Information Note on the Court’s case-law No. 160
February 2013
Fabris v. France [GC] - 16574/08
Judgment 7.2.2013 [GC]
Article 14
Discrimination
Difference in treatment of legitimate and illegitimate children for succession purposes: violation
Facts – The applicant was born in 1943 of a liaison between his father and a married woman who was already the mother of two children born of her marriage. In 1970 Mr and Mrs M. (the applicant’s mother and her husband) divided their property inter vivos (donation-partage) between their two legitimate children, whilst keeping a life interest in the property until their death. Mr M. died in 1981 and Mrs M. in 1994. In 1983 the tribunal de grande instance declared the applicant to be Mrs M.’s “illegitimate” child. In 1998 the applicant brought proceedings against the two legitimate children in the tribunal de grande instance, seeking an abatement of the inter vivos division so that he could claim his share in his mother’s estate. At that time the Law of 3 January 1972 provided that children born of adultery could claim a share in their father or mother’s estate equal to half the share of a legitimate child. After the Court had found against France in 2000 in the case of Mazurek v. France, France enacted the Law of 3 December 2001 amending its legislation and granting children born of adultery identical inheritance rights to those of legitimate children. In a judgment of September 2004, the tribunal de grande instance declared the action brought by the applicant admissible and upheld his claim on the merits. Following an appeal by the legitimate children, the court of appeal set aside the lower court’s judgment. The applicant unsuccessfully appealed on points of law.
In a judgment of 21 July 2011, a Chamber of the Court held, by five votes to two, that there had been no violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 on the ground that the domestic courts, in applying the transitional provisions of the 1972 and 2001 Laws, had struck a proper balance between the long-established rights of Mr and Mrs M.’s legitimate children and the pecuniary interests of the applicant.
Law – Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1
(a) Applicability of Article 14 – It was purely on account of his status as a child “born of adultery” that the applicant had been refused the right to request an abatement of the inter vivos division signed by his mother. But for that discriminatory ground, he would have had a right, enforceable under domestic law, in respect of the asset in question. Whilst inter vivos gifts had the immediate effect of transferring ownership, they did not become a division for inheritance purposes until the death of the donor (in 1994 in the present case). By that date the applicant’s filiation had been established. It followed that the applicant’s pecuniary interests fell within the scope of Article 1 of Protocol No. 1 and the right to peaceful enjoyment of possessions safeguarded by that provision. This was sufficient to render Article 14 of the Convention applicable.
(b) Merits – The applicant was deprived of a reserved portion and definitively placed in a different situation from that of the legitimate children regarding inheritance of their mother’s estate. That difference in treatment derived from the 2001 Law, which restricted application of the new inheritance rights of children “born of adultery” to successions opened prior to 4 December 2001 that had not given rise to division before that date. In interpreting the transitional provision concerned, the Court of Cassation had considered that division for inheritance purposes had taken place in 1994, at the time of the applicant’s mother’s death, in line with long-standing case-law authority to the effect that in respect of inter vivos divisions the death of the donor triggered both the opening of the succession and the division. A legitimate child who had been omitted from the inter vivos division or not yet conceived when the deed was signed would not have been precluded from obtaining his or her reserved portion or share of the estate. It was therefore not disputed that the only reason for the difference in treatment suffered by the applicant was the fact that he had been born outside marriage.
The French State had amended the rules of inheritance law following the Mazurek judgment by repealing all the discriminatory provisions relating to children “born of adultery”. However, according to the Government, it was not possible to undermine rights acquired by third parties – in the instant case by the other heirs – and that justified restricting the retroactive effect of the 2001 Law to those successions that were already open on the date of its publication and had not given rise to division by that date. The transitional provisions had accordingly been enacted in order to safeguard peaceful family relations by securing the rights acquired by beneficiaries where the estate had already been divided.
Subject to the statutory right to bring an action for abatement, the applicant’s half-brother and half-sister had obtained property rights on the basis of the inter vivos division of 1970 by virtue of which their mother’s estate had passed to them on her death in 1994. On that basis the present case was distinguishable from that of Mazurek, in which the estate had not yet passed to the beneficiaries. However, “protecting the ‘legitimate expectation’ of the deceased and their families must be subordinate to the imperative of equal treatment between children born outside and children born within marriage”. In that connection the applicant’s half-brother and half-sister knew – or should have known – that their rights were liable to be challenged. At the time of their mother’s death in 1994 there had been a statutory five-year time-period for bringing an action for abatement of an inter vivos division. Their half-brother had had until 1999 to claim his share in the estate and such an action was capable of calling into question not the division as such, but the extent of the rights of each of the descendants. Moreover, the action for abatement that the applicant did finally bring in 1998 was pending before the national courts at the time of delivery of the judgment in Mazurek, which declared that inequality of inheritance rights on grounds of birth was incompatible with the Convention, and at the time of publication of the 2001 Law, which executed that judgment by incorporating the principles established therein into French law. Lastly, the applicant was not a descendant whose existence was unknown to them, as he had been recognised as their mother’s “illegitimate” son in a judgment delivered in 1983. That was sufficient to arouse justified doubts as to whether the estate had actually passed. On that point, in the particular circumstances of the present case, in which European case-law and the national legislative reforms showed a clear tendency towards eliminating all discrimination regarding the inheritance rights of children born outside marriage, the action brought by the applicant before the domestic courts in 1998 and dismissed in 2007 was a weighty factor when examining the proportionality of the difference in treatment. The fact that that action was still pending in 2001 could not but relativise the expectation of Mrs M.’s other heirs that they would succeed in establishing undisputed rights to her estate. Consequently, the legitimate aim of protecting the inheritance rights of the applicant’s half-brother and half-sister was not sufficiently weighty to override the claim by the applicant to a share in his mother’s estate. Moreover, it appeared that, even in the eyes of the national authorities, the expectations of heirs who were the beneficiaries of an inter vivos division were not to be protected in all circumstances. Indeed, if the same action for an abatement of the inter vivos division had been brought at the same time by another legitimate child, born at a later date or wilfully excluded from the division, it would not have been declared inadmissible.
Accordingly, there had been no reasonable relationship of proportionality between the means employed and the legitimate aim pursued. There had therefore been no objective and reasonable justification for the difference in treatment regarding the applicant.
That conclusion did not call into question the right of States to enact transitional provisions where they adopted a legislative reform with a view to complying with their obligations under Article 46 § 1 of the Convention. However, whilst the essentially declaratory nature of the Court’s judgments left it up to the State to choose the means by which to erase the consequences of the violation, it should at the same time be pointed out that the adoption of general measures required the State concerned to prevent, with diligence, further violations similar to those found in the Court’s judgments. That imposed an obligation on the domestic courts to ensure, in conformity with their constitutional order and having regard to the principle of legal certainty, the full effect of the Convention standards, as interpreted by the Court. That had not been done in the present case, however.
Conclusion: violation (unanimously).
Article 41: reserved.
(See Mazurek v. France, no. 34406/97, 1 February 2000, Information note no. 15)
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This summary by the Registry does not bind the Court.
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