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The facts as submitted by
the author:
1. The author of the communication is Mrs. C.H.J. Cavalcanti Araujo-Jongen,
a citizen of the Netherlands, residing at Diemen, the Netherlands. She
claims to be a victim of a violation by the Netherlands of article 26 of the
International Covenant on Civil and Political Rights. She is represented by
counsel.
2.1 The author was born in 1939, and is married to Mr. Cavalcanti Araujo.
From September 1979 to January 1983, she was employed as a part-time
secretary for 20 hours a week. As of 1 February 1983 she was unemployed. In
virtue of the WW (Unemployment Act) she was granted unemployment benefits.
In conformity with the provisions of the Act, the benefits were granted for
the maximum period of six months (until 1 August 1983). The author
subsequently found new employment, as of 24 April 1984.
2.2 Having received WW benefits for the maximum period, the author, as an
unemployed person in 1983-84, contends that she was entitled to benefits
under the then WWV (Unemployment Provision Act), for a maximum period of two
years. These benefits amounted to 75 per cent of the last salary, whereas
the WW benefits amounted to 80 per cent of the last salary.
2.3 The author, on 11 December 1986, applied for WWV benefits to the
Municipality of Leusden, her then place of residence. Her application was
rejected on 8 April 1987 on the grounds that, as a married woman who did not
qualify as a breadwinner, she did not meet the requirements of the Act. The
rejection was based on article 13, paragraph 1, subsection 1, WWV, which did
not apply to married men.
2.4 On 2 July 1987, the Municipality confirmed its earlier decision. The
author subsequently appealed to the Board of Appeal at Utrecht which, by
decision of 22 February 1988, declared her appeal to be well-founded; the
decision of 8 April 1987 was set aside.
2.5 The Municipality then appealed to the Central Board of Appeal which, by
judgment of 10 May 1989, confirmed the Municipality's earlier decisions and
set aside the Board of Appeal's decision. The author claims she has
exhausted all available domestic remedies.
The complaint:
3.1 In the author's opinion, the denial of WWV benefits amounts to
discrimination within the meaning of article 26 of the Covenant. She refers
to the Views of the Human Rights Committee regarding communications No.
172/1984 (Broeks v. the Netherlands) and No. 182/1984 (Zwaan-de Vries v. the
Netherlands).
3.2 In its judgment of 10 May 1989, the Central Board of Appeal concedes, as
in earlier judgments, that article 26 in conjunction with article 2 of the
International Covenant on Civil and Political Rights applies also to the
granting of social security benefits and similarentitlements. The Central
Board further observed that the explicit exclusion of married women, unless
they meet specific requirements that are not applicable to married men,
implies direct discrimination on the ground of sex in relation to (marital)
status. However, the Central Board held "that as far as the elimination of
discrimination in the sphere of national social security legislation is
concerned, in some situations there is room for a gradual implementation
with regard to the moment at which unequal treatment ... cannot be
considered acceptable any longer, as well as in view of the question when in
such a case the moment has come at which article 26 of the Covenant in
relation to national legislation cannot be denied direct applicability any
longer". The Central Board concluded in relation to the provision in the WWV
that article 26 of the Covenant could not be denied direct applicability
after 23 December 1984, the time-limit established by the Third Directive of
the European Economic Community (EEC) regarding the elimination of
discrimination between men and women within the Community.
3.3 The author notes that the Covenant entered into force for the
Netherlands on 11 March 1979, and that, accordingly, article 26 was directly
applicable as of that date. She contends that the date of 23 December 1984
was chosen arbitrarily, as there is no formal link between the Covenant and
the Third EEC Directive. The Central Board had not, in earlier judgments,
taken a consistent view with regard to the direct applicability of article
26. In a case relating to the General Disablement Act (AAW), for instance,
the Central Board decided that article 26 could not be denied direct
applicability after 1 January 1980.
3.4 The author submits that the Netherlands had, when ratifying the
Covenant, accepted the direct applicability of its provisions, in accordance
with articles 93 and 94 of the Constitution. Furthermore, even if a gradual
elimination of discrimination were permissible under the Covenant, the
transitional period of almost 13 years between the adoption of the Covenant
in 1966 and its entry into force for the Netherlands in 1979, was sufficient
to enable it to adapt its legislation accordingly.
3.5 The author claims she suffered damage as a result of the application of
the discriminatory provisions in WWV, in that WWV benefits were refused to
her for the period of 1 August 1983 to 24 April 1984. She contends that
these benefits should be granted to women equally as to men as of 11 March
1979 (the date the Covenant entered into force for the Netherlands), in her
case as of 1 August 1983, notwithstanding measures adopted by the Government
to grant married women WWV benefits equally after 23 December 1984.
The Committee's admissibility decision:
4.1 During its 44th session, the Committee considered the admissibility of
the communication. It noted that the State party, by submission of 11
December 1990, raised no objections against admissibility and conceded that
the author had exhausted available domestic remedies.
4.2 On 20 March 1992, the Committee declared the communication admissible
inasmuch as it might raise issues under article 26 of the Covenant.
State party's submission on the merits and author's comments:
5.1 By submission of 8 December 1992, the State party argues that the
author's communication is unsubstantiated, since the facts of the case do
not reveal a violation of article 26 of the Covenant.
5.2 The State party submits that article 13, paragraph 1, subsection 1, WWV,
on which the rejection of the unemployment benefit of the author was based,
was abrogated by law of 24 April 1985. In this law, however, it was laid
down that the law which was in force to that date-including the
controversial article 13, paragraph 1, subsection 1 - remained applicable in
respect of married women who had become unemployed before 23 December 1984.
As these transitionary provisions were much criticized, they were abolished
by Act of 6 June 1991. As a result, women who had been ineligible in the
past to claim WWV benefits because of the breadwinner criterion, can claim
these benefits retroactively, provided they satisfy the other requirements
of the Act. One of the other requirements is that the applicant be
unemployed on the date of application.
5.3 The State party therefore contends that, if the author had been
unemployed on the date of application for the WWV benefit, she would be
eligible to retroactive benefits on the basis of her unemployed status as
from 1 February 1983. However, since the author had found other employment
as of April 1984, she could not claim retroactive benefits under the WWV.
The State party emphasizes that since the amendment of the law on 6 June
1991 the obstacle to the author's eligibility for a benefit is not the
breadwinner criterion, but her failure to satisfy the other requirements
under the law that apply to all, men and women alike.
5.4 The State party submits that, by amending the law in this respect, it
has complied with the principle of equality before the law as laid down in
article 26 of the Covenant.
5.5 Moreover, the State party reiterates the observations it made in
connection with communications Nos. 172/1984 [FN1] and 182/1984 [FN2]. It
emphasizes that the intent of the breadwinner criterion in the WWV was not
to discriminate between married men and married women, but rather to reflect
a fact of life, namely that men generally were breadwinners whereas women
were not. The State party argues therefore that the law did not violate
article 26 of the Covenant, since objective and reasonable grounds existed
at the time to justify the differentiation in treatment between married men
and married women.
-------------------------------------------------------------------------------------------------------------------------------[FN1]
Broeks v. the Netherlands , Views adopted on 9 April 1987.
[FN2] Zwaan-de Vries v. the Netherlands , Views adopted on 9 April 1987.
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5.6 Furthermore, the State party argues that the implementation of equal
rights in national legislation depends on the nature of the subject matter
to which the principle of equality must be applied. The State party contends
that, in the field of social security, differentiation is necessary to bring
about social justice. The incorporation of the breadwinner criterion in the
WWV should be seen in this light, as its object was to limit the eligibility
of the benefit to thosewho were breadwinners. In this context, the State
party refers to the individual opinion FN3 appended to the Committee's Views
in communication No. 395/1990 FN4, which states that "article 26 of the
Covenant should not be interpreted as requiring absolute equality or
non-discrimination in [the field of social security] at all times; instead
it should be seen as a general undertaking on the part of States parties to
the Covenant to regularly review their legislation in order to ensure that
it corresponds to the changing needs of society".
-------------------------------------------------------------------------------------------------------------------------------[FN3]
Appended by Messrs. Nisuke Ando, Kurt Herndl and Briame Ndiaye.
[FN4]
Sprenger v. the Netherlands , Views adopted on 31 March 1992.
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5.7 In this connection, the State party submits that it regularly adjusts
its social security legislation to accommodate shifts in the prevailing
social climate and/or structure, as it has done in the WWV. The State party
concludes that by amending the WWV in 1991, it has complied with its
obligations under article 26 and article 2, paragraphs 1 and 2, of the
Covenant.
6.1 By submission of 8 March 1993, counsel stresses that the central issue
in the communication is whether article 26 of the Covenant had acquired
direct effect before 23 December 1984, more specifically on 1 August 1983.
She argues that the explicit exclusion of married women from benefits under
the WWV constituted a discrimination on the grounds of sex in relation to
marital status. Counsel argues that, even if objective and reasonable
grounds existed to justify the differentiation in treatment between married
men and married women at the time of the enactment of the provision,
conditions in society no longer supported such differentiation in August
1983.
6.2 Counsel submits that, under the amended law, it is still not possible
for the author, who has found new employment, to claim the benefits she was
denied before. In this connection, she points out that the author failed to
apply for a benefit during the period of her unemployment because the law at
that time did not grant her any right to a benefit under the WWV. The author
applied for a benefit after the breadwinner-requirement for women was
dropped as from 23 December 1984, but had by then found new employment. She
therefore argues that the discriminatory effect of the said provision of WWV
is not abolished for her, but still continues.
6.3 Counsel refers to the Committee's Views in communications Nos. 172/1984
FN5 and 182/1984 FN6 and argues that, even if a transitional period is
acceptable to bring the law in compliance with the Covenant, the length of
that period, from the entry into force of the Covenant (11 March 1979) to
the amendment of the law (6 June 1991), is unreasonable. Counsel therefore
maintains that article 26 of the Covenant has been violated in the author's
case by the refusal of the State party to grant her a WWV benefit for the
period of her unemployment, from 1 August 1983 to 24 April 1984.
-------------------------------------------------------------------------------------------------------------------------------[FN5]
Broeks v. the Netherlands , Views adopted on 9 April 1987.
[FN6] Zwaan-de Vries v. the Netherlands , Views adopted on 9 April 1987.
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Examination of the merits:
7.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional Protocol.
7.2 The questions before the Committee are whether the author is a victim of
a violation of article 26 of the Covenant (a) because the state and
application of the law in August 1983 did not entitle her to benefits under
the WWV, and (b) because the present application of the amended law does
still not entitle her to benefits for the period of her unemployment from 1
August 1983 to 24 April 1984. In this connection, the author has also
requested the Committee to find that the Covenant acquired direct effect in
the Netherlands as from 11 March 1979, or in any event as from 1 August
1983.
7.3 The Committee recalls its earlier jurisprudence and observes that,
although a State is not required under the Covenant to adopt social security
legislation, if it does, such legislation must comply with article 26 of the
Covenant.
7.4 The Committee observes that, even if the law in force in 1983 was not
consistent with the requirements of article 26 of the Covenant, that
deficiency was corrected upon the retroactive amendment of the law on 6 June
1991. The Committee notes that the author argues that the amended law still
indirectly discriminates against her, because it requires applicants to be
unemployed at the time of application and that this requirement effectively
bars her from retroactive access to benefits. The Committee finds that the
requirement of being unemployed at the time of application for benefits is,
as such, reasonable and objective, in view of the purposes of the
legislation in question, namely to provide assistance to persons who are
unemployed. The Committee therefore concludes that the facts before it do
not reveal a violation of article 26 of the Covenant.
7.5 As regards the author's request that the Committee make a finding that
article 26 of the Covenant acquired direct effect in the Netherlands as from
11 March 1979, the date on which the Covenant entered into force for the
State party, or in any event as from 1 August 1983, the Committee observes
that the method of incorporation of the Covenant in national legislation and
practice varies among different legal systems. The determination of the
question whether and when article 26 has acquired direct effect in the
Netherlands is therefore a matter of domestic law and does not come within
the competence of the Committee.
8. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it do not disclose a violation
of any provision of the Covenant. |
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