CASE OF VAN RAALTE v. THE NETHERLANDS
Violation of Art. 14;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
C. Russo;N. Valticos
6. The applicant is a Netherlands national born in 1924 and resident in Amstelveen. He has never been married and has no children. 7. On 30 September 1987 the Inspector of Direct Taxes sent the applicant an assessment of his contributions for the year 1985 under various social security schemes, including the General Child Care Benefits Act (Algemene kinderbijslagwet, see paragraph 21 below). 8. The applicant filed an objection (bezwaarschrift - see paragraph 27 below) to this assessment on 21 October 1987. He based his argument on section 25 (2) of the General Child Care Benefits Act and on the royal decree of 27 February 1980 (Staatsblad (Official Gazette) no. 89 ("the royal decree") - see paragraph 23 below), by virtue of which unmarried childless women of 45 years or over were exempted from the obligation to pay contributions under the General Child Care Benefits Act; in his view the prohibition of discrimination such as was contained in Article 1 of the Netherlands Constitution (see paragraph 18 below) and Article 26 of the International Covenant on Civil and Political Rights (see paragraph 20 below) implied that this exemption should be extended to men in the same situation. 9. The applicant later received similar assessments for the years 1986, 1987 and 1988, against which he likewise filed objections. The Inspector reserved his decision on these, pending the outcome of the proceedings relating to the 1985 assessment. 10. On 25 November 1987 the Inspector issued a decision declaring the first objection unfounded on the ground that "under national legislation the application of section 25 (2) of the General Child Care Benefits Act is not possible since the person by whom the contributions are due is not female". 11. The applicant appealed to the Amsterdam Court of Appeal (see paragraph 27 below) on 29 December 1987. Relying on Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1) and Article 26 of the International Covenant on Civil and Political Rights, he claimed that the provisions of the royal decree should be given a "gender neutral" construction. Section 25 (2) of the General Child Care Benefits Act and the royal decree were in his view discriminatory. The Inspector lodged a written defence. Thereafter the applicant filed a reply, and the Inspector a rejoinder. 12. The exemption enjoyed by unmarried childless women of 45 or over from the obligation to pay contributions under the General Child Care Benefits Act was abolished by the Act of 21 December 1988 (Staatsblad 1988, no. 631), with effect from 1 January 1989. 13. The Amsterdam Court of Appeal gave its judgment on 6 October 1989, dismissing the applicant’s appeal and confirming the Inspector’s decision. Its reasoning included the following: "5.4. Neither the wording of the impugned provision nor its drafting history indicates that the legislature intended to discriminate or has caused discrimination. In particular, it cannot be said that the legislator wished to discriminate against unmarried men who had reached the age of 45 before the beginning of the calendar year and were not entitled to child care benefits under the General Child Care Benefits Act vis-à-vis comparable women. 5.5. By means of the provision set out in section 25 (2) of the General Child Care Benefits Act, the legislature merely wished to take due account of the difference in factual situation between women over 45 and men over 45 with regard to having (begetting or raising) children. 5.6. The fact, as stated by [the applicant], that it appears from statistical data that older men only rarely beget children makes no difference to what is considered in paragraph 5.5 above. The legislature has assessed the factual situation of the group of women referred to in section 25 (2) of the General Child Care Benefits Act differently on the basis of the possibility of their having children and not on the basis of the reality of their having children. Older men’s possibilities of procreating are fundamentally different from those of older women, in the sense that this difference is considerable irrespective of these statistical data. 5.7. The difference in treatment opposed by [the applicant] is therefore not based on a difference in sex, but on a difference in factual situation. This conclusion is not altered by the fact that this difference (partly) coincides with the difference between the sexes. The impugned provision does not therefore contravene the prohibition of discrimination. 5.8. It cannot be excluded in principle that the fairness and acceptability of the General Child Care Benefits Act benefit by taking account of these differences in factual situation. It not being for the Court of Appeal to rule on the intrinsic value of a statute, the Court cannot consider whether the differences in factual situation entirely justify the exemption in question. 5.9. Even if it were correct, contrary to what is set out above, that the impugned provision contravenes the prohibition of discrimination, this would not benefit [the applicant]. The Court of Appeal would not be at liberty to extend the exemption in question to one or more groups of individuals for whom the legislature definitely did not intend it. If the argument based on prohibition of discrimination should have to be accepted in principle, this could only lead to a finding that the impugned provision had no binding force. This would not be in [the applicant’s] interest." 14. The applicant filed an appeal on points of law (beroep in cassatie - see paragraph 27 below) to the Supreme Court (Hoge Raad) on 7 December 1989. In so far as is relevant here, he challenged the above reasoning of the Court of Appeal relying on Article 14 of the Convention (art. 14) and Article 26 of the International Covenant on Civil and Political Rights of 1966. The Inspector responded in writing. 15. The Supreme Court dismissed the appeal on 11 December 1991. Its reasoning included the following: "3.4. The third ground of appeal [middel] argues that the principle set out in section 25 (2) of the General Child Care Benefits Act violates Article 26 of the International Covenant on Civil and Political Rights and Article 14 of the Convention (art. 14). To the extent that the ground of appeal relies on the latter provision (art. 14), it must fail as the present case does not relate to any of the rights and freedoms enumerated in the Convention. ... 3.6. In view of, inter alia, the drafting history of the provision in question the limitation of the exemption set out in section 25 (2) of the General Child Care Benefits Act to women of 45 and over was inspired by the idea that it would not be reasonable to levy contributions under the General Child Care Benefits Act from these women, since it had to be assumed that a great number of them would never have children and were prevented by social and - unlike men - biological factors from ever bearing children. The Supreme Court need not consider the question of whether the above-mentioned fact constitutes an objective and reasonable justification for exempting only women of 45 and over from paying contributions under the General Child Care Benefits Act. Since this difference in treatment between (unmarried) women and men, which in any case, given their biological differences, cannot be said to lack all reasonable ground, has been removed with effect from 1 January 1989 by the abolition of the exemption by the Act of 21 December 1988 (Staatsblad 1988, no. 631) there is no reason for a court to intervene by declaring the exemption applicable, for the year in question, to unmarried men of 45 and over. ..." 16. After the delivery of this judgment the Inspector issued decisions dismissing the applicant’s objections to the assessments for the years 1986, 1987 and 1988 (see paragraph 9 above). 17. According to figures published by the Netherlands Central Bureau for Statistics (Centraal Bureau voor de Statistiek), the number of "legitimate" children born alive in the Netherlands to fathers aged 45 or over in 1985 was 2,341, or approximately 1,43 % of the total number of "legitimate" children born that year (163,370). The corresponding figure for mothers aged 45 or over was 177, or approximately 1 per thousand. No figures are available for children born out of wedlock. 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." 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. 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." 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). 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). 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). 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.