DISSENTING OPINION OF JUDGE ZUPANČIČ

I have voted for a violation in this case for reasons which have little to do with policy and values but have everything to do with formal logic. In other words, the majority ’ s position is logically inconsistent. The simplest way of explaining this is to say that where a person in certain situations has said A, he is logically required to say B. In this case the issue is clearly discrimination concerning the inheritance - tax exemption for two unmarried sisters who have lived together for many years in the same household. They, when approaching old age, wanted to have the right to inheritance - tax exemption given that the exemption has been granted by the United Kingdom legislature to other couples living together in the same household.

This brings us straight to the medias re s of the tax law. The policies applied to taxation are clearly very important because they give financial incentives to certain choices that people are likely to make. For example, if it were to be a policy of the law-giver to encourage heterosexual marriage it would then be logical for the legislator to offer certain tax credits, advantages and incentives to couples living together irrespective of whether they have children or not. If the legislature wants to encourage childbearing , it will give the same traditional tax incentives only to couples living together and having children. If the legislature wishes to discourage divorce, it will premise these advantages on the couples remaining together.

As to the reasonable goals such incentives are intended to further, they may or they may not be disclosed by the law-giver. But even if they are completely disclosed it does not mean that they are completely predictable. These tax incentives act together with many other factors including many other tax incentives and disincentives. In any event, tax policy is an economic policy but it is also a social policy in disguise. For example, progressive taxation is a strongly equalising economic factor undoing many untoward aspects of social stratification.

As for the inheritance - tax policy, radical solutions have sometimes been applied. An extremely high inheritance tax, for example, may indicate the law-giver ’ s preference for earned rather than inherited wealth. Be that as it may, the inheritance - tax policy is not a simple linear decision-making choice. Rather, it is an integral part of a complex web of economic decisions that heavily influence the distribution of wealth and thus the whole social structure.

Before we move o nto the question of discrimination, let us point out that the term “ discrimination ” simply means making and establishing differences. This meaning also derives from the Latin word discriminare . All decision-making in all three branches of power is about establishing and enforcing different decisions for different situations. In this sense, there is nothing wrong with “discriminating” unless the “specific establishment of differences” pertains to what in constitutional law we call a “suspect class” , such as the classes taxatively enumerated in Article 14 of the European Convention on Human Rights. In other words, where gender, race, colour of skin, language, religion, political or other opinion, national or social origin, minority status, property, birth or other status are concerned, discrimination is in principle proscribed. These suspect classes, it is well to point out, are simply an exception to the general rule which permits all kinds of differentiated decision-making for other non-suspect classes. Prohibition of discrimination – enforcing distinction – is thus an exception rather than the rule.

When it comes to the suspect classes this does not mean that the discrimination is categorically forbidden. Rather, it means that within these classes discrimination is permitted through the application of equal protection, proportionality and reasonableness tests. Even within the suspect classes , discrimination may be permissible if the goal pursued by the discrimination is sufficiently compelling and if the law or other decision under scrutiny is rationally related to this sufficiently important interest.

It is clear that some of the Article 14 categories, for example, race or national origin, call for the strictest scrutiny test. Under this test, the decision (or the law underlying it) would be upheld only if it was suitably tailored to serve a compelling S tate interest. When it comes to gender or illegitimacy of birth, the decision would be presumed invalid under the intermediate test unless substantially related to a sufficiently important interest.

The mildest proportionality (reasonableness) test is applied to social and economic matters such as the one at hand. Here , the test inquires whether the legislation at issue is rationally related to a legitimate government interest. The question , in other words , is whether not giving tax exemption to the two Burden sisters is rationally related to a legitimate government interest.

Of course, it is always possible to say that a government has a legitimate interest in collecting money from taxes paid by the taxpayers. The same goes for the inheritance tax payable upon the death of the person whose estate becomes taxable when transferred through inheritance to another person. What is the legitimate government interest behind this kind of taxation?

It is difficult to maintain that there is anything inherently legitimate about taxing the transfer of wealth upon the death of an individual. For example, one might argue that the S tate adds insult to injury when taxing an estate left to the survivors of a close relationship. In this sense, one might imagine a scale of taxation that would be progressive in positive correlation with the relational distance between the deceased and the surviving relative. But this is just one aspect of inheritance taxation, an example perhaps of how inherently questionable the inheritance taxation is in principle.

When it comes, therefore, to the differentiation between different classes as regards inheritance taxation it is inherently difficult to maintain that the treatment of one class in preference to another class is rationally related to any legitimate government interest. Yet, once we accept inheritance taxation as something normal, the differentiation between different classes for inheritance taxation purposes become s decisive.

If the g overnment has decided not to tax married couples, this is the starting point for the suspicion of discrimination in our case. The g overnment may reasonably maintain that the close relationship of a couple provides sufficient reason for the tax exemption. Those who are not married, in other words, are then a priori not entitled to the tax exemption. The cut-off criterion is clear.

However, when the g overnment decides to extend this privilege to other modes of association, this black and white distinction is broken and the door is open for reconsideration of the question whether the denial of the tax advantage to other modes of association is rationally related to a legitimate government interest.

The majority deals with these questions in paragraphs 62-65. In paragraph 62 of the judgment the majority remarks:

“ [T] he relationship between siblings is qualitatively of a different nature to that between married couples and homosexual civil partners under the United Kingdom ’ s Civil Partnership Act. The very essence of the connection between siblings is consanguinity, whereas one of the defining characteristics of a marriage or Civil Partnership Act union is that it is forbidden to close family members . ”

I ask myself, at this point, why would consanguinity be any less important than the relationship between married and civil partners ? Of course, the quality of consanguinity is different from sexual relationships but this has no inherent bearing on the proximity of the persons in question.

One could easily reverse the argument and say, for example, that the “consanguine” identical twins are far closer genetically and otherwise , since in reality they are clones of one another than anybody could ever be to anybody else. And yet if the Burden sisters were identical twins they would not be entitled to the same exemption, in counter distinction to even the most ephemeral and fleeting relationship. So, what does the qualitative difference referred to by the majority come to? Is it having sex with one another that provides the rational relationship to a legitimate government interest?

In paragraph 63 of the judgment the Grand Chamber then expresses the view that marriage confers a special status on those who enter into it. The analysis of paragraph 63 tends to show that the majority does not regard the arguments in paragraph 62 as sufficiently persuasive, in other words, the majority feels that it must add, ex abundante cautel a , this “special nature” of marriage as a contract. If the contract is not explicit, the legal consequences do not flow from it. But this argument, too, is specious – even if we do not consider common law marriage as a historical phenomenon in which consensual cohabitation, even under canon law, confers all the rights and duties on the couple concerned. The further reference to different solutions in different m ember States being irrelevant – since at least some of them consider cohabitation a factual question with legal consequences equivalent to an explicit marriage – makes it imperative for the majority to resort to the final rescue in saying (see paragraph 65 of the judgment) :

“This view is unaffected by the fact that, as noted in paragraph 26 above, m ember States have adopted a variety of different rules of succession as between survivors of a marriage, civil partnership and those in a close family relationship and have similarly adopted different policies as regards the grant of inheritance - tax exemptions to the various categories of survivor; States, in principle, remaining free to devise different rules in the field of taxation policy.”

Needless to say, this final reference to margins of appreciation makes all other argumentation superfluous.

The logic “if you say A, you should also say B” , which I referred to at the beginning of this dissenting opinion, is explicitly reiterated in paragraph 53 of Stec and Others :

“ If ... a State does decide to create a benefit s scheme ... , it must do so in a manner which is compatible with Article 14 of the Convention (see the admissibility decision in [ Stec and Others v. the United Kingdom (dec.) [GC] , nos. 65731/01 and 65900/01 ] , §§ 54-55, ECHR 2005- X ).”

A priori , the S tate is not required to create a benefit, in this case extramarital tax exemptions. If the S tate nevertheless does decide to extend the tax exemption to one extramarital group, it should employ at least a minimum of reasonableness while deciding not to apply the benefit to other groups of people in relationship of similar or closer proximity.

I believe making consanguinity an impediment is simply arbitrary.