation was not objectively and reasonably justified under Article 14 ECHR (para. 41, see Gruba v. Russia). ¹⁷ The Court highlighted the strict and discriminatory application of the law, which did not take into account the applicant's particular family circumstances (para. 42). The Court added that the domestic authorities had not referred to any circumstances showing that the temporary absence on parental leave of police officers holding positions similar to that of the applicant (head of the traffic police) would undermine the operational effectiveness of the police. The authorities therefore failed to carry out a balancing exercise between the legitimate interest in ensuring the operational effectiveness of the police on the one hand and the applicant's right not to be discriminated against on grounds of sex as regards access to parental leave on the other (para. 43). ¹⁸ The Court concluded that there had been a violation of Article 14 ECHR, read in conjunction with Article 8 ECHR (paras. 44-45).

The following brief comments can be made on the present case. The case can be seen as a continuation of previous case law before the ECtHR. In previous cases against Russia, the Court had to rule on the unequal treatment of men and women in the granting of parental benefits (Markin v. Russia and Gruba v. Russia). ¹⁹ As in those cases, the Court declared here as well that the case fell within the scope of Article 8 ECHR. The Court found a violation of Article 14 ECHR. Similarly to Gruba v Russia, the Court pointed to the rigid application of the rules, which impose stricter requirements on men than on women.

Sindicato autonomo Pensionati Or.S.A. v. Italy: ²⁰ Restrictions on combining survivors’ benefits with the beneficiary’s other income

The S.A Pens. Or.S.A. claimed that the reduction of Italian survivors’ benefits in the event of cumulation with other income as introduced by Law no. 335/1995 violated Articles 4, 12, 16, 20 and 23 ESC (para. 59). According to the Italian trade union, this law reduced the amount of the benefit to such an extent that it led to an unreasonable and discriminatory reduction in survivors’ benefits. Part of the challenged law was declared unconstitutional by the Italian Constitutional Court in 2022. According to the Constitutional Court, the Italian legislation did not provide that the reduction of the pension could not exceed the income itself (para. 128). Some of the arguments put forward by the S.A. Pens. Or.S.A. also concerned the freezing by the Italian Government of the indexation of pensions, including survivors’ pensions, for the period 2011–2018. The ECSR already examined this in a previous collective complaint submitted by S.A. Pens. Or.S.A. (para. 121). ²¹

The ECSR first assessed the applicability of several of the provisions of the ESC invoked (Articles 4, 12, § 1, 16 and 23 ESC). The Committee reached different conclusions on the applicability of the various provisions invoked. The ECSR found that Article 4 ESC was not applicable in the present case (para. 65), that Article 12, § 1 ESC had not been violated (para. 69) and that, with regard to Articles 16 and 23 ESC, the S.A. Pens. Or.S.A. did not substantiate its claim (paras. 74 and 81). The ECSR went on to examine the compatibility of the Italian legislation with Articles 12, §§ 2-3 and 20 ESC. This case law report deals only with the claim of a violation of the right to social security in Article 12 ESC (para. 82).

With regard to Article 12, § 2 ESC, the ECSR recalled that this provision requires States to maintain their social security system at a satisfactory level, which is at least at the level required for the ratification of the European Code of Social Security. According to the ECSR, Italy had not violated Article 12, § 2 ESC. The level of the survivors’ pensions benefits complied with the provisions of the European Code of Social Security (para. 103). Moreover, the conditions applied by Italy were also considered in conformity with the European Code of Social Security (para. 104). The ECSR concluded that the fact that the survivors’ benefit was means-tested and may be reduced if the beneficiary receives other income was also not incompatible with the Code (para. 105).

With regard to Article 12, § 3 ESC, the ECSR reiterated some of the principles it had developed in previous conclusions and collective complaints (para. 113 and further). This provision requires in principle that States progressively raise the level of the social security system. Reductions in social security benefits are not per se incompatible with Article 12, § 3 ESC, and may be a means of safeguarding the social security system (paras. 113 and 115). The ESCR went on to reiterate how it had reviewed previous reductions in social security benefits (as also discussed in earlier case law reports and para. 118 and further). The Committee found that the restrictions on the cumulation of income were aimed at the sustainability of the social security system, which is a legitimate aim (para. 126). The ECSR came to a similar conclusion in collective complaint no. 167/2018 by the S.A Pens. Or.S.A. on the freezing of the pension benefits: the restrictions to combining a survivors’ benefit with other income pursued the legitimate aims of reducing and containing public expenditure in an unfavourable economic context, while ensuring the essential operation and maintenance of the Italian social security system. The ECSR also noted that, like other categories of pensioners, beneficiaries of survivorship benefits were affected by the reform. However, the impact of the reforms, which was greater for beneficiaries with higher incomes, had to be seen in the light of the financial difficulties Italy was facing. The ECSR stated that, in the context of sharing the burden of the financial crisis, it had observed that the percentage of reduction gradually followed the level of income, while maintaining access to survivors’ benefit. The ECSR also referred to the decision of the Italian Constitutional Court (2022), as mentioned above. The Committee concluded that Article 12, § 3 ESC had not been violated.

The following observations can be made on this case. In this case, the ECSR had to examine a long list of articles invoked by the Italian trade union. The ECSR was brief on several of the provisions invoked, which again demonstrates the need for adequate justification of the claims by the applicant. A more detailed analysis by the ECSR can be found in relation to the right to social security in Article 12, §§ 2 and 3 ESC. With regard to paragraph 2, the ECSR examined the extent to which Italian survivors’ pensions complied with the revised European Code of Social Security. It pointed out that, although Italy had not ratified these provisions, it complied with those provisions in the European Code. Moreover, Italy granted a higher protection than required in several respects. As the European Code explicitly mentions, it is possible to restrict the cumulation of survivors’ benefits with other income, as happened in the present case for the higher survivors’ benefits.

With regard to Article 12 § 3 ESC, there have been several collective complaints in the recent past alleging a breach of this provision, as discussed in previous case law reports. ²² The principles developed earlier were also reiterated in this collective complaint. In the case at hand, the ECSR strongly emphasised the need for intergenerational solidarity, whereby states can demand more from higher incomes. But even here, there are limits, as the ECSR made clear. The effort required should not make access to benefits impossible. Moreover, the ECSR stressed that the burden should not be too high: for example, the earlier decision of the Italian Constitutional Court played an important role in the ECSR's assessment. The Court had ruled that there should be a limit to the reduction that could be imposed.