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THE FACTS

The applicant is a French national who was born in 1957 and lives in Coulouvray (Manche). She is a regular warrant officer in the Air Force.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a regular member of the armed forces and has been married to one of her colleagues since 28 August 1980. Since joining the army she has received an “unmarried person’s” service allowance which is designed to compensate for the unique requirements that service life imposes on military personnel.

After she married she requested her service allowance to be re-calculated at the higher “head of the family” rate paid to her husband. She relied on the Costa judgment of 15 November 1991 in which the Conseil d’Etat had declared obsolete the reference to the notion of head of the family in the light of the provisions of the Parental Authority Act of 4 June 1970. This judgment had had the effect of making servicewomen married to servicemen eligible for the “head of the family” service allowance instead of the “unmarried person’s” service allowance for the same family situation.

Relying on that case-law authority, the applicant asked the military authorities to bring her service allowance into line with the higher allowance paid to her husband. Her request was refused.

On 19 December 1991 she appealed to the Chief of the Air Department of the Ministry of Defence.

Basing his decision on the decree of 13 October 1959 governing service allowances, the Chief of the Air Department dismissed her appeal on 25 May 1992 on the ground that, where a serviceman and servicewoman were married to each other, family expenses could not be taken into account twice and the “head of the family” allowance paid to both spouses.

On 5 August 1992 the applicant lodged an application with the Orléans Administrative Court for judicial review of the Ministry of Defence’s decision. In her submission, no provision of the 1959 decree supported the ministry’s refusal to grant her a “head of the family” allowance and the ministry’s interpretation of the decree had been discriminatory.

On 29 December 1994 the court set aside the ministry’s decision on the following grounds:

“Firstly, the provisions of the Parental Authority Act of 4 June 1970 have rendered otiose the notion of head of the family referred to in the aforementioned decree of 13 October 1959 governing service allowances and secondly, the Ministry of Defence has no legislative or regulatory power to treat Mrs Duchez as an ‘unmarried person’ for the purposes of the aforementioned provisions in refusing her the allowance requested. It follows, without there being any need to examine the ground submitted under the Equal Pay Act of 22 December 1972, that Mrs Duchez is justified in requesting judicial review of the aforementioned decision of 25 May 1992 refusing her a ‘head of the family’ service allowance from 1 January 1987.”

On the same date the National Assembly passed the Budget Amendment Act for 1994, which came into force on the date of its publication in the Official Gazette (Journal officiel) on 30 December 1994. Section 47-II of that Act provides:

“Subject to final court decisions, individual service allowances that are challenged on the basis of the effects of the Parental Authority Act of 4 June 1970 (Law no. 70-459) on the provisions of Decree no. 59-1193 of 13 October 1959 governing service allowances are hereby validated.”

On 25 March 1995 the Minister of Defence appealed against the Orléans Administrative Court’s judgment relying on, inter alia, section 47-II of the 29 December 1994 Act.

In an order of 6 March 1996 the President of the Nantes Administrative Court of Appeal upheld the judgment of the Orléans Administrative Court.

The Minister of Defence appealed to the Conseil d’Etat, which, in a judgment of 30 March 1998, set aside the judgment of the Nantes Administrative Court of Appeal. It held that the ground of appeal based on the submission that the notion of the “head of the family” referred to in the decree of 13 October 1959 had become obsolete was no longer valid following the enactment of the legalising Act of 29 December 1994. The Conseil d’Etat noted, among other things, that

“The effect [of Articles 1 and 3 of the decree of 13 October 1959] is that any married member of the armed forces, regardless of sex, may receive the “head of the family” service allowance but, where both spouses are members of the armed forces, the higher family allowances are non-cumulative and are paid to the head of the household alone. Mrs Duchez’s and her husband’s entitlement to a service allowance was determined on that basis. It is not disputed that the applicant’s husband has already received the “head of the family” allowance. The Minister of Defence’s subsequent dismissal of the applicant’s claim for the head of the family allowance on the ground that her husband had already received it does not in itself infringe the principle that men and women should receive equal pay for equal work...”

B.  Relevant domestic law and practice

1. Civil Code

Under Article 213 of the Civil Code (Parental Authority Act of 4 June 1970 (Law no. 70-459)) “spouses are jointly responsible for the family’s moral and material well-being. They are responsible for their children’s upbringing and for preparing their future”.

2.      Legislative and regulatory provisions governing service allowances

Decree of 13 October 1959

Article 1 § 1

“Officers and rank-and-file personnel in receipt of a monthly salary shall be paid an expenses allowance known as a ‘service allowance’ to compensate for the various specifically military obligations and in particular frequent changes in postings.”

Article 1 § 3

“The service allowance shall vary according to the recipient’s rank and their family and housing situation.”

Article 2

“The annual rates of the service allowance shall be determined by joint order of the Minister of Defence, the Minister for Economic Affairs and Finance and the Minister of State for the Civil Service.

Article 3

“The following shall be regarded as the head of the family:-

-      married members of the armed forces;

-      other military personnel having at least one dependent child or living with their widowed mother, on condition that she habitually lives under their roof and is not liable for income tax.

The definition of ‘dependent child’ shall be that used in the tax legislation.”

Article 5 ter

“Military personnel in receipt of the head of the family service allowance who receive a change of posting for the requirements of the Service entailing a relocation within the meaning of the above-mentioned decree of 21 March 1968 shall be paid a flat-rate salary supplement ...”

Article 5 quater

“Military personnel in receipt of the head of the family service allowance shall also be paid an extra flat-rate supplement on the occasion of each posting imposed for Service reasons and entailing a relocation within the meaning of the aforementioned decree of 21 March 1968. This supplement shall be payable from the seventh posting for officers, and from the fourth posting for the rank and file, calculated – in respect of non-commissioned officers and senior corporals – from the date on which they qualify for a monthly salary and – in respect of corporals and soldiers – from the date on which they qualify for a special incremental salary ...”

3.      Section 47-II of the Budget Amendment Act of 29 December 1994

“Subject to final court decisions, individual service allowances that are challenged on the basis of the effects of the Parental Authority Act of 4 June 1970 (Law no. 70-459) on the provisions of Decree no. 59-1193 of 13 October 1959 governing service allowances are hereby validated.”

4.      Case-law of the Conseil d’Etat

In the Costa decision of 15 November 1991 the Conseil d’Etat ruled as follows:

“In refusing Mrs Strasser, née Costa, who is a Supply Corps captain, a flat-rate supplement to the service allowance ..., the Minister of Defence had regard solely to the fact that she was receiving an ‘unmarried person’s’ allowance ... and to the fact that Lieutenant Strasser, her husband, receives the ‘head of the family’ service allowance.

Firstly, the provisions of the Parental Authority Act of 4 June 1970 have rendered otiose the notion of head of the family expressly referred to in the aforementioned decree of 13 October 1959 governing family expenses allowances and, secondly, the Ministry of Defence does not have any legislative or regulatory power to treat Mrs Strasser, née Costa, as an ‘unmarried person’ in refusing to grant her the allowance requested. It follows that Mrs Strasser, née Costa, is justified in maintaining that, in the decisions complained of, the Ministry of Defence wrongly refused to award her the flat-rate supplement to the service allowance.”

In the Minister of Defence v. Préaud judgment of 11 July 2001, the Conseil d’Etat held:

“Bonuses paid to military personnel for skills and meritorious service are claims that must be regarded as possessions within the meaning of Article 1 of Protocol No. 1 to the European Convention on Human Rights and Fundamental Freedoms. The aforementioned provisions of section 47-1 of the 29 December 1994 Act were enacted after the Conseil d’Etat, sitting in its judicial capacity, had decided on 15 January 1992 that military personnel serving abroad continued to enjoy all the permanent fringe benefits and after the decree of 2 December 1994 had amended the decree of 23 December 1976 to prevent non-commissioned officers serving abroad from receiving the allowances. These provisions, which came into force after Mr Préaud had brought his dispute with the State before the Nantes Administrative Court, had the effect of depriving him retroactively of his entitlement to the allowances. Neither the aim of preventing military personnel serving abroad from maintaining the benefits in question during the transitional period preceding publication of the decree of 2 December 1994, nor the aim of avoiding any discrimination arising between civil servants and members of the armed forces or between servicemen and women who have taken legal proceedings and those who have not, nor the concern to avoid the financial consequences of the aforementioned decision of the Conseil d’Etat qualify as grounds of public interest of a kind to justify the interference with Mr Préaud’s possessions brought about by the retroactive deprivation of the bonus for skills and meritorious service to which he was legally entitled during his postings abroad. Accordingly, we reject as ill-founded the Minister of Defence’s submission that the Administrative Court erred in law in ruling that the provisions of section 47-I were incompatible with those of Article 1 of Protocol No. 1 to the European Convention on Human Rights and Fundamental Freedoms. ...”

COMPLAINTS

1. The applicant complained of discrimination on grounds of sex. She relied on Article 14 of the Convention and on Article 119 of the Treaty of Rome, which lays down the principle that men and women should receive equal pay for equal work.

2. She also alleged that the Conseil d’Etat’s decision of 30 March 1998 was wrongful because it had been based on an Act of 29 December 1994 that had been passed after the proceedings had started. She relied in substance on Article 6 of the Convention.

THE LAW

1. The applicant complained implicitly of a violation of Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing by [a] tribunal...”

She complained of the unfairness of the proceedings and the wrongfulness of the decision given by the Conseil d’Etat on 30 March 1998, which was based on an Act of 29 December 1994 that had been passed after the initial proceedings had started.

The Court observes that the applicant is a member of the French armed forces. According to the Court’s case-law, “the only disputes excluded from the scope of Article 6 § 1 of the Convention are those which are raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities. A manifest example of such activities is provided by the armed forces and the police.” (see Pellegrin v. France [GC], no. 28541/95, § 66, ECHR 1999-VIII).

It follows that Article 6 § 1 is not applicable in the present case and that the complaints under this Article are incompatible ratione materiae with the provisions of the Convention for the purposes of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. The applicant submitted that she had been discriminated against in the enjoyment of her possessions. She complained of a violation of Article 14 of the Convention and relied implicitly on Article 1 of Protocol No. 1 to the Convention. These provisions are worded as follows:

Article 14 of the Convention

“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 to the Convention

“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.”

On that basis the applicant considered that she had been discriminated against on two counts: discrimination on grounds of sex as compared to her husband and discrimination as compared to members of the armed forces who had won their case in the Conseil d’Etat before the Budget Amendment Act for 1994 came into force.

The Government rejected that submission. They argued that, in the light of the Court’s case-law (see Pressos Compania Naviera S.A. and Others v. Belgium of 20 November 1995, Series A no. 332, § 31), the applicant could not lay claim to a possession within the meaning of Article 1 of Protocol No. 1 to the Convention. She would be able to if she could show that she had a “legitimate expectation” of an actual claim materialising, that is, if she could legitimately have expected to be paid the “head of the family” service allowance. The Government pointed out that the provisions governing service allowances set out in Decree no. 59-113 of 13 October 1959 provided from the outset that the special “head of the family” allowance would be paid to one of the spouses alone. This had been confirmed in practice, since the administrative divisions of the army had, with the agreement of the Ministry of Economic Affairs and Finance, always refused to grant both spouses the “head of the family” allowance where they were both members of the armed forces.

The Government submitted that the Conseil d’Etat had based its decision of 15 November 1991 in the case of Costa on the elimination of the notion of the “head of the family” following the 4 June 1970 Parental Authority Act, but had not in any way affirmed that the terms of the 1959 decree allowed both spouses to receive the allowance. On the contrary, in its judgment in the case of the Minister of Defence v. Duchez of 30 March 1998 the Conseil d’Etat had confirmed that the terms of the 1959 decree precluded both spouses from receiving the “head of the family” allowance. This overlapping of benefit, which had temporarily been made possible by the Conseil d’Etat’s Costa judgment, had arisen as a result of a failure to bring the 1959 decree into accord with the wording of the Civil Code following the enactment of the 4 June 1970 Act. In the Government’s submission, this was a legal loophole and not a right.

In these circumstances, the Government maintained that the applicant’s expectations, which consisted in taking advantage of a legal loophole, could not be regarded as “legitimate” for the purposes of the Court’s aforementioned case-law. They argued that the applicant could not claim to be entitled to a possession within the meaning of Article 1 of Protocol No. 1 to the Convention, which was therefore not applicable in this case.

The result, according to the Government, was that the applicant relied on Article 14 alone, which ran counter to the Court’s case-law. They submitted that the complaint of discrimination regarding the enjoyment of possessions accordingly had to be rejected as inadmissible because it was incompatible rationae materiae with the relevant provisions of the Convention.

In the alternative, the Government submitted that the applicant had not been discriminated against in breach of Article 14 of the Convention. They argued, first, that it was not because she was a woman that she had not been granted the “head of the family” service allowance, but because it had already been granted to her husband and could not be granted to both of them. The applicant could have claimed the “head of the family” allowance if her husband had waived his right to it. Accordingly, the refusal to grant her the allowance had not been an act of discrimination on grounds of her sex.

With regard to the second form of discrimination alleged by the applicant, namely as compared to the servicewomen whom the Conseil d’Etat’s Costa judgment had made eligible for the “head of the family” service allowance, the Government considered that this possible difference in treatment was not contrary to Article 14 of the Convention because the applicant’s position was different in that it had been legalised retroactively by the Budget Amendment Act of 29 December 1994. That Act had merely confirmed the intention of the drafters of the 1959 decree, and the rule that the allowance could be paid to only one of the spouses had subsequently been confirmed by a decree of 14 October 1994.

The Court notes that, in her application, the applicant explicitly referred only to Article 119 of the Treaty of Rome and Article 14 of the Convention.

Firstly, as regards the alleged breach of Article 119 of the Treaty of Rome, the Court reiterates that, in accordance with Article 19 of the Convention, it can only ensure observance of the rights and freedoms guaranteed by the Convention. It does not therefore have power to ensure compliance with other international treaties, such as the Treaty of Rome or, as in the present case, to examine an alleged breach of Article 119 of that treaty.

Next, as regards the alleged breach of Article 14 of the Convention, it appears that the applicant’s aim in bringing the proceedings both at domestic level and before the Court has always been to obtain redress for the infringement of a financial right in the shape of the authorities’ refusal to grant her the “head of the family” service allowance. The Court considers that, accordingly, the applicant relies in substance on a breach of Article 1 of Protocol No. 1 together with Article 14 of the Convention.

In that connection, the Court notes that, in a judgment delivered on 11 July 2001 in the case of Minister of Defence v. Préaud, the Conseil d’Etat held that the allowances paid to members of the armed forces constitute claims that have to be regarded as possessions for the purposes of Article 1 of Protocol No. 1 (see Gaygusuz v. Austria, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, § 41). Accordingly, Article 14 of the Convention, taken together with Article 1 of Protocol No. 1, is applicable.

The Court must therefore determine whether the applicant was discriminated against, contrary to Article 14 of the Convention, in the right to peaceful enjoyment of her possessions.

The Court reiterates that “for the purposes of Article 14 of the Convention a distinction is discriminatory if it has no objective and reasonable justification, that is 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” (see Van Raalte v. the Netherlands of 21 February 1997, Reports 1997-I, § 39).

The Court observes that the authorities interpreting and applying the decree of 13 October 1959 have always refused to grant the “head of the family” service allowance to two members of the armed forces who are married to each other. Although that rule is not explicitly stated in any provision of the 1959 decree, it has undoubtedly been applied in practice.

It would appear, however, that in a judgment delivered in the case of Costa v. Minister of Defence, the Conseil d’Etat declared obsolete the notion of “head of the family” referred to in the 1959 decree and made it possible for the “head of the family” service allowance to be paid to both spouses.

The Court notes that the Budget Amendment Act retroactively annulled that possibility for the period regarded as transitional between the Costa v. Minister of Defence judgment of 15 November 1991 and the entry into force of the legalising Act of 29 December 1994.

The Conseil d’Etat subsequently confirmed the position, on appeal by the applicant, in a judgment of 30 March 1998.

In the present case the applicant applied for the “head of the family” service allowance in 1991 after she married. There is no indication that her husband, who also received the “head of the family” allowance, agreed to waive his entitlement in her favour. It follows that, in accordance with the rule that the allowance cannot be paid to both spouses, the applicant was refused the “head of the family” service allowance so that there would be no overlapping of benefit between two members of the armed forces married to each other.

With regard to discrimination on grounds of sex, the Court notes that the “head of the family” service allowance is designed to compensate the unique requirements that service life imposes on each family. Other bonuses and flat-rate benefits provided for in the same decree or other legislative provisions are paid to all servicemen and women individually. As the higher family allowance cannot be paid twice, the aim is to pay one “head of the family” military allowance per couple. It is not the sex of the person which determines to whom it is paid, but – in practice – it is paid to the spouse with the higher rate of pay so that the couple or family benefit from the highest amount possible. The complaint of discrimination on grounds of sex is therefore manifestly unfounded since the allowance is not paid to a man rather than a woman, but to the couple. Men and women are not therefore treated differently.

As regards the second form of discrimination of which the applicant complains, the Court observes that a number of married couples in the armed forces were able to take advantage of a legal loophole and both receive the allowance during the period between the Costa case of 15 November 1991 and the enactment of the Budget Amendment Act of 29 December 1994. Despite having claimed the allowance during that period, however, the applicant was not awarded the “head of the family” service allowance. The Court therefore considers that there was a difference in treatment between the applicant and the members of the armed forces who won their cases in the Conseil d’Etat following the aforementioned judgment. It therefore needs to be determined whether the difference in treatment was justified.

The Court reiterates that, even if no provision of the 13 October 1959 decree explicitly states that the allowance cannot be paid twice, the spirit of the decree and the practice have been to avoid paying it to both spouses. A judgment of the Conseil d’Etat of 15 November 1991 did temporarily make it possible to pay it to both spouses, on account of a 1970 Act which rendered obsolete the notion of “head of the family” referred to in the 1959 decree. The Court considers that the legalising Act of 1994 was passed with a legitimate aim in mind, namely to bring the 1959 decree into line with the 1970 Act and thus avoid an overlapping of benefit, which – moreover – had never been the legislature’s intention. The Court considers that the alleged discrimination, which occurred as a result of the legalising Act of 1994 being passed to bring the 1959 decree into line with the 1970 Act, pursued the reasonable aim of ending the legal uncertainty arising from the fact that the notion of “head of the family” had become obsolete following the Costa judgment. Accordingly, the practice of awarding the allowance to the member of the couple with the higher rate of pay appears legitimate, reasonable and proportionate to the aim pursued even if, in practice, it is usually the man who is awarded the benefit.

Consequently, the alleged difference of treatment is not contrary to Article 14 of the Convention taken together with Article 1 of Protocol No. 1.

It follows that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

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DUCHEZ v. FRANCE DECISION


DUCHEZ v. FRANCE DECISION