CASE OF WELLER v. HUNGARY
(Application no. 44399/05)
31 March 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Weller v. Hungary,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Ireneu Cabral Barreto,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having deliberated in private on 3 March 2009,
Delivers the following judgment, which was adopted on that date:
THE CIRCUMSTANCES OF THE CASE
A. The circumstances of the case
B. Relevant domestic law
Act no. 84 of 1998 on Family Support
“Governed by its responsibility for the well-being of families and children, Parliament enacts the following Act, in order to implement the social rights laid down in the Constitution and international treaties:”
The purpose of the Act
“The purpose of this Act is – in order to promote the social security of families and to reduce the material burden of bringing up children – to determine the system and forms of family allowances payable by the State, the conditions of entitlement to these allowances, and, moreover, the most important rules on competence and procedure relating to the establishment and disbursement thereof.”
The scope of the Act
“The Act shall be applied – unless an international treaty regulates otherwise – to those living on the territory of the Republic of Hungary, who
a) are Hungarian nationals,
b) have obtained an immigration or settlement permit, and to those who have been recognised as refugees by the Hungarian authorities,
c) fall under the scope of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community and – with the exception of the maternity benefit (Chapter IV of the Act) – of the Regulation (EEC) No. 140//71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, provided that such persons – with the exception of frontier workers – at the time of requesting the allowance have obtained a valid residence permit.”
“(1) Persons entitled to maternity benefit after giving birth are:
a) women who, during pregnancy, attended at least four times – in case of premature birth, once – prenatal care;
b) adoptive parents, if the adoption was finally authorised within 180 days of the birth;
c) the guardian, if the child – based on a final decision – was taken into his/her custody within 180 days of the birth.”
“If the woman entitled to maternity benefit dies before it is paid, then it shall be paid to the father living under the same roof or, in the absence of such a person, to the guardian of the child.”
“A request for maternity benefit may be submitted within 180 days of giving birth.”
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION
Article 14 of the Convention
“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 8 of the Convention
“1. Everyone has the right to respect for his private and family life, ...
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 ... the economic well-being of the country, ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. The parties' submissions
(a) The Government
(b) The applicants
2. The Court's assessment
(a) General principles
(b) Application of these principles to the present case
(i) Applicability of Article 14 taken together with Article 8
(ii) Justification for the difference in treatment
α. The different treatment of the first applicant
β. The different treatment of the second and the third applicants
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into Hungarian forints at the rate applicable at the date of settlement:
(i) EUR 720 (seven hundred and twenty euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 950 (nine hundred and fifty euros) in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 31 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge Tulkens is annexed to this judgment.
CONCURRING OPINION OF JUDGE TULKENS
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 two reasons.
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 insurance scheme, compensated 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 Article 14 of the Convention taken together with Article 8, construed, inter alia, in the light of Article 12 § 4 of the European Social Charter, which provides that domestic law cannot reserve social-security rights to their own nationals1.
1 Approximately 570 euros.
Admittedly, Hungary, whilst being a party to the
Social Charter, has 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).