FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38773/97 by Roedolf VAN DEN HOOGEN against the Netherlands

The European Court of Human Rights (First Section) , sitting on 7 June 2001 as a Chamber composed of

Mrs E. Palm , President , Mrs W. Thomassen , Mr L. Ferrari Bravo , Mr C. Bîrsan , Mr J. Casadevall , Mr B. Zupančič , Mr T. Panţîru , judges ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 1 September 1997 and registered on 26 November 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

Having deliberated, decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1943 and living in Kerkrade. He is represented before the Court by Mr J.J.M. Goltstein, a lawyer practising in Kerkrade.

A. The circumstances of the case

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

The applicant’s wife died in 1980. At that time, the applicant was employed in Germany. He did not, at that time, apply for a widower’s pension under the Netherlands Widows and Orphans Benefits Act ( Algemene Weduwen- en Wezenwet ; “AWW”). On 27 October 1980, the applicant had a traffic accident resulting in his becoming incapacitated for work.

In a decision taken on 7 December 1988, the Central Appeals Tribunal ( Centrale Raad van Beroep ) determined that also widowers were entitled to benefits under the AWW.

On 12 March 1989, the applicant applied for a pension under the AWW and, in its decision of 23 June 1989, the Maastricht Social Insurance Bank ( Sociale Verzekeringsbank ) awarded him an AWW pension. In accordance with Article 25 § 3 of the AWW, the starting date of the pension was fixed at one year prior to the first date of the month in which the applicant had filed his request for AWW benefits. Although Article 25 § 5 of the AWW provided for the possibility to grant a pension with retroactive effect on grounds of special circumstances, the Social Insurance Bank held that no such circumstances existed in the applicant’s case. Consequently, the applicant was entitled to AWW benefits as from 1 March 1988.

On 22 November 1991, the Social Insurance Bank informed the applicant that it was withdrawing his AWW pension and, on 14 February 1992, issued a decision terminating the applicant’s AWW benefits as from March 1992 under the application of an arrangement according to which his pension would be gradually reduced to nil by reducing it each month with 100 Netherlands Guilders. In view of his personal circumstances he was further not required to repay any benefits already paid to him until that time. The reason given was that, as the law stood at the time of the death of the applicant’s wife, no entitlement under the AWW could arise because the applicant was then employed outside the Netherlands and covered by German social insurance. That being so, his wife was ipso facto excluded from the insurance scheme set up under that Act.

On 6 March 1992, the applicant lodged an appeal against this decision with the Roermond Regional Court ( Arrondissementsrechtbank ). In its judgment of 7 December 1992 the Regional Court held that the statutory provision at issue was discriminatory and, therefore, contrary to the Netherlands Constitution and Article 26 of the International Covenant on Civil and Political Rights. Although that statutory provision excluded the wife of a Netherlands resident who was employed abroad and covered by foreign social security from the insurance scheme set up under the AWW, it did not so exclude the husband of a Netherlands resident similarly employed and covered. The Regional Court referred obiter dictum to a directive of the Council of the European Communities (79/7/EEC of 19 December 1978), which could not, however, apply directly since it did not cover social insurance payable upon the death of one spouse to the survivor.

On 13 January 1993, the Social Insurance Bank appealed to the Central Appeals Tribunal ( Centrale Raad van Beroep ), which overturned the judgment of the Regional Court on 2 July 1997, holding that according to its case-law married men could not derive any entitlement from the AWW before 23 December 1984. Although admittedly this placed men whose wives had died before that date in a disadvantageous position, this was due to the fact that married women simply were not insured under the AWW before then. The Central Appeals Tribunal declined to rule as to whether this “[could] be seen as a form of unequal treatment of men and women, or otherwise”.

In the light of a judgment handed down on 26 August 1998 by the Supreme Court ( Hoge Raad ) in which it was held that employment abroad did not constitute a ground for excluding a married woman from insurance under the AWW, the Social Insurance Bank reconsidered the applicant’s case and decided on 4 May 1999 to withdraw its decision of 14 February 1992 and to award him a AWW pension as from 1 March 1988 as well as interest for the period between March 1992 and May 1999. He was further informed that he could file an objection ( bezwaar ) against this decision within six weeks. The applicant did not avail himself of this possibility.

B. Relevant domestic law and practice

The AWW, which has been replaced on 1 July 1996 by the General Act on Surviving Dependents ( Algemene Nabestaandenwet ), provided for benefits for the widow and child(ren) of a deceased person who was insured under this Act. 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.

AWW benefits were, in principle, granted to widows younger than 65 from whom it could not be expected that they would provide for themselves and, in case there were any, their child(ren) by working. AWW benefits stopped when the widow attained the age of 65. Benefits for children were in principle stopped when they reached the age of 16 but could be prolonged until the age of 27 where the child was studying.

The AWW did not provide for any benefits for widowers. This situation changed on 7 December 1988, when the Central Appeals Tribunal handed down a decision in which it held that also widowers were entitled to benefits under the AWW ( Rechtspraak Sociale Verzekering 1989/67).

Entitlement to an AWW pension 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.

On 19 December 1978, the Council of the European Communities issued Directive 79/7/EEC concerning the gradual implementation of equal treatment between men and women in the field of social security based on employment, allowing 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 in conformity with the directive.

Article 93 of the Constitution provides that provisions of international treaties and decisions of international (intergovernmental) organisations which, according to their content, may be binding on anyone shall have binding force after they have been published.

With regard to the prohibition of discrimination, the Netherlands is a party to, inter alia, the Convention, which was ratified by Act of 28 July 1954, and the ICCPR of 1966 which, as regards the Netherlands, entered into force on 11 March 1979. Article 26 of the ICCPR provides as follows:

"All persons are equal before the law and are entitled without discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

The Supreme Court recognised in its judgment of 2 February 1982 ( Nederlandse Jurisprudentie (“NJ”) 1982, no. 424 [corrected in NJ 1982, no. 475]), that Article 26 of the Covenant is a provision of an international treaty which, according to its content, may be binding on anyone, and must therefore in principle be applied directly by the Netherlands courts.

COMPLAINTS

The applicant initially complained that the withdrawal of his widower’s pension is a discriminatory difference in treatment and that this decision is contrary to Article 4 § 1 of EC Council Directive 79/7.

Following the fresh decision of 4 May 1999 on his request for AWW benefits, he submitted a fresh complaint by letter of 8 November 1999 in that he complained that it is contrary to his rights under Article 14 of the Convention and under Article 26 of the International Convenant of Civil and Political Rights that in the decision of 4 May 1999 the starting date of his AWW benefits was determined at 1 March 1988 and not on the first day of the month in which his wife died or, alternatively, on 23 December 1984, the date on which, according to the Central Appeals Tribunal, benefits under the AWW can be awarded to widowers. He argues that, in his situation, the Social Insurance Bank should have awarded him a retroactive AWW pension on grounds of special circumstances as foreseen in Article 25 § 5 of the AWW.

THE LAW

1. The applicant initially complained that the withdrawal of his widower’s pension is a discriminatory difference in treatment and that this decision is contrary to Article 4 § 1 of EC Council Directive 79/7.

The Court notes that the withdrawal of the applicant’s AWW pension has been cancelled by the decision taken on 4 May 1999 by the Social Insurance Bank.

In these circumstances, the Courts considers that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require a continuation of this part of the application.

2. The applicant further complains that it is contrary to his rights under Article 14 of the Convention and under Article 26 of the International Convenant of Civil and Political Rights that, in the decision of 4 May 1999, the starting date of his AWW benefits was determined at 1 March 1988 and not on the first day of the month in which his wife died or, alternatively, on 23 December 1984, the date on which, according to the Central Appeals Tribunal, benefits under the AWW can be awarded to widowers. He argues that, in his situation, the Social Insurance Bank should have awarded him a retroactive AWW pension on grounds of special circumstances as foreseen in Article 25 § 5 of the AWW.

Article 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.”

The Government submit that, insofar as the applicant relies on the Convention, the applicant has not raised this complaint in any domestic proceedings since he has not taken any proceedings in the Netherlands challenging the decision of 4 May 1999. The Government are therefore of the opinion that the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. The Government further submit that, as the complaint of the decision of 4 May 1999 was only raised in the applicant’s letter of 8 November 1999, it has been submitted out of time.

The applicant has made no submissions as regards the arguments advanced by the Government under Article 35 § 1 of the Convention.

The Court considers at the outset that, under the terms of Article 19 of the Convention, it is not competent to examine complaints concerning alleged disrespect for the International Covenant on Civil and Political Rights or of Directives issued by the Council of the European Communities. It can only examine alleged violations of the rights and freedoms guaranteed by the Convention and its additional Protocols. The Court interprets the applicant’s complaint as a complaint of gender-based discrimination contrary to Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.

The Court notes that the applicant has not raised the present complaint in any domestic proceedings taken by him in respect of the decision taken by the Social Insurance Bank on 4 May 1999 whereas he has been explicitly informed by the Social Insurance Bank that he could file an objection against this decision. In this respect, the Court further notes that the Convention is directly applicable in the Netherlands legal order.

In these circumstances, the Court is of the opinion that, as regards this part of the application, the applicant has not, as required by Article 35 § 1 of the Convention, exhausted the remedies available under Dutch law. It follows that this part of the application must be rejected, in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Elisabeth Palm Registrar President