Information Note on the Court’s case-law 70

December 2004

Merger and Cros v. France - 68864/01

Judgment 22.12.2004 [Section I]

Article 14

Discrimination

Discrimination in law against children of adulterous relationships with regard to gifts: violation

Discrimination in law against children of adulterous relationships with regard to inheritance: violation

Article 8

Article 8-1

Respect for family life

Inheri tance and gifts from close relative

Article 41

Just satisfaction

Discrimination in succession

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Possessions

Annulment of gift and will in favour of applicant at time of distribution of estate: Article 1 of Protocol No. 1 inapplicable

Facts : The first applicant was illegitimate. Her father, who also had four legitimate children, made inter vivos and testamentary gifts of movable property to her. Following his death, the four legitimate children challenged the provision he had made for the first applicant. Relying on the domestic law then applicable, the tribunal de grande instance found that, as an illegitimate child whose father had been married to a woman other than her mother when she was conceived, the first applicant was entitled to a smaller share of the estate than the legitimate children. Applying the statutory rules, which restricted the share in the estate of a child born of an adulterous relationship and its capacity to receive gifts from its parent, it held that the first applicant was entitled to only 10% of the net estate and set aside the gifts from her father. The Court of Appeal up held that judgment in so far as it refused to grant the first applicant the same rights as legitimate children to inherit or to receive inter vivos gifts. The applicants – the mother and her daughter – appealed to the Court of Cassation complaining of the restrictions on the rights of illegitimate children conceived when one of their parents was bound by marriage to another person to inherit or to receive gifts. The Court of Cassation dismissed their appeal in May 2000. Subsequently new legislation was pass ed modernising the law of succession and repealing the provisions discriminating against children of “adulterous relationships”.

Law : Article 8, taken together with Article 14 – Restrictions on the rights of children of adulterous relationships to receive gifts from their parents : The first applicant’s parents had been living together for three years when she was born. She and her parents therefore clearly formed a “family” within the meaning of Article 8 at that time. Questions of inheritance and voluntar y dispositions between near relatives appeared to be intimately connected with “family life”, which included social, moral and cultural relations, such as interests of a material kind, and the distribution of the estate represented a feature of family life that could not be disregarded. In short, Article 8 was applicable. Nevertheless, it was not a requirement of that provision that a general right to receive voluntary dispositions or a share in the estate should be recognised.

The restrictions which the Fr ench Civil Code placed on the first applicant’s capacity to receive gifts from her father were not of themselves in conflict with the Convention. It was the distinction made in that connection between the first applicant – an illegitimate child conceived w hen her father was bound by marriage to another person – and the legitimate children which raised an issue under Article 14 of the Convention, taken together with Article 8. In the case before the Court, owing to her position as on illegitimate child conce ived when her father was bound by marriage to another person, the first applicant was statutorily disqualified from receiving more than half of the reserved portion of the estate she would have received had she been legitimate. Likewise, for the same reaso n, all the gifts had been artificially deemed to form part of the estate and, after calculations had been performed, the first applicant had been required to pay each of the other heirs – the legitimate children – a sum of money, with the result that all s he in fact had received was half her share. The Court did not find any ground on which to justify such a difference in treatment based on birth out of wedlock.

Conclusion : violation (unanimously).

Article 1 of Protocol No. 1, taken together with Article 14 of the Convention – Inheritance rights : The issue of discrimination under the statutory provisions against children of adulterous relationships in the division of the estate being identical to that which had arisen in the case of Mazurek v . France (ECHR 2 000-II), the Court found a violation. The applicants also complained of a violation of Article 8, taken together with Article 14, but the Court did not consider it necessary to examine this complaint since the arguments advanced were the same as those it h ad examined under Article 1 of Protocol No. 1, taken together with Article 14 of the Convention, in respect of which it had found a violation.

Article 1 of Protocol No. 1, taken together with Article 14 – the inter vivos and testamentary gifts to the appli cants were set aside retrospectively in the proceedings concerning the winding up of the estate. Although Article 1 of Protocol No. 1 enshrined the right of everyone to the peaceful enjoyment of “his” possessions, it only applied to a person’s existing pos sessions and did not guarantee the right to acquire possessions inter vivos or through voluntary disposition. Neither of the two Articles relied on was applicable in the case before the Court.

Conclusion : no violation (unanimously).

Article 41 – On account of the discriminatory treatment, the first applicant had sustained pecuniary damage in an amount equal to the difference between the sum she had actually received and the share in her father’s estate she would have received had she been a “legitimate” chi ld. The total revised amount came to € 611 845, which the Court awarded. It awarded the same amount for non-pecuniary damage as it had done in the case of Mazurek .

© Council of Europe/European Court of Human Rights This summary by the Registry does not bi nd the Court.

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