DISSENTING OPINION OF JUDGE LOUCAIDES

While I am in agreement with the finding of the majority that both the policy decision to stop paying REA to persons who would otherwise have retired from paid employment, and the decision to achieve this aim by linking the cut-off age for REA to the notional “end of working life”, or State pensionable age, pursued a legitimate aim and were reasonably and objectively justified, I am unable to share the view of the majority that there has not been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 in this case.

The issue before us was whether the difference in treatment between men and women as regards State pensionable age, which was at the root of the difference in their treatment as regards the operation of the REA scheme, was acceptable under Article 14 of the Convention at the time of the decisions about which the applicants complain, that is to say, was reasonably and objectively justified.

I fully agree with the opinion of the majority that it is “impossible to pinpoint any particular moment when the unfairness to men caused by differential pensionable ages began to outweigh the need to correct the disadvantaged position of women” (see paragraph 62 of the judgment). That, however, is not the question. The important issue to determine is whether this shift may or may not have occurred before the decisions complained of by the applicants in the present case.

In 1986 an Act was passed in the United Kingdom amending the Sex Discrimination Act 1975 so as to make it unlawful for an employer to have different retirement ages for men and women (see paragraph 33 of the judgment). Until then the difference in pensionable ages had been acceptable as a means of mitigating financial inequality and hardship arising out of women’s traditional unpaid role of caring for the family in the home rather than earning money in the workplace (see paragraph 61 of the judgment). However, after 1986 such justification of the difference in pensionable age became manifestly untenable because of the amendment in question, which implies clearly that the previous “factual inequalities” between men and women were no longer a factor and that social conditions had changed so that women were not substantially prejudiced because of a shorter working life. The considerations and assumptions on which the overall structure of pensions and benefits had been based over the previous decades could not be relied on any more to justify differences on grounds of sex.

Therefore, I find that at the time of the decisions about which the applicants complain, and indeed at any time after 1986, the different treatment of men and women as regards State pensionable age had no objective and reasonable justification. It follows that it was incompatible with Article 14 of the Convention, as was in turn the different treatment of men and women as regards entitlement to REA.

It is significant that the Government concentrated their arguments on the margin of appreciation to which they were allegedly entitled in setting the timetable for the reform intended to put an end to this unequal treatment, which was no longer justified. These arguments are summarised as follows in paragraph 49 of the judgment:

“Finally, the social, historical and economic basis for the provision of State retirement pensions at the age of 65 for men and 60 for women, as well as the decision to equalise pensionable age for men and women progressively from 2010 to 2020, involved complex economic and social judgments, in respect of which the State enjoyed a broad margin of appreciation. ... In 1995 Parliament had decided to implement the reform in stages because moving towards equality had enormous financial implications both for the State and for individuals, particularly women who had long been expecting to receive a State retirement pension at 60 ... Several Contracting States retained different pension ages for men and women, and a number had chosen to implement a gradual equalisation of those ages ... Moreover, the European Community had accepted that its member States must be allowed a period of transition in which to plan and implement the move to equal ages for men and women in relation to State pensionable age ...”

These arguments by the Government evidently persuaded the majority, who expressed the following view in paragraphs 64 and 65 of the judgment:

“In the light of the original justification for the measure as correcting financial inequality between the sexes, the slowly evolving nature of the change in women’s working lives, and in the absence of a common standard amongst the Contracting States ... the Court finds that the United Kingdom cannot be criticised for not having started earlier on the road towards a single pensionable age.

Having begun the move towards equality, moreover, the Court does not consider it unreasonable of the government to carry out a thorough process of consultation and review, nor can Parliament be blamed for deciding in 1995 to introduce the reform slowly and in stages. Given the extremely far-reaching and serious implications, for women and for the economy in general, these are matters which clearly fall within the State’s margin of appreciation.”

These considerations by the Court call for the following observations on my part.

First, I consider that new social legislation, however well-balanced it may be, cannot be invoked under the doctrine of the margin of appreciation as an excuse for not having acted in due time to avoid an instance of discrimination clearly lacking reasonable and objective justification. Moreover it is clear that remedial legislation intended to equalise the position in the future will not do so with sufficient speed to remedy the position of these applicants (see, mutatis mutandis , Walden v. Liechtenstein (dec.), no. 33916/96, 16 March 2000).

Furthermore, I consider that “the absence of a common standard amongst the Contracting States” (see paragraph 64 of the judgment) and the fact that “many of the other Contracting States still maintain a difference in the ages at which men and women become eligible for the State retirement pension” (see paragraph 63) are of no relevance. I cannot see how the fact that discrimination between men and women regarding pensionable age exists in many other Contracting States could legitimise unjustified discrimination in any particular case brought before the Court. Therefore the majority are, I believe, wrong in raising such an argument, particularly taking into account that no finding has been made by the Court that, in those other Contracting States which maintain the differential treatment of men and women as regards retirement pensions, such treatment is based on the same factual background as the one under examination in the present case. The factual inequalities which ceased to exist in the United Kingdom in or before 1986, and which supported the original justification of discrimination, may still exist in some or all those Contracting Parties. More importantly it should be recalled that because all High Contracting Parties have accepted the obligations of the Convention they have a duty to bring their legal systems into line with the standards of the Convention. The finding of a general failure to do so does not prevent the Court from holding any individual State responsible for a specific violation of the Convention.

Finally, I must state that I do not find the judgment of the European Court of Justice in the present case an obstacle to my approach. That judgment examined the question of discrimination in a different legal context, and in any case it is not binding on us.

Given that I consider that there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 in this case, it would normally have been necessary to consider the issues relating to the victim status of the third, fourth and fifth applicants. However, since the majority found no violation, I confine myself to stating that I would find a violation of the same Articles in respect of the said applicants, assuming that they could claim to be victims.