THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 75255/01
by Adriana C. GOUDSWAARD-VAN DER LANS
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 22 September 2005 as a Chamber composed of:
MrB.M. Zupančič, President,
MrJ. Hedigan,
MrL. Caflisch,
MrC. Bîrsan,
MrV. Zagrebelsky,
MsR. Jaeger,
MrE. Myjer, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 16 July 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the comments submitted by Mrs J.M. Breugem-Westerkamp, Mrs G. Gosschalk-Wigboldus, Mrs M.E.C. Santoro-van Halm Braam, Mrs W. Hop-Bloemberg, Mr M.J.C. Braspenning, Mr M.J. Lens, Mr J.H.M. Boerland, Mrs M. Scholte-Sleumer, Mrs W.C. Monster and Mr M.C.A. Glas,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs A.C. Goudswaard-van der Lans, is a Netherlands national who was born in 1942 and lives in Aalsmeer. She is represented before the Court by Ms T. Spronken, a lawyer practising in Maastricht. The respondent Government are represented by Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.
In the interest of the proper administration of justice, the President has granted leave to the following persons to submit written comments: Mrs J.M. Breugem-Westerkamp, Mrs G. Gosschalk-Wigboldus, Mrs M.E.C. Santoro-van Halm Braam, Mrs W. Hop-Bloemberg, Mrs M.J.C. Braspenning, Mr M.J. Lens, Mr J.H.M. Boerland, Mrs M. Scholte-Sleumer, Mrs W.C. Monster and Mr M.C.A. Glas (Article 36 of the Convention and Rule 44 § 2 of the Rules of Court). These persons, referred to hereafter as “third parties”, are represented by Mr T. Barkhuysen, a lawyer practising in Amsterdam.
A. The circumstances of the case
The facts of the case, as submitted by the applicant and the respondent Government, may be summarised as follows.
The applicant’s husband died on 18 January 1977. The applicant was left with two children born in 1970 and 1972 respectively. She was granted a pension under the General Widows and Orphans Act (Algemene Weduwen- en Wezenwet; “AWW”).
She entered into a relationship with a Mr H., by whom she had a child in 1980, and set up home with him some time before 1 July 1996.
At the time of the events complained of, the applicant’s AWW pension amounted to 21,981.12 Netherlands guilders (NLG) annually.
The AWW was repealed on 1 July 1996 and replaced by the General Surviving Dependants Act (Algemene Nabestaandenwet; “ANW”).
By a decision of 1 December 1997 the competent executive authority, the Social Insurance Bank (Sociale Verzekeringsbank), reduced the applicant’s pension to NLG 6,815.40 annually, with effect from 1 January 1998. The reason for this reduction was the fact that the applicant had been living with Mr H. on 1 July 1996, the date on which the ANW entered into force, and was expected to continue to do so beyond 31 December 1997.
On 8 January 1998 the applicant lodged an objection against this decision with the Social Insurance Bank. It was dismissed on 17 February 1998.
On 26 March 1998 the applicant lodged an appeal with the Amsterdam Regional Court (arrondissementsrechtbank).
On 30 June 1998, owing to the entry into force of new transitional legislation (the Act of 18 June 1998 – see below), the Social Insurance Bank raised the applicant’s pension to NLG 8,449.44 annually, with effect from 1 July 1998.
On 23 September 1998 the applicant’s representative wrote to the Regional Court informing it that the applicant’s appeal was one of several that had been selected as pilot cases intended to allow the courts to establish case-law. On 22 October 1998 the Social Insurance Bank also wrote to confirm this.
The Regional Court gave a decision on 17 March 1999 declaring the appeal well-founded on grounds not relevant to the case before the Court. It quashed the decisions of 17 February and 30 June 1998 but left the effects of the latter decision unaffected.
On 21 April 1999 the applicant lodged a further appeal with the Central Appeals Tribunal (Centrale Raad van Beroep), the highest tribunal with jurisdiction in social-security matters. The Social Insurance Bank also lodged an appeal, directed against aspects of the Regional Court’s decision with which it disagreed.
The Central Appeals Tribunal dismissed the applicant’s further appeal in a decision delivered in open court on 24 January 2001 and notified to the applicant on the same day. It accepted that there had been a “partial deprivation of possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention. Its reasoning included the following:
“In this legal provision [i.e. section 67 of the ANW – see below] one of the basic assumptions of the ANW, namely that statutory insurance for surviving dependants should be based on actual need (dat aan een wettelijke nabestaandenverzekering het behoefteprincipe ten grondslag moet liggen), has been elaborated in respect of former recipients of AWW pensions. As compared to the ordinary ANW regime – under which, in short, the pension is reduced by the entire amount of work-related benefits [i.e. unemployment and disability benefits] and by income from work excluding a sum equal to 50% of the statutory minimum wage before tax, plus one third of any income in excess thereof – the deduction applicable to former AWW beneficiaries under the [Act of 4 July 1996 – see below] is more advantageous: 70% of the statutory minimum wage before tax, in respect of both forms of income, together with one third of any income from work in excess thereof, is disregarded for the purposes of the reduction. It can also be said in such cases that, regardless of the level of income, an amount of benefit equal to 30% of the statutory minimum wage before tax remains unaffected.
As regards the transitional regime under section 67 of the ANW it is also relevant that, in the case of persons maintaining a common household who are treated under the ANW as married persons (with the exception of first-degree relatives), the former AWW beneficiary who is regarded as married on this ground retains, from 1 January 1998, an ANW pension equal to 30% of the statutory minimum wage, that percentage in the case of persons maintaining a common household in order to take care of an invalid rising to 50% (of the statutory minimum wage after tax), 20% of which is means-tested.
The Regional Court held that this result was consistent with the criteria embodied in Article 1 of Protocol No. 1, which provides:
...
The Central Appeals Tribunal agrees that the transitional arrangements under the ANW fulfil those criteria, and in particular that the legislature, in determining what can and must be considered necessary in the general interest, has not overstepped its margin of appreciation. In addition to the Regional Court’s findings on this point, the Central Appeals Tribunal considers the following important: according to current opinion the statutory insurance regime for surviving dependants acts as a basic provision (bodemvoorziening) in terms of supplementary arrangements for surviving dependants and as an income provision (inkomensvoorziening) at the level of the social minimum. This does not sit well with the idea of leaving the (basic) benefit intact where circumstances indicate that the surviving dependant concerned is, or has been, able to meet his or her own needs. The fact that there was no provision of this nature in the AWW may plausibly be attributed to the then insignificant proportion of married women in employment, as a consequence of which the concurrence of an AWW pension and a salary, or social benefit in lieu of salary (loondervingsuitkeringen), was relatively rare. From the perspective of the aims of the new system, the social changes in this area required an arrangement that dealt with the concurrence of benefits for surviving dependants and other income. In addition, the legislature found it appropriate to extend the equal treatment of married couples and unmarried cohabitants (in a general sense), as for other social arrangements, to the statutory insurance for surviving dependants.
The fact that the adaptations in question also extend to existing cases (persons in receipt of AWW pensions) is considered acceptable by the Central Appeals Tribunal within the scope of its present review, from the equality point of view, and also in the light of the potentially considerable duration of the benefit; and what is also acceptable within the same scope of review is the position of the legislature that, in terms of legal security, a temporary and/or partial (in the present case: an initially complete and subsequently partial) respect for existing rights is required.
The position that only ‘full compensation’ would be consistent with Article 1 of Protocol No. 1, as has been argued by the persons concerned by the cases dealt with in the present proceedings, is based on an incorrect understanding of that provision, which does not go so far as to make it utterly impossible for a State to make changes to existing (social security) rights.”
B. Relevant domestic law
1. The AWW
The AWW, which entered into force on 1 October 1959, insured against the risk of the death of the family breadwinner. Under the AWW scheme, all persons residing in the Netherlands and non-residents gainfully employed in the Netherlands were compulsorily insured. Contributions to this scheme were paid by all persons gainfully employed in the Netherlands.
Entitlement to AWW benefit was not dependent on the level of contributions paid as, unlike a social-security scheme based on employment (werknemersverzekering), it was a nationwide social-security scheme (volksverzekering). The level of benefit was linked to the statutory minimum wage.
The AWW conferred entitlement to a widow’s pension on the widow of an insured person, provided she was under the age of 65 and was caring for an unmarried child born or conceived no later than the date of her spouse’s death. A widow without children was also entitled to claim benefit subject to certain conditions, for example if she was incapacitated for work or was aged 40 or over at the time of her husband’s death. “Widow” meant the woman to whom the insured person was married on the date of his death.
At the time when the AWW was replaced by the ANW, the amount of the pension was equal to the statutory minimum wage after tax in the case of a widow with dependent children below the age of 18, and 70% of that wage in other cases. This amount was the same for all widows, regardless of any income which they might have been receiving from other sources.
Entitlement to an AWW pension was lost upon remarriage.
From 1988 onwards, widowers enjoyed the same entitlement to benefit after the death of their wives pursuant to the case-law of the domestic tribunals under Article 26 of the International Covenant on Civil and Political Rights.
2. Drafting history of the ANW
By 1987 the Government of the day felt that the AWW, based as it was on the traditional division of labour between men and women, had become obsolete. It gave surviving dependants an entitlement to benefit even if they were not in need of it: increasingly, beneficiaries included widows and widowers in paid employment.
For this reason the Government decided to introduce new legislation granting an entitlement to a pension only to certain categories of surviving dependants who could not be expected either to provide entirely for themselves or to take out private insurance.
A first bill was introduced in 1991. It was rejected by the Upper House of Parliament, which disapproved of, among other things, the proposed transitional provisions.
A revised bill was introduced during Parliament’s 1994-95 session.
According to figures quoted by the Government in support of their proposals, in 1993, the percentages of working women among widows and female divorcees in the age groups 45-49 and 50-54 were 58% and 42% respectively (see the Explanatory Memorandum – Memorie van Toelichting –, Lower House of Parliament, no. 24, 169, 1994-95 session, no. 3).
3. Relevant provisions of the ANW
The ANW (Act of 21 December 1995, Official Gazette (Staatsblad) 1995, no. 690, as amended (with retroactive effect from 1 July 1996) by the Act of 4 July 1996, Official Gazette 1996, no. 369) entered into force on 1 July 1996.
Under section 13 of the ANW, the persons insured under the Act are those who are either Netherlands residents or, if not Netherlands residents, are liable for wage tax (loonbelasting) in respect of work carried out in the Netherlands under a contract of employment.
Section 14 of the ANW provides that the surviving dependants of an insured person shall be entitled to a pension if they have an unmarried child under eighteen years of age who does not form part of any other person’s household, or if they are unfit for work, or if they were born before 1 January 1950.
Section 16 provides for the termination of the entitlement to an ANW pension in the event that the surviving dependant no longer meets the requirements of section 14 (unless he or she was born before 1 January 1950) or reaches the age of 65 (at which age, in the Netherlands, one normally becomes entitled ipso facto to an old-age pension under different legislation).
The ANW pension is equal, after tax, to 70% of the statutory minimum wage after tax (section 17). The pension is reduced by an amount equal to the surviving dependant’s other income, if any; however, a proportion of income from paid employment (inkomen uit arbeid) equal to 50% of the statutory minimum wage before tax plus, if the surviving dependant’s income from work exceeds that sum, one third of the remainder, is disregarded for the purposes of the deduction (section 18).
Section 67 laid down a transitional regime for persons who, before the entry into force of the ANW, had been entitled to benefit under the AWW.
In accordance with section 67 (3), persons, like the applicant who maintained a common household with another person on the day on which the ANW entered into force (i.e. 1 July 1996), and were still maintaining that common household on 31 December 1997, lost their entitlement to an ANW pension entirely with effect from 1 January 1998 unless they were born before 1 January 1941, in which case they were entitled to an ANW pension amounting to 30% of the statutory minimum wage (after tax).
4. Relevant changes to the transitional regime
a.The Act of 4 July 1996 amending the transitional regime and introducing certain technical adaptations
As originally enacted in 1995, the ANW provided that persons previously entitled to an AWW pension who maintained a common household with another person on the day on which the ANW entered into force lost their entitlement to an ANW pension entirely with effect from 1 January 1998 unless they were born before 1 January 1941, in which case they were entitled to an ANW pension amounting to 30% of the statutory minimum wage (after tax).
The Act of 4 July 1996 amending the transitional regime and introducing certain technical adaptations (Wet van 4 juli 1996 tot wijziging van de Algemene nabestaandenwet (wijziging overgangsrecht alsmede enkele technische aanpassingen)) amended this arrangement, limiting it to those who were still maintaining a common household with someone else on 31 December 1997 (section 67 (3) of the ANW – see above).
b.The Temporary Remedial Arrangement for Transitional Provisions of the ANW
As early as 31 October 1997 the Deputy Minister for Social Affairs and Employment (Staatssecretaris van Sociale Zaken en Werkgelegenheid) decided on a “Temporary Remedial Arrangement for Transitional Provisions of the ANW” (Tijdelijke regeling reparaties overgangswet ANW; Official Bulletin (Staatscourant) 1997, no. 210, page 6). Its stated intention was to remove some of the effects of section 67 of the ANW, which were widely felt to be excessively harsh in that they frequently led to the complete termination of entitlement to an ANW pension.
The solution chosen, as relevant to the present case, was to reduce the ANW pension of surviving dependants who had previously enjoyed an AWW pension and were cohabiting in a common household to 30% of the statutory minimum wage (after tax) regardless of their date of birth.
This temporary arrangement was withdrawn with effect from 1 July 1998 (Official Bulletin 1998, no. 133, page 8), having been made redundant by the Act of 18 June 1998 (see below).
c.The Act of 18 June 1998 amending the ANW in view of apparent unfairness
The Act of 18 June 1998 amending the ANW in view of apparent unfairness (Wet van 18 juni 1998 tot wijziging van de Algemene nabestaandenwet in verband met gebleken onbillijkheden; Official Gazette 1998, no. 377), amended section 67 (3) of the ANW to provide, in so far as relevant to the case before the Court, that for persons previously entitled to an AWW pension who maintained a common household with someone else on 1 July 1996, for reasons other than taking care of an invalid, and who were still maintaining that household on 31 December 1997, the ANW pension would be reduced to 30% of the statutory minimum wage (before tax) with effect from 1 January 1998.
COMPLAINTS
In her first letter to the Court, the applicant complained under Article 1 of Protocol No. 1 that the reduction of her widow’s pension by no less than 69%, pursuant to the ANW, was disproportionate and lacked justification. She argued that she should have remained in receipt of a pension equal to that to which she had been entitled under the AWW until she reached the age of 65.
On her application form, which was dated 12 October 2001, the applicant made the following additional complaints:
She complained of discrimination under Article 14 of the Convention taken together with Article 1 of Protocol No. 1, as construed by the Court in Thlimmenos v. Greece [GC], no. 34369/97, ECHR 2000‑IV, in that her case had been treated in the same way as that of persons who had become entitled to an ANW pension after the entry into force of the ANW, notwithstanding the fact that the two situations were substantially different.
She complained under Article 8 of the Convention of an unjustified interference with her private and family life owing to the considerable reduction in family income occasioned by the events complained of.
Finally, she complained under Article 6 of the Convention that she was prevented by domestic law from obtaining judicial review of the ANW itself in terms of legal certainty and justified expectations.
THE LAW
A. The extent to which the applicant can claim standing as a “victim”
The Government took the view that the applicant could not be regarded as a “victim” of the enactment of the ANW and its transitional regime in so far as the reduction of the sums payable to her under the ANW related to her income.
The applicant replied that the reduction of the ANW pension payable to a surviving dependant sharing a common household with another person was based on the unproven presumption that the cohabitants’ combined income would be higher than that of the surviving dependant alone. Moreover, the mere existence of the new legal provisions, even if they were not immediately applied to the applicant, affected the value of her Convention rights.
The Court considers that the Government were right in pointing out that the reduction of the applicant’s pension under the new legislation was decided on the ground that she was cohabiting with Mr H. on the relevant date and was expected to continue to do so. Other income considered as a basis for such reduction is not strictly relevant to the present case.
However, given its reasoning as set out below, the Court sees no need to determine whether any part of the application should be declared inadmissible on grounds related to that matter.
It is further observed that the present application was singled out in order to address a general problem raised by a number of applicants, including the third parties. Some of those other applications do in fact concern widows whose pensions were reduced for reasons pertaining to other income.
B. Article 1 of Protocol No. 1
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 applicant alleged a violation of this provision in that, as a result of the reduction in her AWW pension following the entry into force of the ANW, she had been deprived of a possession without adequate compensation. The Government disputed this.
1. The Government
The Government did not seek to argue that Article 1 of Protocol No. 1 was inapplicable. They argued, however, that it had not been violated.
Firstly, they took the view that there had been no “deprivation” of possessions. Contributions to the AWW scheme had been paid in respect of the applicant and the applicant remained entitled to a pension under the AWW and its successor, the ANW, subject to meeting the conditions laid down by the Act in question. She could not, however, claim under Article 1 of Protocol No. 1 to be entitled to a pension in any particular amount. Her substantive rights were currently defined by the law as amended, not by the law as applicable at the time when she was first granted the pension.
In the alternative, they relied on the respondent State’s margin of appreciation. The AWW had been replaced in response to social developments which could not be ignored. Furthermore, the applicant benefitted from a transitional regime which went some way towards compensating her for the income which she had lost. It could not therefore be said that the interference with the applicant’s proprietary rights had been “disproportionate”.
Still less could it be said that a State was prevented from altering a social-security entitlement in the light of changed circumstances once it had been granted.
2. The applicant and the third parties
The applicant and the third parties drew the Court’s attention to the contributions which their late breadwinners had paid while alive so that they would benefit from them in the event of their spouse’s death.
They relied primarily on the fact that, at the time when the AWW pension was awarded to them, they had been informed only that it would be terminated when they reached the age of 65 (at which time they would qualify for an old-age pension) or if they remarried. In their submission, it was not open to the respondent State to place additional restrictions on their entitlement or reduce it in any significant proportion: an AWW pension was not to be compared with, for example, unemployment benefit, which by its nature was intended to be purely temporary.
Secondly, they considered it unnecessary for the respondent State to encroach on pre-existing rights. In their submission, alternative solutions could have been found which would have left them unaffected without exceeding the budget reserved for pensions under the ANW.
In the further alternative, they argued that the introduction of the new legislation had resulted in reductions to their income which imposed a disproportionate individual burden on them. The transitional arrangement, under which individuals in the position of the applicant continued to receive a certain proportion of the statutory minimum wage, was insufficient to restore a reasonable relationship of proportionality.
Lastly, they expressed the view that the respondent State should not have resorted to measures as drastic as those complained of without at least assessing the effect that they would have on the lifestyle of each of them. In some cases, recipients of an ANW pension had been deterred from engaging in relationships involving cohabitation, however defined, by the prospect of losing their ANW pension altogether.
3. The Court’s assessment
The Court finds that Article 1 of Protocol No. 1 is applicable to the present case (see Stec and Others v. the United Kingdom [GC] (dec.), nos. 65731/01 and 65900/01, ECHR 2005-...); indeed this is not in dispute.
As the Court has held many times, Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule (see, as a recent authority, Kjartan Ásmundsson v. Iceland, no. 60669/00, § 39, ECHR 2004‑IX).
As it did in Kjartan Ásmundsson, the Court will proceed in the present case on the basis of an “interference” with the applicant’s peaceful enjoyment of a possession (ibid., § 40; see also Hoogendijk v. the Netherlands (dec.), no. 58641/00).
The lawfulness of the interference, in terms of domestic law, is not in dispute.
As in Hoogendijk, the Court accepts that the aims pursued were social justice and the State’s economic well-being, both of which are legitimate.
However, any interference with property rights under Article 1 of Protocol No. 1 must not only pursue a legitimate aim “in the public interest”; there must also be a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The requisite balance will not be found if the person or persons concerned have had to bear “an individual and excessive burden” (see, among many other authorities, Kjartan Ásmundsson, cited above, § 40, and Hoogendijk, cited above).
In considering whether this is the case, the Court must have regard to the peculiar context in which it arises in the present case, namely that of a social-security scheme. Such schemes are an expression of a society’s solidarity with its vulnerable members.
The AWW was enacted in 1959. It set up a system in which breadwinners contributed to a fund from which, in the event of their death, payments in the form of pensions would be made to their surviving dependants. Such pensions were set at a statutory rate, regardless of the contributions paid by the breadwinners.
At that time, the assumption was that families’ breadwinners were normally men; surviving dependants of deceased breadwinners were either the adult women to whom they had been married or their minor children. The very title of the AWW, which translates as “General Widows and Orphans Act”, reflects this. The AWW was intended to protect these vulnerable groups from destitution by providing them with a guaranteed income sufficient to maintain a modest but decent standard of living. In the case of widows, the pension was either 70% or the full amount of the statutory minimum wage before tax, depending on whether the widow was the only surviving dependant or had to care for minor children as well (see above).
A further assumption, applicable to widows aged 40 or over, was that they were not otherwise provided for; that is to say, that they were not maintained by another adult or by income from paid employment. Their entitlement to an AWW pension therefore continued until they remarried or until they reached the age of 65 and became entitled to an old-age pension.
By the time of the events complained of, more than three decades later, those assumptions had been overtaken by developments in Dutch society. For the present purposes, it suffices to note that many widows were cohabiting with a person to whom they were not married, in a relationship comparable in economic terms to a family unit, or else themselves had income from another source: normally either paid employment or social benefits, such as unemployment or disability benefits, replacing income from earlier employment.
In these changed circumstances it was no longer axiomatic that widows were bereft of maintenance.
Moreover, by this time it was not only widows who could qualify for an AWW pension but – following developments in domestic case-law based on human-rights considerations (Article 26 of the International Covenant on Civil and Political Rights) – widowers as well.
The Government and the legislature of the respondent State were entitled in principle to respond to these changes by altering their understanding of vulnerable groups requiring protection in the form of income from public sources (see, a contrario, Kjartan Ásmundsson, cited above, § 42); this they did by enacting the ANW. The Court must now examine the ANW’s impact on persons in the situation of the applicant.
For recipients of an AWW pension, the ANW entailed a reduction in disposable income if they received additional income in the form of other social benefits or from paid employment or were born after 1940 and were cohabiting in a common household with another person (unless that person was an invalid in their care). The applicant and the third parties all belong to at least one of these categories.
Those whose other income consisted of social benefits lost a proportion of their pension equal to those other benefits.
In the case of those in paid employment, the reduction in benefit was calculated in such a way that those whose wages amounted to twice the statutory minimum wage or more lost their entitlement entirely; those whose wages were lower kept a proportion of their entitlement.
Those who maintained a common household with another adult on a particular date could initially expect to lose their pension entitlement entirely. However, this was considered an unduly harsh measure; as described above, its effects were softened by various transitional measures. Eventually the pension payable to persons in this situation, as relevant to the present case, was set at 30% of the statutory minimum wage before tax.
The Court cannot accept the suggestion made by the applicant and the third parties that their pension entitlements, based as they were on contributions to a particular fund made specifically for their benefit, should remain unaltered once they had been granted. There is no authority in its case-law for so categorical a statement; in actual fact, it has accepted the possibility of reductions in social-security entitlements in certain circumstances (see, as a recent authority, Kjartan Ásmundsson, cited above, § 45, with further case-law references; see also Hoogendijk, cited above).
Nor is the Court concerned with the possibility that other options were open to the authorities of the respondent State. The possible existence of alternative solutions does not in itself render the contested legislation unjustified (see Mellacher and Others v. Austria, judgment of 19 December 1989, Series A no. 169, p. 28, § 53).
In Kjartan Ásmundsson the Court considered decisive the individual nature of the termination of Mr Kjartan Ásmundsson’s disability pension, as was apparent from the small number of persons in Mr Kjartan Ásmundsson’s position compared to the numbers who continued to enjoy the disability pension denied him, and the fact that the legislation formerly governing the pension paid to him allowed him additionally to enjoy income from gainful employment, subject to certain conditions (ibid., §§ 43-44). Against that background, it considered that the complete termination of Mr Kjartan Ásmundsson’s disability pension was excessive when set off against the interests of the community as a whole (ibid., § 45).
The present case is different.
Firstly, it has not been argued, nor is it apparent, that the number of individuals whose AWW pensions have been reduced by the ANW is so limited that their impact can be considered insignificant.
Secondly, provision has been made to ease the effects of the new legislation on persons in the situation of the applicant.
Thirdly, and more importantly, the AWW was conceived as a safeguard against poverty for persons who lacked basic maintenance from another socially acceptable source; the information available to the Court is insufficient to allow it to conclude that the applicant is in that position.
The Court accepts that the introduction of the ANW has had effects on the applicant’s disposable income. However, although the Convention, supplemented by its Protocols, binds Contracting Parties to respect lifestyle choices to the extent that it does not specifically admit of restrictions, it does not place Contracting Parties under a positive obligation to support a given individual’s chosen lifestyle out of funds which are entrusted to them as agents of the public weal.
In conclusion, the Court does not find that the applicant was made to bear an “individual and excessive burden”.
It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
C. Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, Article 8 of the Convention and Article 6 of the Convention
The applicant lodged her application with the Court by letter of 16 July 2001. In the letter she complained only of a violation of her rights under Article 1 of Protocol No. 1.
The additional complaints under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1, Article 8 of the Convention and Article 6 of the Convention were made for the first time on the application form provided by the Court’s Registry (Rule 47 § 1 of the Rules of Court).
The final domestic decision in the present case was that of the Central Appeals Tribunal, which was delivered in open court on 24 January 2001 and transmitted to the applicant on the same day. The application form was submitted on 12 October 2001, more than six months later.
It follows that these parts of the application have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent BergerBoštjan M. Zupančič
RegistrarPresident
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