DISSENTING OPINION OF JUDGE BORREGO BORREGO

(Translation)

To my great regret, I cannot agree with the majority ’ s approach, as in my opinion the judgment does not deal with the problem raised by this case.

1. The complaint

The complaint arises from the fact that the applicants are not entitled to inheritance - tax exemption. They are two sisters who have “ lived together, in a stable, committed and mutually supportive relationship, all their lives” ( see paragraph 10 of the judgment ) and are unable to enter into a civil partnership, being legally prevented from doing so by the Civil Partnership Act 2004, under which the exemption may be claimed only by the homosexual couples contemplated therein (Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 ).

2. The Chamber ’ s judgment (or the true judicial response to a complaint)

“[T]he inheritance - tax exemption for married and civil partnership couples ... pursues a legitimate aim . ” After examining that aim the Chamber, in accordance with the Court ’ s case-law, went on to assess “whether the means used [were] proportionate to the aim pursued”. The majority of the Chamber took the view that “the United Kingdom cannot be said to have exceeded the wide margin of appreciation afforded to it and that the difference of treatment for the purposes of the grant of inheritance - tax exemptions was reasonably and objectively justified for the purposes of Article 14 of the Convention ” (paragraph 61 of the Chamber judgment).

The Chamber ’ s judgment was adopted by four judges; three judges expressed their disagreement in two dissenting opinions. In the first of those opinions Judges Bonello and Garlicki said: “The majority seems to agree that there has been a marginal situation or an individual case ‘ of apparent hardship or injustice ’ (paragraph 60 of the Chamber judgment ) 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. ” The second dissenting opinion, that of Judge Pavlovschi, follows the same general line.

3. The approach followed by the majority of the Grand Chamber

The United Kingdom authorities ( see paragraphs 19 and 20 of the judgment ) and the Chamber ’ s judgment expressly and explicitly recognise the injustice due to the lack of provision for inheritance - tax exemption in the case of close relations, like the applicants. That circumstance is completely ignored in the Grand Chamber ’ s judgment.

The question of the State ’ s margin of appreciation and its limits, which is at the heart of the case and was dealt with as such in the Chamber ’ s judgment, has completely disappeared from the Grand Chamber ’ s judgment.

The majority of the Grand Chamber assert that there are two differences between the applicants ’ relationship and that between two civil partners, the first being the sisters ’ consanguinity and the second the legally binding nature of a civil partnership. The majority accordingly consider that since the two situations are not comparable there has been no discrimination.

But who has disputed the existence of a relation of consanguinity between two sisters or the legal status of a civil partnership? No one. These are two facts over which there is no disagreement. Trying to ground a case on undisputed facts is the best example there can be of a circular, or I might even say concentric, argument.

The parties before the Court, the Chamber which first heard the case, the panel of five judges, I myself and, I would think, all those who have taken an interest in the case consider that the “serious question affecting the interpretation ... of the Convention” (Article 43 § 2 of the Convention) on which the Grand Chamber was required to rule in the present case is a very simple one: it is whether or not granting inheritance - tax exemption to same-sex couples in a civil partnership but not to the applicant sisters, who are also a same-sex couple, is a measure proportionate to the legitimate aim pursued.

In my opinion, by declining to give a reply to the complaint before the Court , the majority of the Grand Chamber have disregarded a Grand Chamber precedent expressed in the following terms: “ Although Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14 ” ( see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 55 in fine , ECHR 2005-X ).

This judgment of the Grand Chamber will no doubt be described as politi cally correct. I consider nevertheless that it has not been rendered in accordance with Article 43 of the Convention because the Grand Chamber, instead of trying to explain the difference in treatment for tax purposes between the two types of couple mentioned , pr eferred not to give reasons and restricted itself to a description of the facts, saying for example that two sisters are linked by consanguinity or that a civil partnership has legal consequences. The fact that the Grand Chamber did not give a reply to the applicants, two elderly ladies, fills me with shame, because they deserved a different approach . I would like to close by quoting Hora ce , who wrote in Ars Poetica : “ parturient montes, nascetur ridiculus mus ” .