PARTLY DISSENTING OPINION OF JUDGE MARTENS

1. The combined estates of the applicant ’ s grandparents were distributed well after the delivery of the Court ’ s judgment in the Marckx case. Nevertheless, the division was carried out under the former Article 756 of the Belgian Civil Code; thus only the children of the applicant ’ s uncle benefited and the applicant was excluded. She disputed the division. In accordance with the Marckx judgment she based her claim for an equal share in both estates on Article 14, taken in conjunction with Article 8 (art. 14+8) of the Convention. The Belgian courts refused, however, to annul the partition.

2. The former Article 756 denied to an "illegitimate" child any rights on intestacy in the estates of the relatives of its parents. In paragraph 59 of its Marckx judgment the Court held that this "total lack of inheritance rights" constituted a breach of Article 14, taken in conjunction with Article 8 (art. 14+8). It is true that in so holding the Court did not, strictly speaking, pronounce on whether a different share for legitimate and "illegitimate" children would be compatible with the said provisions. However, the Court ’ s reasoning (especially in paragraphs 40 and 41 to which reference is made in paragraph 55) clearly implies that, in this province, only complete equality avoids discrimination.

Accordingly, only a distribution of the estates of the applicant ’ s grandparents in which she shared equally with her two cousins was compatible with the requirements of Article 14, taken in conjunction with Article 8 (art. 14+8). That is why, in substance, I am in agreement with paragraph 25 of the present judgment.

3. To my regret, however, I disagree with the majority finding of a violation only as far as the estate of the grandfather is concerned. Whilst the majority holds that the Marckx doctrine only applies when "the opening of the succession" occurred after 13 June 1979 , the date of the Court ’ s judgment in that case, I find that it applies to all successions where the distribution of the estate had not yet been finalised on that date.

4. The root of this difference of opinion is to be found in the ruling the Court gave on "the temporal effect" of the Marckx judgment (para. 58) which reads:

"... the principle of legal certainty ... dispenses the Belgian State from reopening legal acts and situations that antedate the delivery of the present judgment."

The question is how this ruling should be interpreted.

5. The majority is obviously of the opinion that it requires no further argument that the ruling refers back to national law: its finding that as to the grandmother ’ s estate there is "a legal situation antedating the delivery of the Marckx judgment" within the meaning of the ruling (paragraph 22 of the judgment) is, without more ado, merely based on principles of Belgian law.

In its Marckx judgment the Court must, however, have been well aware:

(1) of the fact that Belgium was not the sole member State of the Council of Europe where the law on inheritance discriminated against "illegitimate" children1;

(2) of the fact that, accordingly its judgment would affect other member States as well; and

(3) of the differences which, in respect to the law of inheritance, exist between the legal systems of the member States2. Accordingly, an autonomous interpretation of the ruling seems appropriate.

6. Query, however: does not comparative law show that the "opening of the succession" or "the death of the de cujus " are often used as the decisive starting point in the context of transitional provisions in the province of succession law3 and is it not, accordingly, to be assumed that one of these moments has the same function under an autonomous interpretation of the Court ’ s ruling? I have no doubt that this question must be answered in the negative.

7. A first and obvious point to make is that the formula used by the Court (see paragraph 4 above) is certainly not the most natural way of expressing the idea that for the temporal effect of the Marckx doctrine the date of the opening of the succession or of the decease of the de cujus should be decisive.

8. A more important consideration is, however, that the ruling by its very nature purports to limit the retroactive effect which - as the Belgian Government stressed in the Marckx case (see paragraph 58 of the Marckx judgment) - is peculiar to a judicial decision. When the Court decided that in this case such a limitation was appropriate, it did so in response to the warning by the Belgian Government that unless the Court made some proviso4:

"the result of the judgment would be to render many ... distributions of estates irregular and open to challenge before the courts..." (ibid.)5.

The wording of the Court ’ s ruling is conspicuously similar to that of the Government ’ s exhortations. That makes it probable that the Court, when dispensing Belgium (and other member States where "illegitimate" children were still being similarly discriminated against)

"from reopening legal acts or situations that antedate the delivery of the present judgment",

intended to avoid the chaotic consequences held out by the Government by limiting the retroactive effect of its judgment with the result that the new doctrine would not apply to those estates that had already been wholly distributed. The word "reopening" (" remettre en cause" in the French text) supports this interpretation of the ruling. So does the term "legal acts and situations" which suggests that in answer to the Government the Court stated that it would not be necessary to reopen distributions nor to undo ( notarial ) deeds of partition and those legal situations which, in the meantime, had been based thereon (such as ownership of goods originating from the former estate and sold by a former heir who had acquired them at the distribution).

9. There is a further, and to my mind decisive point to be made in favour of the interpretation of the ruling suggested in paragraphs 3 and 8. What the Marckx judgment was about was: discrimination against "illegitimate" children and its "message" was that such discrimination was fundamentally unjust and could no longer be tolerated.

Against this background it seems obvious that the ruling should be interpreted strictly: legal certainty should of course be taken into account where possible (in the sense of the prevention of legal "disorder") but where the price for attaining this end has to be the "continuation of fundamental injustice" that continuation should be allowed only in so far as wholly unavoidable.

Continuation of injustice requires justification and that justification can only be found in the interests of third parties. The possibility of undoing even finalised distributions would affect the position of third parties who had acquired title to goods formerly belonging to the estate. It is for this reason that retroactivity had to be limited: the interests of third parties had to be safeguarded.

The interests of third parties, not those of the "legitimate" children. True, where the owner of the estate died before the delivery of the Marckx judgment, the "legitimate" children might be said to have been entitled to expect6 that they would not have to share with the "illegitimate" children. However, such an expectation was fundamentally unjust and as such deserved no protection. Accordingly, their interests could not serve as a justification for the Court ’ s acquiescence in the continuation of injustice.

10. All this leads to the conclusion that it stands to reason - indeed, that it is a requirement of justice - that where, after 13 June 1979, the estate of the applicant ’ s grandmother had not yet been distributed so that third party interests were not at stake and it was still possible to apply the new doctrine and thereby secure for the "illegitimate" child an equal share in the estate, that should have been done. Under the Court ’ s ruling as to the temporal effects of its Marckx judgment there is no need and no justification to differentiate in this respect between the estate of the grandmother and that of the grandfather.

NOTES

1 See, for inheritance law around 1976, the International Encyclopedia of Comparative Law, IV, chapter 6 (H.D. Krause), pp. 6-125 et seq.

2 See for example : M. Verwilghen E.A., Régimes matrimoniaux, successions et libéralités (Droit international privé et droit comparé) 1979, I, pp. 110 et seq .

3 See, for example, Article 8 of The Hague Convention on the Conflict of Laws relating to the Forms of Testamentary Dispositions:

"The present Convention shall be applied in all cases where the testator dies after its entry into force."

In his report on the draft convention, Batiffol noted with regard to a similar provision:

"C ’ est la solution la plus fréquente en droit comparé." (Actes et documents de la IXe session, III, p. 27)

In the present context, it is interesting to quote from the same report a further comment:

"Le texte de la Commission d ’ Etat visait la date d ’ ouverture de la succession. Cette expression a été remplacée par la date du décès du testateur parce que certains pays, dont la Grande-Bretagne, ignorent la notion d ’ ouverture de la succession."

4 Apparently, the Government had not, however, contemplated a ruling like the one the Court gave.

5 It is worthwhile to have a look at the exact wording of the original texts. See, first the Government ’ s memorial (Marckx case, Series B no. 29, p. 87), where the Government, having recalled that under Belgian law the relevant limitation period is thirty years, winds up its arguments by saying:

"Tous ces partages pourraient donc être rouverts."

and by pointing out "l ’ insécurité et le désordre qu ’ entraînerait cette possibilité". See, in the same sense and almost the same words, counsel for the Government at the oral hearing, telling the Court:

"Tous ces partages pourraient être remis en cause devant les tribunaux" (ibid., pp. 123-124).

6 In this context, I cannot refrain from noting that during the hearing in the Marckx case counsel for the applicants told the Court that since 1908 several bills had been introduced purporting to create equality between "legitimate" and "illegitimate" children but had never succeeded (see Marckx case, Series B no. 29, p. 111).

[*]  The case is numbered 44/1990/235/301.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]    The amendments to the Rules of Court which came into force on 1 April 1989 are applicable to this case.

[*]  Note by the Registrar: For practical reasons this annex will appear only with the printed version of the judgment (volume 214-C of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.