Increasing Pension Ages in Europe: the Case of Legitimate Expectation

Increasing pension ages in Europe: The case of Legitimate Expectation

By: Dr. Elaine Dewhurst and Ms. Dafni Diliagka, Max Planck Institute for Social Law and Social Policy

1. Introduction

The European financial crisis, precipitated by the wider global economic crisis, has had a significant influence on the social rights of residents of the EU. Illustrative of this impact is the alterations to the pension age in many EU Member States. While many Member States were considering such changes to the pension age as a consequence of demographic transformation and its financial impact, in some cases, the change occurred much quicker, conditional upon financial aid from the EU and the IMF. Greece1 and Ireland2 were the first Member States to seek and receive financial aid from the EU and IMF. However, these financial aid packages also included conditions, often negotiated very quickly, to increase pension ages in Greece and in Ireland. In Greece, the general pension age of 65 remained the same, but special treatment for some specific groups were abolished.3 Ireland, on the other hand, saw an increase in the normal pension age with a shift from 65 years to 66 years to occur in 2014 with further shifts to occur in 2021 and 2028.

A question, which is ripe for consideration, is whether prospective pensioners in EU Member States and, in particular, Greece and Ireland, have any legal claim to prevent the often swift imposition of pension age adjustments in their Member State? This paper analyses this research question through case studies of the legal situation in both Greece and Ireland. The paper will begin with a legal analysis of pension ages in the chosen states both prior to, and after, the EU and IMF bailouts. This analysis will reveal the extent of the alterations made to pension ages in both Member States as a result of the loan agreements. Secondly, the paper will address one particular legal claim that may be available to prospective pensioners in Greece and Ireland: the doctrine of legitimate expectation. It will be considered whether prospective pensioners have a legitimate expectation to receive a pension at the particular age and whether the State can be prevented from raising the pension age in such circumstances. It will also assess the adequacy of transitional measures in this context.

The paper will conclude that the doctrine of legitimate expectation is unlikely to be of assistance to prospective pensioners in Ireland or in Greece due to the current interpretation of the doctrine in both jurisdictions. In both Greece and Ireland, the prospective pensioner will be met by claims that the expectation is either not legitimate, is a fetter on the discretion of the Executive or is not in the public interest considering the severe economic conditions prevailing in the State. Some claim to reasonable notice or transitional measures may be

1 The EU offered its first financial support to Greece on the 25 March 2010 and Greek sought financial support on the 25 April 2010. A loan package of €110 billion was agreed on 2nd May 2010. Greece also received a further financial aid package on 21 February 2012. See European Central Bank, “Key Dates of the Financial Crisis” available at http://www.ecb.int/ecb/html/crisis.en.html (last accessed 2 August 2012).

2 Ireland sought financial support on the 21 November 2010 and a package of measures was agreed on the 7 December 2010. This included a loan package of €85 billion. See http://ec.europa.eu/economy_finance/articles/eu_economic_situation/2010-12-01-financial-assistance- ireland_en.htm (last accessed 2 August 2012).

3 For further details see below (2.1) available in certain defined circumstances but these circumstances are limited and would not be of assistance to the general prospective pensioner.

2. Pension Age: Pre and Post Crisis

Pension ages across EU Member States diverge greatly and have undergone substantial alteration over the decades.4 Ireland is an interesting example as it introduced a pension age of 70 years in 19085 which it then lowered to the current age of 65 years in the 1970’s. In Greece, the pension age was set at 65 in 1951. This pension age applied mainly to men working at the private-sector. The pension age of civil servants and other privileged groups were much lower and diverse. This section of the paper will outline the current pension ages in Ireland and Greece and the changes precipitated by the EU and IMF financial agreements.

2.1. Pension Age in Greece and the Recent Legislative Changes

Within the framework of the financial facility agreements, the EU, in cooperation with the IMF, advised Greece to implement stringent fiscal and monetary policies. To meet the conditions of the loans, Greece has had inter alia to re-arrange its pension system given that “pensions are the dominant part of social security and they form a significant component of the entire Greek macro-economy”.6 Therefore, the Greek Parliament approved a comprehensive pension reform in July 2010 that entered into force on the 1st January 20117. The pension legislation is designed to tackle the ailing pension system, to ensure its sustainability and to shrink social expenditures on pension benefits in the long-term. With a view to this, the pension reform legislation introduced stricter eligibility rules for access to social benefits in case of retirees and surviving dependants, mainly by increasing the normal and early retirement age.

The new pension law8 introduced a tax-financed, means-test basic pension scheme, which became an integral part of the pension system and will enter into force on the 1st January 2015. Only individuals who have reached the age of 65 years will fall under the scope of this pension scheme. In addition to the basic pension, a proportional pension is also provided through the social security funds. Both men and women that have reached the age of 65 years

4 See “Chapter 1, Pensionable Age and Life Expectancy 1950-2050” IN OECD, Pensions at a Glance 2011 (2011) available at http://www.oecd-ilibrary.org/docserver/download/fulltext/8111011ec005.pdf? expires=1343899857&id=id&accname=guest&checksum=97D22FC9E279E9E5A6B871F206B1222B (last accessed 2 August 2012).

5 Old Age Pension Act 1908. For a more detailed consideration of pensions in Ireland see S Whelan, “Pension Provision in Ireland for the 21st Century” A Report Prepared for the Irish Association of Pension Funds to help further the debate on our national pensions policy (2005) available at http://www.iapf.ie/_files/PublicationFileForDownload,1233,en.pdf (last accessed 2 August 2012). See also C O’ Gráda, “The Greatest Blessing of All’: The Old Age Pension in Ireland” (2002) 175(1) Past and Present 124.

6 Börsch-Supan/Tinion, in: Bryant/Garganas/Tavlas (eds.), Greece’s Economic Performance and Prospects 1997, p. 361.

7 See L. 3863 of 2010 concerning the New Social Security System, applicable to the private sector and self- employed and L. 3865/2010 applicable to civil servants.

8 Art. 2, L. 3863 of 2010. are entitled to this proportional pension.9 Of significant interest for the purposes of this paper, is the fact that the new pension system also increased the early retirement age significantly from the age of 55 years (or in some exceptional cases earlier than 55 years) to the age of 60 years.

While the general pension age of 65 years has not been altered by the new pension system, some exceptions and special arrangements that were established under previous pension laws will be abolished as and from 1st January 2015. For example, there were special arrangements for employees affiliated with IKA before the 1st January 1993 to qualify for a pension at the age of 62 years (for men) or the age of 57 years (for women) as long as they had a contribution record of at least 10,000 working days. Moreover, there was provision for such workers to receive a pension at any age as long as they had completed 11,100 working days. This has now been abolished. Another example is the case of women who were insured before the 1st January 1993 who were entitled to receive a full old-age pension benefit at the age of 60 years and an early old-age pension benefit at the age of 55 years. Under the new regime, there will be an increase in the pension qualification age from 60 to 65 years for a full old-age pension and from 55 years to 60 years for an early pension entitlement as and from the 1st January 2015. Furthermore, the pension age of mothers with underage or unable to work children will be raised progressively from 55 years to 65 years (full pension) and from 50 years to 60 years within the next 3 years and will come into force on 1st January 2013. Finally, civil servants, who were previously allowed to receive a pension at any age as long as they could prove that they had 35 to 37 years of service, may now only receive a pension on reaching the age of 65 years.

Three exceptions to the general pension age still remain, namely disability pension; pensions for workers engaged in arduous and unhygienic professions (AUP); and pensions for individuals who have contributed 40 years to the pension system. Despite the fact that these exceptions are retained, there have been some significant changes. So for example, the penion age for workers occupied in AUP has been raised from 55 to 60 for a full pension and from 53 to 58 for an early pension10, within a transitional period of 6 years (form 1st January 2011 until 1st January 2017). Moreover, the reformed national social security system allows the whole working population to receive full pension benefits at the age of 60, as long as the years of social security coverage numbering 40 years or 12.000 working days11. Through these regulations, the State is effectively linking pension age closely with lengthy contribution periods. This is also evidenced by the proposal to link pension age with life expectancy as and from 1st January 2021.

2.2. Pension Age in Ireland and the Recent Legislative Changes

While the changes to the pension age in Ireland are certainly less complex, they are no less significant. Conditional upon the EU/ IMF Programme of Financial Support for Ireland12 and

9 Art. 3, Law 3863/2010.

10 Art. 10 par. 2 of Law 3863/2010.

11 Art. 10 par. 1 and par. 10 of Law 3863/2010.

12 01 December 2010 available at http://www.socialjustice.ie/sites/default/files/file/Government%20Docs %20etc/2010-12-01%20-%20EU-IMF%20Programme%20of%20Financial%20Support%20for%20Irl%20- %20Programme%20docs.pdf (last accessed 27 July 2012). the Irish Memorandum of Understanding on Specific Economic Policy Conditionality13, Ireland agreed to implement structural reforms to increase progressively the state pension age14 from the standard age of 65 years to the age of 68 years. 15 This was achieved in Ireland through a number of measures including the abolition of the State Pension (Transition) from 2014 which is available to persons age 65. The State Pension (Transition) is available on fulfillment of certain criteria among which is that the individual claimant must be 65 years. At the age of 66 years, the individual will become entitled to receive a State Pension (Contributory).16 As and from the 1st January 2014, the State Pension (Transition) will be removed, effectively raising the pension age to 66.17 The Social Welfare and Pensions Act 2011 also makes provision for raising the pension age to 67 in 202118 and 68 in 202819. Certain exceptions to these general pension ages exist including members of the permanent defense forces who receive a pension at 5020, members of An Garda Siochana (police force) who receive a pension at 5521 and members of the fire brigade who receive a pension at 55.22 Prison officers also receive a pension at 55 years.23

3. Legitimate Expectations and Pension Reform

Therefore, the pension ages in both Greece and Ireland have been altered significantly in recent years and in many cases these alterations have been introduced very swiftly with little time to allow individuals to transition smoothly to the new system. The legal question which then arises is whether such individuals may have a claim that they had a legitimate

13 Signed on 28 November 2010 available at 01 December 2010 available at http://www.socialjustice.ie/sites/default/files/file/Government%20Docs%20etc/2010-12-01%20-%20EU-IMF %20Programme%20of%20Financial%20Support%20for%20Irl%20-%20Programme%20docs.pdf (last accessed 27 July 2012).

14 Signed on 28 November 2010 available at 01 December 2010 available at http://www.socialjustice.ie/sites/default/files/file/Government%20Docs%20etc/2010-12-01%20-%20EU-IMF %20Programme%20of%20Financial%20Support%20for%20Irl%20-%20Programme%20docs.pdf (last accessed 27 July 2012) at p. 12.

15 It should be noted, however, that Ireland had been considering alterations to its pension age since early 2010. See Department of Social Protection, National Pensions Framework, available at http://www.nationalpensionsframework.ie/ (last accessed 2 August 2012).

16 This applies to both public and private sector workers. See Public Service Superannuation (Miscellaneous Provisions) Act 2004 (Ireland), section 10.

17 Section 114(9), Social Welfare (Consolidation) Act 2005 as inserted by section 6, Social Welfare and Pensions Act 2011 (Ireland).

18 Section 2(1), Social Welfare (Consolidation) Act 2005 (Ireland) as amended by section 7(1) and (2), Social Welfare and Pensions Act 2011 (Ireland).

19 Section 2(1), Social Welfare (Consolidation) Act 2005 (Ireland) as amended by section 7(3) and (4), Social Welfare and Pensions Act 2011 (Ireland).

20 Section 10(2)(a), Public Service Superannuation (Miscellaneous Provisions) Act 2004 (Ireland).

21 Section 10(3), Public Service Superannuation (Miscellaneous Provisions) Act 2004 (Ireland).

22 Section 10(5), Public Service Superannuation (Miscellaneous Provisions) Act 2004 (Ireland).

23Section 1(1)(a), Superannuation (Prison Officers) Act 1919 as substituted by Section 5(1)(a), Public Service Superannuation (Miscellaneous Provisions) Act 2004 (Ireland). expectation that they would receive a pension at a certain age and that this expectation has now been broken. This section of the paper will explore the possibility of such a legal claim in Greece and Ireland. It will outline the general basis of a claim, the test that the individuals will be expected to meet in each jurisdiction and the potential obstacles to such a claim in each case.

3.1. The Greek Law on Legitimate Expectation

As has been described above, the retirement age in Greece is being progressively increased by five, or in some cases ten, years, to the age of 65 years, within a short transitional period of three or four years. With regard to this, the question that arises is whether the expectation of the individual to retire in the next two or three years at a particular age (often earlier than 65 years) has been affected by the increase in the pension age.

Firstly, this section describes the notion of legitimate expectation in Greek law, as this has been developed by the Greek jurisprudence and the Greek literature (3.1.1.); secondly, the question as to whether and in what manner such legitimate expectations are legally protected under Greek Law (3.1.2. and 3.1.3.) will be examined.

3.1.1...... The Concept of Legitimate Expectations

The Greek Constitution guarantees the social insurance system as an institution in Article 22,5 of the Greek Constitution (Gr.Const.), but it does not set out the prerequisites for a pension entitlement, since this is regulated by the national legislator according to the social and economic circumstances of the country. The prerequisites to a pension entitlement are divided into two categories, the substantial and the formal prerequisites.24 The substantial prerequisites are essential to the establishment of a pension entitlement and include the ratione personae, the required contributory period, the retirement age et. seq. The formal prerequisites refer to the essential administrative procedure for a pension entitlement, such as the application for an old-age pension benefit.

According to the Greek jurisprudence, the individual has an “expectation” to receive a pension entitlement before the accomplishment of both the substantial and formal prerequisites.25 This will be taken to have occurred where the individual has accomplished all the pre-conditions to a pension entitlement but has not yet exercised this right. However, the Greek literature has supported the contention that the beneficiary should have an “expectation” to receive a pension entitlement once they have satisfied only the substantial pre-conditions.26

Whether such an “expectation” is legitimate is more difficult to determine. There has been no Greek jurisprudence on this matter. Part of the Greek literature has supported that such expectations are legitimate where the individual has accomplished the required period of contribution but has not reached the required retirement age.27 Moreover, such an expectation

24 Kremalis, Social Insurance Law 1985, p. 297.

25 Council of State (StE) 58/1999; 3107/1999; 1297/2004; 718/2006: 581/2007; 1817/2009, Source: Greek Databank NOMOS.

26 For further information, see Angelopoulou, Olga, EDKA 2010, pp. 904-922.

27 Stergiou, Journal: Administrative Law 2008, p. 845. is legitimate when the right to a pension entitlement is about to be accomplished within the next five years. This argument is based on an administrative law doctrine. More specifically, the two Greek Supreme Courts, the Greek Highest Administrative Court (Council of State - StE) and the Council of Audit (ES), have declared that administrative authorities must act consistently with the normative acts issued for a reasonable period.28 The question that remains is what will constitute a reasonable period? The StE has ruled that public authorities are obliged to recall within a reasonable period, namely within a period of five years, the illegal administrative acts that had been issued in favour of the individual.29 This is derived from the constitutional principles of the rule of law and of the protection of legal reliance. This supports to some extent the Greek literature on the matter.

However, it is significant that the Greek case-law, as opposed to the Greek literature, has not acknowledged that individuals that are about to retire have a legitimate expectation to retire under the previous applicable pension law. Since, the Greek jurisprudence has not even recognised the expectation to a pension entitlement as legitimate, it is unlikely that the Greek Supreme Courts will accept that legitimate expectations are legally protected. Nonetheless, it is important to lay down two main legal provisions that according to the Greek literature30 could protect the legitimate expectations, namely the right to property (under 3.1.2.) and the non-retrospective action of law (under 3.1.3), and how both legal provisions are dealt by the Greek Courts.

3.1.2...... Right to property/Right to peaceful enjoyment of one’s possession

Article 17 of the Greek Constitution guarantees the subjective right to property and protection from unlawful property invasion. More particularly, according to Article 17, no one shall be deprived of his/her property, unless this right is exercised in expense of the public interest. In this case, any deprivation of property must be established by law and the owner must be fully compensated, which is determined by the civil courts according to the value of the expropriated property at the time of the court hearing. However, the Greek jurisprudence has consistently ruled that the concept of property under the Constitution includes only movable and immovable objects in forms of ownership and does not include obligations that derive from a contract or delict law. The latter is only protected through adapted laws by the common legislator and not through the Constitution.31 Consequently, rights that arise from an obligation, such as the claim to an old-age pension benefit, or economic interests are not protected by Article 17 Gr.Const. However, part of the Greek literature does support the contention that rights which arise from an obligation should be included under the constitutional protection of Article 17.32

The question, nevertheless, that the Greek Courts had to deal with more recently is whether the protection of property under Article 1 of the First Protocol of the European Convention on Human Rights (ECHR) could be invoked to protect old-age pension benefits. Initially, the

28 ES 359/88, Nomiko Vima (Greek Journal) 37, p. 965; StE 372071987, Databank NOMOS, p. 373.

29 StE 2261/1984; StE 1501/2008, Databank NOMOS.

30 See fn. 21.

31 Aeropag (AP) 68/1984, EDKA 1985, pp. 364 et. seq.; AP 391/1985, Databank NOMOS; StE 2705/91; 1882/2003, Databank NOMOS; ES 28/1994, Databank NOMOS.

32 Chrysogonos, Individual and Social Rights 2006, p. 372. Court of Audit ruled that Article 1 of the 1st Protocol of ECHR does not apply in cases of pension rights, because this would contradict Art. 17 Gr. Const.33 However, this case-law was overturned during the recent jurisprudence of Aeropag (AP).34

As far as the protection of legitimate expectations to an old-age pension benefits under the Article 1 of the First Protocol is concerned, the Council of State has held that the expectation to receive old-age pension benefits under the previous favourable pension law does not fall under the concept of possession for the purposes of Article 1 of the First Protocol of ECHR. The Court held that, while, on one hand, Article 1 of the First Protocol of ECHR protects the right to receive a social benefit, on the other hand, this legal provision is not applicable, when the individual has not accomplished either the substantive or the formal pre-conditions to a pension entitlement required under national law.35 Illustrative of this approach is the case of an employee of the National Bank of Greece and a mother with underage children, who under the previously applicable law had established a right to an old-age pension benefit by completing a certain contributory period (15 years). However, the court held that she was not entitled to receive a pension, because the pension legislation had been amended and the new requirement that the person must have reached the age of 42 years had been introduced 36. As the individual had not reached this age, the pre-conditions had not been met. The Council of State held that the raising of the pension age in such cases did not abolish any already established rights, but only postponed the exercise of the pension right until the individual reached the pension age under the new pension legislation.37

3.1.3...... Non-genuine retrospective law

The new regulations concerning retirement age are applying retrospectively, because they apply not only to the individuals that enter the labour market after the publication of the law, but also to the old entrants. The retrospective amendment of legislation that affects expectations, either legitimate or not, is called non-genuine retrospection, for the required prerequisites for the accomplishment of the right are not fulfilled and therefore, the legal consequences of already established rights have not taken place.38

The Greek Constitution foresees in Article 77,2 that “A statute which is not truly interpretative shall enter into force only as of its publication”. This constitutional provision does not provide an adequate legal ground that prohibits the retrospective action of law.39 The Constitution prohibits the legislator to adopt laws with retroactive action only in cases that are

33 ES 28/1994, Databank NOMOS.

34 AP 40/1998; 1465/2001; 43/2002, Databank NOMOS.

35 StE 3267/2002, Databank NOMOS: the provision of an invalidity pension was denied, since the applicant did not fulfilled the required insurance period; StE 2118/2005, Databank NOMOS: a widow was denied a survivor pension, since she was receiving herself an old-age pension benefit as civil servant.; StE 3013/2006 and 545/2007, Databank NOMOS: widower was denied old-age pension benefit, because he was not married with the deceased for the required period. For more information see Angelopoulou, in: Becker et.al (eds.), Security: A General Principle of Social Security Law in Europe 2009, p. 175.

36 L. 1976/1991.

37 StE 718/2006, paragraph 8, Databank NOMOS.

38 Angelopoulou, EDKA 2011, p. 914.

39 Petroglou, EDKA 2011, p. 676. specifically provided in the Constitution; namely in penal law40 and in tax law41. However, the Constitution sets limits to the margin of appreciation of the legislator to adopt retrospective- making law. Namely, retrospective law is constitutional only when it does not violate the principles of the rule of law and of the legal certainty both of which derive from the Constitution.42

The Council of State has held that non-genuine retrospection in social security law is not prohibited.43 The Council of State has consistently held that the Greek legislator is allowed to amend the substantive prerequisites required for a pension entitlement or the formula of calculation, even if the legitimate objectives of the change are not mentioned in the explanatory report of the new pension legislation.44 This is derived from the Constitutional Articles 4,1 (right to equality), 20,1 (right to judicial protection) and 26 (separation of powers). The constitutional right to equality is not affected even though the insured are treated differently, as long as the legislator ensures the insured a minimum protection of social security.45 Moreover, the time of applying for an old-age pension benefit or the time of accomplishing the substantive prerequisites for a pension entitlement is an objective justification for such a different treatment between those that are insured under the old and those that are insured under the reformed pension legislation.46

The Greek literature does not accept retrospective action of law, because it regulates specific cases and relationships and thus it does not have an abstract general character that is required to guarantee the right to equality.47 Katrougalos supports the contention that the national legislator is not allowed to affect, unjustified and without any limitation, legitimate expectations, for the legislator must respect the principal of the reliance of the citizens towards the state and the legislator that derives from the Greek Constitution and in particular from the principal of the rule of law and from Article 2,1 Gr.Const. (Right to respect and protect the value of human being) and Article 5,1 Gr.Const (Right to develop freely the personality and to participate in the social, economic and political life of the country).48 Angelopoulou supports the contention that legitimate expectations can be generally retrospectively amended, but they must be protected through the introduction of transitional periods so that the principle of reliance is not excessively affected arguing that the more unfavourable the new pension regulations are, the more adequate the transitional periods should be.49 Yet, according to the Council of State, the national legislator is not even obliged to introduce transitional periods for the protection of pension rights of those that have

40 Article 7,1 prohibits retrospective penal laws.

41 Article 78,2 prohibits retrospective law imposing taxes.

42 Pavlopoulos, Journal: The Constitution 1985, p. 299.

43 StE 718/2006, Databank NOMOS.

44 StE 3451/1985, Databank NOMOS; StE 1740/1993, Databank NOMOS; StE 3739/99, EDKA 2000,; StE 1867/01, Databank NOMOS.

45 StE 208/2006; 3510/2005; 1077/2003, Source: Databank NOMOS.

46 Representatively: StE 58/1999, EDKA 1999, 615 et. seq.; 665/2000, Databank NOMOS; 3177/2004, Databank NOMOS; 718/2006, Databank NOMOS; 1817/2009, Databank NOMOS.

47 Petroglou, EDKA 2011, p. 676.

48 Katrougalos, Journal of Human Rights 2003, p. 169. legitimate aims and that the non-introduction of transitional periods is lawful, since it does not affect the principle of “respect of reliance”.50

3.1.4...... Remarks

With regard to the Greek case-law on amendment of pension legislation and increasing of the pension age, it can be concluded that the expectation of the individuals to retire according to the old pension law is not recognised as legitimate and it is not legally protected by the Greek Constitution and/or by the Article 1 of the First Protocol of ECHR. The Courts have held, first of all, that the right to property does not constitute a legal ground, since the legitimate expectations are not well-established rights and therefore, they do not fall under the concept of property. Secondly, the Courts have held that retrospective amendment of pension regulations is allowed, for there is an overriding entitlement of the legislator to adjust the existing pension legislation to the new economic and social circumstances, while the introduction of transitional periods is not even obligatory.

This approach of the Greek jurisprudence provides no space for legal protection of individuals that have legitimate expectations to receive in the next few years an old-age pension benefit at the age foreseen according to the previous favourable law. No rights have been restricted and thus the Greek Courts did not even need to examine, whether such a restriction was pursuing a legitimate aim or whether it was proportional to the aim pursued. However, the question still remains; does this mean that an individual is completely unprotected in the case of increasing the retirement age? The Greek literature has argued consistently, that an individual cannot be completely without a remedy and the introduction of adequate transitional arrangements, at the very least, are necessary to allow an individual to prepare for the future.

3.2. The Irish Law on Legitimate Expectation

As the pension provisions will be implemented progressively over the next 16 years, the question arises as to whether someone who was expecting to retire at 65 in 2014 is entitled to argue that they had a legitimate expectation that the law would remain the same and that they are therefore entitled to receive a pension or at least be considered to receive a pension at age 65 (this argument applies equally though less forcibly in relation to the other pension age adjustments). An alternative argument could be that the individual had a legitimate expectation relating to the manner in which the change was implemented i.e. that a sufficient transition period would have been put in place so as to allow prospective pensioners the opportunity to amend their circumstances in time.

An important distinction is made in this regard between a legitimate expectation which is considered to be a procedural one (the right to have fair procedures followed in a particular case) and a legitimate expectation which is considered to be a substantive one (the right to claim a substantive benefit). There is a great deal of divergence as to whether a legitimate expectation which is substantive in nature can be claimed under Irish law. Previous cases have held that the distinction is irrelevant51 while other cases have held that only legitimate

49 Angelopoulou, EDKA 2010, 911.

50 StE 707/06, Databank NOMOS.

51 See Glencar Exploration p.l.c. v. Mayo County Council (No. 2) [2002] 1 I.R. 84 at p. 131 (per Keane C.J.); Abrahamson v. The Law Society of Ireland [1996] 1 I.R. 403 (per McCracken J) and Duggan v. An Taoiseach [1989] I.L.R.M. 710 (per Hamilton P). expectations based on procedural expectations can be actionable.52 A more expansive approach has emerged in more recent case law.53 In the case of Curran v. Minister for Education and Science54 (hereinafter referred to as “Curran”), the applicants claimed that they held a legitimate expectation to submit an application under the early retirement scheme for the year 2008/2009. The applicants, initially, characterised the claim as procedural (a right to have their claim considered in a fair manner) rather than substantive one (a right to obtain the benefit of the scheme). The respondents counter-argued that the nature of the applicants claim was not procedural but substantive in nature and therefore, as Irish law did not recognise such a claim, it could not constitute a ground of legitimate expectation. Dunne J. held that the benefit which the applicants claimed was in fact a substantive rather than a procedural one but she also adopted a more expansive view of the doctrine of legitimate expectation to the effect that the both procedural and substantive benefits can be the substance of a legitimate expectation claim.55 Therefore, the current Irish law would not appear to make any distinction between procedural and substantial claims for legitimate expectation.

Whether these claims will be possible, however, will depend upon whether the claimant meets the test for legitimate expectation as set out under Irish law. This section of the paper will examine the test for legitimate expectation under Irish law and will analyse whether a person making a claim in relation to the alterations in pension age or the manner in which it was imposed would have a successful claim under the current legal rules relating to legitimate expectation in Ireland.

Legitimate expectation56 as a stand-alone legal claim in Ireland is a “relatively newly established cause of action”57 and had previously been linked to the doctrine of estopple58. It was first asserted as a stand-alone legal claim in the Supreme Court case of Webb v. Ireland59 (hereinafter referred to as “Webb”) and has been since separated from the closely related

52 See Tara Prospecting Ltd. v. Minister for Energy [1993] I.L.R.M. 771 at p. 788 (per Costello J).

53See for example the cases of Glencar Exploration p.l.c. v. Mayo County Council (No. 2) [2002] 1 I.R. 84, Dunleavy v. Dun Laoghaire County Council [2005] IEHC 381, Power v. Minister for Social and Family Affairs [2007] 1 I.R. 543; Lett & Company Ltd. v. Wexford Borough Corporation [2007] IEHC 195.

54 Curran v. Minister for Education and Science (2009) 4 I.R. 300.

55 Curran v. Minister for Education and Science (2009) 4 I.R. 300 at p. 316 (per Dunne J).

56 For more information on the doctrine of legitimate expectation in Ireland see G Hogan and D Morgan, Administrative Law in Ireland (Dublin: Roundhall, 4th ed. 2010); H Delaney, “Recent Developments Relating to the Doctrine of Legitimate Expectation” (1993) 11 Irish Law Times 192; J Brady, “Aspiring Students, Retiring Professors and the Doctrine of Legitimate Expectation” (1996) 31(1) Irish Jurist 133; H Delaney, “The Future of the Doctrine of Legitimate Expectation in Irish Administrative Law” (1997) 32(1) Irish Jurist 217; J McDermott and N Buckley, “Managing Expectations” (2007) 42(1) Irish Jurist 29; C O’Connor, “Legitimate Expectation” (1988) 6 Irish Law Times 147.

57 Keogh v. Criminal Assets Bureau (2004) 2 I.R. at p. 174 (per Keane CJ). See the denial of the existence of such a principle in the case of Goldrick v. Dublin Corporation (1987) 6 JISLL 156.

58 See the comments in Webb v. Ireland (1988) IR 353 at p. 384 (per Finlay J) and the comments in Garda Representative Association v. Ireland (1989) IR 193 (per Murphy J).

59 Webb v. Ireland (1988) I.R. 353. There was also an unsuccessful reference to legitimate expectation in the earlier case of Smith v. Ireland and Others (1983) ILRM 300. doctrine of estopple.60 In general, the courts have held that a claimant has to meet three positive criteria before a claim for legitimate expectation can be considered. There are also a number of limitations on the doctrine of legitimate expectation which may frustrate the operation of the doctrine in certain cases.

The three positive criteria that must exist in order to establish legitimate expectation are: a) The Representation Test: “the public authority must have made a statement or adopted a position amounting to a promise or representation, express or implied, as to how it will act in respect of an identifiable area of its activity”61 b) The Identifiable Individual or Group Reliance Test: “the representation must be addressed or conveyed, either directly or indirectly, to an identifiable person or group of persons, affected actually or potentially, in such a way that it forms part of a transaction definitively entered into or a relationship between that person and group and the public authority or that the person or group has acted on the faith of the representation”62 c) The No-Resiling Test: “it must be such as to create an expectation reasonably entertained by the person or group that the public authority will abide by the representation to the extent that it would be unjust to permit the public authority to resile from it”63 However, there are exceptions to this later aspect of the test. Three examples of such exceptions include the legitimacy of the expectation64, the potential for fettering the discretion of a public body and overriding considerations in the public interest.65

Therefore, in order for an individual to make a claim that they had a legitimate expectation that they would receive (or at least apply to receive) a pension at the age of 65 in 2014, the person must show that some representation has been made, that this representation was made to a certain individual or group of individuals and that it would be unfair for the State to resile from this representation in the circumstances. In considering the latter aspect of this test, the individual would also have to show that the representation was legitimate, that the discretion of the legislature to change pension policy is not being fettered by this expectation and that there are no overriding considerations in the public interest which would frustrate the legitimate expectation of the individual in such a case.

3.2.1. The Representation Test

The individual claimant must show that some form of promise or representation was made to them. The most important question here is what constitutes a representation for the purposes of the test. There have been a number of cases in the Irish context, which while not dealing exactly with this question, give some guidance as to what constitutes a representation in these

60 See for example the case of Fakih v. Minister for Justice [1993] 2 I.R. 406 at p. 423 (per O’Hanlon J.).

61 Glencar Exploration PLC v. Mayo County Council (2002) 1 IR 84 at p. 162 (per Fennelly J).

62 Glencar Exploration PLC v. Mayo County Council (2002) 1 IR 84 at p. 162 (per Fennelly J).

63 Glencar Exploration PLC v. Mayo County Council (2002) 1 IR 84 at pp. 162-163 (per Fennelly J).

64 Lett & Company Ltd. v. Wexford Borough Council (2007) IEHC 195 at paragraph 4.7 (per Clark J).

65 Curran v. Minister for Education and Science (2009) 4 IR 300 at p. 317-318 (per Dunne J). cases. Clearly an express statement in writing will amount to a representation.66 However, “the facts seldom present themselves in such a convenient form”67 and many cases involve more complicated forms of representation. So a verbal assurance was sufficient in the case of Webb,68 and a statement made by a Minister during parliamentary debates was found sufficient to constitute a representation in the case of Garda Representative Association v. Ireland, the Attorney General and the Minister for Justice69 (hereinafter referred to as “Garda Representative Association”), and in the case of Galvin v. Chief Appeals Officer70 (hereinafter referred to as “Galvin”), Costello P. in the High Court held that a representation existed in a case where the claimant had been informed verbally and by letter that he did not need to purchase additional contributions in order to qualify for a pension.71 However, in the case of Kavanagh v. Government of Ireland 72(hereinafter referred to as “Kavanagh”), the representation relied upon was a statement made by the Attorney General to a UN Committee. In this case, the court held that as the law in Ireland was clearly set out in statute, no representation or utterance could alter the effect of the law as enacted.

In the case of Curran v. Minister for Education and Science73 (hereinafter referred to as “Curran”), Dunne J. considered the situation of 18 post-primary school teachers who wished to apply for early retirement, pursuant to a particular scheme of the Department of Education and Skills. The Department of Education and Skills in Circular 0102/2007 informed qualifying teachers that the scheme would be operating in the year of application of the claimants (2008/2009) but the scheme was then withdrawn due to the difficulties with the public finances. The claimants argued that this Circular amounted to an express representation which the claimants had relied on.74 Dunne J. held that this did amount to a representation or promise so as to satisfy the first limb of the test.75 Similarly in the most recent case on legitimate expectation in Ireland, McCarthy v. Minister for Education and Skills76 (hereinafter referred to as “McCarthy”), the applicants alleged that the alteration of the criteria for the grant of the student support grants payable under the Student Support Act 2011 amounted to a breach of legitimate expectation. In this case the applicants were not alleging that any particular representation had been made that the criteria for the grant of the payment would not be altered. However, despite this fact, Hedigan J. continued to consider whether a

66 See Egan v. Minister for Defence High Court November 24 (1988); Duggan v. An Taoiseach (1989) ILRM 710; Gheim v. Minister for Justice The Irish Times September 2 (1989).

67 Hogan and Morgan, Administrative Law in Ireland (Dublin: Sweet and Maxwell, 1991) at p. 679.

68 Webb at p. 385 (per Finlay CJ).

69 Garda Representative Association v. Ireland, the Attorney General and the Minister for Justice (1989) 1 IR 193.

70 Galvin v. Chief Appeals Officer (1997) 3 I.R. 240.

71 Galvin v. Chief Appeals Officer (1997) 3 I.R. 240 at p. 254 (per Costello P.).

72Kavanagh v. Government of Ireland (1996)1 IR 321.

73 Curran v. Minister for Education and Science (2009) 4 I.R. 300.

75 Curran v. Minister for Education and Science (2009) 4 I.R. 300 at p. 311 (per Dunne J.).

76 McCarthy v. Minister for Education and Skills (2012) IEHC 200. legitimate expectation could be found in this case. While not expressly stated, it would appear that Hedigan J. considered that the rules, as stated in the grant scheme, were sufficient to constitute a representation in this context.

Application of the Representation Test In the case of an individual who wishes to challenge the change in pension age, it could be argued that the law as stated in section 114 of the Social Welfare Consolidation Act 2005 to the effect that “a person who has attained the age of 65 years shall be entitled to retirement pension for any period of retirement where he or she satisfies the contribution conditions in section 115”77 amounts to a specific representation that a pension is available at 65 once certain conditions are met. Therefore, similar to the applicants in the case of McCarthy, it may be that the statement in the law is a clear representation which could be relied on by certain individuals or groups of individuals.

3.2.2. The Identifiable Individual or Group Reliance Test

Secondly, it must be shown that the representation is made to an identifiable individual or group of individuals who rely on the representation. There are therefore two separate aspects to this limb of the test. Firstly, it must be shown that the representation is made to an identifiable person or group of persons and secondly, it must be shown that the individual or group of individuals relied in some way on this representation.

In relation to the first aspect of the test and the establishment of an identifiable person or group of persons, some useful examples of what constitutes an identifiable person or group of persons can be gleaned from the case of Curran in which the claimants (post-primary school teachers) argued that they constituted a limited class of persons to whom an express representation had been made. The respondents, however, argued that the representation was made to all teachers, who are some 60,000 in number, and could not be said to have been made to an identifiable group as this number was much too large.78 Dunne J. agreed that the Circular had been sent to all permanent teachers which was a very large group but given that the Supreme Court in Keogh v. Criminal Assets Bureau79 (hereinafter referred to as “Keogh”) held that a statement made by the Revenue Commissioners in the Taxpayers' Charter of Rights gave rise to a binding statement that an individual taxpayer could rely on, despite the fact that it was made to all taxpayers (a very large group of individuals), she could not accept that the size of the group was too large to be an identifiable one. In a similar vein, the identifiable group in Glenkerrin Homes v. Dun Laoghaire Rathdown County Council80 (hereinafter referred to as “Glenkerrin”) was also very large as it consisted of all purchasers of property and yet the court had no difficulty in finding the group an identifiable one. Dunne J. held in the case of Curran that the size of the group alone could not operate so as to frustrate the application of the doctrine of legitimate expectation. The key consideration is whether the group is identifiable and on the facts of the Curran case this was satisfied.

The second aspect of this test is whether the identifiable group or individual relied on the representation made. This has become an established aspect of the case law with many cases

77 Section 114, Social Welfare and Consolidation Act 2005 (as amended).

79 Keogh v. Criminal Assets Bureau [2004] 2 I.R. 159.

80 Glenkerrin Homes v. Dun Laoghaire Rathdown County Council [2007] IEHC 298. failing to make out a case of legitimate expectation on the grounds that they did not rely on the representation made to them.81 However, this reliance does not have to be detrimental. In the case of Daly v. Minister for the Marine82 (hereinafter referred to as “Daly”) it was held that “an expectation may be legitimate and cognisable by the courts even in the absence of the sort of action to the claimant's detriment”83. However, there must be “some context relevant to fairness in the exercise of legal or administrative powers. Those who come within the ambit of an administrative or regulatory regime may be able to establish that it would be unfair, discriminatory or unjust to permit the body exercising a power to change a policy or a set of existing rules, or depart from an undertaking or promise without taking account of the legitimate expectations created by them. However, the very notion of fairness has within it an idea that there is an existing relationship which it would be unfair to alter”84. The impact of this statement is perhaps best illustrated by the decision of Dunne J. in the case of Curran where she held that the teachers had relied on the Circular issued by the Department of Education and that even though the Department were not aware of the claims of all of these teachers, the Department was aware that such teachers could avail of the scheme if they satisfied certain criteria. The fact that those individual teachers' thoughts were not known to the Department could not be a material factor in determining reliance.

Application of the Identifiable Individual or Group Reliance Test

In applying this law to the situation of a person expecting to retire at 65 in 2014, two specific aspects must be addressed. Firstly, is there an identifiable individual or group and secondly, did this individual or group rely on the representation made? In relation to the first aspect of this test, the particular group concerned is the group of persons seeking to retire and apply for a pension at the age of 65 in 2014. This is indeed potentially a very large group of persons but as Dunne J. noted in the case of Curran, this will not defeat the doctrine of legitimate expectation as long as this group of individuals is identifiable. This group is clearly identifiable as they were all born in 1949 and satisfy the conditions to apply for a pension. In relation to the second aspect of the test, it could be argued that persons born in 1949 relied on the law as stated and the criteria set out in that law in organising their working lives and savings accordingly and this need not necessarily have led to detriment. Therefore, it is likely that this aspect of the test would also be fulfilled.

3.2.3. The No-Resiling Test

Thirdly, it must be proved that the representation is such that it would be wrong for the public authority to resile from the representation. This will involve a consideration of whether there is any legitimate reason that a public body may have from resiling from the representation made. Certain circumstances where the court has held that a public body is entitled to resile from a representation made will now be discussed. i. The expectation must be legitimate

81 Garda Representative Association v. Ireland (1989) IR 193, Devitt v. Minister for Education (1989) ILRM 639; Cosgrave v. Legal Aid Board High Court October 14 (1990).

82 Daly v. Minister for the Marine (2001) 3 IR 513.

83 Daly v. Minister for the Marine (2001) 3 IR 513 at p. 528 (per Fennelly J).

84 Daly v. Minister for the Marine (2001) 3 IR 513 at p. 528 (per Fennelly J). It has been held that only “legitimate” expectations can form the basis of a claim for legitimate expectation and that a public body is entitled to resile from any representation made if the expectation claimed is not legitimate. What must therefore be determined in each individual case is whether the claim is legitimate. What constitutes legitimacy has been determined by the courts in Ireland in a number of cases. Most interesting is the case of Wiley v. Revenue Commissioners85 (hereinafter referred to as “Wiley”) where the applicant argued that as he had successfully gained a refund under a particular scheme under the Finance Act 1968 on two occasions (for which he had not been technically eligible), he had a legitimate expectation that he would be successful again. Blaney J. held that in a case where a refund was granted to eligible persons, such persons could reasonably expect that refund to continue. If that scheme were subsequently altered or ceased entirely without notice, so that persons formerly eligible lost their eligibility, this would amount to a breach of legitimate expectations.86 However, this was not the case here as the applicant had never been entitled under the scheme in the first instance.87 There seems to be evidence in the case law that the courts will not allow individuals or groups to make claims for which they are not entitled.

Application of the legitimacy test

This particular aspect of the test will produce some problems for individuals or a group of individuals seeking to argue that they are entitled to a pension at the age of 65 in 2014. There are two ways the court could interpret this in the context of a legislative representation. Firstly, the court could determine that as the law has changed, a person turning 65 in 2014 is not eligible for a pension under the current law as they do not meet the essential criteria for receiving a pension (i.e. that they are 66 years) and as such their claim for legitimate expectation is not legitimate. This would appear to be in line with the interpretation of the courts in social welfare cases. An alternative view might be that as the group of individual had always been eligible to retire at 6588 (according to the old law), the claim is therefore legitimate and that this change of law without notice would amount to a breach of legitimate expectations. If this interpretation of the law was chosen, then the major issue for consideration is whether the change in policy was made without notice (as required by Blaney J in the case of Wiley). The case would then turn on the notice that is required to change a law that is affecting financially a group or specific individual. There is an argument that no notice would be required in such circumstances. The legislature is constantly changing tax and social welfare laws. However, normally the legislature does provide some notice that changes are going to occur so as to give individuals or groups of individuals sufficient time to alter their financial circumstances. Whether they are required by law to do this, and whether a judge would be willing to determine that they are so required, is doubtful. Therefore, it appears that this stage of the test might prove fatal to any claim for legitimate expectation in these circumstances.

85 Wiley v. Revenue Commissioners (1989) IR 350.

86 Wiley v. Revenue Commissioners (1989) IR 350 at p. 358 (per Blaney J.). See the case of Cannon v. Minister for Marine (1991) ILRM 261.

87 See also the case of Atlantic Marine Supplies Limited and Sean Rogers v. Minister for Transport, Ireland and the Attorney General (2011) 2 ILRM 12 where the court held (at para 7.18) that there was no evidence that this was a case of someone getting something to which they were not entitled.

88 Provided that they meet all the other conditions for entitlement to a pension too. ii. Fettering the Discretion of a Public Body Test

Another hurdle for individuals or groups of individuals in such a case is the argument that a claim for legitimate expectation in such circumstances would fetter the discretion of the legislature to such an extent that a legitimate expectation claim cannot be allowed. It has been held that the doctrine cannot operate so as to limit the scope of a statutory power or to prevent the enactment of legislation.89 A recent interesting example of this is the case of Glenkerrin Homes v. Dun Laoighaire Rathdown County Council90 (hereinafter referred to as “Glenkerrin”) in which Clark J. held that the executive enjoys a constitutional entitlement to change policy91 and bodies exercising statutory roles have an entitlement to alter policy, subject to the requirement that such an alteration is consistent with their statutory role as defined.92 He held that it is clear that “a legitimate expectation cannot arise to the effect that a policy will not be changed”93. The case of Hempenstall v. Minister for the Environment94 (hereinafter referred to as “Hempenstall”) is illustrative of this approach. In that case, the Minister for the Environment brought in a new policy in respect of taxi licences which would have the effect of reducing the value of existing licences significantly. The court held that there could be no claim for legitimate expectation in such as case as there was an overriding entitlement on behalf of the Minister to alter existing policy.

However, this does not mean that an individual or group of individuals is completely without a remedy in the case of an alteration of policy or legislation. In the case of Glenkerrin, Clark J. held that while the existence of a longstanding practice does not give rise to any expectation that the practice will not change, where third parties reasonably “arrange their affairs by reference to such a practice it seems to me that such third parties are entitled to rely upon an expectation that the practice will not be changed without reasonable notice being given”95. The level of notice that would be required in such circumstances would be that which would “reasonably allow those who have conducted their affairs in accordance with the practice to consider and implement an alternative means for dealing with the issues arising”96. A similar argument also arose in the case of Curran where the applicant teachers argued that while there was a right to abolish or vary a scheme, the manner in which the scheme had been withdrawn was unfair. A decision had been taken summarily to withdraw the scheme, in the absence of any provision for transitional arrangements or notice to enable the applicants to reorganise their affairs. However, in the case of Curran, Dunne J could not see any reason why a reasonable notice period should have been introduced. She held that there “may be cases where the nature of a change of policy is such that it would be appropriate to have a

89 See for example the cases of Devitt v. Minister for Education (1989) ILRM 639 and Pesca Valentia Ltd. v. Minister for Fisheries High Court June 6, (1989).

90 Glenkerrin Homes v. Dun Laoghaire Rathdown County Council (2011) 1 IR 417.

91 Glenkerrin Homes v. Dun Laoghaire Rathdown County Council (2011) 1 IR 417 at p. 428 (per Clark J).

92. Glenkerrin Homes v. Dun Laoghaire Rathdown County Council (2011) 1 IR 417 at p. 428 (per Clark J).

94 Hempenstall v. Minister for the Environment [1994] 2 I.R. 20.

96 Glenkerrin Homes v. Dun Laoghaire Rathdown County Council (2011) 1 IR 417 at p. 428 (per Clark J). reasonable period of notice or transitional arrangements in place for those affected by a change of policy”97 but that this was not one of them.

Application of the discretion fettering test

Again the application of this test would appear to present a number of obstacles to the case of the individuals or group of individuals making a claim in relation to their pension entitlement at the age of 65. The first of these obstacles is the many decisions which protect the right of the legislature to enact legislation and presumably to alter such legislation. If this right is absolute, then a claim for legitimate expectation based on a change of legislation will be unsuccessful. However, there is a line of case law which would appear to insist (similarly to the case of the first test above) that some notice or transitional period may be required in certain cases, which might form a basis for a claim of legitimate expectation. So the claim might not be that there is a legitimate expectation that the law would not change, but would be that there was a legitimate expectation that the law would not change without sufficient notice or a sufficient transitional period in place.

A reasonable period of notice or transitional period would be that which would give individuals enough time to consider and implement an alternative means of arranging their finances and contributions to allow them to retire at 66 as opposed to 65. The Irish Government made the alteration to the pension age on the 29th June 2011 to come into force on the 1st January 2014. This gives individuals approximately two and a half years to alter their current positions and prepare for a longer period at work or for retirement at 65 without a pension. It is arguable that this is insufficient time for those intending to retire at the age of 65 or who are mandatorily required to retire at the age of 65 years as this gives them little time to source alternative work and to gather enough finance to support them in this gap year. This is a particular problem for public sector workers who joined the public sector prior to 2004. Those who joined prior to this date must retire at the age of 65. If they are expected to retire at 65 and yet receive no pension until the age of 66, this means that they must either find alternative work (which is particularly difficult at this age due to age discrimination), take unemployment benefit or have sufficient financial resources in place to support them during this period. For these individuals, the case for a longer notice period or transitional period is certainly stronger than those who can continue in work until the age of 66 years and therefore will not suffer as detrimental a change in their finances as those who have to retire at 65. iii. Public Interest Considerations Test

Even if the individual or group of individuals can overcome the significant hurdles presented above, the Irish courts have consistently held that certain public interests can override a legitimate expectation. The recent financial crisis has brought this limitation on legitimate expectation to the fore. It was held in the case of Curran that the authorities in Ireland and in the United Kingdom were clear that the existence of an overriding public interest will always override a legitimate expectation.98 Dunne J referred to the “bleak sketch of the state of the public finances at the time the decision was taken” and the fact that the “very budget in which the announcement to suspend this scheme was announced was brought forward in response to the worsening economic circumstances”99. She was satisfied that declining economic circumstances were such that the overriding public interest in taking the decision to suspend

97 Curran v. Minister for Education and Science (2009) 4 I.R. 300 at p. 316 (per Dunne J). the scheme must outweigh any legitimate expectation the applicants had to pursue their applications under the scheme.100 This was followed in the case of McCarthy where it was held that even an expectation legitimately held may be qualified by considerations of the public interest. With reference to the “perilous state of the public finances” and the “unprecedented economic emergency” it was held that given the obvious requirement for reduction in public expenditure there was a clear public policy basis for the respondent's actions.101

Application of the public interest test

In this case, it is clear that the public interest in protecting and supporting the public finances in a time of crisis might outweigh any legitimate expectation that might be claimed by individuals. The most likely decision of a court would be that the financial crisis necessitated these measures and that, therefore, there could be no claim to a pension at the age of 65 years. Whether this would also extend to the provision of sufficient transition or notice periods is unclear, but in Curran and in McCarthy, the court found that the public interest overrode this consideration also. Therefore, the current state of the public finances would appear to be an insurmountable hurdle for individuals or groups of individuals claiming legitimate expectation in Ireland.

4. Conclusions

This paper has addressed the very topical question of the adjustment to pension ages in two countries which have received EU and IMF financial support as a result of the European financial crisis: Greece and Ireland. Pension ages have undergone significant reform in both Greece and Ireland, conditional upon the EU and IMF bailouts, and this has had a significant impact on the social rights of prospective pensioners in both jurisdictions. While the changes in Greece have been more complex, the alterations to the Irish pension age are no less significant. The paper highlights a potential legal claim, which may be available to such prospective pensioners: the doctrine of legitimate expectation. It analyses the current state of the law in Greece and Ireland in relation to legitimate expectation and the potential obstacles facing prospective pensioners in both jurisdictions. It concludes that while there is some measure of a claim available, this is a restricted one and one that will face similar obstacles in both jurisdictions.

Firstly, while in both jurisdictions the concept of an expectation will probably be accepted as arising in certain cases whether that expectation can be legally enforced is doubtful. In both Greece and Ireland there are substantial restrictions on the operation of the doctrine of legitimate expectation that impedes its usability in this context. A common restriction in both jurisdictions is the finding that such a claim would not be considered to be a legitimate one. In

98 Curran v. Minister for Education and Science (2009) 4 I.R. 300 at p. 317 (per Dunne J).Dunne J. referred to the cases of Glencar Exploration p.l.c. v. Mayo County Council (No. 2) [2002] 1 I.R. 84; Power v. Minister for Social and Family Affairs [2006] IEHC 170; R. (Nadarajah) v. Secretary of State for the Home Department [2005] All E.R. 283 and R. v. North and East Devon Health Authority, ex parte Coughlan [2001] Q.B. 213 in support of this contention.

101 McCarthy v. Minister for Education and Skills (2012) IEHC 200at paragraph 6.6 (per Hedigan J.). the Irish context, this would arise as a result of the operation of the law which once promulgated is applicable to the individual and if the individual does not meet the requirements of the law, then the claim is not a legitimate one. In Greece, similar reasoning can be identified in the jurisprudence of the courts. Equally, the restriction in Ireland that a claim for legitimate expectation will not be allowed where it would fetter the discretion of the Executive is also evident in Greece where it has been held in the Greek jurisprudence that the legislator should be able to amend the existing legal order. While not explicitly stated in the Greek jurisprudence, the reliance of the Irish courts on the public interest to restrict certain claims for legitimate expectation can also be implied from the jurisprudence in Greece. The ability of the Executive and Legislature to reform the prerequisites to a pension entitlement and/or the benefit formula and adapt them in line with the on-going changing economic and social circumstances has been held to be essential, particularly, during an economic crisis.

One issue that is unresolved in both jurisdictions, however, is the issue of reasonable notice and the imposition of adequate transitional periods. In Greece, the jurisprudence is clear that such periods are not necessary. However, the Greek academic community has in their literature made interesting arguments in support of lengthier transitional periods in such cases. A similar approach can be identified in Ireland where the courts have noted that there may be circumstances where such reasonable notice or transitional periods might be required to ensure the rights of individuals. In neither Ireland nor Greece, is there any resolution on whether the alteration of pension age has such an effect on individual rights so as to necessitate the imposition of transitional periods or what the length of such transitional periods should be. It is arguable that the protection of legal certainty, so that prospective pensioners are able to rely on the constancy of a legal provision and plan with confidence their economic and social life, requires a reasonable balance to be maintained between the need to reform the public pension system and the need to protect the legitimate expectations of prospective pensioners. One method of achieving this would be the introduction and implementation of adequate transitional periods in all cases.

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