Arnold v. the Netherlands



AS TO THE ADMISSIBILITY OF

Application No. 12221/86

by Johannes Gerardus Maria ARNOLD

against the Netherlands

The European Commission of Human Rights sitting in private

on 10 November 1989, the following members being present:

MM. C.A. NØRGAARD, President

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

G. BATLINER

J. CAMPINOS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 May 1986 by

Johannes Gerardus Maria ARNOLD against the Netherlands and registered

on 16 June 1986 under file No. 12221/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1929 and presently

residing in Schaesberg, the Netherlands.

The facts, as they have been submitted by the applicant, may

be summarised as follows:

From 1 September 1956 until 1 June 1961 the applicant worked

in the public service. During this period he paid pension

contributions for his retirement.

Under the General Act on Civil Servants' Pensions (Algemene

burgerlijke pensioenwet) a civil servant who has been dismissed before

the entering into force of this Act and who has no right to a

retirement pension because he has not been employed as a civil servant

for a sufficient length of time, will have a right to a retirement

pension after the entering into force of this Act if he has been in

the public service for at least five years.

By letter of 2 January 1983 the applicant requested the

General Civil Servants' Pension Fund (Algemeen Burgerlijk

Pensioenfonds) to decide that he would have a right to a retirement

pension, despite the fact that he had worked three months less than

the required five years in the public service.

By letter of 13 January 1984 the General Civil Servants'

Pension Fund informed the applicant that, if he were to ask for a

retirement pension when reaching the age of 65 years, he would receive

a negative decision, since he had not worked in the public service for

five years, as required by the General Act on Civil Servants'

Pensions. The Fund stated that this letter was for the purpose of

information and was not a decision.

By letter of 26 January 1984 the applicant appealed against

the letter of 13 January 1984 to the Supervisory Council (Raad van

toezicht) of the General Civil Servants' Pension Fund.

By letter of 27 June 1984 the Supervisory Council informed the

applicant of its decision to declare his appeal inadmissible since his

appeal was not directed against a decision but only against a letter

of information.

By letter of 5 July 1984 the applicant appealed against this

decision to the Civil Servants' Court (Ambtenarengerecht) of The

Hague. He submitted, inter alia, that the General Civil Servants'

Pension Fund had taken a conditional decision and that it was

important for him to know his rights to be able to choose the moment

of retirement.

In its decision of 17 October 1984 the Civil Servants' Court

declared the applicant's appeal inadmissible.

By letter of 29 October 1984 the applicant appealed against

this decision to the Central Council of Appeal (Centrale Raad van

Beroep). In its decision of 10 April 1986 the Council declared the

applicant's complaint inadmissible.

COMPLAINTS

The applicant complains that under the Act on Pension- and

Savings Funds (Pensioen- en Spaarfondsenwet), which applies to

the private sector, a person who has taken part in a Pension Fund for

less than one year shall be refunded at least the contributions which

he has paid. Under the same Act, a person who has taken part in a

Pension Scheme for more than one year shall have a right to a

retirement pension on the basis of the contributions paid by himself

and his employer. However, under the General Act on Civil Servants'

Pensions a civil servant who has worked in the public service for less

than five years, will not receive anything. The applicant considers this an

arbitrary deprivation of his possessions. He invokes Article 14 of

the Convention in conjunction with Article 1 of Protocol No. 1.

THE LAW

The applicant, born in 1929, complains of discriminatory

treatment in respect of his claim to a retirement pension flowing from

the contributions he paid to the Civil Servant's Pension Fund during

his years in the public service. He invokes Article 14 of the

Convention in conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1).

However, the Commission notes that the applicant's alleged

right to a retirement pension would not become operable until he

reaches the age of 65. In this respect, it also notes that the

domestic administrative courts refused to consider the applicant's case

at this stage.

In the absence of a domestic decision concerning his alleged

pension right the Commission finds that the applicant cannot yet claim

to be a victim of a violation of the Convention within the meaning of

Article 25 (Art. 25) of the Convention. It follows that this

application is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)