WESSELS-BERGERVOET proti Nizozemsku

FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application No. 34462/97

by Rika E.W. WESSELS-BERGERVOET

against the Netherlands

The European Court of Human Rights (First Section) sitting on 1 December1998 as a Chamber composed of:

Mrs E. Palm, President

Mr J. Casadevall,

Mr G. Jörundsson,

Mr R. Türmen,

Mr C. Bîrsan,

Mrs W. Thomassen,

Mr R. Maruste,

with Mr M. O'Boyle, Section Registrar

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 October 1996 by Rika E.W. WESSELS-BERGERVOET against the Netherlands and registered on 13 January 1997 under file No. 34462/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1924, and resides in Gaanderen. She is represented by Ms. H. Mollema-de Jong, a lawyer practising in Lelystad, the Netherlands.

The facts of the case, as submitted by the applicant, may be summarised as follows.

a. Particular circumstances of the present case

The applicant and her husband have always resided in the Netherlands. By decision of 7 August 1984, the applicant's husband was granted an old age pension for a married person under the General Old Age Pension Act (Algemene Ouderdomswet; hereinafter referred to as "AOW") as from 1 August 1984. However, his pension was reduced by 38% as neither the applicant nor he himself had been insured under this Act during nine periods between 1 February 1957 and 1 August 1977, when he had worked in Germany. These nine periods amounted in total to globally nineteen years. No appeal was filed against this decision.

After the applicant had reached the age of sixty-five in 1989, the Board of the Social Insurance Bank (Sociale Verzekeringsbank), by decision of 14 February 1989, granted the applicant an old age pension under the AOW as from 1 March 1989. However, on the same basis as her husband's pension, her pension was also reduced by 38%. The applicant filed an appeal with the then Appeals Tribunal (Raad van Beroep) of Arnhem complaining that the reduction of her old age pension by 38% constituted discriminatory treatment.

In its decision of 10 January 1990, following both written and oral adversarial proceedings, the Appeals Tribunal noted that, pursuant to Articles 7 and 9 of the AOW, a married person - like the applicant - who had been insured under this Act and who had reached the age of sixty-five was entitled to an old age pension amounting to 50% of the net minimum wage per month. However, pursuant to Article 13 of the AOW this amount could be reduced by 2% for each full year in which the person concerned had not been insured between the ages of fifteen and sixty-five. It further noted that, pursuant to Article 6 § 1 of the AOW, insured were persons between the ages of fifteen and sixty-five, who were either Netherlands residents or, if not Netherlands residents, subject to payment of wage tax (loonbelasting) in respect of work carried out in the Netherlands under a contract of employment. Under the present § 2 of Article 6 of the AOW, it was possible, by way of an Order in Council (Algemene Maatregel van Bestuur), to extend or limit the group of insured in derogation from the general rule contained in Article 6 § 1 of the AOW.

The Appeals Tribunal recalled the case-law of the Central Appeals Tribunal (Centrale Raad van Beroep) to the effect that the question whether or not a person was insured under the AOW fell to be determined on the basis of the rules in force at the relevant time.

It further recalled that, according to five consecutive Royal Decrees on Extension and Limitation of the group of insured persons (Koninklijke Besluiten Uitbreiding en Beperking van de kring der verzekerden) issued pursuant to Article 6 § 1 of the AOW and in force until 1 April 1985, not insured under the AOW were those persons residing in the Netherlands but working outside the Netherlands under a contract of employment and who, in respect of this employment, were socially insured under a foreign legislation. This limitation also applied to a woman married to a person who, on the basis of these Royal Decrees, was not insured under the AOW.

The Appeals Tribunal noted that it was not disputed that the applicant's husband had been working in Germany during the periods at issue and that, during these periods and in accordance with the Ordinance nr. 3 of the Council of Ministers of the European Communities (until 1 October 1972) and subsequently Ordinance 1408/71, he had been subject to the German social security legislation.

It found that, in these circumstances, the Social Insurance Bank had correctly concluded that the applicant was not insured under the AOW for the period of time her husband had worked in Germany.

However, as regards the question whether this situation was compatible with the principle of equality, in particular the prohibition of discrimination between men and women, the Appeals Tribunal noted that there was a provision in the Royal Decrees at issue which rendered the insurance under the AOW of married women dependent on the question whether or not their husbands were insured under the AOW, whereas the Decrees did not contain a comparable provision as regards married men.

The Appeals Tribunal examined the applicant's situation in the light of Article 26 of the International Covenant on Civil and Political Rights (ICCPR). It recalled the case-law of the Central Appeals Tribunal according to which, as from 23 December 1984, this provision was directly applicable in the Netherlands legal order, also in the field of social security. The Appeals Tribunal found that this implied that rights could be derived directly from this provision insofar as an application, after 23 December 1984, of statutory rules created a difference in treatment between men and women without any objective and reasonable justification for this difference in treatment and which difference in treatment further led to a more unfavourable result than the result would have been if there had not been such a difference. It found that the applicant found herself in this situation as she had been awarded an old age pension on 1 March 1989 from which 38% was deducted on the basis of rules which made an unjustified difference between married men and women.

The Appeals Tribunal noted that, as from 1 April 1985, the principle of equal treatment between men and women had been incorporated in the AOW and that this had resulted in the introduction of a system in which the entitlement to full benefits under this Act was made solely dependent on the question whether or not the person concerned had personally completed the insurance years under this Act. It concluded that, in this light, it could not be held against married women, like the applicant, who had fully complied with the conditions for insurance under the AOW, that they had not been insured during a certain period solely on grounds of marital status.

Consequently, the Appeals Tribunal quashed the decision of 14 February 1989, insofar as the applicant's pension was reduced by 38%, upheld the decision for the remainder and ordered that the applicant was entitled to a full pension under the AOW. The Board of the Social Insurance Bank filed an appeal with the Central Appeals Tribunal.

In its judgment of 26 November 1993, following adversarial proceedings in the course of which a hearing was held on 15 October 1993, the Central Appeals Tribunal quashed the decision of 10 January 1990 and rejected the applicant's appeal against the decision of 14 February 1989 as ill-founded.

As regards the question whether the reduction of the applicant's pension was compatible with Article 26 of the ICCPR, the Central Appeals Tribunal considered that this provision could be directly invoked, also in the field of social security, as from 23 December 1984. It further recalled the case-law according to which this implied that Contracting States to the ICCPR were obliged to ensure that their statutory rules were free of any form of discrimination prohibited by this provision. However, according to the Central Appeals Tribunal, a difference in treatment was not contrary to this provision where there were objective and reasonable grounds for making such a difference.

In this perspective, the Central Appeals Tribunal held that Article 26 of the ICCPR could not deprive of its effect a national statutory rule according to which the level of benefits under a statutory insurance scheme - like the AOW - was made dependent on the question whether the periods of insurance had been completed. It held that this was no different in a situation where it could be established that the non-completion of periods of insurance, as regards the period before 23 December 1984, was based on a domestic rule which made a difference in treatment on the basis of sex as this rule had been in operation during a period in which Article 26 of the ICCPR had not yet directly applied and could not, therefore, deprive this domestic rule of its effect.

The applicant's subsequent appeal in cassation with the Supreme Court (Hoge Raad) was rejected on 29 May 1996. As to the applicant's argument that the Central Appeals Tribunal had failed to examine whether or not there was an objective and reasonable justification for the difference in treatment at issue, the Supreme Court held that the Central Appeals Tribunal had correctly found that, as regards the periods in which the applicant had not been insured under the AOW, she could not rely on Article 26 of the ICCPR as these periods predated the entry into force of this international instrument.

Insofar as the applicant complained that the Central Appeals Tribunal had unjustly failed to deprive of its effect the discriminatory rule at issue on grounds of incompatibility with the prohibition of discrimination contained in Article 1 of the Constitution (Grondwet), the Supreme Court held that the periods during which the applicant had not been insured under the AOW predated the entry into force of Article 1 of the Constitution.

Insofar as, on this point, the applicant relied on unwritten general principles of law (algemene rechtsbeginselen) in particular the principle of equality, the Supreme Court considered that, according to the Explanatory Memorandum (Nota van Toelichting) to the first Royal Decree on Extension and Limitation of the group of insured persons, i.e. of 20 December 1956, the exclusion was aimed at the prevention of an undesirable cumulation of benefits. According to this Explanatory Memorandum the pension built up by the man abroad was also considered to be destined for his spouse.

The Supreme Court held that in view of the social attitudes prevailing at the relevant time, i.e. the periods during which the applicant had not been insured under the AOW, the then Government could have based themselves on the idea that in practically all cases it was the man who was the "breadwinner" so that they could accordingly limit themselves to exclude married women and did not have to make a separate provision for those cases where the woman was the "breadwinner". The Supreme Court concluded that, therefore, there was an objective and reasonable justification for the difference in treatment on grounds of sex on which the exclusion at issue was based.

The Supreme Court further rejected the applicant's argument based on the principle of equality contained in Article 4 § 1 of the EC Directive 79/7/EEC on the gradual implementation of the principle of equal treatment of men and women in the field of social security, as she fell outside the scope of Article 2 of this Directive which provision defined the group of persons to whom this Directive applied.

b. Relevant domestic law and practice

Article 1 of the 1983 Constitution provides:

<Translation>

"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."

Under Netherlands constitutional law, courts may not review the constitutionality of statutes. Article 120 reads:

<Translation>

"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 (cf. Hoge Raad, 1 December 1993, Beslissingen in Belastingzaken 1994, no. 64).

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 Convention, which was ratified by Act of 28 July 1954, and the ICCPR of 1966. Article 26 of the ICCPR 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."

The Supreme Court recognised in its judgment of 2 February 1982 (Nederlandse Jurisprudentie 1982, no. 424 [corrected in Nederlandse Jurisprudentie 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.

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 (cf. Hoge Raad, 12 October 1984, Nederlandse Jurisprudentie 1985, no. 230, and Hoge Raad, 23 October 1988, Nederlandse Jurisprudentie 1989, no. 740).

In its judgment of 16 November 1990 (Nederlandse Jurisprudentie 1991, no. 475), cited in the Court'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 (loc. cit., p. 50, § 14).

COMPLAINTS

The applicant complains that the reduction of her pension under the AOW is the result of a discriminatory difference in treatment between married men and women contrary to Article 14 of the Convention in conjunction with both Article 1 of Protocol No. 1 and Article 6 of the Convention.

THE LAW

The applicant complains that the reduction of her pension under the AOW is contrary to her rights under Article 14 of the Convention in conjunction with both Article 1 of Protocol No. 1 and Article 6 of the Convention.

Article 14 of the Convention provides:

"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 6 of the Convention, insofar as relevant, reads:

"1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ... "

Article 1 of Protocol No. 1 provides:

"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 Court considers that it must first be determined whether the applicant has exhausted domestic remedies within the meaning of Article 26 of the Convention. In order to comply with this requirement an applicant must have raised before the national courts, either in form or in substance, the complaint brought before the Court. Even in a State where the Convention is directly applicable, the applicant may, instead of invoking a precise provision of the Convention, raise equivalent arguments before the competent national authorities (cf. No. 20948/92, Dec. 22.5.95, D.R. 81, p. 35).

The Court notes that the applicant has complained throughout the proceedings at issue that the deduction of her pension was the result of an unlawful discriminatory difference in treatment between married men and women. The Court accepts that, although she has not specifically relied on Article 14 of the Convention in the domestic proceedings, the applicant has raised her complaint under this provision of the Convention, in substance, before the national courts dealing with her case and has thus complied with the requirement of exhaustion of domestic remedies.

However, unlike Article 26 of the International Covenant on Civil and Political Rights, Article 14 of the Convention has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" guaranteed by the other substantive provisions of the Convention. Although the application of Article 14 does not presuppose a breach of those substantive 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 substantive provisions of the Convention (cf. Eur. Court HR, Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291-B, p. 32, § 22).

Considering that the reduction of the applicant's pension constituted an interference with her means of subsistence and that, in the proceedings at issue, she was claiming an individual economic right flowing from specific statutory provisions, the Court is of the opinion that the proceedings at issue constituted a determination of the applicant's civil rights and obligations within the meaning of Article 6 § 1 of the Convention (cf. Eur. Court HR, Salesi v. Italy judgment of 26 February 1993, Series A no. 257-E, p. 59, § 19; and Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 17, § 46). It follows that the proceedings at issue can be examined under Article 14 of the Convention.

However, the Court finds no indication in the case-file that the applicant was discriminated against in the enjoyment of her substantive rights under Article 6 of the Convention.

It follows that this part of the application must be rejected as manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention.

Insofar as the applicant relies on Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1, the Court considers that this part of the application must be brought to the notice of the respondent Government in accordance with Rule 54 §3 (b) of the Court's Rules of Procedure and the Government be invited to submit their written observations on the admissibility and merits of this complaint.

For these reasons, the Court,

DECIDES TO ADJOURN the examination of the applicant's complaint that the reduction by 38% of her pension constitutes a discriminatory difference in treatment between married men and women, contrary to Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1; and,

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

Michael O'Boyle Elisabeth Palm
Registrar President