Instantie

Europese Commissie voor de rechten van de mens

Samenvatting

De premieplichtige gehuwde vrouw, die de mogelijkheid haar helft van de
rente en andere kosten van de gemeenschappelijke eigen woning op haar
premieplichtig inkomen in mindering te brengen is ontnomen, vond haar weg
naar het Hof van Justitie van de Europese Gemeenschappen versperd door de
Hoge Raad. De Hoge Raad weigerde te verwijzen (RN 1993, 321 m.nt. Hieke
Snijders Borst). Ook in Straatsbrug werd de vordering afgewezen.

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The facts

The applicant is a Dutch national, born in 1957 and residing at Leiden,
the Netherlands. Before the Commission she is represented by her husband,

The facts of the cast, as submitted by the applicant, may be summarised
as folllows.

On 1 June 1988 the applicant and her husband bought a house toghether,
each of them acquiring 50% of the ownership. The applicant and her husband
are married with a marriage settlement (huwlijksevoorwaarden) and have no
marital community of property. The applicant and her husband contracted
each 50% of the necessary mortgage loan and related costs. The costs
related to the transaction were paid from their joint bank account.
According to their marriage settlement each of the spouses is eligible to
pay 50% of htese costs. Under the Income Tax Act (Wet op de
Inkomstenbelasting) these costs, after balancing them with a legally fixed
amount relating to presumed income from the use of the house
(huurwaardeforfait), are deductible from the taxable income. The total
deductible costs were 18.524 Dutch guilders for the couple.

Pursuant to Section 5 of the Income Tax Act the total deductible amount
of 18.524 guilders had been deducted from the taxable income of the spouse
with the highest income, which in this case is the applicant’s husband.
This was advantageous for the couple as a whole, since the applicant’s
husband’s higher income is taxed at a higher rate. The advantage for the
applicant’s husband thus obtained was higher than the advantage the
applicant would have obtained if 50% of the deductible amount had been
deducted from her own taxable income. The advantage thus obtained for the
couple as a whole was 2.782 Duch guilders. The applicant’s marriage
settlement does not, however, contain any obligation that such tax
advantage should be divided between the spouses.

On 31 August 1989 the Inspector of Direct Taxes (Inspecteur der Directe
Belastingen) issued an assessment of the social security contributions
(aanslag premieheffing volksverzekeringen) the applicant had to pay on the
basis of her taxable income in 1988, as social security contributions are
calcultated on the basis of taxable income. The Inspector did not deduct
the applicant’s part of the costs related to the purchase of the house
from her taxable income in 1988.

In respect of the calculations of the contributions under the general
social sexurity schemes (volksverzekeringen), i.e. the Gereneal Old Age
pension Act (Algemene Ouderdomswet – herinafter referred to as “AOW”) and
the General Widow’s and Orphan’s Pension Act (Algemene Weduwen- en
Wezenwet- herinafter referred to as “AWW”), there was no advantage of the
transfer of the applicant’s part of the tax deductible costs to her
husband since he already pays the maximum AOW/AWW contributions as his
income is higher than the maximum income to be taken into acount for the
calculation of the AOW/AWW contributions. If the application’s part of the
tax deductable costs had been deducted from her taxable income, she would
have obtained a reduction of 1.185 Dutch guilders in respect of the
AOW/AWW contributions to be paid.

By decision of 28 November 1989 the Inspector of Direct Taxes rejected the
applicant’s objection against the assessment of her social security
contributions. Her subsequent appeal to the Court of Appeal (Gerechtshof)
of The Hague was rejected on 6 May 1991.

The applicant’s appeal to the Supreme court (Hoge Raad) was rejected on
4 November 1992. Insofar as the applicant complained that the application
of Section 5 of the Income Tax Act constituted discriminatory treatment
contrary to Article 26 of the International Covenant on Civil and
Political Rights and was contrary to Article 4 para. 1 of het Directive
of the council of the European Communities of 19 December 1978, no.
79.7/EEC concerning the gradual implementation of the principle of equal
treatment between men and women in the field of social security, the
Supreme Court considered that the applicant did not dispute that the
application of Section 5 of the Income Tax Act leads only in few
relatively exceptional casis to the result that a married woman, living
with her spouse, has to pay more social security contributions than the
case would have been when that Section would not have been applied, and
that this is a consequence of the legislator’s creation of a simple
regulation by deriving the income for the calculation of social security
contributions from the taxable income.

The Supreme Court upheld the Court of Appeal’s reasoning that the
legislator, on the assumption that cohabiting spouses fiscally form an
economic unit and for the sake of simplicity and practical feasiblility,
could reasonably opt for an income tax system where a tax deductible
amount is transferred to the spouse with the higher income. Taking into
account that the legislator also wished to keep the calculation of the
social security contributions simple and practical and therefore
stipulated in the AOW and the AWW that the income for the calculation of
the social security contributions should be derived from the taxable
income in a simple manner, the Supreme court found this to be an
objectively justifiable aim. It therefore found no discrimination on hte
basis of sex.

Under Section 81 of the Civil Code – book 1 (Burgerlijk Wetboek- boek 1)
spouses owe each other faithfulness, aid and support and are under the
obligation to provide each other with “the necessary” (het nodige).
According to Section 84 of the Civil Code – book 1 this includes the
obligation to contribute to the costs of their common household each
according to income. As to the latter obligation, spouses are at liberty
to make different arrangements through a marriage settlement.

Complaint

The applicant complains under Article 14 of the Convention in conjunction
with Article 1 of Protocol No. 1 that the distinction made between spouses
in the Dutch rules on the imposition of AOW and AWW contributions
constitutes a discriminatory treatment on the basis of income, civil
status and indirectly on the basis of sex, since this distinction leads
to an unjustified disadvantage for the spouse with the lowest personal
income, who did in fact pay tax deductible costs. The applicant submits
that statistics over 1988 show that in the Netherlands in more than ninety
five percent of the cases the husband is the spouse with the highest
income.

The law

Article 14 of the Convention reads as follows:

‘The enjoyment of the rights and freedoms set forth in this 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 provides as follows:

‘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 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 recalls that Article 14 of the Convention has no
independent existence, but supplements the other provisions of the
Convention and the Protocols. Article 14 safeguards individuals, placed
in similar situations, from discrimination in the enjoyment of the rights
and freedoms set forth in those other provisions. A measure which as such
could be in conformity with the normative provision may therefore
nevertheless violate that provision taken together with Article 14 of the
Convention if it is applied in a discriminatory manner. A distinction 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’ (cf. No. 10491/83, Dec. 3.12.86, D.R. 51
p. 41 at p. 50).

The Commission considers that the payment of social security contributions
can be regarded as the payment of a contribution within the meaning of the
second paragraph of Article 1 of Protocol No. 1 and an obligation to pay
such contributions falls within the scope of this provision. Article 14
of the Convention therefore applies.

The Commission notes that the calculation of the above contributions is
based on taxable income. It finds no indication of discrimination as
regards the application of this principle in the applicant’s case.

The Commission further notes that prior to the calculation of the social
security contributions, when the applicant’s taxable income was
determined, the spouses’ total tax deductible amount of 18.524 guilders
was deducted from the taxable income of the applicant’s husband pursuant
to Section 5 of the Income Tax Act. This was advantageous for their
household as a whole, since the financial advantage thus obtained was
higher than the advantage the applicant and her husband would have
obtained individually if the applicant’s part of the tax deductible costs
had not been transferred to her husband and fifty percent of the
deductible amount had been deducted from their individual taxable incomes.

As the duty to pay tax falls within the scope of Article 1 of the Protocol
No. 1, Article 14 of the Convention also applies in this respect (Eur.
Court H.R., Darby Judgment of 23 October 1990, Series A no. 187, p. 12,
para. 30).

The Commission considers that in the determination of the taxable income
of the applicant and her husband there is a difference in treatment
between spouses based on difference of income. The question therefore
arises whether or not this difference in treatment has an objective and
reasonable justification.

The Commission notes that the Dutch rules in respect of the transfer of
tax deductible amounts between spouses apply to men and women alike. It
further observes that the applicant is married and that her marriage
settlement does not contain any obligation that fiscal advantages should
be devided between the spouses.

Having regard to all the rights and obligations which characterise
marriage, such as reflected by, inter alia, Section 81 of the Dutch Civil
Code, noting that Article 8 of the Convention protects family life, and
given the Contracting States’ wide margin of appreciation in the field of
taxation as to the aims to be pursued and the means by which they are
pursued, the Commission accepts that a married couple may in some respects
be treated as an economic unit, also taking into account the desirability
to keep rules concerning the determination of taxable income simple and
practical. It notes that the application of Section 5 of the Income Tax
Act entails a higher financial advantage for the couple as a whole as
regards income tax and that spouses are free to choose their mutual
financial arrangements by way of a marriage settlement. In these
circumstances the Commission is satisfied that there was an objective and
reasonable justification for the transfer of tax deductible amounts to the
spouse with the higher income.

The Commission therefore cannot find that the transfer of the applicant’s
part of the tax deductible amount to her husband constituted a
discriminatory treatment contrary to Article 14 of the Convention in
conjunction with Article 1 of Protocol No. 1.

It follows that the application is manifestly ill-founded within the
meaning of Article 27 para. 2 of the Convention.

For these reasons, the Commission, by a majority, declares the application
inadmissible.

Rechters

Mrs. Trechsel, Danelius, Jorundsson, Soyer, Schermers, Thune,Martinez, Loucaides, Geus, Nowicki, Cabral Barreto

Vrouw en Recht

Clara Wichmann

Instantie: Europese Commissie voor de rechten van de mens, 13 oktober 1993

Instantie

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Rechters