CEDH · CASELAW;REPORTS;ENG — 17 octobre 1995

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 20060/92                                  A.G.V.R.                                   against                               the Netherlands                          REPORT OF THE COMMISSION                        (adopted on 17 October 1995)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1 - 16) . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5 - 11). . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 12 - 16) . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 17 - 26). . . . . . . . . . . . . . . . . . . . . . . 4         A.    The particular circumstances of the case            (paras. 17 - 22) . . . . . . . . . . . . . . . . . . . . 4         B.    Relevant domestic law            (paras. 23 - 26) . . . . . . . . . . . . . . . . . . . . 5   III.   OPINION OF THE COMMISSION       (paras. 27 - 48). . . . . . . . . . . . . . . . . . . . . . . 7         A.    Complaint declared admissible            (para. 27) . . . . . . . . . . . . . . . . . . . . . . . 7         B.    Point at issue            (para. 28) . . . . . . . . . . . . . . . . . . . . . . . 7         C.    Applicability of Article 14 of the Convention            (paras. 29 - 32) . . . . . . . . . . . . . . . . . . . . 7         D.    Compliance with Article 14 of the Convention            (paras. 33 - 47) . . . . . . . . . . . . . . . . . . . . 8              CONCLUSION            (para. 48) . . . . . . . . . . . . . . . . . . . . . . .10   DISSENTING OPINION OF MM. S. TRECHSEL, C.A. NØRGAARD, G. JÖRUNDSSON, F. MARTINEZ AND B. CONFORTI. . . . . . . . . . . .   11   APPENDIX:   DECISION OF THE COMMISSION AS TO THE            ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . .12     I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is a Dutch citizen, born in 1924, and resides in Amstelveen, the Netherlands.   He was represented before the Commission by Mr. M.W.C. Feteris, a lawyer practising in Amsterdam.   3.     The application is directed against the Netherlands.   The respondent Government were represented by their Agent, Mr. H. von Hebel, of the Netherlands Ministry of Foreign Affairs.   4.     The case concerns alleged discriminatory treatment of men in Dutch social security legislation. The applicant invokes Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.   B.     The proceedings   5.     The application was introduced on 23 April 1992 and registered on 1 June 1992.   6.     On 11 May 1994 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.     The Government's observations were submitted on 21 July 1994. The applicant replied on 18 August 1994.   8.     On 4 April 1995 the application was transferred from the Second Chamber to the Plenary Commission.   9.     On 10 April 1995 the Commission declared admissible the applicant's complaint under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.   It declared inadmissible the remainder of the application.   10.    The text of the Commission's decision on admissibility was sent to the parties on 26 April 1995 and they were invited to submit such further information or observations on the merits as they wished. Neither party availed itself of this opportunity.   11.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   12.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  C.A. NØRGAARD                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL   13.    The text of this Report was adopted on 17 October 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.    The purpose of the Report, pursuant to Article 31 of the Convention, is:         (i)   to establish the facts, and         (ii) to state an opinion as to whether the facts found disclose            a breach by the State concerned of its obligations under            the Convention.   15.    The Commission's decision on the admissibility of the application is annexed hereto.   16.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   17.    On 30 September 1987 the Inspector of Direct Taxes (Inspecteur der Directe Belastingen; hereinafter "the Inspector") issued an assessment of the contributions the applicant had to pay for the year 1985 under the general social security schemes (volksverzekeringen) including the General Child Allowance Act (Algemene Kinderbijslagwet - hereinafter "the Act").     18.    The applicant, who has never been married and has no children, filed an objection (bezwaarschrift) with the Inspector against the assessment of 30 September 1987. He argued that he would have been exempted from the obligation to pay contributions under the Act had he been a woman and that, therefore, the assessment constituted discriminatory treatment.   19.    The applicant's objection was rejected on 25 November 1987. The Inspector held that the applicant could not be exempted from the obligation to pay contributions under the Act since he was a man.   20.    In his subsequent appeal to the Court of Appeal (Gerechtshof) of Amsterdam the applicant submitted statistics pertaining to the number of legitimate births in the Netherlands in 1985 which show that only very few children are born to men over 45. He further invoked Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1. This appeal was rejected on 6 October 1989. The Court of Appeal considered that, as the difference in treatment was not based on sex as such but on a different factual situation of women and men of 45 years and older, i.e. the ability to procreate, Article 14 of the Convention had not been violated.   21.    The applicant's appeal in cassation to the Supreme Court (Hoge Raad) was rejected on 11 December 1991. Insofar as the applicant relied on Article 14 of the Convention, the Supreme Court considered that the proceedings at issue did not concern any of the rights and freedoms guaranteed by the Convention. The Supreme Court further considered that, as the difference complained of - which in any event could not be regarded as unreasonable in view of the physical differences between men and women - had been abolished as from 1 January 1989, there was no reason for the courts to declare the exemption from the obligation to pay the contribution at issue also applicable to unmarried men of 45 years and older for the year 1985.   22.    The Inspector of Direct Taxes has subsequently issued assessments of the contribution the applicant had to pay under the Act for the years 1986, 1987 and 1988. The applicant also filed objections in respect of these assessments, which, on 28 February 1992, were rejected by the Inspector of Direct Taxes on the basis of the Supreme Court's judgment of 11 December 1991. In view of this judgment the applicant decided not to file a subsequent appeal to the Court of Appeal, as this would have had no chance of success.   B.     Relevant domestic law   23.    The General Child Allowance Act was enacted in 1962. Section 25, para. 1 of the Act defines those liable to pay contributions in respect of the Act as those who are deemed liable to pay contributions under the terms of the General Old Age Pension Act (Algemene Ouderdomswet). No link exists between the obligation to pay a contribution and an entitlement to benefits under the Act.   24.    Under Section 25 para. 2 of the Act unmarried women of 45 years and older could, by Order in Council (Algemene Maatregel van Bestuur), be exempted from the obligation to pay a contribution. This exemption was included in the Act as a result of pressure exerted by Parliament where a majority objected to holding individuals who could never reasonably be expected to claim child benefits liable for contributions. This was considered to apply in the normal course of things only to unmarried women of 45 years or older, the majority of whom, it was assumed, would not have children, and who would be prevented by social and, more importantly - other than in the case of men - by physical factors from having children at some future date.   25.    In this respect the Upper House (Eerste Kamer) of Parliament considered inter alia:   <Dutch>       "... dat de premievrijstelling terecht is, omdat de situatie       mogelijk is voor 45 jarige of oudere ongehuwde vrouwen, te moeten       betalen voor kinderen, die ook bij opvolgend huwelijk nimmer       mogelijk zijn."   (Translation>       "... that the exemption is justified, on the grounds that       unmarried women of 45 or older might have to pay for children       which, even in a subsequent marriage, they will never be able to       have." (Upper House, 34th session, 17 April 1962, p. 3215, left       column),   and   <Dutch>       "... dat premieheffing veel moeilijker wordt voor gehuwden zonder       kinderen die het niet-deelachtig zijn aan de kinderzegen soms als       een schrijnend leed gevoelen en dat dit in nog veel schrijnender       mate spreekt voor ongehuwde vrouwen, die een zekere leeftijd       bereikt hebben."   <Translation>       "... that it is distressing enough to have to levy contributions       from married persons who suffer greatly from not having been       blessed with children, and is even more painful in the case of       unmarried women who have reached a certain age." (Upper House,       34th session, 17 April 1962, p. 3226, right column)   26.    The exemption under Section 25 para. 2 of the Act was first elaborated in a Royal Decree of 1968 and most recently in the Royal Decree of 27 February 1980 (Koninklijk Besluit - Bulletin of Acts and Decrees 1980, no. 89). Under Section 1 of this Royal Decree an unmarried   woman who had reached the age of 45 and who was not entitledto benefits under the Act was exempted from the obligation to pay a contribution under the Act. By Act of 21 December 1988 the legislator abolished this exemption as from 1 January 1989, reasoning that the views on which the exemption was based had been overtaken by developments in society.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   27.    The Commission has declared admissible the applicant's complaint of discriminatory treatment of men under the General Child Allowance Act.   B.     Point at issue   28.    The issue to be determined is whether there has been a violation of Article 14 (Art. 14) of the Convention in conjunction with Article 1 of Protocol No. 1 (P1-1) by reason of the fact that the applicant, being an unmarried childless man over 45 years of age, was liable to pay contributions under the General Child Allowance Act, whilst unmarried childless women of 45 and older were exempt from this obligation.   C.     Applicability of Article 14 (Art. 14) of the Convention   29.    Article 14 (Art. 14) of the Convention, insofar as relevant, provides:         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any ground       such as sex, ..."   30.    The Commission reiterates that Article 14 (Art. 14) of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 (Art. 14) does not presuppose a breach of those provisions -   and to this extent it is autonomous -, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (cf. Eur. Court H.R., Karlheinz Schmidt judgment of 18 July 1994, Series A no. 291 B, p. 32, para. 22).   31.    Article 1 of Protocol No. 1 (P1-1) reads, insofar as relevant:         "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 secure the payment of taxes or other contributions ..."   32.    The Commission notes that Article 1 of Protocol No. 1 (P1-1), second paragraph, establishes that the duty to pay taxes or other contributions falls within its field of application. Accordingly, Article 14 (Art. 14) of the Convention is applicable to the present case (cf. Eur. Court H.R., Darby judgment of 23 October 1990, Series A no. 187, p. 12, para. 30).   D.     Compliance with Article 14 (Art. 14) of the Convention   33.    The applicant complains that the obligation imposed on him from 1985 until 1988 to contribute to the General Child Allowance Act constituted discriminatory treatment based on sex since, had he been a woman, he would have been exempted from this obligation. He submits that no objective and reasonable grounds exist to justify this difference in treatment.   34.    The applicant argues that the distinction regarding the mere physical ability of men and women of 45 and older to procreate does not constitute such a real and substantial distinction as to justify the exemption. It appears from statistics that, notwithstanding their potential ability, only very few men over 45 actually father a child. Furthermore, some women over 45 become a foster mother or adoptive mother and can thus, whatever their physical inability to procreate, still obtain a right to claim child benefits under the terms of the Act.   35.    The applicant further contends that, even if the exemption was not discriminatory at the time of its enactment in 1962, it certainly had become so by 1985 when, in the applicant's opinion, the Netherlands legislator ought to have been well aware of the untenability of legislation which entailed a different treatment of men and women. In the applicant's view, the abolition of the exemption as of 1989 and the reasons given for the abolition demonstrate that the application of the exemption did indeed constitute unjustified discriminatory treatment.   36.    The Government recognise that the exemption from liability for contributions granted to childless unmarried women of 45 and older constituted a difference in treatment on the ground of sex. They explain, however, that when in 1962 a majority of the Dutch Parliament objected to holding individuals who could never reasonably be expected to claim child benefits liable for contributions the legislature sought only to make a distinction between unmarried childless women and men of 45 and older in respect of their ability to have children. As the reproductive potential of older men cannot be compared to that of older women, there can be said to be a relevant distinction. The fact that men of this age category seldom father children does not, in the opinion of the Government, alter this fact.   37.    Now that advances in the field of medicine have rendered the ability of this category of women to have children less improbable and, at the same time, the notions underlying the original decision to grant exemption have become gradually outdated in the light of social changes, the Government have decided that the continued existence of the exemption can no longer be deemed compatible with the principle of equal treatment of men and women.   38.    The Government assert, however, that the abolition as of 1989 of the possibility of exemption for unmarried childless women of 45 and older does not imply that the situation prior to that constituted discrimination. Given the gradual and somewhat unpredictable nature of certain social trends, to which legislation in general and social security legislation in particular must inevitably respond somewhat belatedly, it would be logical to allow Contracting Parties a certain period within which to amend their legislation before concluding that they are contravening the Convention.   39.    The Commission notes in the first place that the exemption from liability for contributions only applied to unmarried childless women of 45 and older. Under the impugned legislation, unmarried childless men of 45 and older were thus treated differently.   40.    The Commission recalls that for the purposes of Article 14 (Art. 14) a difference in treatment is discriminatory if is "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". Moreover the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. However, very weighty reasons would have to be put forward before the Convention organs could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention (cf. Karlheinz Schmidt judgment, loc. cit., pp. 32-33, para. 24).   41.    The Commission notes that according to the Government the difference in treatment at issue between unmarried childless men and women of 45 and older was created as a result of the desire felt by a majority of the Dutch parliament in 1962 that this category of women, who would almost certainly never be entitled to claim benefits under the terms of the Act, should not be made to contribute financially. Even though it is true that in general a biological difference exists between the ability of men and women of 45 and older to procreate, the Commission has regard to the fact that only a very small number of men of 45 and older actually father children. It is therefore doubtful whether the difference in treatment between men and women based solely on this biological difference could be regarded as proportionate to the aim pursued.   42.    However, quite apart from this, the Commission observes that it appears from the Parliamentary debate on the enactment of the exemption that also the position in society of unmarried childless women of 45 and older played a decisive role. It is clear from the quotations cited (see para. 25 above) that the fate of unmarried childless women of 45 and older was regarded as an unhappy one which would be still exacerbated if she was made liable for contributions pursuant to this particular Act.   43.    The Commission reiterates that the Convention is a living instrument to be interpreted in the light of current circumstances. It follows that the need for appropriate legal measures should be kept under review (cf. Eur. Court H.R., Cossey judgment of 27 September 1990, Series A no. 184, p. 17, para. 42). The Commission considers that the above view of unmarried childless women of 45 and older has been overtaken by developments in Member States and can no longer serve as the objective justification of a difference in treatment between men and women.   44.    The Government argue that amendments to social security legislation necessarily lag behind developments in society. In this respect the Commission concedes that it is difficult to establish exactly at what moment developments have attained a durability and general acceptance which require them to be incorporated into legislation.   45.    However, with regard to the principle of equal treatment of men and women the Commission notes in the first place that in the above- cited Karlheinz Schmidt judgment (para. 30) the Court concluded that the imposition of a financial burden on men and not on women constituted discriminatory treatment contrary to Article 14 (Art. 14) of the Convention. The financial burden at issue in that case had been imposed in 1982.   46.    The Commission further notes that on 19 December 1978 the Council of the European Economic Community issued directive 79/7/EEC concerning the gradual implementation of the principle of equal treatment of men and women in the field of social security, giving Member States a period of six years until 23 December 1984 within which to make any amendments to legislation which might be necessary in order to bring it into line with the directive. Even though the scope of this directive did not encompass child benefit schemes, the Commission considers that the Government was at this time well aware of the need to incorporate the principle of equal treatment in social security legislation. In this respect the Commission observes that the exemption of unmarried childless women of 45 and older from liability for contributions was once more elaborated in a Royal Decree in 1980.   47.    In light of the above, the Commission cannot, therefore, accept the Government's contention that the continued existence until 1989 of a difference in treatment between unmarried childless men and women of 45 and older can be justified as being the inevitably belated reaction to developments in society.         CONCLUSION   48.    The Commission concludes, by 23 votes to 5, that in the present case there has been a violation of Article 14 (Art. 14) of the Convention in conjunction with Article 1 of Protocol No. 1 (P1-1).   Secretary to the Commission               President of the Commission          (H.C. KRÜGER)                              (S. TRECHSEL)                                                           (Or. English)           DISSENTING OPINION OF MM. S. TRECHSEL, C.A. NØRGAARD,               G. JÖRUNDSSON, F. MARTINEZ AND B. CONFORTI         We regret that we cannot share the Commission's opinion that there has been a violation of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.         We observe in the first place that the aim pursued by the exemption was to prevent that a particular category of women, who were not expected ever to become entitled to receive payments under the terms of the Act, would be held liable for contributions. Even though the application of the exemption resulted in men being treated differently from women, it appears that this difference of treatment was not based on sex as such. Its origins lay rather in the biological fact that the ability of a woman of 45 and older to procreate is not the same as that of a man of that age.         In those circumstances the position of men and women is not comparable and the distinction made by the law between them cannot be regarded as discrimination contrary to Article 14 of the Convention.         It is true that, as of 1989, the law was changed and the distinction existing earlier was removed. We note that in the applicant's view the Government, by abolishing the exemption as of 1989 as a result of the notions underlying its enactment having become outdated, acknowledged that the exemption had no compelling justification.         Although it is clear that the Convention, being a living instrument, must be interpreted in the light of current circumstances (cf. Eur. Court, Cossey judgment of 27 September 1990, Series A no. 184, p. 17, para. 42), this cannot mean that where social developments cause a Contracting Party to amend its legislation, the previous legislation must be regarded as having infringed the provisions of the Convention. In this respect we take into account that social and economic goals to be pursued by a State in its social security policy may legitimately develop with the passing of time and changing of circumstances. A margin of appreciation must also apply to the moment when a government thinks fit to amend a system of levying social security contributions (cf. mutatis mutandis No. 11077/84, Dec. 13.10.86, D.R. 49 p. 191).         In light of the above we cannot find that the abolition of the exemption as of 1989 and without it being granted retroactive effect was unreasonable.         In the circumstances of the present case we find therefore that the impugned legislation which until 1989 held the applicant liable for contributions cannot be said to have had no objective and reasonable justification or to have been disproportionate as to the aim pursued.