In today’s Chamber judgment in the case of M. v. Germany (application no. 29762/10) the European Court of Human Rights held, unanimously, that there had been: a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights.
The case concerned inheritance rights of children born outside marriage. Ms M., the applicant, complained that she could not assert her inheritance rights after her father’s death in 2009, as she had been born out of wedlock and before a cut-off point provided for by legislation in force at the time. Notably, children born outside marriage before 1 July 1949 were excluded from any statutory entitlement to inherit and from the right to financial compensation.
The Court found that the aims pursued by Ms M.’s difference in treatment, namely the preservation of legal certainty and the protection of the deceased and his family, had been legitimate. However, it was not satisfied that excluding children born out of wedlock before a certain cut-off point provided for by legislation had been a proportionate means to achieving the aims sought to be achieved. Decisive for that conclusion was the fact that Ms M.’s father had recognised her. Furthermore, she had regularly visited him and his wife. The latter’s awareness of Ms M.’s existence, as well as of the fact that the legislation allowed children born inside marriage and outside marriage after the cut-off date to inherit, had therefore to have had a bearing on her expectations to her husband’s estate. In any case, European case-law and national legislative reforms had shown a clear tendency towards eliminating all discrimination regarding the inheritance rights of children born outside marriage.
Principal facts
The applicant, G. M., was born in 1940 and lives in Bayreuth (Germany). Ms M. is the natural and only daughter of her father, who recognised paternity in 1951. She lived in the former German Democratic Republic until 1984, while her father lived in the Federal Republic of Germany with his wife. Ms M. and her father corresponded regularly during that period and she visited him and his wife every year between 1954 and 1959. After moving to Bavaria in 1984 with her husband and daughter, she visited her father regularly until 2007. He died in 2009.
In January 2009, directly after her father’s death, Ms M. applied to the Memmingen District Court for the right to administer her father’s estate. She asserted that she needed this power as her father’s wife had dementia, and that she was a statutory heir. The court dismissed her application. As Ms M. had been born before 1 July 1949, she was excluded under section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act from any statutory entitlement to her father’s estate and from the right to financial compensation. Nor was she entitled to receive any copies of documents about the estate.
On appeal, the Memmingen Regional Court refused to grant her the power to administer her father’s estate. The court referred to the relevant provision of the Children Born outside Marriage (Legal Status) Act and case-law of the Federal Constitutional Court finding that provision in conformity with the German constitution. The Munich Court of Appeal dismissed Ms M.’s appeal in May 2009 on the grounds that it was bound by the decisions of the Federal Constitutional Court which had found this provision to be valid. Ms M. was also unsuccessful in her constitutional appeal to the Federal Constitutional Court. The court declared her complaint inadmissible for lack of substantiation, holding that Ms M. should have given further reasons to contest the validity of the relevant provision, but that she had failed to do so.
Complaints, procedure and composition of the Court
Relying on Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life), Ms M. complained that section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act had resulted in her having been unable to assert her inheritance rights and had been discriminatory.
The application was lodged with the European Court of Human Rights on 20 May 2010.
Judgment was given by a Chamber of seven judges, composed as follows:
- Erik Møse (Norway), President,
- Angelika Nußberger (Germany),
- Faris Vehabović (Bosnia and Herzegovina),
- Yonko Grozev (Bulgaria),
- Carlo Ranzoni (Liechtenstein),
- Mārtiņš Mits (Latvia),
- Lәtif Hüseynov (Azerbaijan),
- and also Milan Blaško, Deputy Section Registrar.
Decision of the Court
The Court noted that the Government had not disputed the fact that there had been a difference in treatment in Ms M.’s case. Furthermore, it found that the aims pursued by the legislature for that difference in treatment, namely the preservation of legal certainty and the protection of the deceased and his family, had arguably been legitimate.
However, it was not satisfied that the means employed, namely excluding children born out of wedlock before a certain cut-off point provided for by legislation, had been proportionate to the aims sought to be achieved.
Firstly, Ms M. had not been a descendant whose existence had been unknown to her father’s wife. Ms M.’s father had recognised her and she had regularly visited him and his wife.
Furthermore, the expectations of a sole heir, such as Ms M.’s father’s wife, were not protected in all circumstances. A will such as the one in question did not exclude the right of children born inside marriage and of children born outside marriage after the cut-off date to a share of a deceased’s estate. That had to have had a bearing on the expectations of the father’s wife about establishing rights to her deceased husband’s estate.
Lastly, the Court referred to one of its previous judgments B. v. Germany (application no. 3545/04), a case comparable to that of Ms M., in which it had found that inequality of inheritance rights on the grounds of birth outside marriage was incompatible with the European Convention on Human Rights. Moreover, European case-law and the national legislative reforms had also shown a clear tendency towards eliminating all discrimination regarding the inheritance rights of children born outside marriage.
There had therefore been a violation of Article 14 of the Convention taken in conjunction with Article 8.
Just satisfaction (Article 41)
The Court held that the question of the application of Article 41 was not ready for decision and reserved it for a later date.
EGMR, Pressemitteilung Nr. 58 v. 09.02.2017
