Resolution ResDH(2005)91
concerning the judgments of the European Court of Human Rights
of 4 June 2002 (final on 4 September 2002) and 12 November 2002 (Article 41, friendly settlement)
in the case of Wessels-Bergervoet against The Netherlands
(Adopted by the Committee of Ministers on 26 October 2005
at the 940th meeting of the Ministers' Deputies)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),
Having regard to the judgment of the European Court of Human Rights in the Wessels-Bergervoet case delivered on 4 June 2002 and transmitted to the Committee of Ministers once it had become final under Articles 44 and 46 of the Convention;
Recalling that the case originated in an application (No. 34462/97) against The Netherlands, lodged with the European Commission of Human Rights on 11 October 1996 under former Article 25 of the Convention by Mrs Wessels-Bergervoet, a Dutch national, and that the Court, seized of the case under Article 5, paragraph 2, of Protocol No. 11, declared admissible the complaint that a reduction applied to her old age pension amounted to discrimination in that such reductions were not applicable to men in similar circumstances;
Whereas in its judgment of 4 June 2002 the Court unanimously:
- held that there had been a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 of the Convention; and
- reserved the issue of just satisfaction under Article 41 of the Convention;
Whereas in its judgment of 12 November 2002 the Court, after having taken formal note of a friendly settlement reached by the government of the respondent state and the applicants concerning the application of Article 41 of the Convention, and having been satisfied that the settlement was based on respect for human rights as defined in the Convention or its Protocols, decided unanimously to strike the case out of its list and took note of the parties' undertaking not to request a re-hearing of the case before the Grand Chamber;
Whereas in its judgment of 12 November 2002 the Court noted that the applicant's representative had informed it that the amounts agreed in respect of just satisfaction had been paid;
Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;
Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 4 June 2002, having regard to The Netherlands' obligation under Article 46, paragraph 1, of the Convention to abide by it;
Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state, beyond the redress granted to the applicant (restitution in integrum) in accordance with the friendly settlement mentioned above, also gave the Committee information about the measures taken to prevent new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;
Declares, after having examined the information supplied by the Government of The Netherlands, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case.
Appendix to Resolution ResDH(2005)91
Information provided by the Government of the Netherlands
during the examination of the Wessels-Bergervoet case
by the Committee of Ministers
The violation of Article 14 in conjunction with Article 1 of Protocol No. 1 in the Wessels-Bergervoet case was due to a reduction, from the date of allocation, of the applicant's pension under the General Old-Age Pension Act (Algemene Ouderdomswet - AOW). Up to 1985, her entitlement to pension was linked to her husband's, which had been reduced by 38% as he had worked and been insured abroad for 19 years, and therefore had not been fully insured under this Act. The same reduction of the applicant's pension was eventually upheld by the Supreme Court (Hoge Raad) in 1996, although this kind of reduction did not apply to a man married to a woman who had worked abroad in the same conditions.
Restitutio in integrum granted to the applicant
The Netherlands authorities and the applicant reached a friendly settlement to settle definitively the individual consequences resulting from the violation, of which the Court took formal note in its judgment on Article 41 of 12 November 2002. Thus the amount withheld from the applicant's pension has been repaid. The applicant has, in addition, been entitled to an AOW pension without the 38% deduction, with effect from 1 July 2002.
General measures preventing new, similar violations
As from 1 April 1985, married women became entitled in their own right to an AOW pension (their rights are no longer linked to their husbands'). When the relevant legal rules were thus changed however, no retroactive measure was taken to remove the discriminatory effect of the former legal rules.
Following the Court's judgment, a legislative change came into effect, retroactively as of 1 January 2002, awarding the right to a full old-age pension to all married or previously married women, whose (ex-)husband worked without full insurance before 1985. In addition, all women who received a deducted pension before 1 January 2002 and undertake legal action to contest the deduction will receive a complete pension from the date of allocation. Women who take no legal action will not be compensated automatically. However, as from 1 January 2002, they receive a full pension. Beneficiaries were informed by letter (or, in the case of women stationed abroad, by periodical newsletter) about the possibilities of claiming compensation for past reductions.
Furthermore the judgment of the Court was published in the Nederlands Juristenblad, 02/08/2002, edition 28, page 1357, in the Tijdschrift voor de Rechterlijke Macht, September 2002, in the NJCM-Bulletin, January 2003, nr. 1, page 45 and in European Human Rights Cases, 2002, nr. 60.
Conclusion
The Government of The Netherlands considers that the measures adopted have granted full redress to the applicant and prevent new violations similar to that found in the present judgment. The Government accordingly considers that The Netherlands has complied with its obligation under Article 46 of the Convention in the present case.
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