Zubczewski v Sweden: margin of appreciation as a blank check

An observer of the Strasbourg case-law should always remember to include the inadmissibility decisions in her research. The changes in the Court’s procedures, introducing committees of three judges and judges sitting alone, have made this more difficult (those decisions are not on HUDOC), yet at the same time have resulted in a situation in which the inadmissibility decisions that figure on HUDOC are already a selection, since the most interesting ones are still likely to be dealt with by a chamber of seven. Inadmissibility decisions can be frustrating , because the Court’s reasoning in such cases tends to be quite succinct. This is particularly the case if you do not agree with the Court’s finding that a case is ‘manifestly ill-founded’.

This was my experience recently with the case of Zubczewski v Sweden. As a result of his marriage at the age of 63, this gentleman found his pension reduced with approximately 50 Euros per month. The reasoning behind this is the idea that persons who live together have lower expenses per head than persons living alone. Yet as Zubczewski’s wife did not have any income, this reasoning did not apply to his case. Total expenses of the household had increased while the pension had decreased. He claimed that the lack of an exception for his situation was discriminatory.

I do not spontaneously sympathize with men who invoke the economic dependency of their wives as a source of discrimination. Yet the Court’s reasoning in this case left me unsatisfied.

The Court dismissed his case as manifestly ill-founded, stating that this issue ‘falls squarely within the State’s margin of appreciation’. Does it? The margin of appreciation is not supposed to be a blank check for the national authorities. There is supposed to be some form of European supervision in all cases. The brief argumentation of the Court however does not show the Court exercising any scrutiny of the arguments of the national authorities. In fact, no arguments of the national authorities justifying the lack of an exception figure in the decision.

There appear to be two types of prima facie discrimination in this case. As a married person, Zubczewski has a lower pension compared to a single person and compared to a person who cohabits without being married. In both comparisons, differentiation can be justified if there is an ‘objective and reasonable justification’, including a pertinent legitimate aim as well as a proportionality requirement. Given that the government’s motivation for the measure (the assumption of reduced costs after marriage) is one that does not apply to married persons with dependent partners, and that this argument neither distinguishes married from unmarried cohabiting couples, it is not pertinent. Hence there is discrimination.

How does the Court avoid this conclusion that seems so self-evident? First, it dismisses the comparison with unmarried cohabiting persons, saying that, as the applicant’s pension is now lower than what he received when he was single, “the present case does not relate to an alleged difference in treatment between married couples and unmarried cohabitees” (§ 20). Huh? This reasoning is so succinct as to become opaque. Does the Court imply that discrimination can exist only between a person’s current situation and the same person’s previous situation, as opposed to between different persons? That would be nonsensical. But then what does this mean?

On the comparison with single persons, the Court says that it “does not regard the applicant’s situation as being entirely comparable to that of a single person”. But why? This is no less enigmatic.

As the result is that prima facie discrimination remains unaddressed, some motivation explaining this would have been nice. As it stands, this decision gives the impression of using the margin of appreciation doctrine as a cover-up for defective legal reasoning.

Eva Brems

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