JOINT DISSENTING OPINION OF JUDGE SPIELMANN AND JUDGE COSTA

We are unable to subscribe to the majority finding of no violation for the following reasons.

In substance, the finding of no violation is based on the fact that the division of the estate had already taken effect in 1994, on the mother’s death, and thus before the coming into force of the Law of 2001 which was enacted by the legislature in order to render the legislation conform with our Court’s judgment in the case of Mazurek (see Mazurek v. France , no. 34406/97, ECHR 2000 ‑ II) but whose transitional provisions preclude any challenge to the division in question, unfavourable to the applicant. The reasoning is that the Law of 2001 is not arbitrary, but protects legal certainty and the established rights of the other children.

We are not convinced by that reasoning, however attractive it may at first appear. We consider the principle of non-discrimination to be more important in law and equity than those of established rights and legal certainty. Moreover, it would be paradoxical for a Law that is supposed to draw the consequences from one of our judgments to apply that judgment only to successions that have not been opened. This is particularly true in that, between delivery of the judgment in Mazurek and the enactment of the Law of 2001 (and thus before the transitional provisions of that Law), a number of courts, starting with the Montpellier tribunal de grande instance , did apply our judgment and ceased applying the former Law (Article 760 of the Civil Code) in favour of the Convention as interpreted by the Court, in accordance with Article 55 of the French Constitution. Lastly, to conclude in the present case that there has been no violation is tantamount to allowing the legislature to disregard retroactively – for reasons that may, moreover, be valid – the binding force of judgments under Article 46 of the Convention. We would point out that in the case of Mazurek the State was ordered, under Article 41, to pay the applicant, in respect of pecuniary damage, a sum corresponding to the difference between the amount he should have received and the amount he actually received. Accordingly, our judgment was necessarily of retroactive effect.

With regard, more specifically, to the present case, we can but note that whilst the date on which the succession was opened (on the death of the mother in 1994) is not in dispute between the parties, they disagree as to the date on which division of the estate took effect. The Government, relying on the judgments of the Court of Appeal and the Court of Cassation, considered that the division of the estate took effect in 1994 on the death of the applicant’s mother, whilst the applicant considered that there had not been division of the estate on that date.

It should first be pointed out that, in his letter of 7 September 1994, the notary administering the estate informed the applicant that he was entitled to a share in his mother’s estate, namely the reserved portion, and that, as a child born of adultery, he was entitled to only half the share that would devolve on a legitimate child, bringing his share to one eighth (see paragraph 13 of the judgment).

Secondly, it should be noted that when Mr and Mrs M. signed the deed of inter vivos division in 1970, they solemnly declared that they had no other offspring than the children named in the deed. Consequently, the applicant challenged the deed of inter vivos division (see paragraph 11 of the judgment) as soon as he obtained recognition of his status as the illegitimate child of his mother (by a judgment of 1983). That action by the applicant in 1984 shows that a dispute had arisen regarding the inheritance ten years before his mother’s death.

The interpretation by the Court of Appeal and the Court of Cassation of the transitional provisions of the Laws of 1972 and 2001 had the effect of totally depriving the applicant of his inheritance rights in respect of his mother’s estate, in favour of her two legitimate children.

The Convention, which is a dynamic text and entails positive obligations for States, is a living instrument that is to be interpreted in the light of present-day conditions, and the member States of the Council of Europe attach importance to the question of equality, in terms of civil rights, between children born in and children born out of wedlock (see Mazurek, cited above, § 30; Pla and Puncernau v. Andorra , no. 69498/01, § 62, ECHR 2004 ‑ VIII; and Brauer v. Germany , no. 3545/04, § 40, ECHR 2009 ‑ ...).

We cannot find any sufficient grounds today to justify an interpretation of the legal provisions that would result in discrimination based on birth outside marriage, especially as the applicant was denied any share in his mother’s estate, his action for an abatement having been declared inadmissible.

Moreover, the case-law on the question is now well established (see Mazurek, cited above; Pla and Puncernau, cited above; Merger and Cros v. France , no. 68864/01, 22 December 2004; and Brauer , cited above) and, having regard to the circumstances of the case, the domestic courts should have given precedence to the transitional legislative provision in a manner most in keeping with the Convention as interpreted in the Court’s case-law. As there were conflicting views as to which Law was applicable, having regard to the transitional provisions of the two aforementioned Laws, they should have applied the provision that was the most favourable to the applicant, a child born of adultery. The domestic courts’ interpretation of the applicable Law could not be done purely in the light of the context prevailing at the time of the inter vivos division of 1970, especially as the applicant’s filiation had been established subsequently, which they should have taken into account (see, mutatis mutandis , Pla and Puncernau , cited above, § 62).

In our view, there is therefore no reasonable relationship of proportionality between the means employed and the aim pursued.

Accordingly, we are of the opinion that there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.