SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 53002/99
by Sophia S. MEYNE-MOSKALCZUK and Others
against the Netherlands
The European Court of Human Rights (Second Section), sitting on
9 December 2003 as a Chamber composed of
MrJ.-P. Costa, President,
MrA.B. Baka,
MrGaukur Jörundsson,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen,
MrM. Ugrekhelidze, judges,
and Mrs S. dollé, Section Registrar,
Having regard to the above application lodged on 5 October 1999,
Having regard to the observations submitted by the respondent
Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants are all Netherlands nationals resident in the Netherlands.
Mrs Hubertina Antoinette Thomas Boesten-Aarts was born in 1939 and lives in Heerlen.
Mrs Maria Anna Hammann was born in 1931 and lives in Helmond.
Mrs Sophia Stanislawa Meyne-Moskalczuk was born in 1925 and lives in Amsterdam.
Mrs Cornelia Harmina Johanna Nagtegaal was born in 1931 and lives in Hilversum.
The applicants are represented before the Court by Mr R.K. van der Brugge, a lawyer practising in The Hague.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1.Background to the cases
a. Mrs Boesten-Aarts
Mrs Boesten-Aarts married a Mr G. on 15 February 1960. They were divorced with effect from 3 March 1977. During the marriage Mr G. was employed and accumulated pension entitlements. Mrs Boesten-Aarts took care of the couple’s children. She had no work outside the home and did not accumulate any pension entitlements in her name.
Mr G. became entitled to a pension from the General Civil Service Pension Fund (Algemeen Burgerlijk Pensioenfonds, “ABP”) as of 1 April 1995.
Mrs Boesten-Aarts applied to the Board of Management of the ABP for the pension entitlements of her former husband to be divided equally between him and her. This was refused by a decision of 12 May 1995, the ground being that she and Mr G. had been married for less than eighteen years.
Mrs Boesten-Aarts lodged an administrative appeal (beroep) with the ABP’s Board of Management, arguing that the refusal was discriminatory.
By a letter dated 19 October 1995 the ABP’s Board of Management informed Mrs Boesten-Aarts that her objection could not be received. The objection was directed against provisions of the law as such; these the ABP, an executive administrative body, was not empowered to set aside.
b. Mrs Hammann
Mrs Hammann married a Mr P. on 23 April 1963. They were divorced with effect from 10 October 1980. During the marriage Mr P. was employed and accumulated pension entitlements. Mrs Hammann took care of the couple’s children. She had no work outside the home and did not accumulate any pension entitlements in her name.
Mr P. became entitled to a pension from the ABP as of 31 March 1992.
Mrs Hammann applied to the Board of Management of the ABP for the pension entitlements of her former husband to be divided equally between him and her. This was refused by a decision of 15 May 1995, the ground being that she and Mr P. had been married for less than eighteen years.
Mrs Hammann lodged an administrative appeal with the ABP’s Board of Management, arguing that the refusal was discriminatory.
By a letter dated 4 October 1995 the ABP’s Board of Management informed Mrs Hammann that her objection could not be received. The objection was directed against provisions of the law as such; these the ABP, an executive administrative body, was not empowered to set aside.
c. Mrs Meyne-Moskalczuk
Mrs Meyne-Moskalczuk married a Mr M. on 23 July 1958. They were divorced with effect from 22 May 1974. During the marriage Mr M. was employed and accumulated pension entitlements. Mrs Meyne-Moskalczuk took care of the couple’s children. She had no work outside the home and did not accumulate any pension entitlements in her name.
Mr M. became entitled to a pension from the ABP as of 1 July 1991.
Mrs Meyne-Moskalczuk applied to the Board of Management of the ABP for the pension entitlements of her former husband to be divided equally between him and her. This was refused by a decision of 28 April 1995, the ground being that she and Mr M. had been married for less than eighteen years.
Mrs Meyne-Moskalczuk lodged an administrative appeal with the ABP’s Board of Management, arguing that the refusal was discriminatory.
By a letter dated 15 September 1995 the ABP’s Board of Management informed Mrs Meyne-Moskalczuk that her objection could not be received. The objection was directed against provisions of the law as such; these the ABP, an executive administrative body, was not empowered to set aside.
d. Mrs Nagtegaal
Mrs Nagtegaal married a Mr L. on 25 May 1959. They were divorced with effect from 15 August 1977. During the marriage Mr L. was employed and accumulated pension entitlements. Mrs Nagtegaal took care of the couple’s children. She had no work outside the home and did not accumulate any pension entitlements in her name.
Mr L. became entitled to a pension from the ABP as of 1 March 1991. One quarter of his pension was allocated to Mrs Nagtegaal.
Mrs Nagtegaal applied to the Board of Management of the ABP for the pension entitlements of her former husband to be divided equally between him and her. This was refused by a decision of 15 May 1995, the ground being that the divorce had occurred before 27 November 1981 and the law in force therefore entitled her to no more than one quarter of her former husband’s pension.
Mrs Nagtegaal lodged an administrative appeal with the ABP’s Board of Management, arguing that this decision was discriminatory.
By a letter dated 28 March 1996 the ABP’s Board of Management informed Mrs Nagtegaal that her objection had been dismissed on the ground that the applicable legal provisions had been correctly applied, and that there was no apparent justification for deviating from them.
2.Proceedings before the administrative tribunals
The applicants each lodged an appeal (beroep) to the Regional Court (arrondissementsrechtbank) of The Hague.
A single hearing was held before the Regional Court in the cases of all four applicants on 14 November 1996.
The Regional Court gave four separate but, for present purposes, identical decisions, one in respect of each applicant, on 20 December 1996 dismissing the appeals. It acknowledged that there was a difference in treatment between persons in the position of the applicants and persons divorced after 27 November 1981, but considered that the requirements of legal certainty constituted adequate reasonable and objective justification.
The applicants lodged further appeals (hoger beroep) to the Central Appeals Tribunal (Centrale Raad van Beroep), the highest administrative tribunal in matters concerning social security and civil service pensions.
The Central Appeals Tribunal held a single hearing in all four cases on 1 April 1999. It eventually dismissed the appeals in four separate but identical decisions on 12 May 1999. Like the Regional Court, it considered the difference in treatment justified by the requirements of legal certainty.
B. Relevant domestic law and practice
1. Case-law of the Supreme Court
a. The judgment of 7 October 1959
Prior to 27 November 1981, it was considered that pensions were by their very nature connected (verknocht) solely to the person nominally entitled to them (see the judgment of the Supreme Court (Hoge Raad) of 7 October 1959, Beslissingen in Belastingzaken (Reports of Decisions in Taxation Cases – “BNB”) 1959, no. 355). This meant that pension entitlements could not be included in divorce settlements.
b. The judgment of 27 November 1981
In a landmark judgment of 27 November 1981, Nederlandse Jurisprudentie (Netherlands Law Reports) 1982, no. 503, the Supreme Court held that pension entitlements existing at the time that a marital community of property (gemeenschap van goederen) was dissolved by divorce or judicial separation were, in principle, part of that community of property even if they had not yet fallen due. This meant that they had to be taken into account in the settlement when the assets and liabilities belonging to the community were divided.
The way in which such entitlements should be taken into account depended on considerations of equity (redelijkheid en billijkheid), as applicable to the dissolution of a marital community of property. In many cases, the party nominally entitled to the pension would be faced with an obligation, conditional on the survival of both parties, to pay a certain percentage of the pension instalments to the other party as they became due. However, equitable considerations might dictate other solutions, for example the purchase by the party nominally entitled to the pension of an annuity for the benefit of the other party. In certain cases, for example if adequate arrangements had been made for the maintenance of the other party in some other way, it might be equitable to reduce the other party’s claim to part of the pension or even to cancel it altogether.
The Supreme Court recognised that this judgment involved a reversal of its case-law since 1959. It realised that many marital communities of property had been dissolved in the meanwhile without pension rights being taken into account. Although in principle the Supreme Court’s new approach could give rise to the reopening of such cases, considerations of equity coupled with interests of legal certainty entailed that, as a rule, the party nominally entitled to the pension should not be faced with hitherto unexpected claims.
2. The 1995 Pensions Equalisation (Divorce) Act
On 1 May 1995 the Pensions Equalisation (Divorce) Act (Wet verevening pensioenrechten bij scheiding, “the 1995 Act”) entered into force.
In relevant part, it provides as follows:
Section 2
“1.In case of divorce and in so far as one of the spouses has accumulated pension entitlements after the marriage was contracted and before the divorce, the other spouse shall have a right to pension equalisation as provided in or under this Act ...
2.Pursuant to the right to pension equalisation referred to in the first paragraph, a right to payment of a part of each instalment of the pension [as it becomes] payable shall come into being vis-à-vis the implementing body ...
3.Payment shall take place subject to the conditions laid down in the applicable instrument. If the time at which the pension starts (pensioeningang) precedes or coincides with the time of the divorce, payment shall start at the time the pension starts ...
4.The right to payment shall end at the time when the right to the pension ends or at the end of the month in which the spouse entitled to pension equalisation dies ...
...”
Section 3
“1.The part referred to in section 2, paragraph 2, shall be half of the pension that would be payable if:
(a)the spouse who is under an obligation to equalise had participated solely during the years of participation from the time the marriage was contracted until the time of the divorce;
(b)he had terminated his participation at the time of the divorce; and
(c)he were married or in a registered partnership during the period when he was entitled to the pension.
2.If the pension is increased or decreased after it starts, the sum resulting from the first paragraph shall be increased or decreased in proportion to the increase or decrease of the pension.
...”
Section 12
“1.This Act shall not apply to a divorce that took place before the date on which this Act entered into force.
2.Nonetheless, this Act shall apply by analogy (van overeenkomstige toepassing) to a divorce that has taken place before 27 November 1981, provided that the marriage lasted for at least 18 years and there were, during the marriage, minor children of the spouses together or one of them, it being understood that the part referred to in section 2, second paragraph, shall be only one quarter of the pension that would have to be paid pursuant to section 3, first and second paragraphs, and that there shall be no right to pension equalisation to the extent that the circumstance that the spouse entitled to equalisation has accumulated insufficient pension or none at all has already demonstrably been taken into account. ...
...”
3.Drafting history of the 1995 Act
The Explanatory Memorandum to the Bill which later became the Act (Explanatory Memorandum (Memorie van Toelichting), Lower House of Parliament, 1990-91, 21,893, no. 3, pp. 1–2) explains that the Government’s intention in introducing this legislation was to make the rule stated by the Supreme Court in its judgment of 21 November 1981 more effective by replacing the claim of one spouse against the other with an automatic claim against the body responsible for paying out the pension. It was felt that this would simplify the realisation of the rights of the spouse who was not nominally entitled to the pension, and in addition forestall litigation by making it unnecessary.
An additional aim was to recognise a shared claim after divorce to the pension regardless of whether the parties had been married in community of property or had made other arrangements by a marriage settlement (huwelijkse voorwaarden), the question of the applicability of the Supreme Court’s case-law in the latter situation having given rise to problems in that regard (Explanatory Memorandum, loc. cit., p. 2).
Initially, the proposed wording of Article 12 of the Act comprised only the present first paragraph. It was intended that the new Act should not affect divorces pre-dating the Supreme Court’s judgment of 27 November 1981, and that divorces which became final after that date but before the entry into force of the Act should be dealt with in accordance with the case-law which that judgment defined (Explanatory Memorandum, loc. cit., p. 33).
The second paragraph of section 12 resulted from an amendment proposed by two members of the Lower House of Parliament, Mesdames Kalsbeek-Jasperse and Soutendijk-van Appeldoorn (Modified Amendment (Gewijzigd amendement), Lower House of Parliament, 1992-93, 21,893, no. 30). It was intended as a compromise between the requirements of legal certainty and considerations of an equitable nature. For that reason it granted a particular, limited, category of persons divorced before 27 November 1981 a partial entitlement to pension rights accumulated by their former spouses, albeit a lesser one than that enjoyed by persons who were divorced after the entry into force of the Act (Memorandum in Reply (Memorie van antwoord), Upper House of Parliament, 1993-94, 21,893, no. 111b, and Further Memorandum in Reply (Nadere memorie van antwoord), Upper House of Parliament, 1993-94, 21,893, no. 111d).
COMPLAINT
The applicants all complain under Article 14 of the Convention taken together with Article 1 of Protocol No. 1 and Article 5 of Protocol No. 7.
Mesdames Boesten-Aarts, Hammann and Meyne-Moskalczuk have been refused any part of their former husbands’ pension entitlements on the ground that their marriages had lasted less than eighteen years. Mrs Nagtegaal, whose marriage lasted longer than eighteen years, enjoys 25% of her former husband’s pension.
The applicants allege discrimination as compared to their ex-husbands, whose marital status is identical to theirs, and as compared to women divorced after 1 May 1995, who are entitled to fifty percent of their former husbands’ pension entitlements as a matter of course. They also allege indirect discrimination on the ground of their gender since the group of divorcees without pension entitlements of their own consists, almost exclusively, of women.
THE LAW
1.The applicants allege discrimination in that they are denied half of the pension entitlements accumulated by their former husbands during their marriages as a result of their divorces having occurred before 27 November 1981.
Article 14 of the Convention provides as follows:
“The enjoyment of the rights and freedoms set forth in [the] 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 provides as follows:
“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.”
According to the Court’s established case-law, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to the “rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of one or more of such provisions – and to this extent it is autonomous –, there can be no room for its application unless the facts of the case fall within the ambit of one or more of the latter (cf., among many other authorities, Wessels‑Bergervoet v. the Netherlands, no. 34462/97, § 42, ECHR 2002‑IV).
It must therefore first be decided whether the cases come within the ambit of Article 1 of Protocol No. 1. For this to be the case the applicants must be able to claim at least the existence of a “possession”, as that expression is to be understood for the purposes of that provision.
“Possessions” within the meaning of Article 1 of Protocol No. 1 can be either “existing possessions” or assets, including claims, in respect of which an applicant can argue that he or she has at least a “legitimate expectation” that they will be realised (see, as a recent authority, Jasiūnienė v. Lithuania, no. 41510/98, § 40, 6 March 2003).
The Court notes that prior to the Supreme Court’s judgment of 27 November 1981, employment-based pension rights were looked upon as by their very nature connected solely to the person nominally entitled to them. This meant that such pension entitlements could not be included in divorce settlements, not even as part of the division of a marital community of property. A party left destitute could, however, claim maintenance payments from the other former spouse, even after the latter’s retirement, provided that his means so allowed. Apart from that, like other individuals entitled to benefit from the public-law old age pension scheme, divorced persons who could not claim an entitlement to any part of the pensions of their former spouses had rights to an old age pension paid by the Government.
The Supreme Court’s judgment of 27 November 1981 brought employment-linked pension entitlements existing at the time of the divorce into the marital community of property, which meant that they had to be taken into account in the settlement when the assets and liabilities belonging to the community were divided. However, this did not necessarily apply to marital property regimes other than community of property agreed under marriage settlements, which included, at the opposite end of the spectrum, complete separation of property as well as various variations of these regimes. Moreover, in the interests of legal certainty the temporal effect of the Supreme Court’s judgment was limited to the division of marital communities of property after the date of its delivery.
The applicants were all divorced before 27 November 1981. Mesdames Boesten-Aarts, Hammann and Meyne-Moskalczuk are not entitled to any part of their former husbands’ pensions; Mrs Nagtegaal’s limited entitlement came into existence on 1 May 1995.
The 1995 Act, which entered into force on that date, altered the position for the future but not ex post facto for earlier cases, except where the divorce had taken place before 27 November 1981, the marriage had lasted eighteen years or more and there had been underage children during this time: in such cases, the party not nominally entitled to the pension was given a right to one quarter of it. This is the situation in which Mrs Nagtegaal now finds herself.
In these circumstances it cannot be said that at the time when they were divorced, i.e. before the entry into force of the 1995 Act, the applicants had either a “possession” or a “legitimate expectation” to be entitled to any part of their former husbands’ pensions.
The applicants are now asking the Court to hold that a “legitimate expectation” has come into being through the operation of the 1995 Act even though it did not exist before. However, such a position is not tenable in the light of the relevant domestic law. Moreover, Article 1 of Protocol No. 1 does not guarantee the right to acquire property (see, as a recent authority, Jantner v. Slovakia, no. 39050/97, § 34, 4 March 2003).
It follows from the above that the case falls outside the ambit of Article 1 of Protocol No. 1.
In sum, in so far as the application relies on Article 1 of Protocol No. 1 taken together with Article 14 of the Convention, it is incompatible with the Convention and its Protocols ratione materiae within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
2.Article 5 of Protocol No. 7 provides as follows:
“Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.”
The Court is prevented from considering the applicants’ complaint under this provision as that Protocol has yet to be ratified by the Kingdom of the Netherlands. It follows that the applicants’ complaint under Article 5 of Protocol No. 7 must also be rejected as incompatible with the Convention ratione personae, in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy