CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 avril 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 20060/92                       by A.G.V.R.                       against the Netherlands        The European Commission of Human Rights sitting in private on 10 April 1995, the following members being present:              MM.    C.A. NØRGAARD, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  S. TRECHSEL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS              Mr.    H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 23 April 1992 by A.G.V.R. against the Netherlands and registered on 1 June 1992 under file No. 20060/92;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      21 July 1994 and the observations in reply submitted by the      applicant on 18 August 1994;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Dutch citizen born in 1924, and resides in Amstelveen, the Netherlands. Before the Commission he is represented by Mr. M.W.C. Feteris, a lawyer practising in Amsterdam.        The facts of the case, as submitted by the applicant, may be summarised as follows.        The applicant has never been married and has no children.        On 30 September 1987 the Inspector of Direct Taxes (Inspecteur der Directe Belastingen) issued an assessment for the year 1985 of the contributions the applicant had to pay under the general social security schemes (volksverzekeringen) including the General Child Allowance Act (Algemene Kinderbijslagwet - hereinafter referred to as the "Act").        Section 25, para. 1 of the Act defines those liable to pay contributions in respect of the Act as those who are deemed liable to pay contributions under the terms of the General Old Age Pension Act (Algemene Ouderdomswet). No link exists between the obligation to pay a contribution and an entitlement to benefits under the Act.        Under Section 25 para. 2 of the Act unmarried women of 45 years and older could, by Order in Council (Algemene Maatregel van Bestuur), be exempted from the obligation to pay a contribution. The Parliamentary debates on this Act show that, when it was enacted in 1962, a majority objected to holding individuals who could never reasonably be expected to claim child benefit liable for contributions. This was considered to apply in the normal course of things only to unmarried women of 45 years or older, the majority of whom, it was assumed, would not have children, and who would be prevented by social and by physical factors from having children at some future date.        The exemption under Section 25 para. 2 of the Act was most recently elaborated in the Royal Decree of 27 February 1980 (Koninklijk Besluit - Staatsblad 1980, no. 89). Under Section 1 of this Royal Decree an unmarried woman who had reached the age of 45 and who was not entitled to benefits under the Act was exempted from the obligation to pay a contribution under the Act. By Act of 21 December 1988 the legislator abolished this exemption as from 1 January 1989.        The applicant's objection (bezwaarschrift) against the assessment of 30 September 1987 - which he considered discriminatory as, had he been a woman, he would have been exempted from the obligation to pay contributions under the Act - was rejected on 25 November 1987 by the Inspector of Direct Taxes. The Inspector held that the applicant could not be exempted from the obligation to pay contributions under the Act since he was a man.        In his subsequent appeal to the Court of Appeal (Gerechtshof) of Amsterdam the applicant submitted statistical material showing that not only is it rare for older women to conceive children, but also for older men to father them. He further invoked Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1. This appeal was rejected on 6 October 1989. The Court of Appeal considered that, as the difference in treatment was not based on sex as such but on a different factual situation of women and men of 45 years and older, i.e. the ability to procreate, Article 14 of the Convention was not applicable.        The applicant's appeal to the Supreme Court (Hoge Raad) was rejected on 11 December 1991. Insofar as the applicant relied on Article 14 of the Convention, the Supreme Court considered that the proceedings at issue did not concern any of the rights and freedoms guaranteed by the Convention. The Supreme Court further considered that, as the difference complained of - which in any event could not be regarded as unreasonable in view of the physical differences between men and women - had been abolished as from 1 January 1989, there was no reason for the courts to declare the exemption to pay the contribution at issue also applicable to unmarried men of 45 years and older for the year 1985.        The Inspector of Direct Taxes also issued assessments of the contribution the applicant had to pay under the Act for the years 1986, 1987 and 1988. The applicant also filed objections in respect of these assessments, which, on 28 February 1992, were rejected by the Inspector of Direct Taxes on the basis of the Supreme Court's judgment of 11 December 1991. In view of this judgment the applicant decided not to file a subsequent appeal to the Court of Appeal, as this would have had no chance of success.   COMPLAINTS        The applicant complains that until 1 January 1989 the difference in treatment between unmarried women and men of 45 years and older in respect of the payment of contributions under the General Child Allowance Act constituted discrimination based on sex contrary to Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.        He further complains under Article 13 of the Convention that he had no effective remedy in respect of the alleged discriminatory treatment.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 23 April 1992 and registered on 1 June 1992.        On 11 May 1994 the Commission (Second Chamber) decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 21 July 1994. The applicant replied on 18 August 1994.   THE LAW   1.    The applicant complains that the obligation imposed on him to pay contributions in respect of the General Child Allowance Act constituted a discriminatory treatment contrary to Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1).        Article 14 (Art. 14) of the Convention provides:        "The enjoyment of the rights and freedoms set forth in this      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) reads, insofar as relevant:        "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 secure the payment of taxes or other contributions      (...)."   1.    The Government allege in the first place that the application is inadmissible under Article 27 para. 3 (Art. 27-3) of the Convention as the applicant failed to invoke Article 1 of Protocol No. 1 (P1-1) before the domestic courts and under Article 27 para. 1 (b) (Art. 27-1-b) of the Convention as the same issue has already been submitted to another procedure of international investigation, namely, the Human Rights Committee of the United Nations.        The applicant submits that he invoked Article 1 of Protocol No. 1 (P1-1) before the Court of Appeal of Amsterdam. He acknowledges that the issue in question has indeed been brought before the Human Rights Committee of the United Nations by another tax payer, but he is of the opinion that this does not detract from the admissibility of the present application, since the latter has been introduced by a different applicant.        The Commission notes that the applicant does not complain of having unjustly been affected in his property rights, but of discrimination. It recalls its constant case-law that domestic remedies must be considered as having been exhausted if the applicant has raised, at least in substance, before the national authorities the complaint brought before the Commission (cf. No. 9228/80, Dec. 16.12.82, D.R. 30 p. 132; No. 10027/82, Dec. 5.12.84, D.R. 40 p. 100; and No. 11921/86, Dec. 12.10.88, D.R. 57 p. 81).        The Commission observes that, throughout the domestic proceedings, the applicant has complained that his obligation to contribute to the Act constitutes an unjust discriminatory treatment. He has not alleged a violation of his property rights as such. But he invoked Article 1 of Protocol No. 1 (P1-1) before the Court of Appeal in support of his argument that the obligation at issue concerned a right set forth in the Convention. And the Supreme Court considered the issue when finding that the obligation at issue did not concern any of the rights and freedoms guaranteed by the Convention. The Commission therefore accepts that the applicant has exhausted domestic remedies.        The Commission further recalls that an application which has the same purpose as an application previously submitted to another procedure of international investigation but by a different applicant, cannot be regarded as being substantially the same as the matter submitted to that other international procedure (cf. No. 11603/85, Dec. 20.1.87, D.R. 50 p. 228).   2.    As regards the substance of the application the Government submit that objective and reasonable grounds existed to justify the distinction made between childless unmarried men and women of 45 years or older, and that in any case this issue fell within the margin of freedom which Contracting States enjoy when determining whether or to what extent differences in otherwise identical circumstances justify a difference in treatment by or pursuant to the law. The difference in treatment between unmarried men and women of 45 years and over was justified by the existence of a relevant distinction between the actual physical reproductive potential of older men and that of older women.        The applicant submits that, as the Convention is a living instrument which should be interpreted in the light of present-day conditions, Contracting States cannot continue to apply legislation which is based on outdated views without violating the Convention.        The Commission, after a preliminary examination of the present complaint in the light of the parties' submissions, considers that it raises questions of fact and law which require an examination of the merits. The application cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.   3.    The applicant further complains under Article 13 (Art. 13) of the Convention that he had no effective remedy in respect of the alleged discriminatory treatment.        Article 13 (Art. 13) of the Convention reads:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        The Commission notes that the applicant complained of the alleged discriminatory treatment before the Court of Appeal as well as before the Supreme Court. Both Courts found that Article 14 (Art. 14) of the Convention was not applicable to the case and they gave reasons therefor. In these circumstances the applicant did have an effective remedy within the meaning of Article 13 (Art. 13) of the Convention.        It follows that the remainder of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaint of discriminatory treatment;        and, unanimously        DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Commission           President of the Commission         (H. C. KRÜGER)                       (C. A. NØRGAARD)