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You are here: BAILII >> Databases >> European Court of Human Rights >> BURDEN v. THE UNITED KINGDOM - 13378/05 [2008] ECHR 357 (29 April 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/357.html Cite as: [2008] 2 FLR 787, (2008) 47 EHRR 38, [2008] 18 EG 126, [2008] WTLR 1129, 24 BHRC 709, [2008] STC 1305, 10 ITL Rep 772, [2008] BTC 8099, [2008] ECHR 357, [2008] Fam Law 628, [2008] 2 FCR 244 |
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GRAND CHAMBER
CASE OF BURDEN v. THE UNITED KINGDOM
(Application no. 13378/05)
JUDGMENT
STRASBOURG
29 April 2008
This judgment is final but it may be subject to editorial revision.
In the case of Burden v. the United Kingdom,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Jean-Paul
Costa, President,
Nicolas Bratza,
Boštjan M.
Zupančič,
Françoise Tulkens,
Rıza
Türmen,
Corneliu Bîrsan,
Nina Vajić,
Margarita Tsatsa-Nikolovska,
András Baka,
Mindia
Ugrekhelidze,
Anatoly Kovler,
Elisabeth Steiner,
Javier Borrego Borrego,
Egbert
Myjer,
David Thór Björgvinsson,
Ineta
Ziemele,
Isabelle
Berro-Lefèvre, judges
and Vincent Berger, Jurisconsult.
Having deliberated in private on 12 September 2007 and 5 March 2008,
Delivers the following judgment, which was adopted on the last mentioned date:
PROCEDURE
There appeared before the Court:
(a) for the applicants
Mr D. Pannick QC,
Mr S. Grodzinksi, Counsel,
Ms E. Gedye,
Ms E. Stradling, Solicitors.
(b) for the Government
Ms H. Mulvein, Agent,
Mr J. Crow Counsel,
Mr J. Couchman,
Ms K. Innes,
Mr S. Gocke,
Mr R. Linham, Advisers.
The Court heard addresses by Mr Pannick and Mr Crow, as well as their answers to questions put by Judge Zupančič.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
A. Inheritance tax
B. The Civil Partnership Act 2004
“I have great sympathy with the noble Baroness, Lady O'Caithlin [the Conservative Peer who proposed the amendment], when she talks about siblings who share a home or a carer who looks after a disabled relative. Indeed, she will readily acknowledge that I have put the case several times—at Second Reading and in Grand Committee—and I have pushed the Government very hard to look at this issue. There is an injustice here and it needs to be dealt with, but this is not the Bill in which to do it. This Bill is about same-sex couples whose relationships are completely different from those of siblings.”
During the same debate, Lord Goodhart, Liberal Democrat Peer, stated:
“There is a strongly arguable case for some kind of relief from inheritance tax for family members who have been carers to enable them to continue living in the house where they have carried out their caring duties. But that is a different argument and this is not the place or the time for that argument. This Bill is inappropriate for dealing with that issue.”
During the course of the debate in the Standing Committee of the House of Commons, Jacqui Smith MP, Deputy Minister for Women and Equality, stated:
“As I suggested on Second Reading, we received a clear endorsement of the purpose of the Bill—granting legal recognition to same-sex couples, ensuring that the many thousands of couples living together in long-term committed relationships will be able to ensure that those relationships are no longer invisible in the eyes of the law, with all the difficulties that that invisibility brings.
We heard a widespread agreement from Members across almost all parties that the Civil Partnership Bill is not the place to deal with the concerns of relatives, not because those concerns are not important, but because the Bill is not the appropriate legislative base on which to deal with them.”
C. The Human Rights Act 1998
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
Section 4 of the 1998 Act provides (so far as relevant):
“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. ...
(6) A declaration under this section ... -
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given; and
(b) is not binding on the parties to the proceedings in which it is made.”
Section 6 provides:
“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if -
(a) as a result of one or more provisions of primary legislation, the authority could not have acted any differently; or
(b) in the case of one or more provisions of ... primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. ...”
Section 10 provides:
“(1) This section applies if –
(a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right and, if an appeal lies –
(i) all persons who may appeal have stated in writing that they do not intend to do so; or
(ii) the time for bringing an appeal has expired and no appeal has been brought within that time; or
(iii) an appeal brought within that time has been determined or abandoned; or
(b) it appears to a Minister of the Crown or Her Majesty in Council that, having regard to a finding of the European Court of Human Rights made after the coming into force of this section in proceedings against the United Kingdom, a provision of legislation is incompatible with an obligation of the United Kingdom arising from the Convention.
(2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.”
“we expect that the government and Parliament will in all cases almost certainly be prompted to change the law following a declaration of incompatibility.”
One of the Ministers with responsibility for the Human Rights Act explained to the House of Commons on 21 October 1998 that:
“Our proposals [for remedial orders] safeguard parliamentary procedures and sovereignty, ensure proper supervision of our laws and ensure that we can begin to get the ability both to enforce human rights law and to create a human rights culture. They also ensure that we can do it in the context of not having to worry that if something is decided by the Strasbourg court or by our courts that creates an incompatibility, we do not have a mechanism to deal with it in the quick and efficient way that may be necessary.”
III. RELEVANT COMPARATIVE LAW AND MATERIAL
THE LAW
Article 1 of Protocol No. 1 provides:
“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 control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Article 14 of the Convention provides:
“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.”
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
Article 34 provides:
“The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. ... ”
Article 35 § 1 states:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
A. The applicants' victim status
1. The Chamber's conclusions
2. The parties' submissions
a. The Government
b. The applicants
3. The Grand Chamber's assessment
B. Domestic remedies
1. The Chamber's conclusions
“The Court is very much aware of the subsidiary nature of its role and that the object and purpose underlying the Convention, as set out in Article 1—that rights and freedoms should be secured by the Contracting State within its jurisdiction—would be undermined, along with its own capacity to function, if applicants were not encouraged to pursue the means at their disposal within the State to obtain available redress (see B. and L. v. the United Kingdom (dec.), no. 36536/02, 29 June 2004). The rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention thus obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness (Akdivar and Others v. Turkey, no. 21893/93, §§ 65-67, Reports 1996-IV; Aksoy v. Turkey, no. 21987/93, §§ 51-52, Reports 1996-VI).
The Government argue that the remedy under the Human Rights Act allowing an applicant to seek a declaration from a domestic court that legislation is incompatible with the Convention is sufficiently certain and effective for the purposes of Article 35 § 1. Such a declaration creates a discretionary power in the relevant government minister to take steps to amend the offending provision, either by a remedial order or by introducing a Bill in Parliament.
The Court found in [Hobbs v. the United Kingdom (dec.), no. 63684/00, 18 June 2002] that this remedy was not sufficiently effective, essentially for two reasons: first, because a declaration was not binding on the parties to the proceedings in which it was made; and, secondly, because a declaration provided the appropriate minister with a power, not a duty, to amend the offending legislation by order so as to make it compatible with the Convention. Moreover, the minister concerned could exercise that power only if he considered that there were “compelling reasons” for doing so.
The Court considers that the instant case is distinguishable from Hobbs, where the applicant had already suffered financial loss as a result of the discrimination about which he complained but could not have obtained monetary compensation through the grant of a declaration of incompatibility. It is closer to B. and L., where there had been no financial loss, although those applicants had already been prevented by the impugned legislation from marrying each other. In the present case, as in B. and L., it is arguable that, had a declaration of incompatibility been sought and made, the applicants might have been able to benefit from a future change in the law.
However, it remains the case that there is no legal obligation on the minister to amend a legislative provision which has been found by a court to be incompatible with the Convention. The Court notes that, according to the information provided by the Government, by August 2006 such amendments had occurred in ten out of the thirteen cases where a declaration had been finally issued by the courts, and in the remaining three, reforms were pending or under consideration .... It is possible that at some future date evidence of a long-standing and established practice of ministers giving effect to the courts' declarations of incompatibility might be sufficient to persuade the Court of the effectiveness of the procedure. At the present time, however, there is insufficient material on which to base such a finding.
The Court does not consider that these applicants could have been expected to have exhausted, before bringing their application to Strasbourg, a remedy which is dependent on the discretion of the executive and which the Court has previously found to be ineffective on that ground. It therefore rejects the Government's second objection to admissibility.”
2. The parties' submissions
a. The Government
b. The applicants
3. The Grand Chamber's assessment
C. Conclusion
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1
A. The Chamber's conclusions
“In this regard, the Court recalls its finding in [Shackell v. the United Kingdom (dec.), no. 45851/99, 27 April 2000] that the difference of treatment for the purposes of the grant of social security benefits, between an unmarried applicant who had a long-term relationship with the deceased, and a widow in the same situation, was justified, marriage remaining an institution that was widely accepted as conferring a particular status on those who entered it. The Court decided in Shackell, therefore, that the promotion of marriage by way of the grant of limited benefits for surviving spouses could not be said to exceed the margin of appreciation afforded to the respondent State. In the present case, it accepts the Government's submission that the inheritance tax exemption for married and civil partnership couples likewise pursues a legitimate aim, namely to promote stable, committed heterosexual and homosexual relationships by providing the survivor with a measure of financial security after the death of the spouse or partner. The Convention explicitly protects the right to marry in Article 12, and the Court has held on many occasions that sexual orientation is a concept covered by Article 14 and that differences based on sexual orientation require particularly serious reasons by way of justification (see, for example, Karner v. Austria, no. 40016/98, § 37, ECHR 2003-IX and the cases cited therein). The State cannot be criticised for pursuing, through its taxation system, policies designed to promote marriage; nor can it be criticised for making available the fiscal advantages attendant on marriage to committed homosexual couples.
In assessing whether the means used are proportionate to the aim pursued, and in particular whether it is objectively and reasonably justifiable to deny co-habiting siblings the inheritance tax exemption which is allowed to survivors of marriages and civil partnerships, the Court is mindful both of the legitimacy of the social policy aims underlying the exemption, and the wide margin of appreciation that applies in this field .... Any system of taxation, to be workable, has to use broad categorisations to distinguish between different groups of tax payers (see [Lindsay v. the United Kingdom, no. 11089/84, Commission decision of 11 November 1986, decisions and Reports 49, p. 181]. The implementation of any such scheme must, inevitably, create marginal situations and individual cases of apparent hardship or injustice, and it is primarily for the State to decide how best to strike the balance between raising revenue and pursuing social objectives. The legislature could have granted the inheritance tax concessions on a different basis: in particular, it could have abandoned the concept of marriage or civil partnership as the determinative factor and extended the concession to siblings or other family members who lived together, and/or based the concession on such criteria as the period of cohabitation, the closeness of the blood relationship, the age of the parties or the like. However, the central question under the Convention is not whether different criteria could have been chosen for the grant of an inheritance tax exemption, but whether the scheme actually chosen by the legislature, to treat differently for tax purposes those who were married or who were parties to a civil partnership from other persons living together, even in a long-term settled relationship, exceeded any acceptable margin of appreciation.
In the circumstances of the case, the Court finds that the United Kingdom cannot be said to have exceeded the wide margin of appreciation afforded to it and that the difference of treatment for the purposes of the grant of inheritance tax exemptions was reasonably and objectively justified for the purposes of Article 14 of the Convention. There has accordingly been no violation of the Article, read in conjunction with Article 1 of Protocol No. 1 to the Convention, in the present case.”
B. The parties' submissions
1. The Government
First, the applicants could not claim to be in an analogous situation to a couple created by marriage or civil partnership. The very essence of their relationship was different, because a married or Civil Partnership Act couple chose to become connected by a formal relationship, recognised by law, with a number of legal consequences; whereas for sisters, the relationship was an accident of birth. Secondly, the relationship between siblings was indissoluble, whereas that between married couples and civil partners might be broken. Thirdly, a married couple and civil partners made a financial commitment by entering into a formal relationship recognised by law and, if separated, the court could divide their property and order financial provision to be made by one partner to the other. No such financial commitment arose by virtue of the relationship between siblings.
The special legal status of parties to a marriage had been recognised by the Commission in Lindsay v. the United Kingdom, no. 11089/84, decision of 11 November 1986, Decisions and Reports 49, p. 181, and by the Court in Shackell v. the United Kingdom (dec.), no. 45851/99, 27 April 2000.
The policy underlying the inheritance tax concession given to married couples was to provide the survivor with a measure of financial security, and thus promote marriage. The purpose of the Civil Partnership Act was to provide same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships, and the inheritance tax concession for civil partners served the same legitimate aim as it did in relation to married couples. Given the development of society's attitudes, the same arguments justified the promotion of stable, committed same-sex relationships. That objective would not be served by extending similar benefits to unmarried members of an existing family, such as siblings, whose relationship was already established by their consanguinity, and recognised by law. The difference in treatment thus pursued a legitimate aim.
2. The applicants
C. The third parties' submissions
1. The Government of Belgium
2. The Government of the Republic of Ireland
D. The Grand Chamber's assessment
FOR THESE REASONS, THE COURT
Done in English and in French and delivered at a public hearing in the Human Rights Building, Strasbourg, on 29 April 2008.
Vincent Berger Jean-Paul Costa
Jurisconsult President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following dissenting opinions are annexed to this judgment:
(a) The concurring opinion of Judge Bratza;
(b) The concurring opinion of Judge David Thór Björgvinsson;
(c) The dissenting opinion of Judge Zupančič;
(d) The dissenting opinion of Judge Borrego Borrego.
J-P.C.
V.B.
CONCURRING OPINION OF JUDGE BRATZA
The Grand Chamber has reached the same conclusion as the Chamber but by a somewhat different route. As appears from the judgment (paragraph 47), the Chamber left open the question whether the applicants, as siblings, could claim to be in an analogous position to a married couple or to those in a civil partnership, holding that any difference of treatment was in any event reasonably and objectively justified, regard being had to the wide margin of appreciation enjoyed by States in the area of taxation. The Grand Chamber has preferred to found its decision on the lack of analogy between those who have entered into a legally binding marriage or civil partnership agreement, on the one hand and those, such as the applicants, who are in a long term relationship of co-habitation, on the other.
While I fully share the view of the majority of the Grand Chamber that there has been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, I continue to have a preference for the reasoning of the Chamber in arriving at this conclusion.
CONCURRING OPINION OF
JUDGE DAVID THÓR
BJÖRGVINSSON
I agree with the majority in finding that there has been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. However, I prefer different reasoning.
When Article 14 is applied, in essence two questions must be answered: first, whether there is a difference in treatment of persons in relevantly similar or analogous situations; secondly, if this is the case, whether the difference in treatment is justified.
The majority has in paragraphs 62-65 of the judgment found that cohabiting sisters cannot be compared for the purposes of Article 14 of the Convention to married or civil partnership couples. Therefore they are not in a relevantly similar or analogues situation and no breach of Article 14 has occurred.
The reasoning of the majority, as presented in paragraphs 62-65 of the judgment, is in my view flawed by the fact that it is based on comparison of factors of a different nature and which are not comparable from a logical point of view. It is to a large extent based on reference to the specific legal framework which is applicable to married couples and civil partnership couples but which does not, under the present legislation, apply to the applicants as cohabiting sisters. However, although in the strict sense the complaint only relates to a difference in treatment as concerns inheritance tax, in the wider context it relates, in essence, to the facts that different rules apply and that consanguinity between the applicants prevents them from entering into a legally binding agreement similar to marriage or civil partnership, which would make the legal framework applicable to them, including the relevant provisions of the law on inheritance tax.
I believe that in these circumstances any comparison of the relationship between the applicants, on the one hand, and the relationship between married couples and civil partnership couples, on the other, should be made without specific reference to the different legal framework applicable, and should focus only on the substantive or material differences in the nature of the relationship as such. Despite important differences, mainly as concerns the sexual nature of the relationship between married couples and civil partner couples, when it comes to the decision to live together, closeness of the personal attachment and for most practical purposes of daily life and financial matters, the relationship between the applicants in this case has, in general and for the alleged purposes of the relevant inheritance tax exemptions in particular, more in common with the relationship between
married or civil partnership couples, than there are differences between them. Despite this fact, the law prohibits them from entering into an agreement similar to marriage or civil partnership and thus take advantage of the applicable rules, including the inheritance tax rules. That being so, I am not convinced that the relationship between the applicants as cohabiting sisters cannot be compared with married or civil partner couples for the purposes of Article 14 of the Convention. On the contrary there is in this case a difference in treatment of persons in situations which are, as a matter of fact, to a large extent similar and analogous.
The question then arises whether the difference in treatment is objectively and reasonably justified. In substance I agree with the reasoning offered in paragraphs 59 – 61 of the Chamber judgment on this point, which are cited in paragraph 47 of this judgment, namely that the difference in treatment for the purposes of granting of inheritance tax exemptions was reasonably and objectively justified.
In this regard it should also be borne in mind that the institution of marriage is closely linked to the idea of the family, consisting of a man and a woman and their children, as one of the cornerstones of the social structure in the United Kingdom, as well as in the other Member States of the Council of Europe. On the basis of this assumption, a whole framework of legal rules, of both a private and public nature, has come into existence over a long period of time. These rules relate to the establishment of marriage and mutual rights and obligations between spouses in both personal and financial matters (including inheritance) and in relation to their children, if any, as well as with regard to taxes (including inheritance taxes), social security, and other matters. The applicability of such rules, or similar rules, in many of the Member States have gradually, step by step, and mostly upon the initiative of the legislature in the respective countries, been extended to cover relationships other than those traditionally falling under marriage in the formal legal sense, namely civil partnership couples (including individuals of the same sex), and thereby the legislator has responded to new social realities and changing moral and social values. However, it is important to have in mind that each and every step taken in this direction, positive as it may seem to be from the point of view of equal rights, potentially has important and far reaching consequences for the social structure of society, as well as legal consequences, i.e. for the social security and tax system in the respective countries. It is precisely for this reason that it is not the role of this Court to take the initiative in this matter and impose upon the Member States a duty further to extend the applicability of these rules with no clear view of the consequences that it may have in the different Member States. In my view it must fall within the margin of appreciation of the respondent State to decide when and to what extent this will be done.
DISSENTING OPINION OF
JUDGE ZUPANČIČ
I have voted for a violation in this case for reasons which have little to do with policy and values but have everything to do with formal logic. In other words, the majority's position is logically inconsistent. The simplest way of explaining this is to say that where a person in certain situations has said A, he is logically required to say B. In this case the issue is clearly discrimination concerning the inheritance tax exemption for two unmarried sisters who have lived for many years together in the same household. They, when approaching old age, wanted to have the right to inheritance tax exemption given that the exemption has been granted by the U.K. legislature to other couples living together in the same household.
This brings us straight to the medias res of the tax law. The policies applied to taxation are clearly very important because they give financial incentives to certain choices that people are likely to make. For example, if it were to be a policy of the law-giver to encourage heterosexual marriage it would then be logical for the legislator to offer certain tax credits, advantages, incentives to couples living together irrespective of whether they have children or not. If the legislature wants to encourage childbearing it will give the same traditional tax incentives only to couples living together and having children. If the legislature wishes to discourage divorce, it will premise these advantages on the couples remaining together.
As to the reasonable goals such incentives are intended to further, they may or they may not be disclosed by the law-giver. But even if they are completely disclosed it does not mean that they are completely predictable. These tax incentives act together with many other factors including many other tax incentives and disincentives. In any event, tax policy is an economic policy but it is also a social policy in disguise. For example, progressive taxation is a strongly equalising economic factor undoing many untoward aspects of social stratification.
As for the inheritance tax policy, radical solutions have sometimes been applied. An extremely high inheritance tax, for example, may indicate the law-giver's preference for earned rather than inherited wealth. Be that as it may, the inheritance tax policy is not a simple linear decision-making choice. Rather, it is an integral part of a complex web of economic decisions that heavily influence the distribution of wealth and thus the whole social structure.
Before we move into the question of discrimination, let us point out that discrimination as such simply means making and establishing differences. This meaning also derives from the Latin word discriminare. All decision-making in all three branches of power all the time is about establishing and enforcing different decisions for different situations. In this sense, there is nothing wrong with “discriminating” unless the “specific establishment of differences” pertains to what in constitutional law we call a “suspect class” such as the classes taxatively enumerated in Article 14 of the European Convention on Human Rights. In other words, where gender, race, colour of skin, language, religion, political or other opinion, national or social origin, minority status, property, birth or other status are concerned, discrimination is in principle proscribed. These suspect classes, it is well to point out, are simply an exception to the general rule which permits all kinds of differentiated decision-making for other non-suspect classes. Prohibition of discrimination – enforcing distinction – is thus an exception rather than the rule.
When it comes to the suspect classes this does not mean that the discrimination is categorically forbidden. Rather, it means that within these classes discrimination is permitted through the application of equal protection, proportionality and reasonableness tests. Even within the suspect classes discrimination may be permissible if the goal pursued by the discrimination is sufficiently compelling and if the law or other decision under scrutiny is rationally related to this sufficiently important interest.
It is clear that some of the Article 14 categories, for example, race or national origin, call for the strictest scrutiny test. Under this test, the decision (or the law underlying it) would be upheld only if it was suitably tailored to serve a compelling state interest. When it comes to gender, or illegitimacy of birth, the decision would be presumed invalid under the intermediate test unless substantially related to a sufficiently important interest.
The mildest proportionality (reasonableness) test is applied to social and economic matters such as the one at hand. Here the test inquires whether the legislation at issue is rationally related to a legitimate government interest. The question in other words is whether not giving tax exemption to the two Burden sisters is rationally related to a legitimate government interest.
Of course, it is always possible to say that a government has a legitimate interest in collecting money from taxes paid by the tax payers. The same goes for the inheritance tax payable upon the death of the person whose estate becomes taxable when transferred through inheritance to another person. What is the legitimate government interest behind this kind of taxation?
It is difficult to maintain that there is anything inherently legitimate about taxing the transfer of wealth upon the death of an individual. For example, one might argue that the State adds insult to injury when taxing an estate left to the survivors of a close relationship. In this sense, one might imagine a scale of taxation that would be progressive in positive correlation with the relational distance between the deceased and the surviving relative. But this is just one aspect of inheritance taxation, an example perhaps of how inherently questionable the inheritance taxation is in principle.
When it comes, therefore, to the differentiation between different classes as regards inheritance taxation it is inherently difficult to maintain that the treatment of one class in preference to another class is rationally related to any legitimate government interest. Yet, once we accept inheritance taxation as something normal, the differentiation between different classes for inheritance taxation purposes become decisive.
If the Government has decided not to tax married couples, this is the starting point for the suspicion of discrimination in our case. The Government may reasonably maintain that the close relationship of a couple provides sufficient reason for the tax exemption. Those who are not married, in other words, are then a priori not entitled for the tax exemption. The cut-off criterion is clear.
However, when the Government decides to extend this privilege to other modes of association, this black and white distinction is broken and the door is open for re-consideration of the question whether the denial of the tax advantage to other modes of association is rationally related to a legitimate government interest.
The majority deals with these questions in paragraphs 62-65. In paragraph 62 the majority remarks: “the relationship between siblings is qualitatively of a different nature to that between married couples and homosexual civil partners under the United Kingdom's Civil Partnership Act. The very essence of the connection between siblings is consanguinity, whereas one of the defining characteristics of a marriage or Civil Partnership Act union is that it is forbidden to close family members”. I ask myself, at this point, why would consanguinity be any less important than the relationship between married and civil partners? Of course, the quality of consanguinity is different from sexual relationships but this has no inherent bearing on the proximity of the persons in question.
One could easily reverse the argument and say, for example, that the “consanguine” identical twins are far closer genetically and otherwise since in reality they are clones of one another, than anybody could ever be to anybody else. And yet if the Burden sisters were identical twins they would not be entitled to the same exemption, in counter distinction to even the most ephemeral and fleeting relationship. So, what does the qualitative difference referred to by the majority come to? Is it having sex with one another that provides the rational relationship to a legitimate government interest?
In paragraph 63 the Grand Chamber then expresses the view that marriage confers a special status on those who enter into it. The analysis of paragraph 63 tends to show that the majority does not regard the arguments in paragraph 62 as sufficiently persuasive, i.e. the majority feels that it must add, ex abundante cautela, this “special nature” of marriage as a contract. If the contract is not explicit, the legal consequences do not flow from it. But this argument, too, is specious – even if we do not consider common law marriage as a historical phenomenon in which consensual co-habitation, even under canon law, confers all the rights and duties on the couple concerned. The further reference to different solutions in different Member States being irrelevant – since at least some of them consider co-habitation a factual question with legal consequences equivalent to an explicit marriage – makes it imperative for the majority to resort to the final rescue in saying:
“This view is unaffected by the fact that, as noted in paragraph 26 above, Member States have adopted a variety of different rules of succession as between survivors of a marriage, civil partnership and those in a close family relationship and have similarly adopted different policies as regards the grant of inheritance tax exemptions to the various categories of survivor; States, in principle, remaining free to devise different rules in the field of taxation policy.”
Needless to say, this final reference to margins of appreciation makes all other argumentation superfluous.
The logic “if you say A, you should also say B”, which I referred to at the beginning of this dissenting opinion, is explicitly reiterated in § 53 of Stec v. the United Kingdom:
“If [...] a State does decide to create a benefit [...], it must do so in a manner which is compatible with Article 14 of the Convention (see the admissibility decision in [Stec v. the U.K]., §§ 54-55, ECHR 2005-...).”
A priori, the State is not required to create a benefit, in this case extra-marital tax exemptions. If the state nevertheless does decide to extend the tax exemption to one extra-marital group, it should employ at least a minimum of reasonableness while deciding not to apply the benefit to other groups of people in relationship of similar or closer proximity.
I believe making consanguinity an impediment is simply arbitrary.
DISSENTING OPINION OF
JUDGE BORREGO BORREGO
(Translation)
To my great regret, I cannot agree with the majority's approach, as in my opinion the judgment does not deal with the problem raised by this case.
1. The complaint
The complaint arises from the fact that the applicants are not entitled to inheritance tax exemption. They are two sisters who have “lived together, in a stable, committed and mutually supportive relationship, all their lives” (paragraph 10) and are unable to enter into a civil partnership, being legally prevented from doing so by the Civil Partnership Act 2004, under which the exemption may be claimed only by the homosexual couples contemplated therein (Article 1 of Protocol No. 1, taken together with Article 14 of the Convention).
2. The Chamber's judgment (or the true judicial response to a complaint)
“[T]he inheritance tax exemption for married and civil partnership couples ... pursues a legitimate aim”. After examining that aim the Chamber, in accordance with the Court's case-law, went on to assess “whether the means used [were] proportionate to the aim pursued”. The majority of the Chamber took the view that “the United Kingdom cannot be said to have exceeded the wide margin of appreciation afforded to it and that the difference of treatment for the purposes of the grant of inheritance tax exemptions was reasonably and objectively justified for the purposes of Article 14 of the Convention” (paragraph 61 of the judgment).
The Chamber's judgment was adopted by four judges; three judges expressed their disagreement in two dissenting opinions. In the first of those opinions Judges Bonello and Garlicki said: “The majority seems to agree that there has been a marginal situation or an individual case 'of apparent hardship or injustice' (paragraph 60) in respect of the applicants. What seems to us, however, to be missing in the majority's position is a full explanation as to why and how such injustice can be justified. A mere reference to the margin of appreciation is not enough.” The second dissenting opinion, that of Judge Pavlovschi, follows the same general line.
3. The approach followed by the majority of the Grand Chamber
The United Kingdom authorities (paragraphs 19 and 20) and the Chamber's judgment expressly and explicitly recognise the injustice due to the lack of provision for inheritance tax exemption in the case of close
relations, like the applicants. That circumstance is completely ignored in the Grand Chamber's judgment.
The question of the State's margin of appreciation and its limits, which is at the heart of the case and was dealt with as such in the Chamber's judgment, has completely disappeared from the Grand Chamber's judgment.
The majority of the Grand Chamber assert that there are two differences between the applicants' relationship and that between two civil partners, the first being the sisters' consanguinity and the second the legally binding nature of a civil partnership. The majority accordingly consider that since the two situations are not comparable there has been no discrimination.
But who has disputed the existence of a relation of consanguinity between two sisters or the legal status of a civil partnership? No-one. These are two facts over which there is no disagreement. Trying to ground a case on undisputed facts is the best example there can be of a circular, or I might even say concentric, argument.
The parties before the Court, the Chamber which first heard the case, the panel of five judges, I myself and, I would think, all those who have taken an interest in the case consider that the “serious question affecting the interpretation ... of the Convention” (Article 43 § 2 of the Convention) on which the Grand Chamber was required to rule in the present case is a very simple one: it is whether or not granting inheritance tax exemption to same-sex couples in a civil partnership but not to the applicant sisters, who are also a same-sex couple, is a measure proportionate to the legitimate aim pursued.
In my opinion, by declining to give a reply to the complaint before the Court the majority of the Grand Chamber have disregarded a Grand Chamber precedent expressed in the following terms: “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” (Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, 6 July 2006, § 55 in fine).
This judgment of the Grand Chamber will no doubt be described as politically correct. I consider nevertheless that it has not been rendered in accordance with Article 43 of the Convention, because the Grand Chamber, instead of trying to explain the difference in treatment for tax purposes between the two types of couple mentioned, preferred not to give reasons and restricted itself to a description of the facts, saying for example that two sisters are linked by consanguinity or that a civil partnership has legal consequences. The fact that the Grand Chamber did not give a reply to the applicants, two elderly ladies, fills me with shame, because they deserved a different approach. I would like to close by quoting Horace, who wrote in Ars Poetica: “parturient montes, nascetur ridiculus mus”.