Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20060/92

by A.G.V.R.

against the Netherlands

The European Commission of Human Rights sitting in private on

10 April 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

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

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 April 1992 by

A.G.V.R. against the Netherlands and registered on 1 June 1992 under

file No. 20060/92;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

21 July 1994 and the observations in reply submitted by the

applicant on 18 August 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen born in 1924, and resides in

Amstelveen, the Netherlands. Before the Commission he is represented

by Mr. M.W.C. Feteris, a lawyer practising in Amsterdam.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant has never been married and has no children.

On 30 September 1987 the Inspector of Direct Taxes (Inspecteur

der Directe Belastingen) issued an assessment for the year 1985 of the

contributions the applicant had to pay under the general social

security schemes (volksverzekeringen) including the General Child

Allowance Act (Algemene Kinderbijslagwet - hereinafter referred to as

the "Act").

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.

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. The

Parliamentary debates on this Act show that, when it was enacted in

1962, a majority objected to holding individuals who could never

reasonably be expected to claim child benefit 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 by physical factors from having children at some future date.

The exemption under Section 25 para. 2 of the Act was most

recently elaborated in the Royal Decree of 27 February 1980 (Koninklijk

Besluit - Staatsblad 1980, no. 89). Under Section 1 of this Royal

Decree an unmarried woman who had reached the age of 45 and who was not

entitled to 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.

The applicant's objection (bezwaarschrift) against the assessment

of 30 September 1987 - which he considered discriminatory as, had he

been a woman, he would have been exempted from the obligation to pay

contributions under the Act - was rejected on 25 November 1987 by the

Inspector of Direct Taxes. The Inspector held that the applicant could

not be exempted from the obligation to pay contributions under the Act

since he was a man.

In his subsequent appeal to the Court of Appeal (Gerechtshof) of

Amsterdam the applicant submitted statistical material showing that not

only is it rare for older women to conceive children, but also for

older men to father them. 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 was not

applicable.

The applicant's appeal 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 to pay the

contribution at issue also applicable to unmarried men of 45 years and

older for the year 1985.

The Inspector of Direct Taxes also 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.

COMPLAINTS

The applicant complains that until 1 January 1989 the difference

in treatment between unmarried women and men of 45 years and older in

respect of the payment of contributions under the General Child

Allowance Act constituted discrimination based on sex contrary to

Article 14 of the Convention in conjunction with Article 1 of Protocol

No. 1.

He further complains under Article 13 of the Convention that he

had no effective remedy in respect of the alleged discriminatory

treatment.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 April 1992 and registered

on 1 June 1992.

On 11 May 1994 the Commission (Second Chamber) decided to

communicate the application to the respondent Government, pursuant to

Rule 48 para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on 21 July

1994. The applicant replied on 18 August 1994.

THE LAW

1. The applicant complains that the obligation imposed on him to pay

contributions in respect of the General Child Allowance Act constituted

a discriminatory treatment contrary to Article 14 of the Convention in

conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1).

Article 14 (Art. 14) of the Convention provides:

"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) 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

(...)."

1. The Government allege in the first place that the application is

inadmissible under Article 27 para. 3 (Art. 27-3) of the Convention as

the applicant failed to invoke Article 1 of Protocol No. 1

(P1-1) before the domestic courts and under Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention as the same issue has already been

submitted to another procedure of international investigation, namely,

the Human Rights Committee of the United Nations.

The applicant submits that he invoked Article 1 of Protocol No.

1 (P1-1) before the Court of Appeal of Amsterdam. He acknowledges that

the issue in question has indeed been brought before the Human Rights

Committee of the United Nations by another tax payer, but he is of the

opinion that this does not detract from the admissibility of the

present application, since the latter has been introduced by a

different applicant.

The Commission notes that the applicant does not complain of

having unjustly been affected in his property rights, but of

discrimination. It recalls its constant case-law that domestic remedies

must be considered as having been exhausted if the applicant has

raised, at least in substance, before the national authorities the

complaint brought before the Commission (cf. No. 9228/80, Dec.

16.12.82, D.R. 30 p. 132; No. 10027/82, Dec. 5.12.84, D.R. 40 p. 100;

and No. 11921/86, Dec. 12.10.88, D.R. 57 p. 81).

The Commission observes that, throughout the domestic

proceedings, the applicant has complained that his obligation to

contribute to the Act constitutes an unjust discriminatory treatment.

He has not alleged a violation of his property rights as such. But he

invoked Article 1 of Protocol No. 1 (P1-1) before the Court of Appeal

in support of his argument that the obligation at issue concerned a

right set forth in the Convention. And the Supreme Court considered the

issue when finding that the obligation at issue did not concern any of

the rights and freedoms guaranteed by the Convention. The Commission

therefore accepts that the applicant has exhausted domestic remedies.

The Commission further recalls that an application which has the

same purpose as an application previously submitted to another

procedure of international investigation but by a different applicant,

cannot be regarded as being substantially the same as the matter

submitted to that other international procedure (cf. No. 11603/85,

Dec. 20.1.87, D.R. 50 p. 228).

2. As regards the substance of the application the Government submit

that objective and reasonable grounds existed to justify the

distinction made between childless unmarried men and women of 45 years

or older, and that in any case this issue fell within the margin of

freedom which Contracting States enjoy when determining whether or to

what extent differences in otherwise identical circumstances justify

a difference in treatment by or pursuant to the law. The difference in

treatment between unmarried men and women of 45 years and over was

justified by the existence of a relevant distinction between the actual

physical reproductive potential of older men and that of older women.

The applicant submits that, as the Convention is a living

instrument which should be interpreted in the light of present-day

conditions, Contracting States cannot continue to apply legislation

which is based on outdated views without violating the Convention.

The Commission, after a preliminary examination of the present

complaint in the light of the parties' submissions, considers that it

raises questions of fact and law which require an examination of the

merits. The application cannot, therefore, be declared inadmissible as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for inadmissibility

have been established.

3. The applicant further complains under Article 13 (Art. 13) of the

Convention that he had no effective remedy in respect of the alleged

discriminatory treatment.

Article 13 (Art. 13) of the Convention reads:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission notes that the applicant complained of the alleged

discriminatory treatment before the Court of Appeal as well as before

the Supreme Court. Both Courts found that Article 14 (Art. 14) of the

Convention was not applicable to the case and they gave reasons

therefor. In these circumstances the applicant did have an effective

remedy within the meaning of Article 13 (Art. 13) of the Convention.

It follows that the remainder of 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 ADMISSIBLE, without prejudging the merits, the

applicant's complaint of discriminatory treatment;

and, unanimously

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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

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

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