Burden v The United Kingdom - Grand Chamber decision

29th April 2008

The decision of the Grand Chamber in the case of Burden v The United Kingdom has been published. The sisters lost again. The initial objections of the UK Government as to the sisters’ victim status and exhaustion of domestic remedies were dismissed but the main claim by the sisters, that there was a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, was also dismissed, by a majority of 15 to 2.

The reasoning of the majority on the main point was as follows:

D. The Grand Chamber’s assessment

58. The Grand Chamber recalls that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. 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 Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 39, ECHR 2005-X).

59. Taxation is in principle an interference with the right guaranteed by the first paragraph of Article 1 of Protocol No. 1, since it deprives the person concerned of a possession, namely the amount of money which must be paid. While the interference is generally justified under the second paragraph of this Article, which expressly provides for an exception as regards the payment of taxes or other contributions, the issue is nonetheless within the Court’s control, since the correct application of Article 1 of Protocol No. 1 is subject to its supervision (see, for example, Orion-Břeclav, SRO v. the Czech Republic (dec), no. 43783/98, 13 January 2004). Since the applicants’ complaint concerns the requirement for the survivor to pay tax on property inherited from the first to die, the Grand Chamber considers that the complaint falls within the scope of Article 1 of Protocol No. 1 and that Article 14 is thus applicable.

60. The Court has established in its case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations (D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007). Such a difference of treatment is 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 a different treatment, and this margin is usually wide when it comes to general measures of economic or social strategy (Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, §§ 51-52, ECHR 2006-VI).

61. The applicants claim to be in a relevantly similar or analogous position to co-habiting married and Civil Partnership Act couples for the purposes of inheritance tax. The Government, however, argue that there is no true analogy because the applicants are connected by birth rather than by a decision to enter into a formal relationship recognised by law.

62. The Grand Chamber commences by remarking that 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 (see paragraph 17 above and, generally, B. and L. v. the United Kingdom, cited above). The fact that the applicants have chosen to live together all their adult lives, as do many married and Civil Partnership Act couples, does not alter this essential difference between the two types of relationship.

63. Moreover, the Grand Chamber notes that it has already held that marriage confers a special status on those who enter into it. The exercise of the right to marry is protected by Article 12 of the Convention and gives rise to social, personal and legal consequences (B. and L. v. the United Kingdom, cited above, § 34). In Shackell (cited above), the Court found that the situations of married and unmarried heterosexual cohabiting couples were not analogous for the purposes of survivors’ benefits, since “marriage remains an institution which is widely accepted as conferring a particular status on those who enter it”. The Grand Chamber considers that this view still holds true.

64. Since the coming into force of the Civil Partnership Act in the United Kingdom, a homosexual couple now also has the choice to enter into a legal relationship designed by Parliament to correspond as far as possible to marriage (see paragraphs 16-18 above).

65. As with marriage, the Grand Chamber considers that the legal consequences of civil partnership under the 2004 Act, which couples expressly and deliberately decide to incur, set these types of relationship apart from other forms of co-habitation. Rather than the length or the supportive nature of the relationship, what is determinative is the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature. Just as there can be no analogy between married and Civil Partnership Act couples, on one hand, and heterosexual or homosexual couples who choose to live together but not to become husband and wife or civil partners, on the other hand (see Shackell, cited above), the absence of such a legally binding agreement between the applicants renders their relationship of co-habitation, despite its long duration, fundamentally different to that of a married or civil partnership couple. 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.

66. In conclusion, therefore, the Grand Chamber considers that the applicants, as co-habiting sisters, cannot be compared for the purposes of Article 14 to a married or Civil Partnership Act couple. It follows that there has been no discrimination and, therefore, no violation of Article 14 taken in conjunction with Article 1 of Protocol No.1.