Information Note on the Court’s case-law 43
June 2002
Wessels-Bergervoet v. the Netherlands - 34462/97
Judgment 4.6.2002 [Section II]
Article 14
Discrimination
Sex
Different treatment of married women under pension legislation: violation
Facts: The applicant’s husband was granted an old age pension in 1984. However, the amount was reduced because he had not been insured during certain periods when he had worked abroad. In 1989 the applicant, on reaching the age of 65, was granted an old age pension, which was also reduced, pursuant to the provisions applicable until 1985, on the ground that she had not been insured during the periods when her husband had been working abroad. On the applicant’s appeal, the Appeals Tribunal quashed the decision to reduce her pension, considering that the applicable provisions were discriminatory, since the pension of a married man in a similar position would not be subject to reduction. However, this decision was quashed by the Central Appeals Tribunal and the applicant’s subsequent cassation appeal was rejected by the Supreme Court.
Law: Article 14 in conjunction with Article 1 of Protocol No. 1 – The Court had considered in its decision on admissibility that the applicant’s rights to a pension could be regarded as a “possession” within the meaning of Article 1 of Protocol No. 1 and that, consequently, Article 14 of the Convention was applicable. The only reason for the applicant’s exclusion from insurance was the fact that she was married to a man who was not insured due to his employment abroad. It was undisputed that a married man in the same situation as the applicant would not have been excluded in this manner and the reduction in the applicant’s pension was therefore based exclusively on the fact that she was a married woman. As to the Government’s argument that the undesirable accumulation of pension rights was an objective and reasonable justification for the difference in treatment, the legislation did not prevent a married man in the same situation as the applicant from accumulating pension rights. As to the argument that social attitudes at the material time were different in that most breadwinners were married men, even assuming such an argument had merit, it was of some relevance that the Convention and Protocol No. 1 had already entered into force in the Netherlands in 1954. Furthermore, the inequality in treatment materialised in 1989 when, given the prevailing social attitudes at that time, the aim pursued by the provisions concerned could no longer be upheld. In this respect, when the provisions were changed in 1985, no measures were taken to remove the discriminatory effect of the former provisions. There was thus a difference in treatment which did not have an objective and reasonable justification.
Conclusion: violation (unanimously).
Article 41 – The Court reserved the question of just satisfaction.
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This summary by the Registry does not bind the Court.
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