The decision to reimburse the applicant for compensation as a civil servant when she moved to another office violated her right to property
JUDGMENT
Casarin v. Italy 11.02.2021 (app. no. 4893/13)
SUMMARY
Principles of justified trust of the administrator and good administration.
An administrative act was issued to reimburse the compensation received by the applicant as a salary difference when she moved to another Ministry. The domestic courts rejected her appeal on the ground that the national system did not provide for the right to retain the compensation granted to teachers in the context of mobility in other Ministries.
The Court recalled the principle that, while an administrative decision may be subject to revocation in the future, the reasonable trust of the administrator in the administration does not allow it to be annulled retroactively and that according to the principle of “good administration” when at stake an issue of general interest, public authorities must act in a timely manner, in an appropriate manner and with the utmost coherence.
In the present case, the ECtHR found that the applicant did not bear any responsibility for the payment of the compensatory allowance and had reasonable confidence in the State as its employer in respect of that benefit which had been paid for a long time. Given that the domestic courts did not take into account the applicant’s situation, lack of any liability, the length of time it was paid, and that it was paid by a public body on the basis of a lawful decision, it considered the intervention to be disproportionate because management error. As a result, her right to property was violated.
The ECtHR awarded 15,318 euros in damages, 8,000 euros in non-pecuniary damage and 2,500 euros in costs and expenses.
PROVISION
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicant, Amelia Casarin, is an Italian national who was born in 1950 and lives in Turin.
The case concerned an alleged infringement of the applicant’s property rights. Ms Casarin
complained about the consequences of an action for the recovery of undue payments (azione di
ripetizione dell’indebito) requiring her to repay to the administrative authorities a portion of the
sums paid to her by way of compensation for a difference in salary.
Relying in particular on Article 1 of Protocol No. 1 (protection of property) to the European
Convention on Human Rights, the applicant alleged that the order for her to repay the sum of
13,288.39 euros to the National Social Security Institute had infringed her rights under that Article.
THE DECISION OF THE COURT…
The Court first investigated whether the intervention disturbed the reasonable balance which must exist between the requirements of the public interest and those of the protection of the individual’s right to the peaceful enjoyment of his/her possessions. The balance is disturbed if the person concerned suffers a special and excessive weight.
The ECtHR, as regards the State’s “margin of appreciation”, recalled that the applicant’s transfer took place in the context of a complex procedure for the reorganization of the public administration. Indeed, the mobility process was launched with the aim of rehabilitating a significant number of officials of the Ministry of National Education who had many responsibilities.
The Court has held that the introduction of mobility procedures and the provision of wage-guarantee measures, such as compensatory compensation, involve issues of economic and social policy which, in principle, fall within the wide margin of appreciation granted to States in this area.
Returning to the circumstances of the case, and in particular the applicant ‘s conduct, the Court recalled that it had already found that nothing in the present case could be held liable for the erroneous assessment of its case and therefore for the payment of damages.
In addition, the Court considered, in view of the degree to which the applicant could have had confidence in the INPS decision, that the nature of the employer played a role in the overall examination of the proportionality of the interference. An employee’s reasonable expectations may have different support depending on the characteristics of the employer and therefore from the beginning with which the latter interprets and applies more or less complex standards.
In the present case, it should be noted that the applicant’s employer, INPS, is the body responsible for managing the compulsory pension scheme and other social security services provided internally. It also demonstrates that the INPS was involved in activating the mobility process, at least in its early stages.
In this case, the Court recalled the principle that, while an administrative decision may be subject to revocation in the future, the expectation that it will not be challenged retroactively (ex tunc) should generally be recognized as lawful, unless there are serious reasons to the contrary based on the general interest or third parties. The Court found in the present case that the Government disputed the applicant ‘s argument, arguing that there was no uncertainty as to the interpretation of the internal provisions governing the mobility procedure and the application of the principle of reduction of compensatory compensation.
The Court notes that this standard interpretation was not followed by the INPS, which paid the applicant the same amount for years. It should be noted that the Ministerial Decision no. 217 of 6 May 1998 did not state, at least explicitly, whether or not the principle of absorption was applicable to mobility and whether its provisions were limited to the provision of compensatory compensation for all transferred employees of the Ministry of National Education. The Court of Cassation has since intervened in this area, since 2006, confirming that the general absorption rule also applies to mobility within the INPS.
The Court also recalled that the principle of “good administration” requires that, when an issue of general interest is at stake, public authorities act in a timely manner, in an appropriate manner and with the utmost coherence.
Another point highlighted by the Court is the fact that the compensatory allowance is provided for in national law as part of the wage guarantee, and is therefore calculated on the basis of the amount of wages paid in connection with the activity. This is not an allowance paid in connection with an auxiliary work activity provided by the employee (as in the case of overtime compensation), so it is periodic in nature, which could possibly justify, given the exceptional and of an individual nature, an error on the part of the authorities as to the amount to be granted to the parties concerned.
Finally, the Court noted that, even if the payment of damages was entirely due to an error on the part of the INPS, it was the applicant who was ordered to reimburse the organization all the sums paid in excess, disregarding the circumstances surrounding the case. No liability of the State or any other State service which nevertheless caused the situation has been substantiated and, moreover, the burden of that error lies solely with the applicant.
The Court thus observes that the national courts, in deciding on the action, did not take into account either the applicant ‘s financial situation or her health. In the light of the foregoing considerations, the Court has held in particular that: (a) the payment of compensation must be made at the request of the beneficiary acting in good faith or, in the absence of such a request, by the authorities; (b) such payment must be made by a public body, central administration or other public service based on a decision taken at the end of an administrative procedure and presumed to be correct; c) must be based on a legal, regulatory or contractual provision, the application of which must be considered by the beneficiary as ” source “of the payment and also to be recognized in its amount, d) the payment is obviously excluded without a legal decision or to be based on simple calculations, such errors can be detected by the beneficiary, possibly by recourse to an expert, (e) must be carried out long enough to create a reasonable belief that it is final and stable, and the benefit paid should not be be related to a one-off and “individual” business activity, but must be linked to the usual business, and (f) that payment must not have been made with reference to a reserve.
The Court considered that, in the light of the particular circumstances of the case, the intervention in the applicant was disproportionate as the individual had to bear the brunt of the error committed by the administration. It found a violation of the right to respect for property (Article 1 of the First Additional Protocol to the Convention).
Just satisfaction: 15,318 euros (EUR) for pecuniary damage, EUR 8,000 for non-pecuniary damage,
and EUR 2,500 for costs and expenses.
