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)