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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> VERMEIRE v. BELGIUM - 12849/87 [1991] ECHR 56 (29 November 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/56.html
Cite as: (1993) 15 EHRR 488, [1991] ECHR 56, 15 EHRR 488
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In the case of Vermeire v. Belgium*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")** and the
relevant provisions of the Rules of Court***, as a Chamber composed
of the following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mrs D. Bindschedler-Robert,
Mr B. Walsh,
Mr A. Spielmann,
Mr J. De Meyer,
Mr S.K. Martens,
Mr A.N. Loizou,
Mr J.M. Morenilla,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 27 May and 24 October 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar:
* The case is numbered 44/1990/235/301. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
*** The amendments to the Rules of Court which came into force on
1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 11 July 1990,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 12849/87) against the Kingdom of Belgium
lodged with the Commission under Article 25 (art. 25) by
Mrs Astrid Vermeire, a Belgian national, on 1 April 1987.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Belgium recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of its
obligations under Articles 8 and 14 (art. 8, art. 14).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that she wished to take part in the proceedings and designated the
lawyer who would represent her (Rule 30).
3. The Chamber to be constituted included ex officio
Mr J. De Meyer, the elected judge of Belgian nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President
of the Court (Rule 21 para. 3 (b)). On 27 August 1990, in the
presence of the Registrar, the President drew by lot the names of
the other seven members, namely Mr Thór Vilhjálmsson,
Mrs D. Bindschedler-Robert, Mr B. Walsh, Mr A. Spielmann, Mr S.K. Martens,
Mr A.N. Loizou and Mr J.M. Morenilla (Article 43 in fine of the
Convention and Rule 21 para. 4 of the Rules of Court) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Belgian Government ("the Government"), the Delegate of the
Commission and the lawyer for the applicant on the need for a
written procedure (Rule 37 para. 1). In accordance with the order
made in consequence, the Registrar received the applicant's
memorial on 7 February 1991 and the Government's memorial on
18 February 1991. On 13 March the Delegate of the Commission
informed the Registrar that he would submit his observations at the
hearing.
5. On 9 April the Secretary to the Commission produced certain
documents from the proceedings before it, as the Registrar had
requested on the instructions of the President.
6. Having consulted, through the Registrar, those who would be
appearing before the Court, the President had directed on
12 October 1990 that the oral proceedings should open on 23 May 1991
(Rule 38).
7. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr J. Lathouwers, Legal Officer,
Ministry of Justice, Agent,
Mr F. Huisman, avocat, Counsel;
(b) for the Commission
Mr H. Danelius, Delegate;
(c) for the applicant
Mr K. Van Hoecke, avocat, Counsel.
The Court heard addresses by Mr Huisman for the Government, Mr Danelius
for the Commission and Mr Van Hoecke for the applicant, as
well as their replies to its questions.
AS TO THE FACTS
I. The particular circumstances of the case
8. Mrs Astrid Vermeire is a Belgian national resident in
Brussels. She is the recognised illegitimate daughter of
Jérôme Vermeire, who died unmarried in 1939. He was the son of the
late Camiel Vermeire and his late wife Irma Vermeire née
Van den Berghe, who also had two other children, Gérard and Robert.
They died in 1951 and 1978 respectively, Gérard unmarried and
without issue, Robert survived by two children of his marriage,
Francine and Michel.
9. The applicant's grandparents, who had brought her up after
her father's death, both died intestate, Irma Vermeire née
Van den Berghe on 16 January 1975 and Camiel Vermeire on
22 July 1980. As the grandmother's heirs had remained co-owners in
undivided shares up to the grandfather's death, the two estates
were realised and distributed to the legitimate grandchildren
Francine and Michel in a single procedure. Astrid Vermeire was
excluded under the old Article 756 of the Civil Code (see paragraph 13
below).
10. On 10 June 1981 she brought an action to claim a share in
the estates before the Brussels Court of First Instance. In a
judgment of 3 June 1983 that court allowed her the same rights as
a legitimate descendant in the estates in question.
It based its decision in particular on paragraph 59 of the judgment
given by the European Court in the Marckx case on 13 June 1979
(Series A no. 31, p. 26), and took the view that "the prohibition
on discrimination between legitimate and illegitimate children as
regards inheritance rights [was] formulated in the judgment
sufficiently clearly and precisely to allow a domestic court to
apply it directly in the cases brought before it".
11. The legitimate grandchildren appealed and on 23 May 1985
the Brussels Court of Appeal set aside the judgment. It held in
particular that:
"in so far as Article 8 (art. 8) entails negative obligations
prohibiting arbitrary interference by the State in the private or
family life of persons residing within its territory, it lays down
a rule which is sufficiently precise and comprehensive and is
directly applicable, but this is not the case in so far as Article 8
(art. 8) imposes a positive obligation on the Belgian State to
create a legal status in conformity with the principles stated in
the said provision of the Convention; (...) given that on this
point the Belgian State has various means to choose from for
fulfilling this obligation, the provision is no longer sufficiently
precise and comprehensive and must be interpreted as an obligation
to act, responsibility for which is on the legislature, not the
judiciary."
The Court of Appeal thus refused to give direct effect to the
passages in the Marckx judgment relating to an illegitimate child's
inheritance rights on intestacy with respect to relatives of the
parent by whom he or she has been recognised.
12. The Court of Cassation concurred substantially with the
reasons for this decision, which was moreover consistent with its
own case-law, and dismissed the applicant's appeal on
12 February 1987.
II. Relevant domestic law
13. The former Articles 756 and 908 of the Civil Code provided
as follows:
Article 756
"Illegitimate children shall not be heirs; the law does not allow
them any rights in the estates of their deceased father and mother
unless they have been legally recognised. It does not allow them
any rights in the estates of the relatives of their father or
mother."
Article 908
"Illegitimate children may receive by disposition inter vivos or by
will no more than their entitlement under the title 'Inheritance on
Intestacy'."
14. These provisions were repealed by a Law of 31 March 1987,
which came into force on 6 June. That Law also inserted into the
Civil Code a new Article 334, according to which:
"Whatever the method used to establish affiliation, children and
their descendants shall have the same rights and obligations in
respect of their father and mother and their relatives by blood and
by marriage, and the father and mother and their relatives by blood
and by marriage shall have the same rights and obligations in
respect of the children and the children's descendants."
15. Section 107 of the Law laid down the following transitional
provisions:
"The provisions of this Law shall apply to children born before the
date of its coming into force and still alive at that date, but
shall not give rise to any rights in respect of successions taking
place before that date.
However, the validity of acts and distributions done before the
coming into force of this Law, under which a child born out of
wedlock has been accorded rights greater than those allowed him by
the provisions repealed by this Law, shall not be subject to
challenge."
16. Regard should also be had to Articles 718, 724 and 883 of the
Civil Code:
Article 718
"Succession shall take place on death."
Article 724
(wording in force at the time of the grandmother's death)
"The legitimate heirs shall acquire as of right the possessions,
rights and legal actions of the deceased, subject to the obligation
to pay all the debts of the estate. Illegitimate children, the
surviving spouse and the State must obtain a court order for
possession in accordance with the procedures to be specified."
(wording in force at the time of the grandfather's death)
"The legitimate heirs shall acquire as of right the possessions,
rights and legal actions of the deceased, subject to the obligation
to pay all the debts of the estate. Illegitimate children and the
State must obtain a court order for possession in accordance with
the procedures to be specified."
(wording following the Law of 31 March 1987)
"The heirs shall acquire as of right the possessions, rights and
legal actions of the deceased, subject to the obligation to pay all
the debts of the estate. The State must obtain a court order for
possession in accordance with the procedures specified below."
Article 883
"Each co-heir shall be deemed to have succeeded solely and
immediately to all the property included in his share or which has
come to him on a sale of undivided joint property, and never to
have had ownership of the other property in the estate."
PROCEEDINGS BEFORE THE COMMISSION
17. In her application to the Commission of 1 April 1987
(no. 12849/87), Mrs Astrid Vermeire complained that the Belgian courts
had denied her the status of an heir of her grandparents. She
claimed that she had thereby suffered a discriminatory interference
with the exercise of her right to respect for her private and
family life, which was not compatible with Article 8 in conjunction
with Article 14 (art. 14+8) of the Convention.
18. On 8 November 1988 the Commission declared the application
admissible. In its report of 5 April 1990 (made under Article 31)
(art. 31) it expressed the opinion that the decisions in question
had not violated the said Articles as regards her grandmother's
estate (by seven votes to six), but that they had violated them
with respect to her grandfather's estate (unanimously). The full
text of the Commission's opinion and of the dissenting opinions
contained in the report is reproduced as an annex to this
judgment*.
_______________
* Note by the Registrar: For practical reasons this annex will
appear only with the printed version of the judgment (volume 214-C
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8
(art. 14+8)
19. The applicant complained of having been excluded from
inheritance rights in her paternal grandparents' estates. She
relied on Article 8 in conjunction with Article 14 (art. 14+8) of
the Convention, according to which:
Article 8 (art. 8)
"1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights
and freedoms of others."
Article 14 (art. 14)
"The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
She pointed out that in the Marckx judgment of 13 June 1979 the
European Court had held that the total lack of inheritance rights
on intestacy by reason solely of the "illegitimate" nature of the
affiliation between one of the applicants and her near relatives on
her mother's side was discriminatory and hence incompatible with
these Articles (Series A no. 31, p. 26, para. 59). Mrs Vermeire
maintained that the domestic courts should have applied Articles 8
and 14 (art. 14, art. 8), so interpreted, directly to the estates
in which she was interested; at the very least the Belgian
legislature should have given the Law of 31 March 1987, amending
the legislation complained of, retrospective effect as from the
date of the said judgment (see paragraphs 14 and 15 above).
20. The Court stated in the Marckx case that the principle of
legal certainty dispensed the Belgian State from reopening legal
acts or situations that antedated the delivery of the judgment
(same judgment, pp. 25-26, para. 58).
The present case concerns the estates of a grandmother who died
before and a grandfather who died after that date.
A. The grandmother's estate
21. The applicant maintained that the succession to her
grandmother's estate could not be regarded as having taken place
before 13 June 1979. The date of death was indeed 16 January 1975,
but the distribution, which alone determined the nature and extent
of the heirs' claims, had not been carried out until after the said
judgment, jointly with that of the grandfather's estate.
22. The succession to Irma Vermeire née Van den Berghe took place
on her death and the estate devolved on her "legitimate" heirs as
of that date (Articles 718 and 724 of the Civil Code, see paragraph 16
above).
The estate was undoubtedly not wound up until after 13 June 1979,
but by reason of its declaratory nature the distribution had effect
as from the date of death, that is to say, 16 January 1975
(Article 883 of the Civil Code, ibid).
What is in issue here is therefore a legal situation antedating the
delivery of the Marckx judgment. There is no occasion to reopen
it.
B. The grandfather's estate
23. With reference to her grandfather's estate, the applicant
alleged that it was for the Belgian authorities to ensure that it
was distributed in a manner consistent with Articles 8 and 14 (art.8,
art. 14) as interpreted by the European Court in the Marckx
judgment. In her opinion they could have performed their
obligation either by direct application of those Articles (art. 8,
art. 14) or by amending the legislation, retrospectively if need
be.
24. The Government stated that they did not dispute the principles
which followed from the Marckx judgment; they considered, however,
that these principles compelled the Belgian State to carry out a
thorough revision of the legal status of children born out of
wedlock. Responsibility for this fell exclusively on the
legislative power as the only body in a position to make full use
of the freedom left to the State to choose the means to be utilised
in its domestic legal system for fulfilling its undertaking under
Article 53 (art. 53) (same judgment, pp. 25-26, para. 58).
Articles 8 and 14 (art. 8, art. 14) were not sufficiently precise
and comprehensive on the points at issue in this case, and were
thus not suitable for direct application by the domestic courts.
The Government further maintained that the legislature could not be
criticised for any want of diligence. A first draft reform had
been introduced on 15 February 1978 (see the above-mentioned Marckx
judgment, Series A no. 31, p. 25, para. 57). That it had taken
over nine years to complete the task could be explained both by the
acknowledged complexity of the issue and by Parliament's foresight.
Rather than partial, fragmentary alterations, Parliament had
preferred an overall and systematic revision, extending inter alia
to the delicate question of the status of children born in
adultery. It had also pondered long over the temporal extent to be
given to the new provisions; in the end concern for the legal
certainty to be preserved in the interests of families, third
parties and the State, together with the fear that a large number
of lawsuits would follow, had induced it not to give the Law of
31 March 1987 any retrospective effect (see paragraph 15 above).
25. The Marckx judgment held that the total lack of inheritance
rights on intestacy, based only on the "illegitimate" nature of the
affiliation, was discriminatory (pp. 25 and 26, paras. 56 and 59).
This finding related to facts which were so close to those of the
instant case that it applies equally to the succession in issue,
which took place after its delivery.
It cannot be seen what could have prevented the Brussels Court of
Appeal and the Court of Cassation from complying with the findings
of the Marckx judgment, as the Court of First Instance had done.
There was nothing imprecise or incomplete about the rule which
prohibited discrimination against Astrid Vermeire compared with her
cousins Francine and Michel, on the grounds of the "illegitimate"
nature of the kinship between her and the deceased.
26. An overall revision of the legislation, with the aim of
carrying out a thoroughgoing and consistent amendment of the whole
of the law on affiliation and inheritance on intestacy, was not
necessary at all as an essential preliminary to compliance with the
Convention as interpreted by the Court in the Marckx case.
The freedom of choice allowed to a State as to the means of
fulfilling its obligation under Article 53 (art. 53) cannot allow
it to suspend the application of the Convention while waiting for
such a reform to be completed, to the extent of compelling the
Court to reject in 1991, with respect to a succession which took
effect on 22 July 1980, complaints identical to those which it
upheld on 13 June 1979.
27. In a case similar to the present one, from the point of view
of Articles 6 and 6 bis of the Belgian Constitution according to
which all Belgians are equal before the law and must be able to
enjoy their rights and freedoms without discrimination, the Belgian
Court of Arbitration, relying in particular on the Marckx judgment,
held that "the old Article 756 of the Civil Code, preserved in
force by virtue of section 107 of the Law of 31 March 1987,
breach[ed] Articles 6 and 6 bis [aforesaid] in so far as it
appli[ed] to successions taking place from 13 June 1979 on"
(judgment no. 18/91 of 4 July 1991, case of Verryt c. Van Calster
et consorts, published in the "Moniteur belge/Belgisch Staatsblad"
of 22 August 1991, pp. 18144, 18149 and 18153).
28. Similarly, it should be found that the applicant's exclusion
from the estate of her grandfather Camiel Vermeire violated Article 14
in conjunction with Article 8 (art. 14+8) of the Convention.
II. APPLICATION OF ARTICLE 50 (art. 50)
29. Under Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said Party
allows only partial reparation to be made for the consequences of
this decision or measure, the decision of the Court shall, if
necessary, afford just satisfaction to the injured party."
Mrs Vermeire claimed in the first place 40,175,787 Belgian francs
(BEF) as compensation, this being equivalent to her share in the
two estates in question, after deducting inheritance tax and adding
interest payable since the two deaths. She also claimed
BEF 2,486,399 in respect of her costs and expenses before the
domestic courts and the Strasbourg institutions.
30. In the Government's opinion, were the Court to find that there
had been a breach of the Convention, the judgment would in itself
constitute just satisfaction. The figures put forward by the
applicant could in any event not be relied on, as they were based
solely on the declarations of inheritance, which were unilateral
and incomplete.
31. The Court agrees with the Commission that the applicant
suffered pecuniary damage, the amount of which is equivalent to the
share of her grandfather's estate which she would have obtained had
she been his "legitimate" granddaughter. Inheritance taxes and
interest due must be taken into account in calculating the
compensation.
32. However, as the Government dispute the information supplied by
Mrs Vermeire and as some of the costs claimed appear liable to
revision on the basis of this judgment, the question of the
application of Article 50 (art. 50) is not ready for decision. It
should therefore be reserved.
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one that the Belgian State was under
no obligation to reopen the succession to the estate of
Irma Vermeire née Van den Berghe;
2. Holds unanimously that the applicant's exclusion from the
estate of Camiel Vermeire violated Article 14 in conjunction with
Article 8 (art. 14+8) of the Convention;
3. Holds unanimously that the question of the application of
Article 50 (art. 50) is not ready for decision; accordingly,
(a) reserves it in whole;
(b) invites the Government and the applicant to submit to it in
writing within the next three months their observations on the
question and in particular to communicate to it any agreement which
they may reach;
(c) reserves the subsequent procedure and delegates to the
President of the Court power to fix the same if need be.
Done in French and in English, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 29 November 1991.
Signed: Rolv Ryssdal
President
Signed: Marc-André Eissen
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention
and Rule 53 para. 2 of the Rules of Court, the partly dissenting
opinion of Mr Martens is annexed to this judgment.
Initialled: R. R.
Initialled: M.-A. E.
PARTLY DISSENTING OPINION OF JUDGE MARTENS
1. The combined estates of the applicant's grandparents were
distributed well after the delivery of the Court's judgment in the
Marckx case. Nevertheless, the division was carried out under the
former Article 756 of the Belgian Civil Code; thus only the
children of the applicant's uncle benefited and the applicant was
excluded. She disputed the division. In accordance with the
Marckx judgment she based her claim for an equal share in both
estates on Article 14, taken in conjunction with Article 8
(art. 14+8) of the Convention. The Belgian courts refused, however, to
annul the partition.
2. The former Article 756 denied to an "illegitimate" child any
rights on intestacy in the estates of the relatives of its parents.
In paragraph 59 of its Marckx judgment the Court held that this
"total lack of inheritance rights" constituted a breach of
Article 14, taken in conjunction with Article 8 (art. 14+8). It is
true that in so holding the Court did not, strictly speaking,
pronounce on whether a different share for legitimate and
"illegitimate" children would be compatible with the said
provisions. However, the Court's reasoning (especially in
paragraphs 40 and 41 to which reference is made in paragraph 55)
clearly implies that, in this province, only complete equality
avoids discrimination.
Accordingly, only a distribution of the estates of the applicant's
grandparents in which she shared equally with her two cousins was
compatible with the requirements of Article 14, taken in
conjunction with Article 8 (art. 14+8). That is why, in substance,
I am in agreement with paragraph 25 of the present judgment.
3. To my regret, however, I disagree with the majority finding of
a violation only as far as the estate of the grandfather is
concerned. Whilst the majority holds that the Marckx doctrine only
applies when "the opening of the succession" occurred after
13 June 1979, the date of the Court's judgment in that case, I find
that it applies to all successions where the distribution of the
estate had not yet been finalised on that date.
4. The root of this difference of opinion is to be found in the
ruling the Court gave on "the temporal effect" of the Marckx
judgment (para. 58) which reads:
"... the principle of legal certainty ... dispenses the Belgian
State from reopening legal acts and situations that antedate the
delivery of the present judgment."
The question is how this ruling should be interpreted.
5. The majority is obviously of the opinion that it requires no
further argument that the ruling refers back to national law: its
finding that as to the grandmother's estate there is "a legal
situation antedating the delivery of the Marckx judgment" within
the meaning of the ruling (paragraph 22 of the judgment) is,
without more ado, merely based on principles of Belgian law.
In its Marckx judgment the Court must, however, have been well
aware:
(1) of the fact that Belgium was not the sole member State of the
Council of Europe where the law on inheritance discriminated
against "illegitimate" children1;
(2) of the fact that, accordingly its judgment would affect other
member States as well; and
(3) of the differences which, in respect to the law of inheritance,
exist between the legal systems of the member States2.
Accordingly, an autonomous interpretation of the ruling seems
appropriate.
6. Query, however: does not comparative law show that the
"opening of the succession" or "the death of the de cujus" are
often used as the decisive starting point in the context of
transitional provisions in the province of succession law3 and is
it not, accordingly, to be assumed that one of these moments has
the same function under an autonomous interpretation of the Court's
ruling? I have no doubt that this question must be answered in the
negative.
7. A first and obvious point to make is that the formula used by
the Court (see paragraph 4 above) is certainly not the most natural
way of expressing the idea that for the temporal effect of the
Marckx doctrine the date of the opening of the succession or of the
decease of the de cujus should be decisive.
8. A more important consideration is, however, that the ruling by
its very nature purports to limit the retroactive effect which - as
the Belgian Government stressed in the Marckx case (see paragraph
58 of the Marckx judgment) - is peculiar to a judicial decision.
When the Court decided that in this case such a limitation was
appropriate, it did so in response to the warning by the Belgian
Government that unless the Court made some proviso4:
"the result of the judgment would be to render many ...
distributions of estates irregular and open to challenge before the
courts..." (ibid.)5.
The wording of the Court's ruling is conspicuously similar to that
of the Government's exhortations. That makes it probable that the
Court, when dispensing Belgium (and other member States where
"illegitimate" children were still being similarly discriminated
against)
"from reopening legal acts or situations that antedate the delivery
of the present judgment",
intended to avoid the chaotic consequences held out by the
Government by limiting the retroactive effect of its judgment with
the result that the new doctrine would not apply to those estates
that had already been wholly distributed. The word "reopening"
("remettre en cause" in the French text) supports this
interpretation of the ruling. So does the term "legal acts and
situations" which suggests that in answer to the Government the
Court stated that it would not be necessary to reopen distributions
nor to undo (notarial) deeds of partition and those legal
situations which, in the meantime, had been based thereon (such as
ownership of goods originating from the former estate and sold by
a former heir who had acquired them at the distribution).
9. There is a further, and to my mind decisive point to be made
in favour of the interpretation of the ruling suggested in
paragraphs 3 and 8. What the Marckx judgment was about was:
discrimination against "illegitimate" children and its "message"
was that such discrimination was fundamentally unjust and could no
longer be tolerated.
Against this background it seems obvious that the ruling should be
interpreted strictly: legal certainty should of course be taken
into account where possible (in the sense of the prevention of
legal "disorder") but where the price for attaining this end has to
be the "continuation of fundamental injustice" that continuation
should be allowed only in so far as wholly unavoidable.
Continuation of injustice requires justification and that
justification can only be found in the interests of third parties.
The possibility of undoing even finalised distributions would
affect the position of third parties who had acquired title to
goods formerly belonging to the estate. It is for this reason that
retroactivity had to be limited: the interests of third parties
had to be safeguarded.
The interests of third parties, not those of the "legitimate"
children. True, where the owner of the estate died before the
delivery of the Marckx judgment, the "legitimate" children might be
said to have been entitled to expect6 that they would not have to
share with the "illegitimate" children. However, such an
expectation was fundamentally unjust and as such deserved no
protection. Accordingly, their interests could not serve as a
justification for the Court's acquiescence in the continuation of
injustice.
10. All this leads to the conclusion that it stands to reason
- indeed, that it is a requirement of justice - that where, after
13 June 1979, the estate of the applicant's grandmother had not yet
been distributed so that third party interests were not at stake
and it was still possible to apply the new doctrine and thereby
secure for the "illegitimate" child an equal share in the estate,
that should have been done. Under the Court's ruling as to the
temporal effects of its Marckx judgment there is no need and no
justification to differentiate in this respect between the estate
of the grandmother and that of the grandfather.
NOTES
1 See, for inheritance law around 1976, the International
Encyclopedia of Comparative Law, IV, chapter 6 (H.D. Krause),
pp. 6-125 et seq.
2 See for example: M. Verwilghen E.A., Régimes matrimoniaux,
successions et libéralités (Droit international privé et droit
comparé) 1979, I, pp. 110 et seq.
3 See, for example, Article 8 of The Hague Convention on the
Conflict of Laws relating to the Forms of Testamentary
Dispositions:
"The present Convention shall be applied in all cases where the
testator dies after its entry into force."
In his report on the draft convention, Batiffol noted with regard
to a similar provision:
"C'est la solution la plus fréquente en droit comparé." (Actes et
documents de la IXe session, III, p. 27)
In the present context, it is interesting to quote from the same
report a further comment:
"Le texte de la Commission d'Etat visait la date d'ouverture de la
succession. Cette expression a été remplacée par la date du décès
du testateur parce que certains pays, dont la Grande-Bretagne,
ignorent la notion d'ouverture de la succession."
4 Apparently, the Government had not, however, contemplated a
ruling like the one the Court gave.
5 It is worthwhile to have a look at the exact wording of the
original texts. See, first the Government's memorial (Marckx case,
Series B no. 29, p. 87), where the Government, having recalled that
under Belgian law the relevant limitation period is thirty years,
winds up its arguments by saying:
"Tous ces partages pourraient donc être rouverts."
and by pointing out "l'insécurité et le désordre qu'entraînerait
cette possibilité". See, in the same sense and almost the same
words, counsel for the Government at the oral hearing, telling the
Court:
"Tous ces partages pourraient être remis en cause devant les
tribunaux" (ibid., pp. 123-124).
6 In this context, I cannot refrain from noting that during the
hearing in the Marckx case counsel for the applicants told the
Court that since 1908 several bills had been introduced purporting
to create equality between "legitimate" and "illegitimate" children
but had never succeeded (see Marckx case, Series B no. 29, p. 111).