Information Note on the Court’s case-law 45

August-September 2002

Duchez v. France (dec.) - 44792/98

Decision 26.9.2002 [Section I]

Article 14

Discrimination

Refusal to pay military allowance for “head of family” to a woman where both she and her husband are members of the Air Force: inadmissible

[This summary also covers the decision of the case Bleneau v. France , no. 47910/99, 26 September 2002]

The applicant s are regular servicewomen in the French Air Force, each married to a fellow-member of the service. They applied for payment of the military allowance at the same increased rate for “head of family” as was payable to their husbands, following a Conseil d’E tat decision (Costa case) that had established the possibility of concurrent payment to a husband and wife, both service personnel, of two military allowances at the “head of family” rate. The refusal of their request by the military authorities was founde d on the stated impossibility of double payment to a married couple of a military allowance at the increased “head of family” rate. This decision was set aside by the administrative court prior to the entry into force of a validating law. The Conseil d’Eta t eventually ruled that all married service personnel, irrespective of gender, could draw the military allowance at the “head of family” rate but that where both spouses were members of the armed forces the family supplements could not be drawn concurrentl y and were payable to the head of the family, namely the husband in the case in point.

Inadmissible under Article 1 of Protocol No. 1 in conjunction with Article 14: these two provisions are applicable as entitlement to the military allowance, to the exten t that it is prescribed by the applicable legislation, is a pecuniary right. The applicants were refused the military allowance at the “head of family” rate because their husbands were already in receipt of it, in order to obviate payment to two married ar med forces members of two allowances at increased rates in each case, since the family supplements were not payable concurrently. The allowance at the “head of family” rate is not awarded according to the beneficiary’s gender but is paid in practice to the partner with the higher pay index, in order that the couple or family may draw the allowance at the highest possible rate. Thus men and women are not treated differently, nor are married and unmarried couples as the second applicant claimed (No. 47910/00) . In fact certain couples serving in the forces were able to take advantage of a loophole in the legal system so as to draw two concurrent allowances during the period which elapsed between the Costa case and the validating law. The applicant, although she had lodged her request during that period, was unable to qualify for the “head of family” military allowance. Thus she was treated differently from the service personnel who succeeded in their claims before the Conseil d’Etat following the Costa case. How ever, this difference in treatment is not contrary to the Convention. Indeed, the validating law was enacted for a justifiable purpose and the object of the alleged discrimination, said to arise from the adoption of that law, was a reasonable one. Thus the practice of awarding the allowance at the “head of family” rate to the partner with the higher pay index appears legitimate, reasonable and proportionate to the aim sought, even though in practice it is usually the male partner who receives this allowance : manifestly lacking in foundation.

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

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