CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 octobre 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                          Application No. 21663/93                        by Catharine Maria Petronella FETERIS-GEERARDS                        against the Netherlands         The European Commission of Human Rights (Second Chamber) sitting in private on 13 October 1993, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                    Mr.   K. ROGGE, Secretary to the Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 1 March 1993 by Catharine Maria Petronella FETERIS-GEERARDS against the Netherlands and registered on 15 April 1993 under file No. 21663/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows: THE FACTS         The applicant is a Dutch national, born in 1957 and residing at Leiden, the Netherlands. Before the Commission she is represented by her husband, Mr. M.W.C. Feteris, a tax lawyer practising in Leiden.         The facts of the case, as submitted by the applicant, may be summarised as follows.         On 1 June 1988 the applicant and her husband bought a house together, each of them acquiring 50% of the ownership. The applicant and her husband are married with a marriage settlement (huwelijksvoorwaarden) and have no marital community of property. The applicant and her husband contracted each 50% of the necessary mortgage loan and related costs. The costs related to the transaction were paid from their joint bank account. According to their marriage settlement each of the spouses is eligible to pay 50% of these costs. Under the Income Tax Act (Wet op de Inkomstenbelasting) these costs, after balancing them with a legally fixed amount relating to presumed income from the use of the house (huurwaardeforfait), are deductible from the taxable income. The total deductible costs were 18.524 Dutch guilders for the couple.         Pursuant to Section 5 of the Income Tax Act the total deductible amount of 18.524 guilders had been deducted from the taxable income of the spouse with the highest income, which in this case is the applicant's husband. This was advantageous for the couple as a whole, since the applicant's husband's higher income is taxed at a higher rate. The advantage for the applicant's husband thus obtained was higher than the advantage the applicant would have obtained if 50% of the deductible amount had been deducted from her own taxable income. The advantage thus obtained for the couple as a whole was 2.782 Dutch guilders. The applicant's marriage settlement does not, however, contain any obligation that such tax advantages should be divided between the spouses.         On 31 August 1989 the Inspector of Direct Taxes (Inspecteur der Directe Belastingen) issued an assessment of the social security contributions (aanslag premieheffing volksverzekeringen) the applicant had to pay on the basis of her taxable income in 1988, as social security contributions are calculated on the basis of taxable income. The Inspector did not deduct the applicant's part of the costs related to the purchase of the house from her taxable income in 1988.         In respect of the calculation of the contributions under the general social security schemes (volksverzekeringen), i.e. the General Old Age Pension Act (Algemene Ouderdomswet - hereinafter referred to as "AOW") and the General Widow's and Orphan's Pension Act (Algemene Weduwen- en Wezenwet - hereinafter referred to as "AWW"), there was no advantage of the transfer of the applicant's part of the tax deductible costs to her husband since he already pays the maximum AOW/AWW contribution as his income is higher than the maximum income to be taken into account for the calculation of the AOW/AWW contributions. If the applicant's part of the tax deductible costs had been deducted from her taxable income, she would have obtained a reduction of 1.185 Dutch guilders in respect of the AOW/AWW contributions to be paid.         By decision of 28 November 1989 the Inspector of Direct Taxes rejected the applicant's objection against the assessment of her social security contributions. Her subsequent appeal to the Court of Appeal (Gerechtshof) of The Hague was rejected on 6 May 1991.         The applicant's appeal to the Supreme Court (Hoge Raad) was rejected on 4 November 1992. Insofar as the applicant complained that the application of Section 5 of the Income Tax Act constituted discriminatory treatment contrary to Article 26 of the International Covenant on Civil and Political Rights and was contrary to Article 4 para. 1 of the Directive of the Council of the European Communities of 19 December 1978, no. 79/7/EEC concerning the gradual implementation of the principle of equal treatment between men and women in the field of social security, the Supreme Court considered that the applicant did not dispute that the application of Section 5 of the Income Tax Act leads only in few relatively exceptional cases to the result that a married woman, living with her spouse, has to pay more social security contributions than the case would have been when that Section would not have been applied, and that this is a consequence of the legislator's creation of a simple regulation by deriving the income for the calculation of social security contributions from the taxable income.         The Supreme Court upheld the Court of Appeal's reasoning that the legislator, on the assumption that cohabiting spouses fiscally form an economic unit and for the sake of simplicity and practical feasibility, could reasonably opt for an income tax system where a tax deductible amount is transferred to the spouse with the higher income. Taking into account that the legislator also wished to keep the calculation of the social security contributions simple and practical and therefore stipulated in the AOW and the AWW that the income for the calculation of the social security contributions should be derived from the taxable income in a simple manner, the Supreme Court found this to be an objectively justifiable aim. It therefore found no discrimination on the basis of sex.         Under Section 81 of the Civil Code - book 1 (Burgerlijk Wetboek - boek 1) spouses owe each other faithfulness, aid and support and are under the obligation to provide each other with "the necessary" (het nodige). According to Section 84 of the Civil Code - book 1 this includes the obligation to contribute to the costs of their common household each according to income. As to the latter obligation, spouses are at liberty to make different arrangements through a marriage settlement.     COMPLAINT         The applicant complains under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 that the distinction made between spouses in the Dutch rules on the imposition of AOW and AWW contributions constitutes a discriminatory treatment on the basis of income, civil status and indirectly on the basis of sex, since this distinction leads to an unjustified disadvantage for the spouse with the lowest personal income, who did in fact pay tax deductible costs. The applicant submits that statistics over 1988 show that in the Netherlands in more than 95% of the cases the husband is the spouse with the highest income.     THE LAW         The applicant complains under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1) that the distinction made between spouses in the Dutch rules on the imposition of AOW and AWW contributions constitutes a discriminatory treatment on the basis of income, civil status and indirectly on the basis of sex.         Article 14 (Art. 14) of the Convention reads as follows:         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any       ground such as sex, race, colour, language, religion,       political or other opinion, national or social origin,       association with a national minority, property, birth or       other status."         Article 1 of Protocol No. 1 (P1-1) provides as follows:         "Every natural or legal person is entitled to the peaceful       enjoyment of his possessions.   No one shall be deprived of       his possessions except in the public interest and subject       to the conditions provided for by law and by the general       principles of international law.         The preceding provisions shall not, however, in any way       impair the right of a State to enforce such laws as it       deems necessary to control the use of property in       accordance with the general interest or to secure the       payment of taxes or other contributions or penalties."         The Commission recalls that Article 14 (Art. 14) of the Convention has no independent existence, but supplements the other provisions of the Convention and the Protocols. Article 14 (Art. 14) safeguards individuals, placed in similar situations, from discrimination in the enjoyment of the rights and freedoms set forth in those other provisions. A measure which as such could be in conformity with the normative provision may therefore nevertheless violate that provision taken together with Article 14 (Art. 14) of the Convention if it is applied in a discriminatory manner. A distinction is discriminatory if it "has no objective and reasonable justification", that is, if it does not pursue a "legitimate aim" or if there is not a "reasonable relationship of proportionality between the means employed and the aim sought to be realised" (cf. No. 10491/83, Dec. 3.12.86, D.R. 51 p. 41 at p. 50).         The Commission considers that the payment of social security contributions can be regarded as the payment of a contribution within the meaning of the second paragraph of Article 1 of Protocol No. 1 (P1-1) and an obligation to pay such contributions falls within the scope of this provision. Article 14 (Art. 14) of the Convention therefore applies.         The Commission notes that the calculation of the above contributions is based on taxable income. It finds no indication of discrimination as regards the application of this principle in the applicant's case.         The Commission further notes that prior to the calculation of the social security contributions, when the applicant's taxable income was determined, the spouses' total tax deductible amount of 18.524 guilders was deducted from the taxable income of the applicant's husband pursuant to Section 5 of the Income Tax Act. This was advantageous for their household as a whole, since the financial advantage thus obtained was higher than the advantage the applicant and her husband would have obtained individually if the applicant's part of the tax deductible costs had not been transferred to her husband and 50% of the deductible amount had been deducted from their individual taxable incomes.             As the duty to pay tax falls within the scope of Article 1 of Protocol No. 1 (P1-1), Article 14 (Art. 14) of the Convention also applies in this respect (Eur. Court H.R., Darby judgment of 23 October 1990, Series A no. 187, p. 12, para. 30).         The Commission considers that in the determination of the taxable income of the applicant and her husband there is a difference in treatment between spouses based on difference of income. The question therefore arises whether or not this difference in treatment has an objective and reasonable justification.         The Commission notes that the Dutch rules in respect of the transfer of tax deductible amounts between spouses apply to men and women alike. It further observes that the applicant is married and that her marriage settlement does not contain any obligation that fiscal advantages should be divided between the spouses.         Having regard to all the rights and obligations which characterise marriage, such as reflected by, inter alia, Section 81 of the Dutch Civil Code, noting that Article 8 (Art. 8) of the Convention protects family life, and given the Contracting States' wide margin of appreciation in the field of taxation as to the aims to be pursued and the means by which they are pursued, the Commission accepts that a married couple may in some respects be treated as an economic unit, also taking into account the desirability to keep rules concerning the determination of taxable income simple and practical. It notes that the application of Section 5 of the Income Tax Act entails a higher financial advantage for the couple as a whole as regards income tax and that spouses are free to choose their mutual financial arrangements by way of a marriage settlement. In these circumstances the Commission is satisfied that there was an objective and reasonable justification for the transfer of tax deductible amounts to the spouse with the higher income.         The Commission therefore cannot find that the transfer of the applicant's part of the tax deductible amount to her husband constituted a discriminatory treatment contrary to Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1).         It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Second Chamber        President of the Second Chamber           (K. ROGGE)                            (S. TRECHSEL)