Information Note on the Court’s case-law 43

June 2002

Wessels-Bergervoet v. the Netherlands - 34462/97

Judgment 4.6.2002 [Section II]

Article 14

Discrimination

Sex

Different treatment of married women under pension legislation: violation

Facts : The applicant’s husband was granted an old age pension in 1984. However, the amount was reduced because he had not been insured during certain periods when he had worked a broad. In 1989 the applicant, on reaching the age of 65, was granted an old age pension, which was also reduced, pursuant to the provisions applicable until 1985, on the ground that she had not been insured during the periods when her husband had been work ing abroad. On the applicant’s appeal, the Appeals Tribunal quashed the decision to reduce her pension, considering that the applicable provisions were discriminatory, since the pension of a married man in a similar position would not be subject to reducti on. However, this decision was quashed by the Central Appeals Tribunal and the applicant’s subsequent cassation appeal was rejected by the Supreme Court.

Law : Article 14 in conjunction with Article 1 of Protocol No. 1 – The Court had considered in its deci sion on admissibility that the applicant’s rights to a pension could be regarded as a “possession” within the meaning of Article 1 of Protocol No. 1 and that, consequently, Article 14 of the Convention was applicable. The only reason for the applicant’s ex clusion from insurance was the fact that she was married to a man who was not insured due to his employment abroad. It was undisputed that a married man in the same situation as the applicant would not have been excluded in this manner and the reduction in the applicant’s pension was therefore based exclusively on the fact that she was a married woman. As to the Government’s argument that the undesirable accumulation of pension rights was an objective and reasonable justification for the difference in treat ment, the legislation did not prevent a married man in the same situation as the applicant from accumulating pension rights. As to the argument that social attitudes at the material time were different in that most breadwinners were married men, even assum ing such an argument had merit, it was of some relevance that the Convention and Protocol No. 1 had already entered into force in the Netherlands in 1954. Furthermore, the inequality in treatment materialised in 1989 when, given the prevailing social attit udes at that time, the aim pursued by the provisions concerned could no longer be upheld. In this respect, when the provisions were changed in 1985, no measures were taken to remove the discriminatory effect of the former provisions. There was thus a diffe rence in treatment which did not have an objective and reasonable justification.

Conclusion : violation (unanimously).

Article 41 – The Court reserved the question of just satisfaction.

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

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