CONCURRING OPINION OF JUDGE TULKENS

( Translation )

I fully agree with the absolute necessity and Convention obligation of abolishing all forms of discrimination, including on grounds of sex , in the enjoyment of the rights guaranteed by the Convention. However, in the present case the relatively artificial nature of the application troubles me for t wo reason s.

Firstly, as the benefit in question is expressly called maternity benefit, the main purpose of which is to allow mothers to recover after pregnancy and giving birth and to breastfeed their child , I think that the mother is the first “victim” of the refusal to award the benefit . The situation we have here is therefore not the same, it appears to me, as the one in Petrovic v. Austria of 27 March 1998 , which concerned parental leave and in which the benefit in question, the provision for which was made under the unemployment insuranc e scheme , compensa ted the loss of salary . What was at stake in that case was the financial assistance for young parents that allowed them to take time out from work in order to look after their newborn child and in respect of which, in my view, there is no justification for treating fathers and mothers differently (see the joint dissenting opinion of Judges Bernhardt and Spielmann ).

Secondly, if the children ’ s mother had herself lodged an application with the Court, the refusal to award her maternity benefit on the basis of nationality could certainly have been challenged , on the basis of our case-law , as being contrary to A rticle 14 of the Convention taken together with A rticle 8, construed, inter alia , in the light of Article 12 § 4 of the European Social Charter, which provides that domestic law cannot r eserve social-security rights to their own nationals [2] .

[1] Approximately 570 euros.

[2] Admittedly, Hungary , whilst being a party to the Social Charter , h as not accepted Article 12 § 4. However, the Court has already had occasion to rely on provisions of the Social Charter which have not been accepted by the respondent State (see Demir and Baykara v. Turkey of 12 November 2008 [GC], §§ 45, 46, 49, 50, 86, 103, 129 and 149, regarding Articles 5 and 6 of the Social Charter).