FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34462/97 by Rika E.W. WESSELS-BERGERVOET against the Netherlands

The European Court of Human Rights (First Section) , sitting on 3 October 2000 as a Chamber composed of

Mrs E. Palm, President , Mrs W. Thomassen, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mr J. Casadevall, Mr R. Maruste, judges , and Mr M. O'Boyle, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 11 October 1996 and registered on 13 January 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 partial decision of 1 December 1998 ,

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 1924, and resides in Gaanderen. She is represented before the Court by Ms. H. Mollema-de Jong, a lawyer practising in Amersfoort .

A. Particular 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 7 August 1984, the applicant's husband was granted an old age pension for a married person under the General Old Age Pension Act ( Algemene Ouderdomswet ; hereinafter referred to as "AOW") as from 1 August 1984. However, pursuant to the then Article 10 of the AOW, his pension was reduced by 38% as neither the applicant nor he himself had been insured under this Act during nine periods between 1 February 1957 and 1 August 1977, during which periods he had worked in Germany and where he had had an old age insurance under the German social security legislation. These nine periods amounted in total to globally nineteen years. No appeal was filed against this decision.

After the applicant had reached the age of sixty-five in 1989, the Board of the Social Insurance Bank ( Sociale Verzekeringsbank ), by decision of 14 February 1989 , granted the applicant an old age pension under the AOW as from 1 March 1989 . However, on the same basis as her husband's pension, her pension was also reduced by 38%. The applicant filed an appeal with the then Appeals Tribunal ( Raad van Beroep ) of Arnhem complaining that the reduction of her old age pension by 38% constituted discriminatory treatment.

In its decision of 10 January 1990, following both written and oral adversarial proceedings, the Appeals Tribunal noted that, pursuant to Articles 7 and 9 of the AOW, a married person - like the applicant - who had been insured under this Act and who had reached the age of 65 was entitled to an old age pension amounting to 50% of the net minimum wage per month.

However, pursuant to Article 13 of the AOW this amount could be reduced by 2% for each full year in which the person concerned had not been insured between the ages of fifteen and sixty-five. It further noted that, pursuant to Article 6 § 1 of the AOW, those insured were persons between the ages of fifteen and sixty-five, who were either Netherlands residents or, if not Netherlands residents, subject to payment of wage tax ( loonbelasting ) in respect of work carried out in the Netherlands under a contract of employment. Under the present paragraph 2 of Article 6 of the AOW, it was possible, by way of an Order in Council ( Algemene Maatregel van Bestuur ), to extend or limit the group of insured in derogation from the general rule contained in Article 6 § 1 of the AOW.

The Appeals Tribunal recalled the case-law of the Central Appeals Tribunal ( Centrale Raad van Beroep ) to the effect that the question whether or not a person was insured under the AOW fell to be determined on the basis of the rules in force at the relevant time.

It further recalled that, according to five consecutive Royal Decrees on Extension and Limitation of the group of insured persons ( Koninklijke Besluiten Uitbreiding en Beperking van de kring der verzekerden ) issued under Article 6 § 1 of the AOW and in force until 1 April 1985, not insured under the AOW were those persons residing in the Netherlands but working outside the Netherlands under a contract of employment and who, in respect of this employment, were socially insured under a foreign legislation. This limitation also applied to a woman married to a person who, on the basis of these Royal Decrees, was not insured under the AOW.

The Appeals Tribunal noted that it was not in dispute that the applicant's husband had been working in Germany during the periods at issue and that, during these periods and in accordance with the Ordinance nr. 3 of the Council of Ministers of the European Communities (until 1 October 1972 ) and subsequently Ordinance 1408/71, he had been subject to the German social security legislation.

It found that, in these circumstances, the Social Insurance Bank had correctly concluded that the applicant was not insured under the AOW for the period of time her husband had worked in Germany .

However, as regards the question whether this situation was compatible with the principle of equality, in particular the prohibition of discrimination between men and women, the Appeals Tribunal noted that there was a provision in the Royal Decrees at issue which rendered the insurance under the AOW of married women dependent on the question whether or not their husbands were insured under the AOW, whereas the Decrees did not contain a comparable provision as regards married men.

The Appeals Tribunal examined the applicant's situation in the light of Article 26 of the International Covenant on Civil and Political Rights (ICCPR). It recalled the case-law of the Central Appeals Tribunal according to which, as from 23 December 1984 , this provision was directly applicable in the Netherlands legal order, also in the field of social security. The Appeals Tribunal found that this implied that rights could be derived directly from this provision insofar as an application, after 23 December 1984, of statutory rules created a difference in treatment between men and women without any objective and reasonable justification for this difference in treatment and which difference in treatment further led to a more unfavourable result than the result would have been if there had not been such a difference. It found that the applicant found herself in this situation as she had been awarded an old age pension on 1 March 1989 from which 38% was deducted on the basis of rules which made an unjustified difference between married men and women.

The Appeals Tribunal noted that, as from 1 April 1985, the principle of equal treatment between men and women had been incorporated in the AOW and that this had resulted in the introduction of a system in which the entitlement to full benefits under this Act was made solely dependent on the question whether or not the person concerned had personally completed the insurance years under this Act. It concluded that, in this light, it could not be held against married women, like the applicant, who had fully complied with the conditions for insurance under the AOW, that they had not been insured during a certain period solely on grounds of marital status.

Consequently, the Appeals Tribunal quashed the decision of 14 February 1989 , insofar as the applicant's pension was reduced by 38%, upheld the decision for the remainder and ordered that the applicant was entitled to a full pension under the AOW. The Board of the Social Insurance Bank filed an appeal with the Central Appeals Tribunal.

In its judgment of 26 November 1993 , following adversarial proceedings in the course of which a hearing was held on 15 October 1993 , the Central Appeals Tribunal quashed the decision of 10 January 1990 and rejected the applicant's appeal against the decision of 14 February 1989 as ill-founded.

The Central Appeals Tribunal noted at the outset that it was not in dispute between the parties that the applicant did not belong to the group of persons as defined in Article 2 of the EC Directive 79/7/EEC on the gradual implementation of the principle of equal treatment of men and women in the field of social security. It considered this view to be correct and, consequently, held that the question whether the reduction of the applicant's pension could not be examined in the light of the prohibition of discrimination set out in Article 4 § 1 of this Directive.

As regards the question whether the reduction of the applicant's pension was compatible with Article 26 of the ICCPR, the Central Appeals Tribunal considered that this provision could be directly invoked, also in the field of social security, as from 23 December 1984 . It further recalled the case-law according to which this implied that Contracting States to the ICCPR were obliged to ensure that their statutory rules were free of any form of discrimination prohibited by this provision. However, according to the Central Appeals Tribunal, a difference in treatment was not contrary to this provision where there were objective and reasonable grounds for making such a difference.

In this perspective, the Central Appeals Tribunal held that Article 26 of the ICCPR could not deprive a national statutory rule of its effect according to which the level of benefits under a statutory insurance scheme - like the AOW - was made dependent on the question of whether the periods of insurance had been completed. It held that this was no different in a situation where it could be established that the non-completion of periods of insurance, as regards the period before 23 December 1984, was based on a domestic rule which made a difference in treatment on the basis of sex as this rule had been in operation during a period in which Article 26 of the ICCPR had not yet directly applied and could not, therefore, deprive this domestic rule of its effect.

The applicant's subsequent appeal in cassation with the Supreme Court ( Hoge Raad ) was rejected on 29 May 1996 . As to the applicant's argument that the Central Appeals Tribunal had failed to examine whether or not there was an objective and reasonable justification for the difference in treatment at issue, the Supreme Court held that the Central Appeals Tribunal had correctly found that, as regards the periods in which the applicant had not been insured under the AOW, she could not rely on Article 26 of the ICCPR as these periods predated the entry into force of this international instrument.

Insofar as the applicant complained that the Central Appeals Tribunal had unjustly failed to deprive the discriminatory rule at issue of its effect on grounds of incompatibility with the prohibition of discrimination contained in Article 1 of the Constitution ( Grondwet ), the Supreme Court held that the periods during which the applicant had not been insured under the AOW predated the entry into force of Article 1 of the Constitution.

Insofar as, on this point, the applicant relied on unwritten general principles of law ( algemene rechtsbeginselen ) in particular the principle of equality, the Supreme Court considered that, according to the Explanatory Memorandum ( Nota van Toelichting ) to the first Royal Decree on Extension and Limitation of the group of insured persons, i.e. of 20 December 1956, the exclusion was aimed at the prevention of an undesirable accumulation of benefits. According to this Explanatory Memorandum the pension built up by the man abroad was also considered to be destined for his spouse.

The Supreme Court held that in view of the social attitudes prevailing at the relevant time, i.e. the periods during which the applicant had not been insured under the AOW, the then Government could have based themselves on the idea that in practically all cases it was the man who was the "breadwinner" so that they could accordingly limit themselves to exclude married women and did not have to make a separate provision for those cases where the woman was the "breadwinner". The Supreme Court concluded that, therefore, there was an objective and reasonable justification for the difference in treatment on grounds of sex on which the exclusion at issue was based.

The Supreme Court further rejected the applicant's argument based on the principle of equality contained in Article 4 § 1 of the EC Directive 79/7/EEC on the gradual implementation of the principle of equal treatment of men and women in the field of social security, as the applicant fell outside the scope of Article 2 of this Directive which provision defined the group of persons to whom this Directive applied.

B. Relevant domestic law and practice

The AOW provides for a general old age pension scheme for persons who have attained the age of 65. Under this scheme, all persons between the ages of 15 and 65 who are residing in the Netherlands are insured. Contributions to this scheme are paid by all persons who are gainfully employed in the Netherlands .

Entitlement to an AOW benefit is not dependent on the level of contributions paid as, contrary to a social security scheme based on employment ( werknemersverzekering ), it is a general social security scheme ( volksverzekering ). The level of benefits is, however, linked to the period of time during which a person has been insured under the AOW as, pursuant to Article 13 (Article 10 before 1 April 1985) of the AOW, an AOW pension is reduced by 2% for each year, between the ages of 15 and 65, that the person concerned has not been insured under the AOW on grounds of, inter alia , residence outside of the Netherlands. A person who has been insured under the AOW for 50 years is entitled to a full AOW pension.

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, 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.

Until 1 April 1985 , a married man was entitled to an AOW pension for a married couple equal to 100% of the minimum wage in force in the Netherlands . Unmarried persons of either sex were entitled to 70% of the minimum wage. A married woman had no entitlement in her own right. According to the Royal Decree on Extension and Limitation of the group of insured persons, as amended on several occasions, a married woman residing in the Netherlands - whose husband was employed abroad and socially insured in the foreign country of employment - was not insured under the AOW.

As from 1 April 1985 , married women became entitled in their own right to an AOW pension. Each spouse became entitled to an AOW pension equal to 50% of the minimum wage. The position for unmarried persons remained unchanged. As a result of this change, married women are no longer excluded from the AOW insurance for periods during which their husbands were employed abroad, provided that they themselves have continuously resided in the Netherlands or have themselves contributed on the basis of gainful employment in the Netherlands .

Article 1 of the 1983 Constitution provides:

"All persons present in the Netherlands shall be treated in the same way in similar situations. Discrimination on the ground of religion, philosophical convictions, political leanings, race, sex, or any other ground whatsoever shall not be allowed."

Under Netherlands constitutional law, courts may not review the constitutionality of statutes. Article 120 of the Constitution reads:

"The courts shall not rule on the constitutionality ( grondwettigheid ) of statutes and treaties."

Delegated legislation, on the other hand, may be examined to determine whether it is in conformity with the Constitution and even with unwritten general principles of law (cf. Hoge Raad, 1 December 1993, Beslissingen in Belastingzaken 1994, no. 64).

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. 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 1982, no. 424 [corrected in Nederlandse Jurisprudentie 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.

However, in a number of judgments it has declined to construe Article 26 of the Covenant in such a way as to deprive national legislation of its effect even if it considered that a given measure constituted illegal discrimination between men and women, holding that where various options were open to the national authorities to remove such discrimination, the choice should be left to the legislature in view of the social and legal implications attending each possible course of action (cf. Hoge Raad, 12 October 1984, Nederlandse Jurisprudentie 1985, no. 230, and Hoge Raad , 23 October 1988, Nederlandse Jurisprudentie 1989, no. 740).

In its judgment of 16 November 1990 ( Nederlandse Jurisprudentie 1991, no. 475), cited in the Court's Kroon and Others v. the Netherlands judgment of 27 October 1994 (Series A no. 297-C), the Supreme Court came to a similar finding with regard to Article 14 of the Convention taken together with Article 8 (loc. cit., p. 50, § 14).

COMPLAINT

The applicant complains that the reduction of her pension under the AOW is the result of a discriminatory difference in treatment between married men and women contrary to Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.

THE LAW

1. The applicant complains that the reduction of her pension under the AOW is the result of a discriminatory difference in treatment between married men and women contrary to Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.

Article 14 of the Convention provides:

“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 reads:

“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.”

2. The Government submit in the first place that the applicant has failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention in that at no stage in the domestic proceedings she has contended that the decision at issue constituted a deprivation of possessions within the meaning of Article 1 of Protocol No. 1.

The applicant submits that she has raised her complaint under the Convention in substance before the domestic courts in that she has complained throughout the domestic proceedings that the reduction of her pension by 38% was discriminatory. She refers on this point to the decision on admissibility in Application No. 20948/92 (Eur. Comm. HR, Mehmet Işıltan v. Turkey , Dec. 22.5.95, D.R. 81, p. 35).

The Court recalls that the mere fact that all remedies have been tried does not in itself constitute compliance with the requirement of Article 35 § 1 of the Convention that the domestic remedies have been exhausted. It is also required that applicants must have raised before the national authorities, at least in substance, the complaint they bring before the Court (cf. Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 66).

The Court notes that, although the applicant has not explicitly invoked any provision in the Convention in the domestic proceedings, the alleged discriminatory nature of the decision to reduce the applicant's AOW pension did in fact form the basis of the proceedings instituted by the applicant before the national courts. In these circumstances, the Court accepts that the applicant has raised her complaint under Article 14 of the Convention in substance before the domestic courts, including the highest competent court, and has therefore complied with the requirement of exhaustion of domestic remedies in respect of her complaint of having been subjected to a discriminatory treatment.

3. The Government further submit that the proceedings at issue do not concern a right guaranteed by Article 1 of Protocol No. 1 and, consequently, fall outside the scope of Article 14 of the Convention. Relying on the cases of J.O. et al. v. the Netherlands (Eur. Comm HR, No. 4130/69, Dec. 20.78.71, unpublished), Lokkertsen-Meertsens v. the Netherlands (Eur. Comm. HR, No. 5763/72, Dec. 18.12.73, unpublished), Vos v. the Netherlands (Eur. Comm. HR, No. 10971/84, Dec. 10.7.85, D.R. 43, p. 190) and the Gaygusuz v. Austria judgment of 16 September 1996 ( Reports 1996-IV, p. 1129), the Government argue that, social insurance schemes characterised by the principle of solidarity are scarcely compatible with the definition of benefits as “possessions” within the meaning of Article 1 of Protocol No. 1 in that, unlike systems under which the level of benefit is linked to contributions paid, a system based on solidarity distributes the available resources equally among all claimants.

On this point, the Government submit that, under the AOW scheme, all those who are in paid employment in the Netherlands contribute funds from which the pensions of those who are entitled to an AOW pension are paid. Persons having reached the age of 65 and persons having little or no income do not contribute to the AOW scheme. Entitlement to AOW benefits does not depend on whether or not contributions have been paid. Therefore, the group of contributors is different from the group of beneficiaries. Given the absence of a connection between contribution and entitlement under the AOW scheme, the Government consider that, therefore, an AOW pension cannot be regarded as falling within the scope of the Article 1 of Protocol No. 1.

The applicant, also relying on the Court's findings in its judgment in the case of Gaygusuz v. Austria refutes the Government's arguments as to the applicability of Article 1 of Protocol No. 1. She argues that, in that case, there was also no link between contributions paid and benefits under the domestic emergency assistance scheme. She submits that pecuniary claims on the basis of statutory rules or regulations are closely linked to a person's social security and subsistence and thus have an equal weight as other property rights and, therefore, must be considered as falling within the scope of Article 1 of Protocol No. 1.

The Court recalls that, unlike Article 26 of the International Covenant on Civil and Political Rights, Article 14 of the Convention has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" guaranteed by the other substantive provisions of the Convention. Although the application of Article 14 does not presuppose a breach of those substantive provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts in issue fall within the ambit of one or more of the substantive provisions of the Convention (cf. Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291-B, p. 32, para. 22).

The question therefore arises whether the right to a pension can be regarded as constituting a “possession” within the meaning of Article 1 of Protocol No. 1. The Court observes that the European Commission of Human Rights has examined this question on several occasions. According to the Commission's constant case-law, whilst no right to a pension is as such included in the Convention, the making of compulsory contributions to a pension fund may, in certain circumstances, create a property right in a portion of such fund (cf. Müller v. Austria, Comm. Report 1.10.75, D.R. 3, p. 25; No. 7624/76, Dec. 6.7.77, D.R. 19, p. 100; No. 10671/83, Dec. 4.3.85, D.R. 42, p; 229; No. 12264/86, Dec. 13.7.88, D.R. 57, p. 131; and No. 11543/85, Dec. 5.3.90, D.R. 65, p. 51).

Furthermore, insofar as Article 1 of Protocol No. 1 includes the right to derive benefits from a social security system, the person concerned must, in order to establish that right, satisfy the conditions set by domestic law (cf. Eur Comm. HR, No. 7459/76, Dec. 5.10.77, D.R. 11, p. 114; and No. 10443/83, Dec. 15.7.88, D.R. 56, p. 20; and Eur. Court HR, Gaygusuz v. Austria judgment of 16 September 1996, Reports 1996-IV, pp. 1141-1142, §§ 39-41; and Nos. 40832/98, 40833/98 & 40906/98, Bellet, Huertas and Vialatte v. France, Dec. 27.4.99).

Turning to the facts of the instant case, the Court notes that it is not disputed that the applicant is entitled to an at least partial AOW pension and, therefore, accepts that the applicant's right to a pension under the AOW can be regarded as a “possession” within the meaning of Article 1 of Protocol No. 1 and that, consequently, Article 14 of the Convention is applicable.

4. As regards the substance of the complaint under Article 14, the Government submit that there is an objective and reasonable justification for the difference in treatment complained and that the distinction fell within the Contracting States' margin of appreciation of policymaking discretion.

The Government submit that, given the prevailing social attitudes at the material time, a married woman's entitlement to AOW insurance was linked to her husband as the latter was the breadwinner in the vast majority of cases at the time. After social attitudes had changed, the AOW system was altered as from 1 April 1985 giving married women an independent right to AOW insurance and benefits. As changes in social attitudes occur gradually, it is virtually impossible to indicate with precision when a change has taken place in society that eliminates a justification derived from social attitudes. However, the question of whether periods were insured must be answered on the basis of provisions that applied at the material time. Finally, arguing that the receipt in full of two or more social security pensions should be avoided, the Government point out that the applicant is receiving a pension from a foreign country as well as a reduced AOW pension.

The applicant submits that the Government does not deny that the AOW rules in force at the relevant time did discriminate against married women and is of the opinion that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised, i.e. the undesirable accumulation of pension rights. In her opinion other legislation could have been possible. As to the point in time when social attitudes had changed, the applicant argues that even in 1957 the principle of equality and the resulting prohibition of discrimination was a general principle of both national and international law. In this respect, she refers to Article 1 of the 1948 Universal Declaration of Human Rights, which states that “All human beings are born free and equal in dignity and rights”. She further refers to Article 14 of the Convention (1950) as well as to Article 12 § 4 of the European Social Charter (1961) in which latter provision the Contracting States undertook to ensure equal treatment with their own nationals of nationals of other Contracting Parties in respect of social security rights. The applicant is of the opinion that there are no weighty reasons to confront a small group of women, who do not fall within the scope of the EC Directive 79/7, for the rest of their lives with the consequences of a discriminatory provision from the past that has been abolished in the meantime.

The Court considers, in the light of the parties' submissions that the case raises serious issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court 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.

Michael O'Boyle Elisabeth Palm Registrar President