Information Note on the Court’s case-law No. 138
February 2011
Andrle v. the Czech Republic - 6268/08
Judgment 17.2.2011 [Section V]
Article 14
Discrimination
Lower pensionable age for women who had raised children, but not for men: no violation
Facts – Following his divorce, the applicant obtained custody of his two minor children. In 2003 he sought to retire at the age of 57, but his request was refused on the grounds that he had not attained the pensionable age, which at the time was 60 for men. The age for women was 57 or lower, depending on the number of children they had raised (section 32 of the State Pension Insurance Act). The applicant appealed on the grounds that the fact that he had raised two children should have been taken into account in calculating his retirement age, but his appeal was dismissed after the Constitutional Court ruled in separate proceedings that the legislation was not incompatible with the Constitution.
Law – Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1: The applicant complained that, unlike the position with women, there was no lowering of the pensionable age for men who had raised children. He did not challenge the difference in pensionable age between men and women in general. The Court accepted that the measure at issue pursued the legitimate aim of compensating for factual inequalities and hardship arising out of the specific historical circumstances of the former Czechoslovakia, where women had been responsible for the upbringing of children and for the household, while being under pressure to work full time. In such circumstances, the national authorities were better placed to determine the moment at which the unfairness to men began to outweigh the need to correct the disadvantaged position of women by way of affirmative action. The Czech Government had already made the first concrete move towards equalising the retirement age by legislative amendments in 2010 which had removed the right to a lower pensionable age for women with one child and directed the reform towards an overall increase in the pensionable age irrespective of the number of children raised. Given the gradual nature of demographic shifts and changes in perceptions of the role of the sexes, and the difficulties of placing the entire pension reform in the wider context, the State could not be criticised for progressively modifying its pension system instead of pushing for a complete change at a faster pace. The applicant’s case was to be distinguished from Konstantin Markin v. Russia (no. 30078/06, 7 October 2010, Information Note no. 134), which had concerned the issue of parental leave. Parental leave was a short-term measure which, unlike pensions, did not affect the entire lives of members of society. Changes made to the parental-leave system to eliminate differences in treatment between the sexes did not have serious financial ramifications or alter long-term planning, unlike changes to the pension system, which formed part of the State’s national economic and social strategies. The original aim of the difference in pensionable age based on the number of children women raised had been to compensate for the factual inequalities between the sexes. In the specific circumstances of the case, that approach continued to be reasonably and objectively justifiable until such time as social and economic changes removed the need for special treatment for women. The timing and the extent of the measures taken to rectify the inequality in question were not manifestly unreasonable and so did not exceed the wide margin of appreciation afforded to the States in this area.
Conclusion: no violation (unanimously).
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This summary by the Registry does not bind the Court.
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