Obligation to pay contributions under social-welfare scheme
II. Relevant domestic law and practice A. The Constitution 18. Article 1 of the 1983 Constitution provides: "All persons present in the Netherlands shall be treated in the same way in similar situations. Discrimination on the ground of religion, philosophical convictions, political leanings, race, sex, or any other ground whatsoever shall not be allowed." 19. Under Netherlands constitutional law, courts may not review the constitutionality of statutes. Article 120 reads: "The courts shall not rule on the constitutionality [ grondwettigheid ] of statutes and treaties." Delegated legislation, on the other hand, may be examined to determine whether it conforms with the Constitution and even with unwritten general principles of law (see the judgment of the Supreme Court of 1 December 1993, Beslissingen in Belastingzaken (Reports of Decisions in Taxation Cases - "BNB") 1994, no. 64). 20. Article 93 of the Constitution provides that provisions of international treaties and decisions of international (intergovernmental) organisations which, according to their content, may be binding on anyone shall have binding force after they have been published. With regard to the prohibition of discrimination, the Netherlands is a party to, inter alia, the International Covenant on Civil and Political Rights of 1966 ("the Covenant"), Article 26 of which provides as follows: "All persons are equal before the law and are entitled without discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." B. The General Child Care Benefits Act 21. The General Child Care Benefits Act was enacted in 1962. Until 1 January 1989 (see paragraph 28 below), section 25 of the General Child Care Benefits Act provided as follows: "1. Contributions are due by: (a) every person by whom contributions are due by way of assessment under the General Old Age Pensions Act ( Algemene ouderdomswet ); (b) ... 2. The first paragraph, under (a), may be derogated from by royal decree, subject to conditions and limitations if need be, in respect of unmarried women who have reached the age of 45. 3. ..." Persons referred to in sub-paragraph (a) were all those who had not yet reached the age of 65 and who were either Netherlands residents or, if not Netherlands residents, subject to the Wages (Tax Deduction) Act (Wet op de loonbelasting ) in respect of work carried out in the Netherlands under a contract of employment (section 6 (1) of the General Old Age Pensions Act). 22. Any person who was either a Netherlands resident or subject to the Wages (Tax Deduction) Act in respect of work carried out in the Netherlands under a contract of employment was entitled to benefits under the General Child Care Benefits Act for children for whose maintenance he or she was financially responsible, whether they were his or her own by birth or marriage or foster children (sections 6 and 7 of the General Child Care Benefits Act). Such entitlement was not subject to the condition that the person concerned had contributed to the scheme. C. The royal decree 23. At the time of the events complained of, the derogation from the general rule made possible by section 25 (2) was provided for by the royal decree of 27 February 1980 ( Staatsblad no. 89). Section 1 provided: "In derogation from section 25 (1) (a) of the General Child Care Benefits Act, no contributions shall be due by an unmarried woman who has reached the age of 45 before the beginning of the calendar year and who is not entitled to child care benefits under that Act." D. Relevant domestic case-law 1. Supreme Court 24. The Supreme Court recognised in its judgment of 2 February 1982 ( Nederlandse Jurisprudentie (Netherlands Law Reports - "NJ") 1982, no. 424 (corrected in NJ 1982, no. 475)) that Article 26 of the Covenant is a provision of an international treaty which, according to its content, may be binding on anyone, and must therefore in principle be applied directly by the Netherlands courts (see paragraph 20 above). However, in a number of judgments it has declined to construe Article 26 of the Covenant in such a way as to deprive national legislation of its effect even if it considered that a given measure constituted illegal discrimination between men and women, holding that, where various options were open to the national authorities to remove such discrimination, the choice should be left to the legislature in view of the social and legal implications attending each possible course of action (see the judgments of the Supreme Court of 12 October 1984, NJ 1985, no. 230, and 23 October 1988, NJ 1989, no. 740). In its judgment of 16 November 1990 (NJ 1991, no. 475), cited in the European Court of Human Right ’ s Kroon and Others v. the Netherlands judgment of 27 October 1994 (Series A no. 297-C), the Supreme Court came to a similar finding with regard to Article 14 of the Convention taken together with Article 8 (art. 14+8) (loc. cit., p. 50, para. 14). 2. Central Appeals Tribunal 25. The Central Appeals Tribunal ( Centrale Raad van Beroep ) - the administrative tribunal competent to decide most types of social-security disputes but not, inter alia, disputes relating to contributions due under the General Child Care Benefits Act - has held that Article 26 of the Covenant is in principle directly applicable in the field of social security. Thus, in its judgment of 14 May 1987 ( Rechtspraak Sociaal Verzekeringsrecht (Social Security Law Reports - "RSV") 1987, no. 246), the Central Appeals Tribunal considered discriminatory the rule that to qualify for benefits under the Victims of Persecution (1940-1945) Benefits Act (Wet uitkering vervolgingsslachtoffers 1940-1945) a married woman had to be a "breadwinner" whereas no such requirement applied to married men. In three judgments delivered on 5 January 1988 ( Nederlandse Jurisprudentie - Administratiefrechtelijke Beslissingen (Netherlands Administrative Law Reports - "AB") 1988, nos. 252-54), it came to a similar finding with regard to the General Disability Act ( Algemene arbeidsongeschiktheidswet ), but only with effect from 1 January 1980 - the date on which legislation entered into force that was intended to remove discrimination but which had failed to do so adequately. Similarly, in its judgments of 7 December 1988 (NJCM-Bulletin 1989, no. 14, p. 71, and AB 1989, no. 10), it recognised the right of a widower to claim a widow ’ s pension ( weduwenpensioen ) under the General Widows and Orphans Act ( Algemene weduwen - en wezenwet ). E. Levying of contributions; procedural provisions 26. Contributions under the General Child Care Benefits Act and certain other social-security schemes were levied by the Tax Inspector in the same way as income tax (sections 21 and 22 of the General Exceptional Medical Expenses Act ( Algemene wet bijzondere ziektekosten ), declared applicable by analogy under section 26 of the General Child Care Benefits Act). 27. It was possible to file an objection against an assessment with the Inspector (section 23 (1) of the State Taxes (General Provisions) Act - Algemene wet inzake rijksbelastingen ). An appeal against the Inspector ’ s decision lay to the Court of Appeal (sections 2 and 26 (1) of the State Taxes (General Provisions) Act). A further appeal could be filed on points of law to the Supreme Court (section 95 of the Judicial Organisation Act - Wet op de rechterlijke organisatie ). F. The Act of 21 December 1988 28. As noted above (see paragraph 12), the possibility provided for under section 25 (2) came to an end when the Act of 21 December 1988 ( Staatsblad 1988, no. 631) came into effect on 1 January 1989. Accordingly, on that date men and women became equally liable to pay contributions under the General Child Care Benefits Act whatever their age and whether or not they were married or had children. PROCEEDINGS BEFORE THE COMMISSION 29. Mr van Raalte applied to the Commission on 23 April 1992. He relied on Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1), alleging that he had been the victim of discriminatory treatment with regard to the obligation to pay contributions under the General Child Care Benefits Act. 30. The Commission declared the application (no. 20060/92) admissible on 10 April 1995. In its report of 17 October 1995 (Article 31) (art. 31), it expressed the opinion that there had been a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1) (twenty-three votes to five). The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT 31. The Government concluded their memorial by expressing the opinion that there had not been a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1). AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 14+P1-1) 32. The applicant claimed that the levying of contributions under the General Child Care Benefits Act (see paragraph 21 above) from him, an unmarried childless man over 45 years of age, constituted discrimination on the ground of gender prohibited by Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1), given the fact that at the time of the events complained of no similar contributions were exacted from unmarried childless women of that age (see paragraphs 21 and 23 above). Article 14 of the Convention (art. 14) and Article 1 of Protocol No. 1 (P1-1) provide as follows: Article 14 of the Convention (art. 14) "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 (P1-1) "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 (P1-1) 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 Commission agreed with the applicant that such violation had taken place. The Government contested this. A. Whether Article 14 of the Convention (art. 14) is applicable 33. As the Court has consistently held, Article 14 of the Convention (art. 14) complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 (art. 14) does not presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, the Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291-B, p. 32, para. 22). 34. The applicant and the Commission both considered that the case concerned the right of the State to "secure the payment of taxes or other contributions" and therefore came within the ambit of Article 1 of Protocol No. 1 (P1-1). The Government did not contest this. 35. The Court sees no reason to hold otherwise, and accordingly finds that Article 14 (art. 14) is applicable. B. Arguments before the Court 1. The applicant 36. In the applicant ’ s submission, differences in treatment based on sex were already unacceptable when section 25 of the General Child Care Benefits Act was enacted in 1962. The wording of Article 14 of the Convention (art. 14) showed that such had been the prevailing view as early as 1950. Moreover, legal and social developments showed a clear trend towards equality between men and women. The applicant drew attention to, inter alia, the Court ’ s Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985 (Series A no. 94), which stated explicitly that "the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe" and that "very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention" (loc. cit., p. 38, para. 78). The Netherlands legislature had in fact recognised the unacceptable nature of the distinction in question by enacting, in 1988, legislation abolishing it. In any case, statistics showed that very few men aged 45 or over fathered children; on the other hand, women aged over 45 were still able to have children and in many cases did so, thus invalidating the justification of any distinction based on the theoretical possibility of procreating. Lastly, the right to claim benefits under the General Child Care Benefits Act was in no way related to the payment of contributions. 2. The Government 37. The Government denied that there had been a difference in treatment between persons in similar situations. Women aged 45 or over differed fundamentally from men of the same age in that for biological reasons they were much less likely to be able to have children. To the extent that it had to be assumed that there had been a difference in treatment between persons in similar situations, the biological difference referred to constituted in itself sufficient objective and reasonable justification. In addition, when the rule in question had been enacted it had been justified by the social attitudes prevailing at the time: it was assumed that women who had no children, and who in all probability never would, suffered thereby and it was considered wrong to impose on such women the additional emotional burden of having to pay contributions under a child care benefits scheme. Admittedly, the exemption in question had been abolished with effect from 1 January 1989, essentially in response to a change in social attitudes towards unmarried childless women. It was, however, inevitable that social legislation should to some extent lag behind developments in society and allowances had to be made. More generally, the Government referred to the wide margin of appreciation which in their view Article 1 of Protocol No. 1 (P1-1) allowed the State in "enforcing such laws as it deems necessary ... to secure the payment of taxes or other contributions or penalties". 3. The Commission 38. The Commission was of the opinion that there had been a difference in treatment based on gender and that this difference was not justified. Moreover, it considered that the social attitudes relied on by the Government had been overtaken by developments well before 1985. It referred, inter alia, to the Court ’ s finding of a violation of Article 14 taken together with Article 4 para. 3 (d) (art. 14+4-3-d) in its above-mentioned Karlheinz Schmidt judgment, the financial contribution in that case having been imposed in 1982. C. The Court ’ s assessment 1. Applicable principles 39. For the purposes of Article 14 (art. 14) a difference of treatment is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see, among other authorities, the above-mentioned Karlheinz Schmidt judgment, pp. 32-33, para. 24). However, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention (see, among other authorities, the above-mentioned Karlheinz Schmidt judgment, ibid.). 2. Whether there has been a difference in treatment between persons in similar situations 40. At the time of the events complained of contributions under the General Child Care Benefits Act were levied from unmarried childless men aged 45 or over but not from unmarried childless women of the same age (see paragraphs 21 and 23 above). This undoubtedly constitutes a "difference in treatment" between persons in similar situations, based on gender. The factual difference between the two categories relied on by the Government, namely their respective biological possibilities to procreate, does not lead the Court to a different conclusion. It is precisely this distinction which is at the heart of the question whether the difference in treatment complained of can be justified. 3. Whether there is objective and reasonable justification 41. The Court notes that the General Child Care Benefits Act set up a social-security scheme to which, in principle, the entire adult population was subject, both as contributors and as potential beneficiaries. A key feature of this scheme was that the obligation to pay contributions did not depend on any potential entitlement to benefits that the individual might have (see paragraph 21 above). Accordingly the exemption in the present case ran counter to the underlying character of the scheme. 42. While Contracting States enjoy a certain margin of appreciation under the Convention as regards the introduction of exemptions to such contributory obligations, Article 14 (art. 14) requires that any such measure, in principle, applies even-handedly to both men and women unless compelling reasons have been adduced to justify a difference in treatment. 43. In the present case the Court is not persuaded that such reasons exist. In this context it must be borne in mind that just as women over 45 may give birth to children (see paragraph 17 above), there are on the other hand men of 45 or younger who may be unable to procreate. The Court further observes that an unmarried childless woman aged 45 or over may well become eligible for benefits under the Act in question; she may, for example, marry a man who already has children from a previous marriage. In addition, the argument that to levy contributions under a child care benefits scheme from unmarried childless women would impose an unfair emotional burden on them might equally well apply to unmarried childless men or to childless couples. 44. Accordingly, irrespective of whether the desire to spare the feelings of childless women of a certain age can be regarded as a legitimate aim, such an objective cannot provide a justification for the gender-based difference of treatment in the present case. 4. Conclusion 45. There has been a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1). II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50) 46. Article 50 of the Convention (art. 50) provides as follows: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." The applicant claimed damages as well as reimbursement of costs and expenses. A. Damages 47. Mr van Raalte asked the Court to award him compensation for pecuniary damage in the amount of the contributions which he had paid under the General Child Care Benefits Act in 1985 through 1988. These totalled 1,959 Netherlands guilders (NLG). He also asked the Court to award him interest over these sums at the statutory rate. He also claimed NLG 4,740 for non-pecuniary damage. He stated that it had been "very painful" for him as an unmarried childless man to have to pay contributions under the General Child Care Benefits Act. 48. The Government stated that had there not been the difference in treatment complained of, men and women would have been equally liable to pay contributions under the General Child Care Benefits Act, so that the applicant would have had to pay them in any case. The applicant ’ s claim for non-pecuniary damage was in their view incompatible with the applicant ’ s argument that such feelings, if suffered by women, could not justify extending the exemption only to them. 49. The Delegate of the Commission assumed that the applicant would be in a position to recover the contributions paid under domestic law and also considered that the applicant was entitled to some compensation for non-pecuniary damage. 50. The Court notes that the finding of a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1) does not entitle the applicant to retrospective exemption from contributions under the scheme in question. Accordingly the applicant ’ s claim for pecuniary damage has not been substantiated. As regards the applicant ’ s claim for non-pecuniary damage, the Court considers that the present judgment in itself constitutes sufficient just satisfaction. B. Costs and expenses 51. The applicant asked the Court to award him NLG 7,836.75 for costs and expenses incurred in the domestic proceedings, NLG 6,768 for costs and expenses incurred in the proceedings before the Commission and NLG 8,666.25 for costs and expenses incurred before the Court. The Government did not comment. The Delegate of the Commission considered that the applicant was entitled to the sums sought. 52. The Court has no reason to doubt that these costs and expenses were actually incurred. It also accepts that they were necessarily incurred by the applicant in his attempts to prevent the violation found and later to obtain redress therefor. Finally, it finds them reasonable as to quantum. The applicant ’ s claims under this head, which total NLG 23,271, are therefore accepted in their entirety. C. Default interest 53. According to the information available to the Court, the statutory rate of interest applicable in the Netherlands at the date of adoption of the present judgment is 5% per annum.
The Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention taken together with Article 1 (protection of property) of Protocol No. 1, finding that, irrespective of whether the desire to spare the feelings of childless women of a certain age could be regarded as a legitimate aim, such an objective could not provide a justification for the gender-based difference of treatment in the present case. The Court observed in particular that, while Contracting States enjoyed a certain margin of appreciation under the Convention as regards the introduction of exemptions to such contributory obligations, Article 14 required that any such measure, in principle, applied even-handedly to both men and women unless compelling reasons had been adduced to justify a difference in treatment. In the present case the Court was not persuaded that such reasons existed. In this context it had to be borne in mind that just as women over 45 may give birth to children, there are on the other hand men of 45 or younger who may be unable to procreate. The Court further observed that an unmarried childless woman aged 45 or over could well become eligible for benefits under the Act in question; she could, for example, marry a man who already had children from a previous marriage. In addition, the argument that to levy contributions under a child care benefits scheme from unmarried childless women would impose an unfair emotional burden on them could equally well apply to unmarried childless men or to childless couples.