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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> VAN RAALTE v. THE NETHERLANDS - 20060/92 [1997] ECHR 6 (21 February 1997)
URL: http://www.bailii.org/eu/cases/ECHR/1997/6.html
Cite as: [1997] ECHR 6, [1997] 24 EHRR 503, (1997) 24 EHRR 503, 24 EHRR 503
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In the case of Van Raalte v. the Netherlands (1),
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 Rules of Court B (2), as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr C. Russo,
Mr N. Valticos,
Mrs E. Palm,
Mr I. Foighel,
Mr A.B. Baka,
Mr J. Makarczyk,
Mr K. Jungwiert,
Mr P. van Dijk,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 24 September 1996 and
28 January 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 108/1995/614/702. 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.
2. Rules of Court B, which came into force on 2 October 1994, apply
to all cases concerning the States bound by Protocol No. 9 (P9).
________________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 11 December 1995 and by the
Government of the Kingdom of the Netherlands ("the Government") on
15 February 1996, within the three-month period laid down by Article 32
para. 1 and Article 47 of the Convention (art. 32-1, art. 47). It
originated in an application (no. 20060/92) against the Netherlands
lodged with the Commission under Article 25 (art. 25) on 23 April 1992
by a Netherlands national, Mr Anton Gerard van Raalte.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the Netherlands
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46); the Government's application referred to Article 48
(art. 48). The object of the request and of the application was to
obtain a decision as to whether the facts of the case disclosed a
breach by the respondent State of its obligations under Article 14 of
the Convention taken together with Article 1 of Protocol No. 1
(art. 14+P1-1).
2. In response to the enquiry made in accordance with Rule 35
para. 3 (d) of Rules of Court B, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
represent him (Rule 31). Having initially been referred to by the
initials A.G.V.R., the applicant subsequently agreed to the disclosure
of his identity.
3. The Chamber to be constituted included ex officio
Mr S.K. Martens, the elected judge of Netherlands nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 4 (b)). On 8 February 1996, in
the presence of the Registrar, the President drew by lot the names of
the other seven members, namely Mr C. Russo, Mr N. Valticos,
Mrs E. Palm, Mr I. Foighel, Mr A.B. Baka, Mr J. Makarczyk and
Mr K. Jungwiert (Article 43 in fine of the Convention and Rule 21
para. 5) (art. 43). Subsequently Mr P. van Dijk, who had been elected
judge in respect of the Netherlands on 25 June 1996, replaced
Mr Martens, who had resigned.
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Government,
the applicant's lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 39 para. 1 and 40). Pursuant
to the order made in consequence, the Registrar received the
applicant's memorial on 16 July 1996 and the Government's memorial on
17 July.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
23 September 1996. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr H. von Hebel, Assistant Legal Adviser,
Ministry of Foreign Affairs, Agent,
Ms M.J.F.M. Vijghen, Ministry of Justice, Adviser;
(b) for the Commission
Mr H.G. Schermers, Delegate;
(c) for the applicant
Mr M.W.C. Feteris, Professor, Counsel.
The Court heard addresses by Mr Schermers, Mr Feteris and
Mr von Hebel.
AS TO THE FACTS
I. Particular circumstances of the case
6. The applicant is a Netherlands national born in 1924 and
resident in Amstelveen. He has never been married and has no children.
7. On 30 September 1987 the Inspector of Direct Taxes sent the
applicant an assessment of his contributions for the year 1985 under
various social security schemes, including the
General Child Care Benefits Act (Algemene kinderbijslagwet,
see paragraph 21 below).
8. The applicant filed an objection (bezwaarschrift -
see paragraph 27 below) to this assessment on 21 October 1987. He
based his argument on section 25 (2) of the
General Child Care Benefits Act and on the royal decree of
27 February 1980 (Staatsblad (Official Gazette) no. 89 ("the
royal decree") - see paragraph 23 below), by virtue of which unmarried
childless women of 45 years or over were exempted from the obligation
to pay contributions under the General Child Care Benefits Act; in his
view the prohibition of discrimination such as was contained in
Article 1 of the Netherlands Constitution (see paragraph 18 below) and
Article 26 of the International Covenant on Civil and Political Rights
(see paragraph 20 below) implied that this exemption should be extended
to men in the same situation.
9. The applicant later received similar assessments for the years
1986, 1987 and 1988, against which he likewise filed objections. The
Inspector reserved his decision on these, pending the outcome of the
proceedings relating to the 1985 assessment.
10. On 25 November 1987 the Inspector issued a decision declaring
the first objection unfounded on the ground that "under national
legislation the application of section 25 (2) of the
General Child Care Benefits Act is not possible since the person by
whom the contributions are due is not female".
11. The applicant appealed to the Amsterdam Court of Appeal
(see paragraph 27 below) on 29 December 1987. Relying on Article 14
of the Convention taken together with Article 1 of Protocol No. 1
(art. 14+P1-1) and Article 26 of the International Covenant on
Civil and Political Rights, he claimed that the provisions of the
royal decree should be given a "gender neutral" construction.
Section 25 (2) of the General Child Care Benefits Act and the
royal decree were in his view discriminatory.
The Inspector lodged a written defence. Thereafter the
applicant filed a reply, and the Inspector a rejoinder.
12. The exemption enjoyed by unmarried childless women of 45 or
over from the obligation to pay contributions under the
General Child Care Benefits Act was abolished by the Act of
21 December 1988 (Staatsblad 1988, no. 631), with effect from
1 January 1989.
13. The Amsterdam Court of Appeal gave its judgment on
6 October 1989, dismissing the applicant's appeal and confirming the
Inspector's decision. Its reasoning included the following:
"5.4. Neither the wording of the impugned provision nor
its drafting history indicates that the legislature intended
to discriminate or has caused discrimination. In particular,
it cannot be said that the legislator wished to discriminate
against unmarried men who had reached the age of 45 before the
beginning of the calendar year and were not entitled to
child care benefits under the General Child Care Benefits Act
vis-à-vis comparable women.
5.5. By means of the provision set out in section 25 (2)
of the General Child Care Benefits Act, the legislature merely
wished to take due account of the difference in factual
situation between women over 45 and men over 45 with regard to
having (begetting or raising) children.
5.6. The fact, as stated by [the applicant], that it
appears from statistical data that older men only rarely beget
children makes no difference to what is considered in
paragraph 5.5 above. The legislature has assessed the factual
situation of the group of women referred to in section 25 (2)
of the General Child Care Benefits Act differently on the basis
of the possibility of their having children and not on the
basis of the reality of their having children.
Older men's possibilities of procreating are fundamentally
different from those of older women, in the sense that this
difference is considerable irrespective of these statistical
data.
5.7. The difference in treatment opposed by [the
applicant] is therefore not based on a difference in sex, but
on a difference in factual situation.
This conclusion is not altered by the fact that this difference
(partly) coincides with the difference between the sexes. The
impugned provision does not therefore contravene the
prohibition of discrimination.
5.8. It cannot be excluded in principle that the fairness
and acceptability of the General Child Care Benefits Act
benefit by taking account of these differences in factual
situation.
It not being for the Court of Appeal to rule on the intrinsic
value of a statute, the Court cannot consider whether the
differences in factual situation entirely justify the exemption
in question.
5.9. Even if it were correct, contrary to what is set out
above, that the impugned provision contravenes the prohibition
of discrimination, this would not benefit [the applicant].
The Court of Appeal would not be at liberty to extend the
exemption in question to one or more groups of individuals for
whom the legislature definitely did not intend it.
If the argument based on prohibition of discrimination should
have to be accepted in principle, this could only lead to a
finding that the impugned provision had no binding force.
This would not be in [the applicant's] interest."
14. The applicant filed an appeal on points of law (beroep in
cassatie - see paragraph 27 below) to the Supreme Court (Hoge Raad) on
7 December 1989. In so far as is relevant here, he challenged the
above reasoning of the Court of Appeal relying on Article 14 of the
Convention (art. 14) and Article 26 of the International Covenant on
Civil and Political Rights of 1966.
The Inspector responded in writing.
15. The Supreme Court dismissed the appeal on 11 December 1991.
Its reasoning included the following:
"3.4. The third ground of appeal [middel] argues that the
principle set out in section 25 (2) of the
General Child Care Benefits Act violates Article 26 of the
International Covenant on Civil and Political Rights and
Article 14 of the Convention (art. 14). To the extent that the
ground of appeal relies on the latter provision (art. 14), it
must fail as the present case does not relate to any of the
rights and freedoms enumerated in the Convention.
...
3.6. In view of, inter alia, the drafting history of the
provision in question the limitation of the exemption set out
in section 25 (2) of the General Child Care Benefits Act to
women of 45 and over was inspired by the idea that it would not
be reasonable to levy contributions under the
General Child Care Benefits Act from these women, since it had
to be assumed that a great number of them would never have
children and were prevented by social and - unlike men -
biological factors from ever bearing children.
The Supreme Court need not consider the question of whether the
above-mentioned fact constitutes an objective and reasonable
justification for exempting only women of 45 and over from
paying contributions under the General Child Care Benefits Act.
Since this difference in treatment between (unmarried) women
and men, which in any case, given their biological differences,
cannot be said to lack all reasonable ground, has been removed
with effect from 1 January 1989 by the abolition of the
exemption by the Act of 21 December 1988 (Staatsblad 1988,
no. 631) there is no reason for a court to intervene by
declaring the exemption applicable, for the year in question,
to unmarried men of 45 and over.
..."
16. After the delivery of this judgment the Inspector issued
decisions dismissing the applicant's objections to the assessments for
the years 1986, 1987 and 1988 (see paragraph 9 above).
17. According to figures published by the
Netherlands Central Bureau for Statistics (Centraal Bureau voor de
Statistiek), the number of "legitimate" children born alive in the
Netherlands to fathers aged 45 or over in 1985 was 2,341, or
approximately 1,43 % of the total number of "legitimate" children born
that year (163,370).
The corresponding figure for mothers aged 45 or over was 177,
or approximately 1 per thousand.
No figures are available for children born out of wedlock.
II. Relevant domestic law and practice
A. The Constitution
18. Article 1 of the 1983 Constitution provides:
"All persons present in the Netherlands shall be treated in the
same way in similar situations. Discrimination on the ground
of religion, philosophical convictions, political leanings,
race, sex, or any other ground whatsoever shall not be
allowed."
19. Under Netherlands constitutional law, courts may not review the
constitutionality of statutes. Article 120 reads:
"The courts shall not rule on the constitutionality
[grondwettigheid] of statutes and treaties."
Delegated legislation, on the other hand, may be examined to
determine whether it conforms with the Constitution and even with
unwritten general principles of law (see the judgment of the
Supreme Court of 1 December 1993, Beslissingen in Belastingzaken
(Reports of Decisions in Taxation Cases - "BNB") 1994, no. 64).
20. Article 93 of the Constitution provides that provisions of
international treaties and decisions of international
(intergovernmental) organisations which, according to their content,
may be binding on anyone shall have binding force after they have been
published.
With regard to the prohibition of discrimination, the
Netherlands is a party to, inter alia, the International Covenant on
Civil and Political Rights of 1966 ("the Covenant"), Article 26 of
which provides as follows:
"All persons are equal before the law and are entitled without
discrimination to the equal protection of the law. In this
respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or
social origin, property, birth or other status."
B. The General Child Care Benefits Act
21. The General Child Care Benefits Act was enacted in 1962.
Until 1 January 1989 (see paragraph 28 below), section 25 of
the General Child Care Benefits Act provided as follows:
"1. Contributions are due by:
(a) every person by whom contributions are due by way
of assessment under the General Old Age Pensions Act (Algemene
ouderdomswet);
(b) ...
2. The first paragraph, under (a), may be derogated from by
royal decree, subject to conditions and limitations if need be,
in respect of unmarried women who have reached the age of 45.
3. ..."
Persons referred to in sub-paragraph (a) were all those who had
not yet reached the age of 65 and who were either Netherlands residents
or, if not Netherlands residents, subject to the
Wages (Tax Deduction) Act (Wet op de loonbelasting) in respect of work
carried out in the Netherlands under a contract of employment
(section 6 (1) of the General Old Age Pensions Act).
22. Any person who was either a Netherlands resident or subject to
the Wages (Tax Deduction) Act in respect of work carried out in the
Netherlands under a contract of employment was entitled to benefits
under the General Child Care Benefits Act for children for whose
maintenance he or she was financially responsible, whether they were
his or her own by birth or marriage or foster children (sections 6 and
7 of the General Child Care Benefits Act). Such entitlement was not
subject to the condition that the person concerned had contributed to
the scheme.
C. The royal decree
23. At the time of the events complained of, the derogation from
the general rule made possible by section 25 (2) was provided for by
the royal decree of 27 February 1980 (Staatsblad no. 89). Section 1
provided:
"In derogation from section 25 (1) (a) of the General Child
Care Benefits Act, no contributions shall be due by an
unmarried woman who has reached the age of 45 before the
beginning of the calendar year and who is not entitled to
child care benefits under that Act."
D. Relevant domestic case-law
1. Supreme Court
24. The Supreme Court recognised in its judgment of 2 February 1982
(Nederlandse Jurisprudentie (Netherlands Law Reports - "NJ") 1982,
no. 424 (corrected in NJ 1982, no. 475)) that Article 26 of the
Covenant is a provision of an international treaty which, according to
its content, may be binding on anyone, and must therefore in principle
be applied directly by the Netherlands courts (see paragraph 20 above).
However, in a number of judgments it has declined to construe
Article 26 of the Covenant in such a way as to deprive
national legislation of its effect even if it considered that a given
measure constituted illegal discrimination between men and women,
holding that, where various options were open to the
national authorities to remove such discrimination, the choice should
be left to the legislature in view of the social and legal implications
attending each possible course of action (see the judgments of the
Supreme Court of 12 October 1984, NJ 1985, no. 230, and
23 October 1988, NJ 1989, no. 740).
In its judgment of 16 November 1990 (NJ 1991, no. 475), cited
in the European Court of Human Right's Kroon and Others v. the
Netherlands judgment of 27 October 1994 (Series A no. 297-C), the
Supreme Court came to a similar finding with regard to Article 14 of
the Convention taken together with Article 8 (art. 14+8) (loc. cit.,
p. 50, para. 14).
2. Central Appeals Tribunal
25. The Central Appeals Tribunal (Centrale Raad van Beroep) - the
administrative tribunal competent to decide most types of
social-security disputes but not, inter alia, disputes relating to
contributions due under the General Child Care Benefits Act - has held
that Article 26 of the Covenant is in principle directly applicable in
the field of social security.
Thus, in its judgment of 14 May 1987 (Rechtspraak Sociaal
Verzekeringsrecht (Social Security Law Reports - "RSV") 1987, no. 246),
the Central Appeals Tribunal considered discriminatory the rule that
to qualify for benefits under the Victims of Persecution (1940-1945)
Benefits Act (Wet uitkering vervolgingsslachtoffers 1940-1945) a
married woman had to be a "breadwinner" whereas no such requirement
applied to married men. In three judgments delivered on 5 January 1988
(Nederlandse Jurisprudentie - Administratiefrechtelijke Beslissingen
(Netherlands Administrative Law Reports - "AB") 1988, nos. 252-54), it
came to a similar finding with regard to the General Disability Act
(Algemene arbeidsongeschiktheidswet), but only with effect from
1 January 1980 - the date on which legislation entered into force that
was intended to remove discrimination but which had failed to do so
adequately.
Similarly, in its judgments of 7 December 1988
(NJCM-Bulletin 1989, no. 14, p. 71, and AB 1989, no. 10), it recognised
the right of a widower to claim a widow's pension (weduwenpensioen)
under the General Widows and Orphans Act (Algemene weduwen- en
wezenwet).
E. Levying of contributions; procedural provisions
26. Contributions under the General Child Care Benefits Act and
certain other social-security schemes were levied by the Tax Inspector
in the same way as income tax (sections 21 and 22 of the
General Exceptional Medical Expenses Act (Algemene wet bijzondere
ziektekosten), declared applicable by analogy under section 26 of the
General Child Care Benefits Act).
27. It was possible to file an objection against an assessment with
the Inspector (section 23 (1) of the
State Taxes (General Provisions) Act - Algemene wet inzake
rijksbelastingen).
An appeal against the Inspector's decision lay to the
Court of Appeal (sections 2 and 26 (1) of the
State Taxes (General Provisions) Act). A further appeal could be filed
on points of law to the Supreme Court (section 95 of the
Judicial Organisation Act - Wet op de rechterlijke organisatie).
F. The Act of 21 December 1988
28. As noted above (see paragraph 12), the possibility provided for
under section 25 (2) came to an end when the Act of 21 December 1988
(Staatsblad 1988, no. 631) came into effect on 1 January 1989.
Accordingly, on that date men and women became equally liable to pay
contributions under the General Child Care Benefits Act whatever their
age and whether or not they were married or had children.
PROCEEDINGS BEFORE THE COMMISSION
29. Mr van Raalte applied to the Commission on 23 April 1992. He
relied on Article 14 of the Convention taken together with Article 1
of Protocol No. 1 (art. 14+P1-1), alleging that he had been the victim
of discriminatory treatment with regard to the obligation to pay
contributions under the General Child Care Benefits Act.
30. The Commission declared the application (no. 20060/92)
admissible on 10 April 1995. In its report of 17 October 1995
(Article 31) (art. 31), it expressed the opinion that there had been
a violation of Article 14 of the Convention taken together with
Article 1 of Protocol No. 1 (art. 14+P1-1) (twenty-three votes to
five). The full text of the Commission's opinion and of the dissenting
opinion contained in the report is reproduced as an annex to this
judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and Decisions 1997-I),
but a copy of the Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
31. The Government concluded their memorial by expressing the
opinion that there had not been a violation of Article 14 of the
Convention taken together with Article 1 of Protocol No. 1
(art. 14+P1-1).
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 14+P1-1)
32. The applicant claimed that the levying of contributions under
the General Child Care Benefits Act (see paragraph 21 above) from him,
an unmarried childless man over 45 years of age, constituted
discrimination on the ground of gender prohibited by Article 14 of the
Convention taken together with Article 1 of Protocol No. 1
(art. 14+P1-1), given the fact that at the time of the events
complained of no similar contributions were exacted from unmarried
childless women of that age (see paragraphs 21 and 23 above).
Article 14 of the Convention (art. 14) and Article 1 of
Protocol No. 1 (P1-1) provide as follows:
Article 14 of the Convention (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."
Article 1 of Protocol No. 1 (P1-1)
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles
of international law.
The preceding provisions (P1-1) shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties."
The Commission agreed with the applicant that such violation
had taken place. The Government contested this.
A. Whether Article 14 of the Convention (art. 14) is applicable
33. As the Court has consistently held, Article 14 of the
Convention (art. 14) complements the other substantive provisions of
the Convention and the Protocols. It has no independent existence
since it has effect solely in relation to "the enjoyment of the rights
and freedoms" safeguarded by those provisions. Although the
application of Article 14 (art. 14) does not presuppose a breach of
those provisions - and to this extent it is autonomous -, there can be
no room for its application unless the facts in issue fall within the
ambit of one or more of the latter (see, among many other authorities,
the Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A
no. 291-B, p. 32, para. 22).
34. The applicant and the Commission both considered that the case
concerned the right of the State to "secure the payment of taxes or
other contributions" and therefore came within the ambit of Article 1
of Protocol No. 1 (P1-1). The Government did not contest this.
35. The Court sees no reason to hold otherwise, and accordingly
finds that Article 14 (art. 14) is applicable.
B. Arguments before the Court
1. The applicant
36. In the applicant's submission, differences in treatment based
on sex were already unacceptable when section 25 of the
General Child Care Benefits Act was enacted in 1962. The wording of
Article 14 of the Convention (art. 14) showed that such had been the
prevailing view as early as 1950.
Moreover, legal and social developments showed a clear trend
towards equality between men and women. The applicant drew attention
to, inter alia, the Court's Abdulaziz, Cabales and Balkandali
v. the United Kingdom judgment of 28 May 1985 (Series A no. 94), which
stated explicitly that "the advancement of the equality of the sexes
is today a major goal in the member States of the Council of Europe"
and that "very weighty reasons would have to be advanced before a
difference of treatment on the ground of sex could be regarded as
compatible with the Convention" (loc. cit., p. 38, para. 78).
The Netherlands legislature had in fact recognised the
unacceptable nature of the distinction in question by enacting, in
1988, legislation abolishing it.
In any case, statistics showed that very few men aged 45 or
over fathered children; on the other hand, women aged over 45 were
still able to have children and in many cases did so, thus invalidating
the justification of any distinction based on the theoretical
possibility of procreating.
Lastly, the right to claim benefits under the
General Child Care Benefits Act was in no way related to the payment
of contributions.
2. The Government
37. The Government denied that there had been a difference in
treatment between persons in similar situations. Women aged 45 or over
differed fundamentally from men of the same age in that for biological
reasons they were much less likely to be able to have children.
To the extent that it had to be assumed that there had been a
difference in treatment between persons in similar situations, the
biological difference referred to constituted in itself sufficient
objective and reasonable justification. In addition, when the rule in
question had been enacted it had been justified by the social attitudes
prevailing at the time: it was assumed that women who had no children,
and who in all probability never would, suffered thereby and it was
considered wrong to impose on such women the additional emotional
burden of having to pay contributions under a child care benefits
scheme.
Admittedly, the exemption in question had been abolished with
effect from 1 January 1989, essentially in response to a change in
social attitudes towards unmarried childless women. It was, however,
inevitable that social legislation should to some extent lag behind
developments in society and allowances had to be made.
More generally, the Government referred to the wide margin of
appreciation which in their view Article 1 of Protocol No. 1 (P1-1)
allowed the State in "enforcing such laws as it deems necessary ... to
secure the payment of taxes or other contributions or penalties".
3. The Commission
38. The Commission was of the opinion that there had been a
difference in treatment based on gender and that this difference was
not justified.
Moreover, it considered that the social attitudes relied on by
the Government had been overtaken by developments well before 1985.
It referred, inter alia, to the Court's finding of a violation of
Article 14 taken together with Article 4 para. 3 (d) (art. 14+4-3-d)
in its above-mentioned Karlheinz Schmidt judgment, the financial
contribution in that case having been imposed in 1982.
C. The Court's assessment
1. Applicable principles
39. For the purposes of Article 14 (art. 14) a difference of
treatment is discriminatory if it has no objective and reasonable
justification, that is if it does not pursue a legitimate aim or if
there is not a reasonable relationship of proportionality between the
means employed and the aim sought to be realised. Moreover the
Contracting States enjoy a margin of appreciation in assessing whether
and to what extent differences in otherwise similar situations justify
a different treatment (see, among other authorities, the
above-mentioned Karlheinz Schmidt judgment, pp. 32-33, para. 24).
However, very weighty reasons would have to be put forward
before the Court could regard a difference in treatment based
exclusively on the ground of sex as compatible with the Convention
(see, among other authorities, the above-mentioned
Karlheinz Schmidt judgment, ibid.).
2. Whether there has been a difference in treatment between
persons in similar situations
40. At the time of the events complained of contributions under the
General Child Care Benefits Act were levied from unmarried childless
men aged 45 or over but not from unmarried childless women of the same
age (see paragraphs 21 and 23 above). This undoubtedly constitutes a
"difference in treatment" between persons in similar situations, based
on gender.
The factual difference between the two categories relied on by
the Government, namely their respective biological possibilities to
procreate, does not lead the Court to a different conclusion. It is
precisely this distinction which is at the heart of the question
whether the difference in treatment complained of can be justified.
3. Whether there is objective and reasonable justification
41. The Court notes that the General Child Care Benefits Act set
up a social-security scheme to which, in principle, the entire adult
population was subject, both as contributors and as potential
beneficiaries.
A key feature of this scheme was that the obligation to pay
contributions did not depend on any potential entitlement to benefits
that the individual might have (see paragraph 21 above). Accordingly
the exemption in the present case ran counter to the underlying
character of the scheme.
42. While Contracting States enjoy a certain margin of appreciation
under the Convention as regards the introduction of exemptions to such
contributory obligations, Article 14 (art. 14) requires that any such
measure, in principle, applies even-handedly to both men and women
unless compelling reasons have been adduced to justify a difference in
treatment.
43. In the present case the Court is not persuaded that such
reasons exist.
In this context it must be borne in mind that just as women
over 45 may give birth to children (see paragraph 17 above), there are
on the other hand men of 45 or younger who may be unable to procreate.
The Court further observes that an unmarried childless woman
aged 45 or over may well become eligible for benefits under the Act in
question; she may, for example, marry a man who already has children
from a previous marriage.
In addition, the argument that to levy contributions under a
child care benefits scheme from unmarried childless women would impose
an unfair emotional burden on them might equally well apply to
unmarried childless men or to childless couples.
44. Accordingly, irrespective of whether the desire to spare the
feelings of childless women of a certain age can be regarded as a
legitimate aim, such an objective cannot provide a justification for
the gender-based difference of treatment in the present case.
4. Conclusion
45. There has been a violation of Article 14 of the Convention
taken together with Article 1 of Protocol No. 1 (art. 14+P1-1).
II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
46. Article 50 of the Convention (art. 50) provides as follows:
"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."
The applicant claimed damages as well as reimbursement of costs
and expenses.
A. Damages
47. Mr van Raalte asked the Court to award him compensation for
pecuniary damage in the amount of the contributions which he had paid
under the General Child Care Benefits Act in 1985 through 1988. These
totalled 1,959 Netherlands guilders (NLG). He also asked the Court to
award him interest over these sums at the statutory rate.
He also claimed NLG 4,740 for non-pecuniary damage. He stated
that it had been "very painful" for him as an unmarried childless man
to have to pay contributions under the General Child Care Benefits Act.
48. The Government stated that had there not been the difference
in treatment complained of, men and women would have been equally
liable to pay contributions under the General Child Care Benefits Act,
so that the applicant would have had to pay them in any case.
The applicant's claim for non-pecuniary damage was in their
view incompatible with the applicant's argument that such feelings, if
suffered by women, could not justify extending the exemption only to
them.
49. The Delegate of the Commission assumed that the applicant would
be in a position to recover the contributions paid under domestic law
and also considered that the applicant was entitled to some
compensation for non-pecuniary damage.
50. The Court notes that the finding of a violation of Article 14
of the Convention taken together with Article 1 of Protocol No. 1
(art. 14+P1-1) does not entitle the applicant to retrospective
exemption from contributions under the scheme in question. Accordingly
the applicant's claim for pecuniary damage has not been substantiated.
As regards the applicant's claim for non-pecuniary damage, the
Court considers that the present judgment in itself constitutes
sufficient just satisfaction.
B. Costs and expenses
51. The applicant asked the Court to award him NLG 7,836.75 for
costs and expenses incurred in the domestic proceedings, NLG 6,768 for
costs and expenses incurred in the proceedings before the Commission
and NLG 8,666.25 for costs and expenses incurred before the Court.
The Government did not comment. The Delegate of the Commission
considered that the applicant was entitled to the sums sought.
52. The Court has no reason to doubt that these costs and expenses
were actually incurred. It also accepts that they were necessarily
incurred by the applicant in his attempts to prevent the violation
found and later to obtain redress therefor. Finally, it finds them
reasonable as to quantum.
The applicant's claims under this head, which total NLG 23,271,
are therefore accepted in their entirety.
C. Default interest
53. According to the information available to the Court, the
statutory rate of interest applicable in the Netherlands at the date
of adoption of the present judgment is 5% per annum.
FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been a violation of Article 14
of the Convention taken together with Article 1 of
Protocol No. 1 (art. 14+P1-1);
2. Dismisses by eight votes to one the applicant's claims for
pecuniary damage;
3. Holds unanimously that the present judgment in itself
constitutes sufficient just satisfaction in respect of any
non-pecuniary damage sustained;
4. Holds unanimously that the respondent State is to pay to the
applicant, within three months, 23,271 (twenty-three thousand
two hundred and seventy-one) Netherlands guilders in respect
of costs and expenses, and that simple interest at an annual
rate of 5% shall be payable from the expiry of the
above-mentioned three months until settlement.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 21 February 1997.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 55 para. 2 of Rules of Court B, the partly
dissenting opinion of Mr Foighel is annexed to this judgment.
Initialled: R. R.
Initialled: H. P.
PARTLY DISSENTING OPINION OF JUDGE FOIGHEL
I am in complete agreement with the majority of the Court as
regards its finding of a violation of Article 14 of the Convention
taken together with Article 1 of Protocol No. 1 (art. 14+P1-1) in this
case. However I am in disagreement with the view of the majority that
the applicant's claim for pecuniary damage should be dismissed. The
Court has found the applicant to be the victim of discrimination as
regards the requirement that he make contributions to a
child care benefits scheme. Since this is damage which he has
sustained as a result of the violation of Article 14 of the Convention
taken together with Article 1 of Protocol No. 1 (art. 14+P1-1) he
should, as a matter of fairness, be entitled under Article 50 of the
Convention (art. 50) to recover the contributions that he had made to
the scheme. I note, moreover, that this was the view taken by the Court
in its Karlheinz Schmidt v. Germany judgment of 18 July 1994
(Series A no. 291-B, p. 34, para. 33).