Information Note on the Court’s case-law 16

March 2000

Walden v. Liechtenstein (dec.) - 33916/96

Decision 16.3.2000 [Section IV]

Article 14

Discrimination

Calculation of the joint pension of a couple exclusively on the basis of the husband’s contribution to the pension scheme: inadmissible

In December 1993, the old age pension authorities fixed a joint married couple pension for the applicant and his wife. A ccording to the Old Age Pension Act, husbands are exclusively entitled to receive the married couple’s pension, while their wives’ claims to an individual pension cease and are replaced by a derived right to payment of half of the joint pension. Joint pens ions are calculated on the basis of the husbands’ number of years of contribution to the pension scheme and correspond to 150% of their individual pension. The applicant’s years of contribution being shorter than his wife’s, their joint pension turned out to be lower than it would have been if the pension had been fixed on the basis of his wife’s years of contribution. The applicant filed an objection against the decision fixing their joint pension, which the old age pension authorities dismissed. The Court of Appeal and the Supreme Court rejected the applicant’s appeals. In May 1996, the applicant’s constitutional complaint was partly granted by the State Court, sitting as a Constitutional Court. The court found that the pension system, based on a tradition al view of marriage, was unconstitutional as being contrary to the principle of non-discrimination between the sexes. However, the court refused to quash the contested judgment and set aside the relevant provisions of the Old Age Pension Act given, in part icular, the detrimental consequences it would have on the pension claims of the majority of couples. An amendment which took into consideration the applicant’s situation was being examined by the Parliament at the time. Nevertheless, having regard to the s ix month statutory time-limit imposed on the suspension of abrogations and the fact that it might take longer to enact the amended legislation, the court could not take the risk that the annulment might become effective and produce adverse effects on other couples. The amendment was eventually adopted, the applicants each receiving an individual pension as of January 1997.

Inadmissible under Article 14 taken in conjunction with Article 1 of Protocol No. 1: The applicant had a pecuniary right to a joint marr ied couple’s pension, the calculation of which he deemed to be discriminatory and despite the State Court’s finding of May 1996, he could claim to be a victim of the alleged violation, as the impugned provisions were not set aside and remained applicable u ntil January 1997. The principle of legal certainty may dispense States from questioning legal acts or situations that antedate a judgment of a constitutional court annulling domestic law as being unconstitutional. Moreover, by reason of the principle of l egal certainty, a constitutional court may set a time-limit for the legislator to enact new legislation with the effect that an unconstitutional provision remains applicable for a transitional period. In the present case, the State Court did not annul the provisions found to be unconstitutional. Having regard to the fact that an abrogation could only be suspended for six months, it appeared too short a period to enact new legislation on such an intricate issue. In view of the detrimental effects which an an nulment of the relevant provisions would have on the pensions claims of others, the court refused to set aside the provisions. Overall, the present case did not differ substantially from a case in which a Constitutional Court annuls an unconstitutional pro vision and sets a time-limit for enacting new legislation. Therefore, the State Court’s decision, which had the effect that unconstitutional legislation remained applicable to the applicant for a limited period, served the interests of legal certainty. Giv en the shortness of this period, which ended seven months after the State Court’s decision, the continued application of the pension provision in issue could be regarded as proportionate: manifestly ill-founded.

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

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