Benefits Act, 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 benefits under the Unemployment Benefits
Act 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.
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 WWV should be seen in this light, as its
object was to limit the eligibility of the benefit to
those who were breadwinners. In this context, the
State party refers to the individual opinion 3
appended to the Committee's Views in
communication No. 395/1990,4 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 review regularly
their legislation in order to ensure that it corresponds
to the changing needs of society".
5.3 The State party therefore contends that if the
author had been unemployed on the date of
application for benefits under the Unemployment
Benefits Act, she would be eligible for 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
Unemployment Benefits Act. 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.
5.7 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 Unemployment
Benefits Act. The State party concludes that by
amending the Act 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 Unemployment Benefits Act constituted
discrimi-nation 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.
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 1 and 182/1984.2
It emphasizes that the intent of the breadwinner
criterion in the Unemployment Benefits Act 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.
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
Unemployment Benefits Act. The author applied for
a benefit after the breadwinner requirement for
women was dropped as from 23 December 1984, but
5.6 Furthermore, the State party argues that the
implementation of equal rights in national legislation
1
3
Official Records of the General Assembly, Fortysecond Session, Supplement No. 40 (A/42/40), annex
VIII.B, Broeks v. the Netherlands, Views adopted
on 9 April 1987.
2
Ibid., Annex VIII.D, Zwaan-de Vries v. the
Netherlands, Views adopted on 9 April 1987.
Appended by Messrs. Nisuke Ando, Kurt Herndl and
Birame Ndiaye.
4
Official Records of the General Assembly, Fortyseventh Session, Supplement No. 40 (A/47/70), Annex IX.P,
Sprenger v. the Netherlands, Views adopted on
31 March 1992.
63
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