AS TO THE ADMISSIBILITY OF
Application No. 20060/92
by A.G.V.R.
against the Netherlands
The European Commission of Human Rights sitting in private on
10 April 1995, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 April 1992 by
A.G.V.R. against the Netherlands and registered on 1 June 1992 under
file No. 20060/92;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
21 July 1994 and the observations in reply submitted by the
applicant on 18 August 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch citizen born in 1924, and resides in
Amstelveen, the Netherlands. Before the Commission he is represented
by Mr. M.W.C. Feteris, a lawyer practising in Amsterdam.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant has never been married and has no children.
On 30 September 1987 the Inspector of Direct Taxes (Inspecteur
der Directe Belastingen) issued an assessment for the year 1985 of the
contributions the applicant had to pay under the general social
security schemes (volksverzekeringen) including the General Child
Allowance Act (Algemene Kinderbijslagwet - hereinafter referred to as
the "Act").
Section 25, para. 1 of the Act defines those liable to pay
contributions in respect of the Act as those who are deemed liable to
pay contributions under the terms of the General Old Age Pension Act
(Algemene Ouderdomswet). No link exists between the obligation to pay
a contribution and an entitlement to benefits under the Act.
Under Section 25 para. 2 of the Act unmarried women of 45 years
and older could, by Order in Council (Algemene Maatregel van Bestuur),
be exempted from the obligation to pay a contribution. The
Parliamentary debates on this Act show that, when it was enacted in
1962, a majority objected to holding individuals who could never
reasonably be expected to claim child benefit liable for contributions.
This was considered to apply in the normal course of things only to
unmarried women of 45 years or older, the majority of whom, it was
assumed, would not have children, and who would be prevented by social
and by physical factors from having children at some future date.
The exemption under Section 25 para. 2 of the Act was most
recently elaborated in the Royal Decree of 27 February 1980 (Koninklijk
Besluit - Staatsblad 1980, no. 89). Under Section 1 of this Royal
Decree an unmarried woman who had reached the age of 45 and who was not
entitled to benefits under the Act was exempted from the obligation to
pay a contribution under the Act. By Act of 21 December 1988 the
legislator abolished this exemption as from 1 January 1989.
The applicant's objection (bezwaarschrift) against the assessment
of 30 September 1987 - which he considered discriminatory as, had he
been a woman, he would have been exempted from the obligation to pay
contributions under the Act - was rejected on 25 November 1987 by the
Inspector of Direct Taxes. The Inspector held that the applicant could
not be exempted from the obligation to pay contributions under the Act
since he was a man.
In his subsequent appeal to the Court of Appeal (Gerechtshof) of
Amsterdam the applicant submitted statistical material showing that not
only is it rare for older women to conceive children, but also for
older men to father them. He further invoked Article 14 of the
Convention in conjunction with Article 1 of Protocol No. 1. This appeal
was rejected on 6 October 1989. The Court of Appeal considered that,
as the difference in treatment was not based on sex as such but on a
different factual situation of women and men of 45 years and older,
i.e. the ability to procreate, Article 14 of the Convention was not
applicable.
The applicant's appeal to the Supreme Court (Hoge Raad) was
rejected on 11 December 1991. Insofar as the applicant relied on
Article 14 of the Convention, the Supreme Court considered that the
proceedings at issue did not concern any of the rights and freedoms
guaranteed by the Convention. The Supreme Court further considered
that, as the difference complained of - which in any event could not
be regarded as unreasonable in view of the physical differences between
men and women - had been abolished as from 1 January 1989, there was
no reason for the courts to declare the exemption to pay the
contribution at issue also applicable to unmarried men of 45 years and
older for the year 1985.
The Inspector of Direct Taxes also issued assessments of the
contribution the applicant had to pay under the Act for the years 1986,
1987 and 1988. The applicant also filed objections in respect of these
assessments, which, on 28 February 1992, were rejected by the Inspector
of Direct Taxes on the basis of the Supreme Court's judgment of
11 December 1991. In view of this judgment the applicant decided not
to file a subsequent appeal to the Court of Appeal, as this would have
had no chance of success.
COMPLAINTS
The applicant complains that until 1 January 1989 the difference
in treatment between unmarried women and men of 45 years and older in
respect of the payment of contributions under the General Child
Allowance Act constituted discrimination based on sex contrary to
Article 14 of the Convention in conjunction with Article 1 of Protocol
No. 1.
He further complains under Article 13 of the Convention that he
had no effective remedy in respect of the alleged discriminatory
treatment.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 April 1992 and registered
on 1 June 1992.
On 11 May 1994 the Commission (Second Chamber) decided to
communicate the application to the respondent Government, pursuant to
Rule 48 para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on 21 July
1994. The applicant replied on 18 August 1994.
THE LAW
1. The applicant complains that the obligation imposed on him to pay
contributions in respect of the General Child Allowance Act constituted
a discriminatory treatment contrary to Article 14 of the Convention in
conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1).
Article 14 (Art. 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 1 of Protocol No. 1 (P1-1) reads, insofar as relevant:
"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 secure the payment of taxes or other contributions
(...)."
1. The Government allege in the first place that the application is
inadmissible under Article 27 para. 3 (Art. 27-3) of the Convention as
the applicant failed to invoke Article 1 of Protocol No. 1
(P1-1) before the domestic courts and under Article 27 para. 1 (b)
(Art. 27-1-b) of the Convention as the same issue has already been
submitted to another procedure of international investigation, namely,
the Human Rights Committee of the United Nations.
The applicant submits that he invoked Article 1 of Protocol No.
1 (P1-1) before the Court of Appeal of Amsterdam. He acknowledges that
the issue in question has indeed been brought before the Human Rights
Committee of the United Nations by another tax payer, but he is of the
opinion that this does not detract from the admissibility of the
present application, since the latter has been introduced by a
different applicant.
The Commission notes that the applicant does not complain of
having unjustly been affected in his property rights, but of
discrimination. It recalls its constant case-law that domestic remedies
must be considered as having been exhausted if the applicant has
raised, at least in substance, before the national authorities the
complaint brought before the Commission (cf. No. 9228/80, Dec.
16.12.82, D.R. 30 p. 132; No. 10027/82, Dec. 5.12.84, D.R. 40 p. 100;
and No. 11921/86, Dec. 12.10.88, D.R. 57 p. 81).
The Commission observes that, throughout the domestic
proceedings, the applicant has complained that his obligation to
contribute to the Act constitutes an unjust discriminatory treatment.
He has not alleged a violation of his property rights as such. But he
invoked Article 1 of Protocol No. 1 (P1-1) before the Court of Appeal
in support of his argument that the obligation at issue concerned a
right set forth in the Convention. And the Supreme Court considered the
issue when finding that the obligation at issue did not concern any of
the rights and freedoms guaranteed by the Convention. The Commission
therefore accepts that the applicant has exhausted domestic remedies.
The Commission further recalls that an application which has the
same purpose as an application previously submitted to another
procedure of international investigation but by a different applicant,
cannot be regarded as being substantially the same as the matter
submitted to that other international procedure (cf. No. 11603/85,
Dec. 20.1.87, D.R. 50 p. 228).
2. As regards the substance of the application the Government submit
that objective and reasonable grounds existed to justify the
distinction made between childless unmarried men and women of 45 years
or older, and that in any case this issue fell within the margin of
freedom which Contracting States enjoy when determining whether or to
what extent differences in otherwise identical circumstances justify
a difference in treatment by or pursuant to the law. The difference in
treatment between unmarried men and women of 45 years and over was
justified by the existence of a relevant distinction between the actual
physical reproductive potential of older men and that of older women.
The applicant submits that, as the Convention is a living
instrument which should be interpreted in the light of present-day
conditions, Contracting States cannot continue to apply legislation
which is based on outdated views without violating the Convention.
The Commission, after a preliminary examination of the present
complaint in the light of the parties' submissions, considers that it
raises questions of fact and law which require an examination of the
merits. The application cannot, therefore, be declared inadmissible as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for inadmissibility
have been established.
3. The applicant further complains under Article 13 (Art. 13) of the
Convention that he had no effective remedy in respect of the alleged
discriminatory treatment.
Article 13 (Art. 13) of the Convention reads:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission notes that the applicant complained of the alleged
discriminatory treatment before the Court of Appeal as well as before
the Supreme Court. Both Courts found that Article 14 (Art. 14) of the
Convention was not applicable to the case and they gave reasons
therefor. In these circumstances the applicant did have an effective
remedy within the meaning of Article 13 (Art. 13) of the Convention.
It follows that the remainder of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaint of discriminatory treatment;
and, unanimously
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy