Instantie

Europees Hof voor de rechten van de mens

Samenvatting

Heffing voor de kinderbijslag, inmiddels al lang verdwenen, is in strijd met
art. 14 EVRM. Deze heffing kende een vrijstelling voor vrouwen van boven de
45 jaar, de leeftijd waarop de kans zeer klein is dat ze nog kinderen kunnen
krijgen. Voor mannen ligt dit anders. De regering stelt in 1985 vast dat twee
procent van de borelingen een vader had van 45 jaar of ouder, terwijl dit
voor moeders een procent was. De regering achtte dit onderscheid voldoende
voor de verschillende premieheffingen en in 1989 is het onderscheid
vervallen. Het Hof ziet in het verschil in voortplantingsvermogen tussen
mannen en vrouwen evenwel geen rechtvaardiging om hen bij belastingheffing
anders te behandelen. Er is sprake van ongerechtvaardigde discriminatie.

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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 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 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 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 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.

II. APPLICATION OF ARTICLE 50 0F THE CONVENTION

46. Article 50 of the Convention 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. The applicant asked the Court to award him compensation for pecuniary
damage in the amount of the contributions which he had paid under the General
Child Benefits Act in 1985 through 1988. These totalled NLG 1,959. 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 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 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 constitutes in itself 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;

2. Dismisses by eight votes to one the applicant’s claims for
pecuniary damage;

3. Holds unanimously that the present judgment 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, NLG 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.

In accordance with Article 51 2 of the Convention and Rule 55 2 of Rules
of Court B, the partly dissenting opinion of Mr Foighel is annexed to this
judgment.

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 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 the
Child 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 he should, as a matter of fairness, be entitled
under Article 50 of the Convention 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 judgment of 18 July 1994 (Series A no. 291-B,
p. 34, 33).

Rechters

Mrs Ryssdal, Russo, Valticos, Palm, Foighel, Baka, Makarczyk, Jungwiert, VanDijk