Information Note on the Court’s case-law 107

April 2008

Burden v. the United Kingdom [GC] - 13378/05

Judgment 29.4.2008 [GC]

Article 14

Discrimination

Ineligibility of cohabiting sisters to exemption from inheritance tax enjoyed by surviving spouses or civil partners: no violation

Facts : Under the Inheritance Tax Act 1984, inheritance tax is charged at 40% on the value of the deceased’s estate above a th reshold fixed in the annual budget. Property passing from the deceased to his or her spouse or “civil partner” (a category introduced under the Civil Partnership Act 2004 for same-sex couples, which does not cover family members living together) is, howeve r, exempt from charge. The applicants were elderly, unmarried sisters who had lived together all their lives, for the last 31 years in a house they owned jointly built on land inherited from their parents. Each had made a will leaving all her estate to the other. They were concerned that, when one of them died, the survivor would face a heavy inheritance tax bill – unlike the survivor of a marriage or a civil partnership – and might be forced to sell the house to pay the liability.

In a judgment of 12 Decem ber 2006 (see Information Note no. 92), a Chamber of the Court, by four votes to three, left open the question whether the applicants could claim to be in an analogous position to a couple who were married or in a civil partnership, holding that any differ ence in treatment was in any event objectively and reasonably justified, regard being had to the wide margin of appreciation enjoyed by the States in the area of taxation.

Law

(a) Preliminary objections

(i) Victim status : The Grand Chamber reiterated that it was open to a person to contend that a law violated his rights if he was a member of a class of people who risked being directly affected by the legislation. Given their age, the wills they had made and the value of the property each owned, the applican ts had established that there was a real risk that, in the not too distant future, one of them would be required to pay substantial inheritance tax on the property inherited from her sister. In those circumstances, they could claim to be victims of the all eged discriminatory treatment.

(ii) Exhaustion of domestic remedies : The Government had argued that the applicants – who had not suffered any liability for inheritance tax – could have applied to the domestic courts under the Human Rights Act for a declara tion that the legislation in question was incompatible with a Convention right. The Grand Chamber noted that a declaration would have given a discretionary power to the relevant government minister to amend the offending legal provision. However, while it was true that steps had been taken to amend the offending legislation in all cases where declarations of incompatibility had become final, it would be premature to hold that that procedure provided an effective remedy. Nevertheless, that did not exclude th e possibility of the practice of amending legislation following a declaration of incompatibility becoming so certain at some point in the future as to create a binding obligation. In those circumstances, except where an effective remedy necessitated the aw ard of damages, applicants would be required first to exhaust that remedy before making an application to the Court.

Conclusion : objections dismissed (unanimously).

(b) Merits : The relationship between siblings was qualitatively of a different nature to that between married couples and homosexual civil partners under the Civil Partnership Act. The very essence of the connection between siblings was consanguinity, whereas one of the defining characteristics of a marriage or Civil Partnership Act union was that it was forbidden to close family members. The fact that the applicants had chosen to live together all their adult lives did not alter that essential difference between the two types of relationship. Marriage conferred a special status on those who entered into it and civil partnerships gave rise to a legal relationship designed by Parliament to correspond as far as possible to marriage. The legal consequences which couples in both marriages and civil partnerships expressly and deliberately decided to incur set those types of relationship apart from other forms of cohabitation. Rather than the length or the supportive nature of the relationship, what was determinative was the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature. The absence of such a legally-binding agreement between the applicants rendered their relationship of cohabitation, despite its long duration, fu ndamentally different to that of a married or civil partnership couple. There had therefore been no discrimination.

Conclusion : no violation (fifteen votes to two).

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

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