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1. The author of the
communication is Mariano Gallego Díaz, a Spanish citizen resident in
Switzerland, born on 22 June 1930. He is represented by counsel, Emilio
Ginés Santidrián.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 The author, a trained engineer, worked in Spain from 1 March 1958 until
10 September 1982, when he emigrated to Switzerland. Throughout that period,
the author paid contributions to the Spanish social security scheme on the
maximum contribution basis for his occupational group. During his residence
in Switzerland, the author paid contributions to the Swiss social security
scheme until he retired in 1995. On retirement the author, pursuant to the
Agreement between Spain and Switzerland on social security of 1969 and the
Additional Agreement thereto of 1982, was entitled to retirement pensions
under the Spanish and Swiss social security schemes respectively. By
application of the pro rata temporis rule, 70 per cent of the pension is
payable by the Spanish system and the rest by the Swiss system. [FN1]
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[FN1] The amount of the Spanish pension in 1995 was 62,174 pesetas (373.67
euros) and the amount of the Swiss pension was 578 Swiss francs, both per
month.
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2.2 In order to determine the amount of the Spanish pension, the Spanish
authorities, pursuant to article 14 of the bilateral Additional Agreement
cited, [FN2] used the minimum contribution basis applicable in Spain to
workers in the same profession. The author, who disputed the calculation,
decided to initiate legal proceedings, since he considered that the basis
applied to him should not correspond to the minimum contributions for his
group. Other factors should also be taken into account, in particular the
fact that until the year in which he emigrated he had paid contributions in
Spain on the maximum contribution basis for his group.
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[FN2] Article 14: "When ... all or part of the contribution period elected
by the worker for determination of the regulatory basis for calculation of
the benefit in question is completed under Swiss legislation, the competent
Spanish institution shall determine that basis by taking into account the
minimum contribution basis that was applicable in Spain for all or part of
the period to workers in the same occupation as that exercised in Spain by
the contributor." According to the author this provision was drafted at a
time when the regulatory basis for a retirement pension, under Spanish
legislation, was two contributory years over a period elected by the worker.
With the promulgation of Act No. 26-1985 the regulatory basis became eight
contributory years over a fixed period.
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2.3 On 26 May 1997 Madrid Social Court No. 3 rejected his application. The
judgement was appealed before the Social Chamber of the Madrid High Court,
which confirmed the judgement at first instance on 7 April 1998. The author
filed an appeal with the Constitutional Court, which was rejected on 25
January 1999.
THE COMPLAINT
3. The author alleges a violation of article 26 of the Covenant, since in
the case of Spanish workers who emigrated to other countries, for example
Germany, their pension was not calculated on the minimum contribution basis,
and thus was bigger. The bilateral agreements between Spain and Switzerland
and between Spain and Germany respectively gave rise to unfair and unequal
treatment, since persons who had contributed to the Spanish social security
system for the same time and in the same amount were treated differently,
depending on whether they had emigrated to Switzerland or to Germany.
OBSERVATIONS BY THE STATE PARTY
OBSERVATIONS ON ADMISSIBILITY
4.1 On 17 September 2001 the State party submitted its observations on the
admissibility of the communication, considering that it should be declared
inadmissible.
4.2 The State party maintains that if the author wishes to raise before the
Committee his disagreement with the Agreement between Spain and Switzerland,
he should direct the communication against the two States parties. As the
communication is directed against Spain only, the Committee should find it
inadmissible under article 3 of the Optional Protocol.
4.3 The State party also maintains that the basis of the discrimination
alleged by the author is incorrect, since he does not compare two treaties
but non-separable parts of two treaties, in this instance the part relating
to the determination of the pension by Spain. Further, Germany and
Switzerland are two separate States, with their specific legal regimes. It
follows that the distinctive characteristics of the contracting States are
taken into account whenever a treaty is concluded. Moreover, Spain has
signed bilateral social security agreements with various other States, and
each has its own regulations on social security coverage of those who have
worked in each of the countries. Without any justification whatsoever the
author differentiates between the Agreement with Germany and all others.
There can be no allegation of discrimination when a distinction is objective
and reasonable, since the agreements to be compared may not be separated out
into arbitrary elements, and are not comparable between themselves, since
the signatory States are different, and, thus, so are the bases for
application. Neither is there any justification for choosing one agreement,
rather than others, for comparative purposes.
OBSERVATIONS ON THE MERITS
4.4 On 15 January 2002 the State party submitted its observations on the
merits of the communication.
4.5 The State party notes that the author has not indicated the exact amount
of his Spanish and Swiss retirement pensions, or the amount of the Spanish
and German retirement pensions that would accrue to him should the Agreement
between Spain and Germany be applied. These figures are necessary for an
appropriate comparison to be made. Moreover, it reiterates that citizens of
a State may not demand the separate application of provisions in bilateral
or multilateral instruments without regard to the rest of the instrument and
the other contracting States. The differentiated treatment alleged by the
author has an objective and reasonable justification in the sovereign
authority of States to conclude bilateral agreements with other States in
accordance with the considerations preferred by them. Consequently, the
State party considers that the communication should be found inadmissible,
in that it does not demonstrate the existence of discrimination.
COMMENTS BY THE AUTHOR
5.1 On 9 April 2002 the author responded to the State party's observations.
5.2 The author explains that, under Spanish legislation, a worker must have
contributed to the social security scheme for at least 15 years to have the
right to a retirement pension. Further, he or she must have contributed for
at least two years during the eight years preceding the official retirement
age. The amount of the pension is based on contributions in the years prior
to the retirement date. For persons who retired in the year in which the
author retired the period was the previous eight years.
5.3 When a person who has worked in Spain emigrates and ceases to contribute
before beginning this final period of working life used for the calculation
of the pension, his or her previous contributions in Spain, for the purposes
of this calculation, are void and have no relevance. If the person emigrates
to a country with which there is a social security agreement, pursuant to
such an agreement the contribution period in that country is deemed valid
for the purposes of calculating pension entitlement in Spain. In such cases
the retirement pension is calculated on the basis of each agreement and
varies from one country to another. Spain has concluded bilateral social
security agreements with 29 countries. Ten are member countries of the
European Union, and these agreements are no longer in force having been
superseded by European Union regulations.
5.4 According to the author, the fact that Spanish social security
legislation does not establish the same rules for the calculation of the
pension that Spain must pay to all those who leave the country and cease to
contribute to the Spanish social security scheme is the cause of the
discrimination of which he is victim. The legislation does not cover the
situation of emigrants. It establishes conditions for obtaining a pension.
If these conditions are not met, and in general emigrants cannot meet them,
there is no right to a pension. The social security agreements rectify this
situation, but only in part.
5.5 The pensions granted by Spain to its emigrants are its exclusive
concern, with funding that is exclusively Spanish, and in accordance with
Spanish legislation. This does not concern the State with which Spain signs
a social security agreement. Accordingly, there is no reason for the part
dealing with determination of the Spanish retirement pension to differ from
one agreement to another. It is not a subject of discussion with the other
country in drafting the agreement in question. It would be more logical for
all agreements to embody a specific national norm for calculating pensions,
a norm which does not exist with regard to emigrants.
5.6 For the determination of the pension in Spain of a non-emigrant, the
contribution history of the worker in the final years is used. However, in
most bilateral agreements, this is not done, and this aspect is left open,
or is the subject of clauses that provide for minimum calculations, rather
than taking into account the actual contributions by the worker. With the
entry of Spain into the European Union, the following criterion was
introduced with regard to retirement benefits for Spanish emigrants to other
countries in the Union: "The amount of the Spanish benefit payable in theory
shall be calculated on the actual contribution basis for the contributor
immediately prior to the final contribution to the Spanish social security
system." [FN3] The 1994 Agreement on social security between Spain and
Mexico employs an analogous concept, in concordance with the criteria used
for calculating the pensions of retired workers in Spain.
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[FN3] Council Regulation (EEC) No. 1248/92, amending Regulation (EEC) No.
1408/71 on the application of social security schemes to employed persons,
to self-employed persons and to members of their families moving within the
Community, annex IV, part D; and regulation (EEC) No. 574/72 fixing the
procedure for implementing Regulation (EEC) No. 1408/71.
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5.7 The author states that the discrimination arising from the bilateral
social security agreements generally has less impact on retirement pensions
than in his case, for the following reasons:
(a) Because emigrants applying for a pension contributed for a shorter
period in Spain than he did, since they were much younger when they
emigrated, which reduces the impact on their pensions;
(b) Because these emigrants left Spain before the author did, and at that
time contributions were lower;
(c) Because these emigrants paid contributions for lower professional
categories, so that they were much lower.
5.8 The outcome is that the author receives a much lower pension than he
would have had he not emigrated, equivalent to a pension generated by only
32 per cent of his actual contributions. This is not offset by the Swiss
pension, as application of the pro rata temporis rule means that the amount
of the pension is very small since he contributed only for the final years
of his working life. If the actual contribution basis applicable to the
author in Spain had, for example, been in the 1960s, application of the
current minimum basis would redound to his benefit. In his case, in view of
the closeness of his emigration date to his retirement date, the minimum
basis redounded to his detriment.
5.9 According to the author, the literal application of article 14 of the
bilateral Agreement seems to disregard or nullify his acquired rights or
those being acquired as a migrant worker, which contravenes various national
and international norms proclaiming the principle of the protection of such
rights. [FN4]
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[FN4] The author cites the European Code of Social Security of 1964, the
European Convention on the Legal Status of Migrant Workers of 1977, and
International Labour Organization Conventions Nos. 97 and 157, all ratified
by Spain
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5.10 The author rejects the State party's assertion that he has not
indicated the amount of his Swiss pension, noting that it was stated in the
appeal filed with the Constitutional Court. He also maintains that the Swiss
pension was not calculated in accordance with the bilateral Agreement but in
accordance with Swiss domestic legislation, and, since it is correct, is not
disputed. With regard to the State party's assertion that the communication
should be directed against both States parties to the Agreement, the author
maintains the opposite, bearing in mind that:
(a) Switzerland is not a State party to the Optional Protocol;
(b) The Swiss pension he receives has been calculated independently, in
accordance with article 7, paragraph 1, of the 1969 Agreement, and is
equivalent to that received by a Swiss citizen or other foreign citizens
working in Switzerland in the same circumstances. The Agreement makes no
special provision for payment of the Swiss element of the pension, unlike
the Spanish element;
(c) Switzerland has no competence in the determination or payment of, or in
disputes relating to, the Spanish pension. It is the Spanish State that
affords different treatment by proposing the incorporation without any
reason, in drafting a social security agreement, of differing treatment that
has no objective or rational justification.
5.11 The author also denies having sought application of the Agreement
between Spain and Germany, as the State party appears to suggest. That
Agreement was cited merely as an indication of the discriminatory treatment
applied to the author. The State party, in determining retirement pensions
differently under various bilateral agreements and in accordance with
European Union regulations, discriminates on a random basis against emigrant
workers. In his view, the State party should apply to migrants to any
country in the world the mode of calculation applied to the pensions of its
migrants to European Union countries. The State party should also propose
the amendment of its bilateral agreements that do not allow for
determination of the pension in the manner proposed.
ADDITIONAL COMMENTS BY THE AUTHOR
6.1 On 12 August 2003 the author sent the Committee information concerning
new developments since his previous letter.
6.2 According to the author, on 1 June 2002 the bilateral Agreement on the
free movement of persons between the European Union and Switzerland entered
into force, making it possible for his Spanish pension to be calculated on
the basis of Community legislation rather than the Agreement between Spain
and Switzerland. To this end the author submitted appropriate requests to
the competent administrative bodies, and filed an appeal before Madrid
Social Court No. 4, which, in a judgement of 11 April 2003, awarded the
author a pension of 1,363.06 euros a month from 1 June 2002 onwards, that
is, three times more than the amount he had been receiving since 1995. The
Spanish social security authority has implemented the judgement.
6.3 The author states that he has obtained satisfaction and has no claim
against the State party with regard to the amount of his pension since 1
June 2002. However, he still considers that he has suffered discrimination
under article 26 of the Covenant with regard to the period between 1 July
1995 and 31 May 2002. He thus reiterates the complaints made previously. The
author recalls that the method of calculation applied to him from 1 June
2002 onwards, that is on the basis of his actual contributions, is the
method he sought to have applied by the Spanish social security authority,
in writing on 30 August 1996 and in his successive appeals.
6.4 The author also seeks a change in Spanish regulations to allow the
calculation of the retirement pensions of all emigrants on the same basis as
his is now calculated, that is, using the criteria applied to emigrants to
European Union countries, irrespective of the country to which they
emigrated.
6.5 The State party has not submitted any observations on the author's
comments.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
7.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.
7.2 The Committee has ascertained, as required under article 5, paragraph 2,
of the Optional Protocol, that the same matter is not being examined under
another procedure of international investigation or settlement, and notes
that the author has exhausted all domestic remedies. With regard to the
State party's argument that the author should also direct the communication
against Switzerland, the Committee notes that the author does not contest
the part of his pension that he receives from the Swiss social security
system and that, furthermore, Switzerland has not ratified the Optional
Protocol. The fact that the communication is directed only against Spain
does not constitute an obstacle to its admissibility.
7.3 With regard to the author's claim that the different treatment of
Spanish workers who emigrated to Switzerland on the one hand and Spanish
migrants who went to other countries constitutes a violation of article 26
of the Covenant, the Committee notes that the author has not shown how this
distinction is based on the race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status
of these migrant workers. The less advantageous position of the author has
its roots in the fact that, regarding the calculation of the Spanish part of
the pension of persons who have worked in Spain and abroad, the bilateral
treaties negotiated by Spain are not identical. However, the mere fact that
different treaties on the same topic with different countries concluded at
different times differ in content does not amount, as such, to a violation
of article 26 of the Covenant. The author has not shown any additional
elements that would make article 14 of the treaty with Switzerland
arbitrary. The Committee, therefore, concludes that the facts submitted by
the author do not raise any issue under article 26.
8. The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under article 2 of the Optional
Protocol;
(b) That this decision shall be communicated to the author and the State
party.
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[Done in English, French and Spanish, the Spanish text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.] |
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