EHRM, 31-03-2009, nr. 44399/05

The Government submitted that the Contracting States enjoy a wide margin of appreciation in respect of welfare policy. Moreover, they pointed out that there was a substantial diversity of social security schemes in the Member States of the Council of Europe, particularly in the regulation of maternity allowances.

The Government maintained that the aim of maternity allowances was primarily to facilitate the development of the foetus and for the mother to maintain a healthy life. Had it only been pecuniary assistance, it would have been sufficient to connect such a grant to the birth of the child. This was not the case, since future mothers had to participate in courses on parental care regularly in order to be entitled to the allowance. It is true that in the absence of natural parents, as a subsidiary rule, guardians may be entitled to the allowance, but this special requirement was not met in the present circumstances.

Moreover, the Government drew attention to the fact that the mother in the present case had only obtained authorisation to reside in Hungary, but not a settlement permit since she most probably did not fulfil the requirements of the latter at the material time. Exclusion from the benefit served the purpose of reducing the number of marriages of convenience and establishing a verifiable allowance system. By acting in this way, the Hungarian State did not overstep the limits of its margin of appreciation.

Lastly, the Government underlined that from 1 January 2008 onwards all citizens of the European Union residing in Hungary for more than three months are entitled to a maternity allowance under the same conditions as Hungarian citizens. In sum, the Government were of the view that the exclusion of the natural father from the benefit was not an unjustifiable difference in treatment.

The applicants submitted that the maternity benefit — although its name was misleading — did not aim at reducing the hardship of giving birth but at promoting the social security of families and diminishing the financial burdens ensuing from bringing up children, since not only mothers but adoptive parents and guardians were entitled to it. In their view, the primarily financial character of the allowance was also supported by the fact that it could only be claimed within 180 days of the birth.

The applicants drew attention to the fact that the benefit was payable after birth when the responsibilities of the father and mother concerning the child became equal. The first applicant's exclusion from the benefit therefore constituted an unjustifiable difference in treatment on the ground of his parental status.

The applicants also submitted that section 29 of the Act was in itself discriminatory against all fathers, taking into consideration Article 5 of Protocol No. 7 to the Convention, since men with foreign spouses were treated less favourably in the enjoyment of the benefit than those with Hungarian wives. The applicants also maintained that any reluctance on the part of the mother to participate in the obligatory courses on parental care may justify different treatment in respect of her alone, but not in respect of the father, who may have shown that he cared for the unborn child in many other ways. In any event, the applicant's wife attended the parental care courses, accompanied and assisted by the first applicant. Therefore the aim of protecting the foetus could not serve as a basis for the refusal to grant the allowance in the present case.

Moreover, the applicants were of the view that the argument of Government concerning the legitimate aim of protecting the system of social welfare from abuse by immigrants was irrelevant, since all three of them have Hungarian citizenship. They drew attention to the fact, in this connection, that the mother had four children from her previous marriage and that the first applicant could claim, since the couple were also raising these children together, various social allowances on their behalf. The Hungarian State did not raise the issue of abuse concerning those benefits; therefore it was illogical to use this argument in connection with maternity benefit, the amount of which was in any event rather small.

The applicants also pointed out that, although it is true that the Member States enjoy a certain margin of appreciation when regulating such matters, the equality of the sexes is a major goal of Council of Europe. Therefore, there must be a compelling reason advanced before a difference in treatment on grounds of sex could be regarded as being compatible with the Convention. In their view, the Government had failed to put forward such an argument.

Lastly, they argued that the exclusion of the second and third applicants from the benefit, although both of them were Hungarian nationals by birth, on account of their mother's foreign nationality constituted an unjustified difference in treatment compared with other Hungarian children. In sum, they concluded that they had suffered discrimination in breach of Article 14 read in conjunction with Article 8 of the Convention.

As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded thereby. Although the application of Article 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 at issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, judgment of 21 February 1997, § 33, Reports of Judgments and Decisions 1997-I, and Petrovic v. Austria, judgment of 27 March 1998, Reports 1998-II, § 22).

The Court has also held that not every difference in treatment will amount to a violation of Article 14. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory (Unal Tekeli v. Turkey, no. 29865/96, § 49, 16 November 2004). A difference in treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the principles which normally prevail in democratic societies. A difference in treatment in the exercise of a right laid down by the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’ (see, for example, Petrovic, cited above, § 30, and Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, § 177).

The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (Gaygusuz v. Austria, judgment of 16 September 1996, Reports 1996-IV, § 42). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background (see Rasmussen v. Denmark, judgment of 28 November 1984, Series A no. 87, § 40, and Inze v. Austria, judgment of 28 October 1987, Series A no. 126, § 41), but the final decision as to observance of the Convention's requirements rests with the Court. Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see Unal Tekeli, judgment cited above, § 54, and, mutatis mutandis, Stafford v. the United Kingdom [GC], no. 46295/99, § 68, ECHR 2002-IV).