SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44658/98

by Y.A.M. VAN DEN BOUWHUIJSEN and J. SCHURING

against the Netherlands

The European Court of Human Rights (Second Section) , sitting on 16 December 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mrs A. Mularoni , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 9 September 1998 and registered by the Court on 25 November 1998,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Yolanda A.M. van den Bouwhuijsen and Jolien Schuring, are mother and daughter. They are Netherlands nationals, born in 1953 and 1991 respectively, and live in Velp, the Netherlands. They are represented before the Court by Mr A.M.W. Willems, a lawyer practising in Amsterdam.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The first applicant cohabited with her partner, Mr Schuring , from 1975 until the latter’s death in 1994. They were not married. On 22 April 1991 a daughter, Jolien – the second applicant – was born to the couple. Mr Schuring legally recognised his daughter and, following a decision by the Arnhem District Court ( kantonrechter ) of 17 May 1991, both parents were invested with parental authority over Jolien .

On 16 January 1995, following the death of Mr Schuring , the first applicant requested a survivor’s benefit on behalf of Jolien from the Social Insurance Bank ( Sociale Verzekeringsbank ) pursuant to the General Widows’ and Orphans’ Benefits Act ( Algemene Weduwen - en Wezenwet ; “AWW”). In her request she acknowledged that under the provisions of the AWW she herself was not entitled to a widow’s pension as she had not been married to Mr Schuring . However, as her daughter had been financially dependent on her father, she laid claim, on behalf of her daughter, to benefits to the amount of 30% of the statutory minimum wage. In the subsequent proceedings she argued that since a widow without children was entitled to a partial widow’s pension amounting to 70% of the statutory minimum wage and a widow with a child under the age of 18 received a full widow’s pension amounting to 100% of the statutory minimum wage, a child born of married parents was in effect awarded a survivor’s benefit amounting to 30% of the statutory minimum wage in the form of an extra allowance on top of his/her surviving parent’s benefit. Not awarding this component of the widow’s pension to Jolien because her parents had not been married – a circumstance over which Jolien had had no control – amounted to unjustified discrimination on the grounds of birth.

To substantiate her argument that the difference between a full and a partial widow’s pension had always been intended to benefit the child who had lost one of his/her parents, the first applicant referred to the drafting history of the General Act on Surviving Dependants ( Algemene Nabestaandenwet ) which replaced the AWW on 1 July 1996. She also pointed to ILO Conventions no. 121 (the Employment Injury Benefits Convention, 1964) and no. 128 (the Invalidity, Old-Age and Survivors’ Benefits Convention, 1967) which oblige member states to provide cash benefits to the dependent children of a breadwinner. According to the first applicant, the Netherlands legislator had complied with this obligation by awarding higher benefits to widows with minor children. However, by requiring that the surviving parent be married to the deceased, a dependent child born out of wedlock was excluded.

The first applicant’s request was rejected by the Social Insurance Bank on 16 March 1996. It held that as the first applicant had not been married to Mr Schuring , she was not eligible for either a partial or a full widow’s pension. Moreover, although the AWW did provide for benefits for orphans, Jolien could not be awarded such benefits as she was not an orphan, one of her parents still being alive.

The first applicant’s objection ( bezwaar ) was rejected by the Social Insurance Bank on 9 February 1996. Her appeal ( beroep ) to the Regional Court ( arrondissementsrechtbank ) of Arnhem was rejected on 10 April 1997. Finally, the Central Appeals Tribunal ( Centrale Raad van Beroep ) rejected the first applicant’s appeal ( hoger beroep ) on 11 March 1998.

The Central Appeals Tribunal found that no unjustified discrimination had taken place. Referring to its own case-law, it reiterated that the fact that the pension for a widow with a child under the age of 18 was higher than that for a widow without children did not entail that that difference should be considered as a cash benefit for the child who had lost one of his/her parents. The AWW provided for benefits for two kinds of survivors: widows and orphans. It was only in respect of a widow’s pension that a difference in treatment was made, in that a marriage between the deceased and the survivor was required in order to create a right to such a pension. The first applicant had not disputed that this difference in treatment was justified. The right to orphan’s benefits was not dependent on a child having been born in wedlock but only on a child being the offspring of the deceased whose death caused the child to be without parents – which was not the case here. As a result, the survivors’ benefit claimed by the first applicant could only be placed in the framework of the provisions concerning widows, and the refusal to award her either a full widow’s pension or any other widow’s benefit could only be seen in relation to her not having been married to the deceased. There was no other discriminatory factor which could be considered as underlying the subsidiary effect that the majority of cases where an entitlement to a full widow’s pension existed concerned children born from the marriage of the deceased to the surviving widow.

B. Relevant domestic law

The AWW, which entered into force on 1 October 1959, insured against the risk of the death of the family breadwinner. Under the AWW scheme, all persons residing in the Netherlands and non-residents gainfully employed in the Netherlands were compulsory insured. Contributions to this scheme were paid by all persons gainfully employed in the Netherlands.

Entitlement to AWW benefits was not dependent on the level of contributions paid as, contrary to a social security scheme based on employment ( werknemersverzekering ), it was a general social security scheme ( volksverzekering ). The level of benefits was linked to the statutory minimum wage.

The AWW conferred entitlement to a widow’s pension for the widow, who was not yet aged 65, of an insured person provided she was caring for an unmarried child born before or on the date of the death of her spouse. A widow without children was also entitled to claim benefit, for example if she was incapacitated for work or was aged 40 or over at the time of her husband’s death. “Widow” meant the woman to whom the insured person was married on the date of his death. Since 1988, widowers enjoyed the same entitlement to benefit after the death of their wives on the basis of case-law.

As it was felt that a widow with children had greater financial needs than a widow without children (see Bijlagen Handelingen Tweede Kamer – Appendices to the Records of the Lower Chamber of Parliament – 1958-1959, 5390, 27), a widow with unmarried children under the age of 18 – regardless of their number – received an amount equal to the minimum wage whereas a widow without children received 70% of that amount.

Under the AWW the unmarried child, up to the age of 16, of the deceased person was entitled to an orphan’s benefit provided the child had lost both parents or if the surviving parent had been divested of parental authority.

The AWW was repealed on 1 July 1996 and replaced by the Surviving Dependants Act ( Algemene Nabestaandenwet ). The new Act replaced the term ‘widow’ by ‘surviving partner’, this being the person who was married to the deceased person or who was in a relationship of equivalent status with him or her.

COMPLAINT

The applicants complained under Article 14 of the Convention taken together with Article 1 of Protocol No. 1 that the denial of a survivor’s benefit to the second applicant constituted unjustified discrimination on grounds of birth.

THE LAW

The applicants complained that by refusing to consider the second applicant for benefit under the AWW, she became a victim of discrimination on grounds of birth. They invoked Article 14 of the Convention taken together with Article 1 of Protocol No. 1, which provisions read as follows:

Article14

“The enjoyment of the rights and freedoms set forth in [the] 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 of Protocol No. 1

“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 Government argued in the first place that Article 1 of Protocol No. 1 was not applicable. While this provision was capable of applying to benefit in the framework of a system based on solidarity such as social insurance even if there was no direct connection between contribution and benefit, it was nevertheless required that the person concerned met the conditions governing full or partial entitlement to the benefit in question. In the present case, however, neither applicant met the conditions for entitlement to benefit under the AWW.

In the alternative, the Government emphasised that the AWW conferred no entitlement to benefit either on a child born of a marriage or on one born outside marriage. The AAW only provided for entitlement to benefit for the spouse of the deceased insured person, the amount of benefit depending on whether he or she had any dependent children. Since neither applicant – whatever their status – was entitled to benefit, there could not have been any direct discrimination.

In so far as the applicants complained of indirect discrimination in that the first applicant, unlike a married parent, could not claim benefit on behalf of her daughter Jolien , the Government contended that this distinction was justified. Under Netherlands law, married status entailed certain advantages, but also certain obligations and responsibilities. If partners chose not to marry, they also chose to avoid the consequences of marriage. As regards the argument that her parents’ choice could not be held against Jolien , the Government pointed out that the AWW did not in any event provide for an independent entitlement to benefit for a child losing one of its parents. The provision for such children consisted of a higher widow’s pension being paid to the widow. The entitlement to this higher amount was in no way determined by the status of the child, which was irrelevant, but by the status of the surviving partner, so that the considerations justifying a distinction between married and unmarried cohabiting partners were equally applicable to the entitlement to a higher widow’s pension.

The applicants maintained that it followed from the Court’s case-law that a benefit pursuant to the AWW constituted a possession within the meaning of Article 1 of Protocol No. 1. Jolien complied with the substantive conditions for the grant of this benefit: her father, a resident of the Netherlands who had been insured under the AWW, had died, leaving behind the first applicant, who was not yet aged 65 and who had an unmarried child of her own. The only reason why Jolien had been refused benefit for a child who had lost one parent was that she was not born in wedlock. This was a ground of refusal similar to the lack of Austrian nationality in the case of Gaygusuz v. Austria (judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV).

The fact that the provision under the AWW for children who have lost one parent was construed as an addition to the widow’s pension, rather than an independent entitlement for the child, concerned a merely practical issue and not a matter of principle in the view of the applicants. After all, a minor child did not have legal capacity and must be represented by his or her legal representative; thus, child maintenance, for instance, was also paid to the parent for the benefit of the child.

The new Surviving Dependants Act did provide for equal treatment of children who had lost one parent, regardless of whether they were born in or out of wedlock. However, already long before the time of Jolien’s birth, in 1991, and at the time of her father’s death, in 1994, it was no longer acceptable to discriminate between children on grounds of birth.

The applicants finally submitted that even if there were only indirect discrimination, this too would not be justified. It was true that partners were free to choose whether or not to marry, but a minor was not able to choose the status of being born in or out of wedlock. In addition, the consequences attached by law to the relationship between married parents and their child born in wedlock were the same as the legal consequences attached to the relationship between unmarried parents and their child born out of wedlock. For example, a child born out of wedlock who had lost one parent received child benefit ( kinderbijslag ) just as the child born in wedlock did.

The Court reiterates that according to its established case-law, Article 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 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 (see, among many other authorities, Van Raalte v. the Netherlands , judgment of 21 February 1997, Reports 1997-I, p. 184, § 33, Camp and Bourimi v. the Netherlands , no. 28369/95, ECHR 2000-X, § 34). It should, therefore, first be examined whether the facts of the present case fall within the scope of Article 1 of Protocol No. 1.

The Court has previously held that an entitlement to benefit pursuant to a national insurance scheme may constitute a pecuniary right for the purposes of Article 1 of Protocol No. 1 without it being necessary to rely solely on the link between entitlement to such benefit and the obligation to pay “taxes or other contributions”. However, in order to establish such a pecuniary right, the person concerned must satisfy the various statutory conditions set by law (see Gaygusuz v. Austria , cited above, § 41; Willis v. the United Kingdom , no. 36042/97, §§ 32-34, ECHR 2002-IV; Wessels-Bergervoet v. the Netherlands ( dec .), no. 34462/97, 3 October 2000; and Koua Poirrez v. France , no. 40892/98, ECHR 2003-X).

Turning to the circumstances of the present case, the Court observes at the outset that the AWW provided for an orphan’s benefit, but only where a child had lost both its parents. It must therefore be clear that Jolien could not lay claim to an entitlement to this type of benefit.

The AWW – and domestic case-law – further stipulated that the widow or widower (after the entry into force of the Surviving Dependants Act also the surviving partner) of a deceased person who had been insured under the Act was eligible for a pension. The amount of this pension was higher if the widow or widower was caring for a child. The Court notes that the applicants explicitly do not complain of the fact that pursuant to the AWW the first applicant was not entitled to a widow’s pension because she had not been married to her partner Mr Schuring . Indeed, it was for this reason that the first applicant did not apply for a widow’s pension for herself. It was the applicants’ contention, however, that the component of a full widow’s pension consisting of the difference between the amount of pension awarded to a widow with a child and that awarded to a widow without children – i.e. 30% of the statutory minimum wage – should be considered as constituting a benefit for a child who has lost one of its parents. In the opinion of the applicants, therefore, it was Jolien who had a right that fell within the scope of Article 1 of Protocol No. 1, and Jolien had been deprived of this right for the sole reason that she had been born out of wedlock.

The Court is not persuaded by the applicants’ arguments. It notes that an orphan’s benefit would only have been granted to the child who had lost both its parents or whose surviving parent had been divested of parental authority. Similarly, a widow having been granted an AWW-pension would have received this pension to the higher amount if she was looking after a child, regardless of the status of the child.

The Court further notes that the national courts rejected the request to grant Jolien benefit to the amount of 30% of the statutory minimum wage not because she had been born out of wedlock, but because the AWW did not confer such an entitlement on any child having lost one of its parents. It is this element which distinguishes the present case from the cases cited above, where the applicants complied with statutory conditions and were thus eligible for benefit. The sole reason those benefits were denied them was because they were discriminated against, in the cases of Gaygusuz and Koua Poirrez on the grounds of nationality, and in the cases of Willis and Wessels-Bergervoet on the basis of sex.

The Court concludes that Jolien did not have a pecuniary right and that, therefore, the facts of the case do not fall within the scope of Article 1 of Protocol No. 1. Accordingly, there is no room for application of Article 14.

It follows that the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected, in accordance with Article 34 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President