JOINT DISSENTING OPINION OF JUDGES BONELLO AND GARLICKI

1. We decided to dissent because we are convinced that the prospective imposition of “full” inheritance tax on the su rviving sister violates Article 14 of the Convention taken in conjunc tion with Article 1 of Protocol No. 1. In particular, we are not persuaded by the manner in which the “margin of appreciation” doctrine has been applied to this case.

We do agree that there must be a wide margin of appreciation offered to the national authorities in tax matters. We further agree that any system of taxation, to be workable, has to use broad categorisations to distinguish between different groups of taxpayers. We would also be prepared to agree that, with regard to tax matters, there may be some kind of presumption that the solutions adopted by the national legislature remain within this margin of appreciation. Such presumption would mean that it is, in principle, the applicant who must demonstrate that the application of the tax legislation in his or her case exceeded the State ' s margin of appreciation and led to unreasonable und unjustified effects.

However, this “burden of proof” is not unlimited. In our opinion, once an applicant is able to demonstrate that the way in which the tax legislation was applied created a situation of apparent hardship or injustice, the onus shifts towards the Government, who must then show that there were good reasons for their actions. Furthermore, if our Court decides to accept that such a situation of apparent hardship or injustice remains compatible with the Convention standards, it must give a full explanation as to how it applied the “margin of appreciation” concept.

2. The majority seems to agree that there has been a marginal situation or an individual case “of apparent hardship or injustice” (paragraph 60) in respect of the applicants. What seems to us, however, to be missing in the majority ' s position is a full explanation as to why and how such injustice can be justified. A mere reference to the margin of appreciation is not enough. It should also be recalled that, in the absence of such explanation, a problem of discriminatory treatment may arise, even outside the traditional arena of the Convention rights (see, mutatis mutandis , Stec and Others v. the United Kingdom (dec.) [GC], cited in paragraph 54 of the majority ' s judgment, §§ 54-55).

The national legislature is, generally speaking, free to adopt any reasonable policy of inheritance tax exemptions. As long as the United Kingdom confined the exemptions to married couples, such categorisation might have been justified under Article 12 of the Convention. However, once the UK legislature decided to extend the exemption to permanently cohabiting same-sex couples, the problem left the specific sphere of Article 12. Thus, any further categorisation in the area of inheritance tax ‑ exemptions has to satisfy general standards of reasonableness and non ‑ arbitrariness resulting from Article 14. Of course, we do not want to cast doubt upon the reasonableness of extending exemptions to those same sex couples choosing to form a civil partnership and denying such exemption to mixed-sex couples preferring not to enter into any form of official union. But once the legislature decides that a permanent union of two persons could or should enjoy tax privileges, it must be able to justify why such a possibility has been offered to some unions while continuing to be denied to others. The problem of siblings living together permanently did not escape the attention of the UK legislators and an appropriate amendment was proposed by the House of Lords. It was, however, rejected in the House of Commons on the basis of widespread agreement that the Civil Partnership Bill “is not the appropriate legislative base on which to deal with [the problem]” (see paragraph 19 of the judgment). Such an approach may have been correct from the perspective of parliamentary technique, but it could not absolve the legislature from providing an equitable solution to the problem at a later stage.

3. The situation of permanently cohabiting siblings is in many respects ‑ emotional as well as economical – not entirely different from the situation of other unions, particularly as regards old or very old people. The bonds of mutual affection form the ethical basis for such unions and the bonds of mutual dependency form the social basis for them. It is very important to protect such unions, like any other union of two persons, from financial disaster resulting from the death of one of the partners.

The national legislature may establish a very high threshold for such unions to be recognised under tax exemption laws; it may also provide for particular requirements to avoid fraud and abuse. But unless some compelling reasons can be shown, the legislature cannot simply ignore that such unions also exist.

The situation of permanently cohabiting siblings under the UK legislation has also been negatively affected by the fact that – being within the prohibited degrees of relationship – they cannot form a civil partnership. In other words, they have been deprived of the possibility of choice offered to other couples. That is why the present case cannot be determined by reference to the Shackell v. the United Kingdom decision (see paragraph 46 of the judgment) , since the latter was based on the fact that the persons affected were generally free to choose whether or not to enter into a formal union.

4. The injustice generally inherent in the UK approach appears particularly striking in the circumstances of this case. Both sisters have already attained a rather advanced age; they have been together for several decades and neither of them has children. It is obvious that the State will be

able to collect its tax in full upon the death of the surviving applicant. But the State wants to do it twice: first upon the death of the first sister and later by imposing a new inheritance tax on what still remains of the estate. As we see it, this is scarcely compatible with Article 14 taken in conjunction with Article 1 of Protocol No. 1. It may also raise problems under Article 8 if the extent of her tax obligations compels the surviving sister to leave her house or otherwise sacrifice the lifestyle to which she has been accustomed.