THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40302/98 by Michael W. MATTHEWS against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 28 November 2000 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 24 February 1998 and registered on 17 March 1998,

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 regard to the parties’ oral submissions at the hearing on 28 November 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British national, born in 1933 and living in London. He is represented before the Court by Mr J. Walsh, a lawyer practising in London. At the oral hearing on 28 November 2000 the applicant was represented by Lord Lester QC and Ms C. Weir, barristers-at-law, assisted by Ms C. Karve of Liberty and Mr D. Lindsay of Parity. The respondent Government are represented by their agent, Mr C.A. Whomersley, Foreign and Commonwealth Office. At the hearing they were further represented by Mr D. Pannick QC and Ms J. Simor, barristers-at-law, assisted by Ms F. Logan, Department of Social Security, and Mr S. Rock, Department of the Environment, Transport and Regions.

A. The circumstances of the case

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

On 10 October 1997, aged 64, the applicant applied at his local post office for an elderly person’s travel permit, which would have entitled him to free travel on most public transport in Greater London. His application was refused because, under British law, such a permit may only be provided to men who are aged 65 or over, whereas women are eligible to receive such a permit, subject to the provisions of their local scheme, at the age of 60 or over.

B. Relevant domestic law

The London Regional Transport Act 1984 (“the 1984 Act”) which was then currently in force, provided in section 50(1):

“Subject to subsection (4) below, any local authority, or any two or more local authorities acting jointly, may enter into arrangements with London Regional Transport under which –

(a) London Regional Transport grant, or arrange with some other person for that other person to grant, such travel concessions as may be provided for by the arrangements to any persons eligible to receive them in accordance with subsection (7) below; and

(b) that local authority (or, as the case may be, those local authorities in such proportions respectively as they may agree among themselves) reimburse the cost incurred in granting those concessions.”

In section 50(7) the 1984 Act provided:

“The persons eligible to receive travel concessions under arrangements made under subsection (1) or (3) above are persons mentioned in any of the following paragraphs, or any description of such persons, that is to say:

(a) men over the age of sixty-five and women over the age of sixty years; ...”

The Transport Act 1985 (which applies to travel in Great Britain outside London) contained a similar provision in section 93(7). The provisions of sections 50-53 of the 1984 Act were repealed and replaced without any relevant amendment by sections 240-244 of the Greater London Authority Act 1999.

COMPLAINT

The applicant complains of discrimination on grounds of sex in relation to his right to property, contrary to Article 14 of the Convention and Article 1 of Protocol No. 1, taken together.

THE LAW

The applicant complains that, as a man, he cannot get a bus pass until he reaches the age of 65, whereas a woman can get one at 60. He alleges a violation of Article 14 of the Convention and Article 1 of Protocol No. 1, taken together.

Article 14 of the Convention states:

“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 1 of Protocol No. 1 provides:

“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 argue that entitlement to a bus pass is not a “possession” within the scope of Article 1 of Protocol No. 1, since it is not conditional on the payment of national insurance or other contributions. In their submission, the Court’s Gaygusuz v. Austria judgment of 16 September 1996 ( Reports of judgments and decisions 1996-IV, §§ 36-41) should be interpreted as supporting this position.

They further state that if, contrary to their submissions, the Court were to find that the case falls within the scope of Article 1 of Protocol No. 1 and that Article 14 is thus applicable, the difference in the age at which men and women become eligible for concessionary travel is based on objective and reasonable justifications. They point out that concessionary fares are regarded as part of a package of benefits which a person receives on attaining the age of eligibility for a State pension, currently 65 for men and 60 for women. In 1995 Parliament decided that the ages should be equalised (at 65) by the year 2020. This date, some time in the future, was chosen because of the enormous financial implications both for the State and for individuals (particularly women who had been expecting to receive a State pension at 60). The Government submit that, given the public policy implications, this is an area in which States should be allowed a broad margin of appreciation.

The applicant refutes the Government’s interpretation of the Gaygusuz judgment. He submits that, were it not for the fact that he is a man, he would have an enforceable right under English law to a bus pass and that this is sufficient to bring his complaint within the scope of Article 1 of Protocol No. 1.

He contends that the period of time required to equalise pension entitlement is of no relevance to the question of concessionary travel and that there is no justification for such clear sex discrimination.

The Court considers that the application raises complex issues under Article 14 of the Convention and Article 1 of Protocol No. 1, taken together, the determination of which should depend on an examination of the merits. It concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President