BURDEN v. THE UNITED KINGDOM - 13378/05 [2008] ECHR 356 (29 April 2008)

The European Court of Human Rights has today delivered at a public hearing its Grand Chamber judgment^¹ in the case of Burden v. the United Kingdom (application no. 13378/05).

The Court held, by 15 votes to two, that there had been no violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights taken in conjunction with Article 1 of Protocol No. 1 (protection of property) to the Convention.

The case concerned two British nationals, Joyce and Sybil Burden, who were born in 1918 and 1925 respectively. They are unmarried sisters and live in Marlborough (the United Kingdom).

The applicants have lived together all their lives; for the last 30 years in a house built on land they inherited from their parents. Each sister has made a will leaving all her property to the other sister.

The sisters, both in their eighties, are concerned that, when one of them dies, the other will be forced to sell the house to pay inheritance tax. Under the 1984 Inheritance Tax Act, inheritance tax is charged at 40% on the value of a person’s property. That rate applies to any amount in excess of 285,000 pounds sterling (GBP) (420,844 euros (EUR)) for transfers during the tax year 2006-2007 and GBP 300,000 (EUR 442,994) for 2007-2008.

Property passing from the deceased to his or her spouse or “civil partner” (a category introduced under the 2004 Civil Partnership Act for same-sex couples, which does not cover family members living together) is currently exempt from charge.

The application was lodged with the European Court of Human Rights on 29 March 2005. A hearing on the admissibility and merits took place in public in the Human Rights Building, Strasbourg, on 12 September 2006.

In its Chamber judgment of 12 December 2006, the Court held, by four votes to three, that there had been no violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1.

On 8 March 2007 the applicants requested that the case be referred to the Grand Chamber under Article 43^¹ (referral to the Grand Chamber) and on 23 May 2007 the panel of the Grand Chamber accepted that request.

Jean-Paul Costa (French), President,
Nicolas Bratza (British),
Boštjan M. Zupančič (Slovenian),
Françoise Tulkens (Belgian),
Rıza Türmen (Turkish),
Corneliu Bîrsan (Romanian),
Nina Vajić (Croatian)
Margarita Tsatsa-Nikolovska (citizen of “the former Yugoslav Republic of Macedonia”),
András Baka (Hungarian),
Mindia Ugrekhelidze (Georgian),
Anatoly Kovler (Russian),
Elisabeth Steiner (Austrian),
Javier Borrego Borrego (Spanish),
Egbert Myjer (Dutch),
David Thór Björgvinsson (Icelandic),
Ineta Ziemele (Latvian),
Isabelle Berro-Lefèvre (Monegasque), judges,

and also Vincent Berger, Jurisconsult.

The applicants complained that, when one of them dies, the survivor will face a heavy inheritance tax bill, unlike the survivor of a marriage or a civil partnership. They relied on Article 1 of Protocol No. 1 taken in conjunction with Article 14.

Whether the applicants could claim to be victims of a violation of the Convention

The Grand Chamber agreed with the Chamber that, given the applicants' age, the wills they had made and the value of the property each owned, they had established that there was a real risk that, in the not too distant future, one of them would be required to pay substantial inheritance tax on the property inherited from her sister. In those circumstances, they could claim to be victims of the alleged discriminatory treatment.

The Grand Chamber rejected the United Kingdom Government’s argument that the applicants had failed to make use of an available domestic remedy. According to the Government, under the Human Rights Act, the applicants could have applied to a court for a declaration that the legislation in question was incompatible with the Convention, which would have given a discretionary power to the relevant government minister to take steps to amend the offending legal provision, either by a remedial order or by introducing a Bill in Parliament. The Grand Chamber agreed with the Chamber that it could not be excluded that at some time in the future the practice of amending legislation following a declaration of incompatibility with the Convention could be seen as a binding obligation. In those circumstances, except where an effective remedy necessitated the award of damages, applicants would be required first to exhaust that remedy before making an application to the Court. As that was not as yet the case, however, the Grand Chamber considered that the applicants had not failed to exhaust domestic remedies.

The Grand Chamber observed that the relationship between siblings was of a different nature to that between married couples and homosexual civil partners under the United Kingdom’s Civil Partnership Act. One of the defining characteristics of a marriage or Civil Partnership Act union was that it was forbidden to close family members. The fact that the applicants had chosen to live together all their adult lives did not alter that essential difference between the two types of relationship.

Moreover, the Grand Chamber noted that it had already held that marriage conferred a special status on those who entered into it. The exercise of the right to marry was protected by Article 12 of the Convention and gave rise to social, personal and legal consequences.

Since the coming into force of the Civil Partnership Act in the United Kingdom, a homosexual couple also had the choice to enter into a legal relationship designed by Parliament to correspond as far as possible to marriage. As with marriage, the Grand Chamber considered that the legal consequences of civil partnership under the 2004 Act, which couples expressly and deliberately decided to incur, set those types of relationship apart from other forms of co-habitation. Rather than the length or the supportive nature of the relationship, what was determinative was the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature. Just as there could be no analogy between married and Civil Partnership Act couples, on one hand, and heterosexual or homosexual couples who chose to live together but not to become husband and wife or civil partners, on the other hand, the absence of such a legally-binding agreement between the applicants rendered their relationship of co-habitation, despite its long duration, fundamentally different to that of a married or civil partnership couple.

That view was unaffected by the fact that different rules of succession had been adopted in the 47 European countries which were members of the Council of Europe^¹. Different countries had similarly adopted different policies regarding inheritance tax exemptions to the various categories of survivor; States, in principle, remaining free to devise different rules in the field of taxation policy.

The Grand Chamber concluded that the applicants, as co-habiting sisters, could not be compared for the purposes of Article 14 to a married or Civil Partnership Act couple. It followed that there had been no discrimination and, therefore, no violation of Article 14 taken in conjunction with Article 1 of Protocol No.1.

Judges Zupančič, Borrego Borrego and Björgvinsson expressed dissenting opinions, which are annexed to the judgment.

Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15)
Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30)
Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 91)
Sania Ivedi (telephone: 00 33 (0)3 90 21 59 45)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.

1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

1 While in common law systems there had traditionally been freedom of testamentary devolution, in civil law systems the order of succession was generally established by statute or code, with some particularly privileged categories of heirs, normally the spouse and close relatives, being granted automatic rights to a portion of the estate (the so-called reserved shares), which could not generally be modified by the decedent’s will. The position of each heir depended therefore on the combined effect of family law and tax law.

From the information available to the Court, some form of civil partnership, with varying effects on matters of inheritance, appeared to be available in 16 countries: Andorra, Belgium, the Czech Republic, Denmark, Finland, France, Germany, Iceland, Luxembourg, the Netherlands, Norway, Slovenia, Spain, Sweden, Switzerland and the United Kingdom. Spouses and close relatives, including siblings, were granted statutory inheritance rights in virtually all Member States of the Council of Europe. In a majority, siblings were treated less favourably in terms of succession rights than the surviving spouse but more favourably than the surviving civil partner; and only a few Member States granted the surviving civil partner inheritance rights equal to those of the surviving spouse. Inheritance tax schemes usually followed the order of succession, although in certain countries, such as France and Germany, the surviving spouse was granted a more favourable tax exemption than any other category of heir.

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You are here: BAILII >> Databases >> European Court of Human Rights >> BURDEN v. THE UNITED KINGDOM - 13378/05 [2008] ECHR 356 (29 April 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/356.html Cite as: [2008] ECHR 356