EHRM, 12-04-2006, nr. 65731/01, nr. 65900/01

The case originated in two applications (nos. 65731/01 and 65900/01) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) by five United Kingdom nationals on 20 November 2000 and 30 January 2001 respectively. The first applicant, Regina Hepple, was born in 1933 and lives in Wakefield. The second applicant, Anna Stec, was born in 1933 and lives in Stoke-on-Trent. The third applicant, Patrick Lunn, was born in 1923 and lives in Stockton-on-Tees. The fourth applicant, Sybil Spencer, was born in 1926 and lives in Bury. The fifth applicant, Oliver Kimber, was born in 1924 and lives in Pevensey.

The first, second, third and fourth applicants were represented by Ms J. Starling, and the fifth applicant was represented by Mr J. Clinch, both solicitors practising in London. The respondent Government were represented by their Agent, Mr D. Walton, Foreign and Commonwealth Office.

The applications were allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the case was assigned to a Chamber composed of Judges Pellonpää, Bratza, Casadevall, Maruste, Pavlovschi, Garlicki and Borrego Borrego, together with the Section Registrar, Mr M. O'Boyle. On 5 March 2002 the Chamber decided to join the two applications, and on 24 August 2004 it decided to relinquish jurisdiction in favour of the Grand Chamber with immediate effect, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).

The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. Judges Costa and Baka were prevented from sitting in the case at the time of the adoption of the admissibility decision. They were replaced by the first and second substitute judges, Judges Loucaides and Hedigan (Rule 24 § 3).

In accordance with the provisions of Article 29 § 3 of the Convention and Rule 54A § 3, the Court decided to examine jointly the issues of the admissibility and merits of the applications.

The applicants and the Government each filed written observations on the admissibility and merits of the case.

By a letter dated 25 February 2005, the first applicant, Mrs Hepple, informed the Court through her representative that, for personal reasons, she no longer wished to continue with the case. Her representative later confirmed Mrs Hepple's withdrawal in response to a letter from the Court.

A hearing on admissibility and merits took place in public in the Human Rights Building, Strasbourg, on 9 March 2005 (Rule 59 § 3).

There appeared before the Court:

The Court heard addresses by Mr Pannick Q.C. and Mr Drabble Q.C., as well as their answers to questions put by Judges Bratza and Maruste.

On the same day, since it had been confirmed that Mrs Hepple did not intend to pursue her application (see paragraph 7 above), and considering that respect for human rights did not require it to continue examining it, the Court decided to strike-out Mrs Hepple's application (Article 37 § 1(a)).

By a letter dated 13 April 2005, Mrs Hepple, through her representative, informed the Court that she had changed her mind and now wished to proceed with her application.

On 6 July 2005 the Court decided to disapply Article 29 § 3 (see paragraph 5 above) and to consider the admissibility and merits separately. It further decided, unanimously, not to restore Mrs Hepple's application to the list and, by a majority, to join to the merits the Government's objections concerning the victim status of the third applicant, Mr Lunn, the fourth applicant, Mrs Spencer, and the fifth applicant, Mr Kimber. Finally, again by a majority, it declared admissible, the applications of the second, third, fourth and fifth applicants.

On 5 September 2005 the Court asked the parties for further observations on the merits, which it received on 11 November 2005.

The Government had requested a further hearing on the merits, but on 13 December 2005 the President decided that it would not be necessary to hold a further hearing on the merits. On 15 March 2006 the Grand Chamber confirmed the decision not to hold a hearing.

(Translation)

I voted with the majority of the Chamber in finding that there had been no violation of the Convention; in my case, however, this was based on the belief that the applicants could not be considered to have ‘possessions’ within the meaning of Article 1 of Protocol No. 1, which guarantees the protection of property.

In its decision of 23 January 2002 in Slivenko v. Latvia ([GC], no. 48321/99, § 121, ECHR 2002‑II), the Court stated on the subject of that provision: ‘An applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her ‘possessions’…‘Possessions’ can be ‘existing possessions’ or assets, including claims by virtue of which the applicant can argue that he or she has at least a ‘legitimate expectation’ of acquiring effective enjoyment of a property right.’

In the matter of entitlement to benefits, a distinction was established by the Commission, and taken up by the Court, between contributory and non‑contributory benefits, the latter being considered not to constitute ‘possessions’.

However, in paragraph 54 of its decision of 6 July 2005 on the admissibility of the present application, the Court, after examining the case‑law on the subject — which, admittedly, is not entirely free of ambiguity — stated: ‘If … a Contracting State has in force legislation providing for the payment as of right of a welfare benefit — whether conditional or not on the prior payment of contributions — that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements.’

Hence, the notion of ‘possessions’ is widened here to include ‘interests’, and applies to all individuals, including those who ‘for all or part of their lives, [are] completely dependent for survival on social security and welfare benefits’ (ibid., paragraph 51). This is far removed from the notion of property as the right of the citizen to ‘dispose at his pleasure of his goods, income, and of the fruits of his labour and his skill’ (Article 16 of the Declaration of the Rights of Man of 23 June 1793).

If we accept that the protection of property extends to protecting property owners, the Court's new interpretation has an undeniable attraction! Without any need for a revolution, all Europe's citizens have become property owners, protected by Article 1 of Protocol No. 1. Everyone, from a billionaire right down to the poorest person subsisting on social security, has become a property owner.

This widening of the notion of ‘possessions’ stems, in my view, from the way in which this case was presented, in that it sought to establish a close link between Protocol No. 1 and Article 14 of the Convention.

Hence, paragraph 55 of the admissibility decision, to which paragraph 53 of the judgment refers, reads: ‘Although Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14.’

The ‘prohibition of discrimination’ element proved so compelling — all the more so since the case related to discrimination based on sex — that the Court, overlooking the fact that Article 14 is secondary to the other substantive guarantees and has no independent existence, found that there had been no ‘violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1’, thereby placing a clear emphasis on the discrimination rather than the property aspect.

I remember the Kopecký v. Slovakia case, in which the applicant claimed the restitution under an Extra-Judicial Rehabilitations Act of items of property which had been taken away from his father. He had proved that the items in question had belonged to his father and had been confiscated and deposited in the offices of the Regional Administration of the Ministry of the Interior in 1958. However, as the Act required the applicant to indicate the exact location of the items (gold and silver coins of numismatic value), almost fifty years after they had been confiscated, and he had been unable to do so, the Court held that ‘the applicant had no ‘possession’ within the meaning of the first sentence of Article 1 of Protocol No. 1 (see Kopecký v. Slovakia[GC], no. 44912/98, § 60, ECHR 2004‑IX).

In truth, I consider the gold and silver coins belonging to Mr Kopecký's father to be much closer to the notion of ‘possessions’ than the benefits claimed by the applicants in the present case. In Kopecký, however, the link with the prohibition of discrimination was absent.

I feel that the Court's interpretation of Article 1 of Protocol No. 1 in the present case goes somewhat too far and serves only to heighten the confusion that already exists in this sphere. Ultimately, however, I can live with it.

I should like, nevertheless, to express my concern regarding one very specific aspect of this new approach to the notion of ‘possessions’.

In paragraph 48 of the admissibility decision, the Court found that ‘[t]he Convention must also be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions.’

I quite agree. However, in my opinion, the Court may not, in interpreting the Convention (see Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969), frustrate the sovereign intentions of a Contracting Party.

As I see it, the way in which ‘Article 14 taken in conjunction with Article 1 of Protocol No. 1’ is construed in this judgment implies, purely and simply, the entry into force of Protocol No. 12 in a very important sphere (social-security benefits), in respect of a Contracting Party which has not even signed Protocol No. 12.

Paragraph 34 of the admissibility decision summed up the Government's argument in that regard as follows: ‘The applicants were seeking to widen the concept of a ‘possession’ to include claims which had no basis in domestic law, in order to bring a general complaint of discrimination of the type which would be covered by the new Protocol No. 12 but not by Article 14.’

It is my belief that we cannot bring into force, even in part, a Protocol in respect of a State which has not yet signed it.

While I am in agreement with the finding of the majority that both the policy decision to stop paying REA to persons who would otherwise have retired from paid employment, and the decision to achieve this aim by linking the cut-off age for REA to the notional ‘end of working life’, or State pensionable age, pursued a legitimate aim and were reasonably and objectively justified, I am unable to share the view of the majority that there has not been a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 in this case.

The issue before us was whether the difference in treatment between men and women as regards State pensionable age, which was at the root of the difference in their treatment as regards the operation of the REA scheme, was acceptable under Article 14 of the Convention at the time of the decisions about which the applicants complain, that is to say, was reasonably and objectively justified.

I fully agree with the opinion of the majority that it is ‘impossible to pinpoint any particular moment when the unfairness to men caused by differential pensionable ages began to outweigh the need to correct the disadvantaged position of women’ (see paragraph 62 of the judgment). That, however, is not the question. The important issue to determine is whether this shift may or may not have occurred before the decisions complained of by the applicants in the present case.

In 1986 an Act was passed in the United Kingdom amending the Sex Discrimination Act 1975 so as to make it unlawful for an employer to have different retirement ages for men and women (see paragraph 33 of the judgment). Until then the difference in pensionable ages had been acceptable as a means of mitigating financial inequality and hardship arising out of the woman's traditional unpaid role of caring for the family in the home rather than earning money in the workplace (see paragraph 61 of the judgment). However, after 1986 such justification of the difference in pensionable age became manifestly untenable because of the amendment in question, which implies clearly that the previous ‘factual inequalities’ between men and women were no longer a factor and that social conditions had changed so that women were not substantially prejudiced because of a shorter working life. The considerations and assumptions on which the overall structure of pensions and benefits had been based over the previous decades could not be relied on any more to justify differences on grounds of sex.

Therefore, I find that at the time of the decisions about which the applicants complain, and indeed at any time after 1986, the different treatment of men and women as regards State pensionable age had no objective and reasonable justification. It follows that it was incompatible with Article 14 of the Convention, as was in turn the different treatment of men and women as regards entitlement to REA.

It is significant that the Government concentrated their arguments on the margin of appreciation to which they were allegedly entitled in setting the timetable for the reform intended to put an end to this unequal treatment, which was no longer justified. These arguments are summarised as follows in paragraph 49 of the judgment:

‘Finally, the social, historical and economic basis for the provision of State retirement pensions at the age of 65 for men, and 60 for women, as well as the decision to equalise pensionable age for men and women progressively from 2010–2020, involved complex economic and social judgments, in respect of which the Government enjoyed a broad margin of appreciation. … In 1995, Parliament had decided to implement the reform in stages because moving towards equality had enormous financial implications both for the State and for individuals, particularly women who had long been expecting to receive a State retirement pension at 60 … Several Contracting States retained different pension ages for men and women, and a number had chosen to implement a gradual equalisation of those ages … Moreover, the European Community had accepted that its Member States must be allowed a period of transition in which to plan and implement the move to equal ages for men and women in relation to State pensionable age …’

These arguments by the Government evidently persuaded the majority, who expressed the following view in paragraphs 64 and 65 of the judgment:

‘In the light of the original justification for the measure as correcting financial inequality between the sexes, the slowly evolving nature of the change in women's working lives, and in the absence of a common standard amongst the Contracting States … the Court finds that the United Kingdom cannot be criticised for not having started earlier on the road towards a single pensionable age.’

‘Having once begun the move towards equality, moreover, the Court does not consider it unreasonable of the Government to carry out a thorough process of consultation and review, nor can Parliament be condemned for deciding in 1995 to introduce the reform slowly and in stages. Given the extremely far-reaching and serious implications, for women and for the economy in general, these are matters which clearly fall within the State's margin of appreciation.’

These considerations by the Court call for the following observations on my part.

First, I consider that new social legislation, however well-balanced it may be, cannot be invoked under the doctrine of the margin of appreciation as an excuse for not having acted in due time to avoid an instance of discrimination clearly lacking reasonable and objective justification. Moreover it is clear that remedial legislation intended to equalise the position in the future will not do so with sufficient speed as to remedy the position of these applicants (see, mutatis mutandis, Walden v. Liechtenstein (dec.), no. 33916/96, 16 March 2000).

Furthermore, I consider that ‘the absence of a common standard amongst the Contracting States’ (see paragraph 64 of the judgment) and the fact that ‘many of the other Contracting States still maintain a difference in the ages at which men and women become eligible for the State retirement pension’ (see paragraph 63) are of no relevance. I cannot see how the fact that discrimination between men and women regarding pensionable age exists in many other Contracting States could legitimise unjustified discrimination in any particular case brought before the Court. Therefore the majority are, I believe, wrong in invoking such an argument, particularly taking into account that no finding has been made by the Court that in those other Contracting States which maintain the differential treatment of men and women as regards retirement pensions, such treatment is based on the same factual background as the one under examination in the present case. The factual inequalities which ceased to exist in the United Kingdom in or before 1986, and which supported the original justification of discrimination, may still exist in some or all those Contracting Parties. More importantly it should be recalled that because all High Contracting Parties have accepted the obligations of the Convention they have a duty to bring their legal systems into line with the standards of the Convention. The finding of a general failure to do so does not prevent the Court from holding any individual State from being held responsible for a specific violation of the Convention.

Finally, I must state that I do not find the judgment of the European Court of Justice in the present case an obstacle to my approach. That judgment examined the question of discrimination in a different legal context and in any case it is not binding on us.

Given that I consider that there has been a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 in this case, it would normally have been necessary to consider the issues relating to the victim status of the third, fourth and fifth applicants. However, since the majority found no violation I confine myself to stating that I would find a violation of the same Articles in respect of the said applicants, assuming that they could claim to be victims.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 12 April 2006.

Luzius Wildhaber

President

T.L. Early

Deputy to the Registrar

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinions of Mr Borrego-Borrego and Mr L. Loucaides are annexed to this judgment.