Lexploria

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:

"... 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

"... 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."

"... 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.

Menu

A.G.V.R. v. THE NETHERLANDS

A.G.V.R. v. THE NETHERLANDS

LEXI