SECOND SECTION

DECISION

Application no. 47756/99 by M.E. OKKINGA-TER KUILE against the Netherlands

The European Court of Human Rights (Second Section) , sitting on 11 February 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 on 22 February 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Maria Elisabeth Okkinga-Ter Kuile, is a Netherlands national who was born in 1915. At the time of the introduction of the application, the applicant was living in Enschede. She is represented before the Court by Ms S.H.G. Swennen, a lawyer practising in Almelo. The respondent Government are represented by their Agent, Mrs J. Schukking, of the Netherlands Ministry of Foreign Affairs.

A. The circumstances of the case

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

The applicant and her husband have always lived in the Netherlands. By decision of 6 June 1977, the applicant’s husband was granted an old age pension for a married person under the General Old Age Pension Act ( Algemene Ouderdomswet ; “AOW”) as from 1 February 1977. However, in accordance with Article 13 of the AOW, his pension was reduced by 18% as neither he nor the applicant had been insured under this Act for a period of nine years. During that period the applicant’s husband had worked in Germany and he would have been entitled to old age insurance under the German social security legislation. No appeal was filed against this decision.

As from 1 April 1985, pursuant to the Act of 28 March 1985 on the implementation of the European Communities Directive 79/7/EEC on gradual implementation of equal treatment between men and women in the field of social security, the applicant became entitled in her own right to a pension and was awarded an AOW pension amounting to 50% of the AOW pension awarded to her husband. The 18% reduction applied was divided evenly between the applicant and her husband. The applicant was informed of this development, including how the 18% reduction would be divided between her and her husband, in a letter sent on 24 October 1984 by the Board of the Social Insurance Bank.

After the death of the applicant’s husband on 23 May 1986, the Board of the Social Insurance Bank ( Sociale Verzekeringsbank ), by decision of 9 July 1986, granted the applicant an old age pension under the AOW for a single person as from 1 May 1986. As with her late husband’s pension, her pension was also reduced by 18%.

On 1 August 1986, the applicant filed an appeal with the then Appeals Tribunal ( Raad van Beroep ) of Zwolle, complaining inter alia that the 18% reduction as applied to her old age pension constituted discriminatory treatment.

In its decision of 16 April 1991, following a hearing held on 26 March 1991, the Appeals Tribunal found in favour of the applicant. Consequently, it quashed the decision of 9 July 1986 and ordered the Board of the Social Insurance Bank to take a new decision. The Board of the Social Insurance Bank filed an appeal with the Central Appeals Tribunal ( Centrale Raad van Beroep ) on 10 May 1991.

In its judgment of 16 April 1997, the Central Appeals Tribunal quashed the decision of 16 April 1991 and rejected the applicant’s appeal of 1 August 1986 as ill-founded.

The applicant’s subsequent appeal in cassation was dismissed by the Supreme Court ( Hoge Raad ) on 23 September 1998.

The applicant died on 16 August 2001. On 22 April 2002, the applicant’s representative informed the Court that the applicant’s three heirs, Mr K.A. Okkinga , Ms J.M. Okkinga and Mr M. Okkinga wished to pursue the application. Their request to continue the proceedings was granted by the Court on 15 October 2002.

On 25 November 2002, the respondent Government informed the Court that the Social Insurance Bank had re-examined the applicant’s case and it was decided to pay the proportion of AOW benefits withheld from the applicant between May 1986 and 16 August 2001 together with interest thereon. On 11 December 2002, the respondent Government further informed the Court that the applicant’s legal costs incurred in the proceedings in which she had challenged the reduction of her AOW benefits would also be reimbursed.

On 12 December 2002, the applicant’s representative informed the Court that the applicant’s heirs wished to withdraw the application as their claims had been fully met.

COMPLAINTS

The applicant complained that the reduction applied to her AOW pension constituted a discriminatory difference between married men and married women contrary to Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention. The applicant also raised complaints under Article 6 of the Convention and Article 1 of Protocol No. 1.

THE LAW

The Court notes that the reduction of the applicant’s AOW benefits has been annulled by the Social Insurance Bank and that the withheld amount will be paid to the applicant’s heirs together with interest. Moreover, the Government have undertaken to pay the legal costs incurred by the applicant in challenging the reduction of her AOW benefits. The Court further notes that, in these circumstances, the applicant’s heirs do not wish to pursue the application.

Finding that the conditions of Article 37 § 1 (a) of the Convention have been met and that there are no reasons warranting a continuation of its examination of the application (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court), the Court considers that the case should be struck out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

S. Dollé J.-P. Costa Registrar President