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FIFTH
SECTION
CASE OF
ANDRLE v. THE CZECH REPUBLIC
(Application
no. 6268/08)
JUDGMENT
STRASBOURG
17
February 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision
In the case of Andrle v. the Czech Republic,
The
European Court of Human Rights (Fifth Section), sitting as a
Chamber composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Renate
Jaeger,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
Ganna
Yudkivska,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 9 November 2010 and 25 January 2011,
Delivers
the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
- The
case originated in an application (no. 6268/08) against the Czech
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Czech national, Mr Augustin Andrle (“the
applicant”), on 28 January
2008.
- The
applicant was represented by Mr J. Lipavský, a lawyer
practising in Hradec Králové. The Czech Government
(“the Government”) were represented by their Agent, Mr
V.A. Schorm, from the Ministry of Justice.
- The
applicant alleged that he was discriminated against in the enjoyment
of his right to protection of property on account of his sex. The
applicant complained, specifically, that the pension scheme which
established a different pensionable age for women caring for children
compared to men in the same position did not pursue any legitimate
aim, in breach of Article 14 of the Convention taken in conjunction
with Article 1 of
Protocol No. 1.
- On
28 August 2009 the Court decided to give notice of the application to
the Government, inviting them to comment on the applicant’s
complaints under Article 14 of the Convention taken in conjunction
with Article 1 of Protocol No. 1. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant is a Czech national born in 1946 who
lives in Vysoké Mýto (the Czech Republic).
- The applicant was married from 1971 until 1998, when he
divorced. On 28 May 1998 the applicant applied for custody of two of
his four children, born in 1982 and 1985, maintaining that since
August 1997 he and his wife had not lived together and that he cared
for the two minor children himself.
In a
judgment of 16 July 1998 the Ústí nad Orlicí
District Court awarded the applicant custody of the two children.
- On 14 November 2003 the Czech Social Security
Administration (Česká správa sociálního
zabezpečení) dismissed an application by the
applicant for a retirement pension as he had not attained the
pensionable age required by section 32 of the Pension Insurance Act,
which was, in his case, sixty-one years and ten months.
- The
applicant challenged the administrative decision before the Hradec
Králové Regional Court (Krajský soud),
arguing that given the fact that he had cared for two children, he
was entitled to retire at the age of fifty-seven and had therefore
reached the pensionable age.
- On
1 December 2004 the Regional Court stayed the proceedings in the
applicant’s case pending the outcome of the proceedings before
the Constitutional Court (Ústavní soud), which
was called upon to review the constitutionality of section 32 of the
Pension Insurance Act in another case (no. Pl. ÚS 53/2004)
brought before it by the Supreme Administrative Court (Nejvyšší
správní soud). The Hradec Králové
Regional Court joined the proceedings in that case as an intervening
party.
- In
judgment no. Pl. ÚS 53/2004 of 16 October 2007 the
Constitutional Court dismissed the Supreme Administrative Court’s
petition to repeal section 32 of the Pension Insurance Act, finding
that it was not discriminatory and was therefore compatible with
Article 1 and Article 3
§ 1, in conjunction with Article 30 § 1, of the
Charter of Fundamental Rights and Freedoms.
- On
12 December 2007 the Regional Court dismissed the applicant’s
action, referring to the Constitutional Court’s judgment no.
Pl. ÚS 53/2004.
- By
a judgment of 13 June 2008 the Supreme Administrative Court dismissed
a cassation appeal by the applicant, relying on the aforesaid
judgment of the Constitutional Court.
- Subsequently,
the applicant lodged a constitutional appeal in which he alleged,
inter alia, a violation of Article 14 of the Convention and
Article 1 of Protocol No. 1.
- On
30 October 2008 the Constitutional Court rejected the constitutional
appeal as manifestly ill-founded, emphasising, in particular, the
discretion afforded to the legislature to implement preferential
treatment, the objective and reasonable aim pursued by this
preferential treatment of women and the relationship of
proportionality between the means employed and the aim pursued.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Charter of Fundamental Rights and Freedoms
(Constitutional Act no. 2/1993)
- Article
1 provides that all people are free with equal dignity and equal
rights. Their fundamental rights and freedoms are inherent,
inalienable, imprescriptible, and not subject to repeal.
- Under
Article 3 everyone is guaranteed the enjoyment of his or her
fundamental rights and basic freedoms without regard to gender, race,
colour of skin, language, faith and religion, political or other
conviction, national or social origin, membership of a national or
ethnic minority, property, birth, or other status.
- Article
30 provides that citizens have the right to adequate material
security in old age and during periods of incapacity to work, as well
as in the case of the loss of their household provider.
B. Development of the State pension schemes in the
territory of the Czech Republic, with special regard to the State
pensionable age
- Differentiated
age limits for men and women for entitlement to State retirement
pensions were first introduced by the Social Security Act
(no. 55/1956), which became effective on 1 January 1957.
In general, the pensionable age for men was set at sixty years, while
for women it was set at fifty-five years.
- The Social Security Act (no. 101/1964), effective from
1 July 1964, specified differentials in female pensionable age based
on the number of children women raised. The explanatory report on the
bill noted the following:
“This differentiated age limit for acquiring the
right to retire reflects the different situation in the lives of
mothers who, when they took care of children, also carried out duties
in the family in addition to their employment duties.”
- The
State Pension Insurance Act (no. 155/1995), effective since 1 January
1996, provides for the basic State pension insurance coverage, laying
down the conditions for eligibility for pensions, including
retirement pensions, and the methods for calculating and paying out
pensions. The pension scheme works on the pay-as-you-earn principle,
whereby employees pay contributions from their income, which serve
the purpose of financing pensions for today’s pensioners from
the national budget. Male and female earners are obliged to pay the
same social-security contributions in accordance with their status as
employed earners or self-employed earners.
- At the relevant time, section 32(1) of the State
Pension Insurance Act provided as follows:
“(1) The
pensionable age is
(a) for men, 60
years,
(b) for women:
1. 53 years
provided they have raised at least five children,
2. 54 years
provided they have raised three or four children,
3. 55 years
provided they have raised two children,
4. 56 years
provided they have raised one child, or
5. 57 years,
if the insured persons had attained that age by 31
December 1995.”
Section
32(2) provided that for insured persons who reached the
above mentioned age limits between 1
January 1996 and 31 December 2006 the pensionable age was to be
gradually raised by two months for men and four months for women for
each calendar year, even incomplete, between 31 December 1995
and the date of reaching the above-mentioned age limits.
Section
32(4) provided at the relevant time:
“(4) The
requirement for a woman to raise children in order to become entitled
to an [earlier] State retirement pension has been satisfied if the
woman personally takes care, or has taken care, of children for at
least ten years before the children reach the age of majority.
However, if a woman starts to raise a child after the child has
reached the age of eight years, the requirement of raising children
has been met if the woman personally takes care, or has taken care,
of the child for at least five years before the child reaches the age
of majority; however, the foregoing shall not apply if the woman
stopped taking care of the child before the child reached the age of
majority.”
- According to the Government’s submissions, women
are called upon to prove that they have raised children for the
statutory period by completing a statutory declaration appended to
their application for the retirement pension.
- Owing to complex demographic changes, the State
pensionable age for all persons has thus been gradually rising. Since
2003 the Government have made efforts to push through two amendments
of the State Pension Insurance Act envisaging a gradual equalisation
of men’s and women’s retirement age regardless of the
number of children raised. However, owing to difficult political
negotiations with certain political parties and trade unions, the
only possible solution was to reach a compromise.
- As a result, the amended Act no. 155/1995, effective
from 1 January 2010,
provides in section 32 as follows:
“(1) The
pensionable age is
(a) for men, 60
years,
(b) for women:
1. 53 years
provided they have raised at least five children,
2. 54 years
provided they have raised three or four children,
3. 55 years
provided they have raised two children,
4. 56 years
provided they have raised one child, or
5. 57 years,
in the case of insured persons born before 1936.
(2) For insured
persons born after 1936 and before 1968 the pensionable age is
determined according to the table annexed to this Act, which
calculates the increased pensionable ages by adding extra months.
(3) For insured
persons born after 1968 the pensionable age is
(a) for men, 65
years,
(b) for women:
1. 62 years
provided they have raised at least four children,
2. 63 years
provided they have raised three children,
3. 64 years
provided they have raised two children, or
4. 65 years.”
C. Constitutional Court judgment no. Pl. ÚS
53/2004 of 16 October
2007
- By
this judgment, the Plenary of the Constitutional Court rejected the
Supreme Administrative Court’s petition for the repeal of
section 32 of the Pension Insurance Act. It held that a
particular legal framework which gave an advantage to one group or
category of persons compared to another could not in itself be said
to violate the principle of equality, and that the legislature had
discretion to implement preferential treatment. The approach at stake
was based on objective and reasonable grounds and pursued a
legitimate aim. The court came to the conclusion that the proposed
repeal would be contrary to the principles of legal certainty and
minimal restrictions on human rights as women would lose preferential
treatment whereas men would not receive the same benefits. Therefore,
the solution to the unequal treatment of men and women required a
complex and prudent adjustment of the whole pension scheme.
In
its observations to the Constitutional Court the Ministry of Labour
and Social Affairs submitted that among the European Union Member
States a similar provision was effective for a temporary period only
in Slovakia and to a limited extent in Slovenia.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that he was discriminated against in the
enjoyment of his property rights on account of his sex. In
particular, he alleged that the pension scheme, which established a
different pensionable age for women caring for children and for men
in the same position, did not pursue any legitimate aim.
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.”
Article
1 of Protocol No. 1 provides:
“1. 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.
2. 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.”
A. Admissibility
- The
Court reiterates that Article 14 complements the other substantive
provisions of the Convention and the Protocols. It has no independent
existence since it has effect solely with regard to “the
enjoyment of the rights and freedoms” safeguarded by those
provisions (see, amongst many authorities, Şahin v. Germany
[GC], no. 30943/96, § 85, ECHR 2003-VIII). The application of
Article 14 does not necessarily presuppose the violation of one of
the substantive rights guaranteed by the Convention. It is necessary
but it is also sufficient for the facts of the case to fall “within
the ambit” of one or more of the Convention Articles (see,
among other authorities, Gaygusuz v. Austria, § 36, 16
September 1996, Reports of Judgments and Decisions 1996-IV,
and E.B. v. France [GC], no. 43546/02, § 47, ECHR
2008 ... and references therein).
- The
prohibition of discrimination in Article 14 thus extends beyond the
enjoyment of the rights and freedoms which the Convention and
Protocols require each State to guarantee. It applies also to those
additional rights, falling within the general scope of any Convention
article, for which the State has voluntarily decided to provide (see
Stec and Others v. the United Kingdom
(dec.) [GC], nos. 65731/01 and 65900/01, § 40, ECHR 2005 X).
- If
a Contracting State has legislation in force 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 (ibid., § 54).
- In
cases, such as the present, concerning a complaint under Article 14
in conjunction with Article 1 of Protocol No. 1 that the applicant
has been denied all or part of a particular benefit on a
discriminatory ground covered by Article 14, the relevant test is
whether, but for the condition of entitlement about which the
applicant complains, he or she would have had a right, enforceable
under domestic law, to receive the benefit in question. 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. (ibid., § 55).
- It
follows that the applicant’s interests fall within the scope of
Article 1 of Protocol No. 1 and of the right to property which it
guarantees. This is sufficient to render Article 14 applicable in
this case.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention and that it
is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
- As
the applicant did not submit his observations within the given
time-limit, they have not been included in the case file.
(b) The Government
- The
Government admitted that the applicant had been subjected to
different treatment from a woman in a similar situation who had
raised one or two children. In their view, however, such a difference
in treatment had an objective and reasonable justification.
- In this connection, the Government pointed out that
the Social Security Act (no. 101/1964), which introduced a
differentiated pensionable age depending on the number of children
women had raised (see paragraph 19 above), reflected the
economic and social situation in the then socialist Czechoslovakia.
Firstly, the extensive development of the economy necessitated the
full involvement of women in the labour process. Secondly, under the
Communist regime, women were primarily responsible for the
functioning of families and almost entirely responsible for children.
In that period, the foundations for the family model (persisting
until the present time) were laid; under that model, women were
expected to work on a full time basis and at the same time to
take care of children and the household. As a result of the
combination of those two factors, mothers found themselves under an
enormous burden. At the same time, the then legislature took into
account the biological perspective because the child-raising
requirement set forth in the Act implied from the outset not only the
care of the child but also pregnancy, childbirth, breastfeeding and
so on.
- Against
this background, the Government admitted that the measure consisting
in the lowering of the pensionable age for women according to the
number of children raised had not been introduced to protect or
reward parents for raising children, but served as a protective
measure compensating for the factual inequality in which women in
their capacity as mothers found themselves in comparison with men. It
thus aimed to rectify the inequalities between the social roles of
the two sexes in the family and to redress the imbalance created by
maternity, which would always constitute a certain disadvantage for
mothers in the labour market. Since those disadvantages stemmed from
the biological differences between women and men, the Government
submitted that the measure challenged by the applicant appeared to be
objectively and reasonably justified for the purposes of Article 14
of the Convention.
- Furthermore,
the Government submitted that, unlike biological factors, social
factors were subject to change. Therefore, the differentiated
pensionable age for women depending on the number of children raised
would continue to be justified until social conditions changed enough
for women to cease to be disadvantaged as a consequence of the
existing family model.
- Because
changes in the organisation of family life were evolving only very
slowly in the Czech Republic, the Government believed that, as in the
case of Stec and
Others v. the United Kingdom ([GC], no. 65731/01, ECHR 2006 VI),
it would be difficult to specify the moment from which this
unfairness to men (caused by the lowering of the State pensionable
age depending on the number of children raised only in the case of
women) prevailed over the need to remedy the disadvantaged position
of women. Also, the Constitutional Court had held in its judgment no.
Pl. ÚS 53/2004 that the elimination of inequalities between
men and women in the State pension insurance scheme should fully
reflect the development of the situation in society.
- With
regard to the exact timing and method for rectifying the inequality,
the Government stated that amendments to Act no. 155/1995, regulating
the State pension insurance scheme, had introduced the gradual
raising of the existing pensionable ages as one of the key measures
of pension reform. Another objective of the subsequent measures was
the equalisation of the State pensionable age for men and women,
regardless of the number of children raised.
- The Government asserted that the current measures were
only temporary solutions, part of the long-term fundamental reform of
the whole State pension system. Two other approaches would be far
more difficult than this method of taking gradual steps. An instant
abolition of the lowering of women’s State pensionable age in
relation to the number of children raised would have been socially
insensitive, contrary to the principle of foreseeability of the law
and therefore entirely unacceptable both politically and socially.
The lowering of the male pensionable age in relation to the number of
children raised would lead to a considerable increase in the
expenditure of the Czech Social Security Administration and to an
unavoidable increase in the caseload of the courts, which would have
to devise a very complicated system for checking which of the parents
actually took care of children and was therefore eligible for the
lowered retirement age. This method would have meant a step back in
pension reform overall, which, in fact, envisaged a considerable
increase in the State pensionable age for everyone.
- So
far, the Government had succeeded in pushing through proposals for
the gradual equalisation of the State pensionable age for men and
women in general. For this purpose the pensionable age for women was
currently growing twice as fast as that for men. The upper limit had
been set, for the time being, at sixty-five years for men and women.
- As early as 2003, the Government had tried to abolish,
on a step-by-step basis, the lowering of the women’s State
pensionable age in relation to the number of children raised, but
having regard to the negative opinions of organisations representing
both employees and employers (see paragraph 23 above), they had
abandoned that intention for the time being in the interest of
maintaining lasting social stability. Later, in 2007, they had not
succeeded in pushing through a similar proposal to its full extent,
so for the time being the lowering of the State pensionable age in
relation to the number of children raised had been abolished only for
women born after 1968 who had raised one child (see paragraph
24 in fine above).
43. The
Government also drew attention to further attempts to gradually
remove gender-based differentials from the State pension insurance
scheme, such as entitlement to bereavement benefits for men and women
taking into account care for children, parental leave and parental
allowance.
44. The
Government lastly noted that the Court, in the case of
Stec and Others (judgment, cited above), had refused
to blame the United Kingdom government for the lengthy process of
consultation and review and the national parliament’s decision
to introduce reform slowly and in stages. The Czech Government
believed that the employers’ and employees’
representatives’ negative view of the proposal to abolish the
lowering of women’s State pensionable age in relation to the
number of children raised reflected, inter alia, evidence
brought to light by surveys and statistical data, which indicated
that, in the Czech Republic, a traditional family model still
prevailed.
- In
the light of the above considerations, the Government concluded that
the decisions on the exact timing and method for rectifying the
inequality were not so “manifestly unreasonable” as to
exceed the wide margin of appreciation enjoyed by States in the
formation of their economic and social policies.
2. The Court’s assessment
(a) General principles
- The
applicant complained of a difference in treatment on the basis of
sex, which falls within the non-exhaustive list of prohibited grounds
of discrimination in Article 14.
- The
Court’s case-law establishes that discrimination means treating
differently, without an objective and reasonable justification,
persons in relevantly similar situations (see Willis v. the United
Kingdom, no. 36042/97, § 48, ECHR 2002-IV). However,
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 (see Ünal Tekeli v.
Turkey, no. 29865/96, § 49, ECHR 2004-X).
- Article
14 does not prohibit a member State from treating groups differently
in order to correct “factual inequalities” between them;
indeed in certain circumstances a failure to attempt to correct
inequality through different treatment may in itself give rise to a
breach of the Article (see Thlimmenos v. Greece [GC], no.
34369/97, § 44, ECHR 2000-IV; Stec and Others,
judgment cited above, § 51; and
D.H. and Others v. the Czech Republic [GC],
no. 57325/00, § 175, ECHR 2007-XII, with further references). A
difference in treatment is, however, discriminatory if it has no
objective and reasonable justification, in other words, if it does
not pursue a legitimate aim or if there is not a reasonable
relationship of proportionality between the means employed and the
aim sought to be realised. The Contracting State enjoys a margin of
appreciation in assessing whether and to what extent differences in
otherwise similar situations justify different treatment (see Van
Raalte v. the Netherlands, 21 February 1997, § 39,
Reports 1997-I).
- The scope of this margin will vary according to
circumstances, subject matter and background (see Petrovic v.
Austria, 27 March 1998, § 38, Reports 1998-II).
In this respect, one of the relevant factors may be the existence or
non-existence of common ground between the laws of the Contracting
States (see Rasmussen v. Denmark, 28 November 1984, § 40,
Series A no. 87). As a general rule, very weighty reasons would have
to be put forward before the Court could regard a difference in
treatment based exclusively on the ground of sex as compatible with
the Convention (see Stec and Others, judgment cited above, §
52, and Willis, cited above, § 39). This principle
is strengthened by the efforts for advancement of the equality of the
sexes which is today a major goal in the member States of the Council
of Europe (see Konstantin Markin v. Russia, no. 30078/06, §
47, 7 October 2010 (not final, subject to Article 44 § 2 of
the Convention), and Ünal Tekeli, cited above, §
59).
- On
the other hand, a wide margin is usually allowed to the State under
the Convention when it comes to general measures of economic or
social strategy. Because of their direct knowledge of their society
and its needs, the national authorities are, in principle, better
placed than the international judge to appreciate what is in the
public interest on social or economic grounds, and the Court will
generally respect the State’s policy choice unless it is
“manifestly without reasonable foundation” (see
National & Provincial Building Society, Leeds Permanent
Building Society and Yorkshire Building Society v. the United
Kingdom, 23 October 1997, § 80, Reports
1997-VII, and Stec and Others, judgment cited above, §
52).
- Indeed the pension systems constitute cornerstones of
modern European welfare systems. They are founded on the principle of
long-term contributions and the subsequent entitlement to a pension
guaranteed, at least to a certain extent, by the State. Unlike other
welfare benefits, every member of society is eligible to draw this
benefit after reaching the pensionable age. The inherent features of
the system – stability and reliability – allow for
lifelong family and career planning. For these reasons the Court
considers that any adjustments of the pension schemes must be carried
out in a gradual, cautious and measured manner. Any other approach
could endanger social peace, foreseeability of the pension system and
legal certainty.
(b) Application of these principles to the
present case
- Both parties agreed that the application concerned the
lowering of the pensionable age for women who took care of children
but not for men in the same situation, and not the different
pensionable age between men and women born before 1969 in general.
The applicant, arguing that he had cared himself for his children
born in 1982 and 1985, from at least 1997 until they had reached the
age of majority, applied for a retirement pension in 2003, at the age
of fifty-seven. His request was dismissed as he had not attained the
pensionable age required for men, which could not be lowered
according to the number of children raised (see paragraphs 6 and 7
above).
- Acknowledging
that, in the former Czechoslovakia, the more favourable treatment of
women who raised children was originally designed to compensate for
the factual inequality and hardship arising out of the combination of
the traditional mothering role of women and the social expectation of
their involvement in work on a full-time basis, the Court considers
that this measure pursued a legitimate aim.
- It
remains to be examined whether or not the underlying difference in
treatment between men and women in the State pension scheme is
acceptable under Article 14, that is, whether there was a reasonable
relationship of proportionality between the means employed and the
aim sought to be realised.
- The
Court cannot overlook the fact that the measure at stake is rooted in
specific historical circumstances. The means employed in 1964
reflected the realities of the then socialist Czechoslovakia, where
women were responsible for childcare and the related care of the
household while being under pressure to work full time (see paragraph
19 and 35 above). The amount of salaries and pensions awarded to
women was also generally lower in comparison with those awarded to
men.
- Although
this family model inevitably shaped recent families, in today’s
society the child-bearing and child-rearing roles may no longer
overlap to such a great extent. Indeed, the efforts by the respondent
State to modify the pension scheme, whether successful or not, are
intended to react to these and much wider social and demographic
developments. Yet it is difficult to pinpoint any particular moment
when the unfairness to men begins to outweigh the need to correct the
disadvantaged position of women by means of affirmative action. The
reluctance of certain political parties and trade unions to support
the equalisation of the pension scheme may be indicative in this
regard (see paragraph 23 above). The Court cannot but reiterate that
the national authorities are better placed than an international
judge to determine such a complex issue relating to economic and
social policies, which depends on manifold domestic variables and
direct knowledge of the society concerned, and that they have to
enjoy a wide margin of appreciation in this sphere.
- The Court notes that the Czech Government have already
made the first concrete move towards equalisation of the retirement
age, since in the amendment of Act no. 155/1995, effective from 1
January 2010, they repealed the lowered pensionable age for women
born after 1968 who had raised one child (see paragraph 24 in fine
above). As a consequence the pensionable age is the same for
women born after 1968 who have raised no children or one child as the
pensionable age for men born after 1968. Women who have raised two or
more children continue to have their pensionable age lowered.
Nonetheless, the pension reform seems to be heading towards an
overall increase in the pensionable age, taking no account of the
number of children raised by either women or men (see paragraphs 40-42
above).
- The
Court acknowledges that owing to the difficult political
negotiations, the resulting change in the Czech pension scheme is
limited. However, the demographic shifts and changes in perceptions
of the roles of the sexes are by their nature gradual and, after
forty-five years of the existence of the measure at stake, it is
necessary to time the amendment accordingly. Therefore, the State
cannot be criticised for progressively modifying its pension system
to reflect these gradual changes (see also paragraph 51 above) and
for not having pushed for complete equalisation at a faster pace.
Indeed, the respondent Government have to choose from among different
methods of equalising the retirement age. This task is even more
demanding and deserves well-thought-out solutions since the State has
to place this reform in the wider context of other demographic
shifts, such as the ageing of the population or migration, which also
warrant adjustment of the welfare system, while preserving the
foreseeability of this system for the persons concerned who are
obliged to contribute to it.
- The
present case must therefore be distinguished from the issue of
discrimination in the field of parental leave (see Konstantin
Markin, cited above, not final). In the Konstantin Markin case
the Court held that the traditional perception of women as primary
child-carers could not provide sufficient justification for the
exclusion of the father from the entitlement to take parental leave
from now on and for the future (ibid., § 49) and found a
violation of Article 14 in conjunction with Article 8. However,
unlike the pension scheme, parental leave is a short-term measure
which does not affect the entire lives of members of society. It is
related to today’s life of those concerned whereas the pension
age reflects and compensates for inequalities of former times. In the
Court’s opinion, the amendments of the parental leave system
referred to in the case of Konstantin Markin do not
involve changes to the subtle balance of the pension system, do not
have serious financial ramifications and do not alter long-term
planning, as might be the case with the pension system, which forms a
part of national economic and social strategies.
- To
conclude, the Court finds that the original aim of the differentiated
pensionable ages based on the number of children women raised was to
compensate for the factual inequality between men and women. In the
light of the specific circumstances of the case, this approach
continues to be reasonably and objectively justified on this ground
until social and economic changes remove the need for special
treatment for women. In view of the time-demanding pension reform
which is still ongoing in the Czech Republic, the Court is not
convinced that the timing and the extent of the measures undertaken
by the Czech authorities to rectify the inequality in question have
been so manifestly unreasonable as to exceed the wide margin of
appreciation allowed in such a field (see Stec and Others,
judgment cited above, § 66).
- In
these circumstances the Court finds that the Czech Republic cannot be
criticised for having failed to ensure, in the present case,
a reasonable relationship of proportionality between the
impugned difference in treatment and the legitimate aim pursued.
There
has therefore been no violation of Article 14 of the Convention taken
in conjunction with Article 1 of Protocol No. 1.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 14 of the Convention taken in conjunction with Article 1 of
Protocol No. 1.
Done in English, and notified in writing on 17 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
