Last Updated on October 31, 2020 by LawEuro
Information Note on the Court’s case-law 244
October 2020
B. v. Switzerland – 78630/12
Judgment 20.10.2020 [Section III]
Article 14
Discrimination
Termination, when youngest child reaches adulthood, of pension entitlement for surviving parent with full-time childcare responsibilities where the beneficiary is a man: violation
Facts – Following the death of his wife, the applicant left his employment to look after their two young children, and was paid a “widower’s pension” on that account as provided for by the Federal Law on Old-Age and Survivors’ Insurance. In accordance with that law, his pension was terminated when his younger daughter reached the age of majority in 2010. The applicant challenged that ground as being discriminatory, arguing that the law made no provision for a similar restriction where the beneficiary was a woman. In 2012 the Federal Supreme Court dismissed his appeal, finding that although the difference in treatment was contrary to the principle of equality, Article 14 of the Convention was not applicable in his case either in relation to the peaceful enjoyment of possessions – since Switzerland had not ratified Protocol No. 1 – or in conjunction with Article 8.
Law – Article 14:
Applicability – In general, a widow’s or widower’s pension was designed to obviate the need for the surviving spouse to engage in gainful employment, so that he or she could have time to look after his or her children. The benefit in question was therefore clearly “family”-related, on account of its real impact on the surviving spouse’s organisation of family life.
In the present case, the widower’s pension had had very tangible repercussions for the applicant: having been in employment prior to his wife’s death, he had then devoted all his time to bringing up his children without being able to carry on his career for more than 16 years, by which point he had reached an age where it was difficult to envisage returning to the labour market (57 at the time the pension had been terminated, and 59 when his final appeal had been dismissed).
In those circumstances, the Court found that the widower’s pension had had an impact on the way in which the applicant had organised and structured his family life.
Conclusion: Article 14 applicable, in conjunction with Article 8.
Merits – The applicant had been in a comparable situation to a woman as regards his entitlement to the surviving spouse’s pension; however, the authorities had denied him the benefit in question on the grounds that he was a man (no other statutory condition having been deemed not to have been met).
The Government had explained that a widow’s pension was based on the presumption that the husband provided financially for his wife, particularly when she had children. Although the Court was prepared to accept that that presumption constituted “objective” justification, it did not find such justification “reasonable”. The Court had previously held that only very weighty reasons could lead it to regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. That applied regardless of whether the alleged discrimination affected a women or, as in the present case, a man.
Admittedly, it could not be ruled out that the introduction of a widow’s pension without a corresponding benefit for widowers might have been justified by the role and status assigned to women in society at the time the relevant law had been passed, in 1948. However, references to traditions, general assumptions or prevailing social attitudes in a particular country were insufficient nowadays to justify a difference in treatment on grounds of sex.
Referring more specifically to the present case, the Court failed to see how the termination of the applicant’s pension would have affected him to a lesser extent than a widow in comparable circumstances; in particular, it was hard to see why he would have had less difficulty than a woman in returning to the labour market at the age of 57, having had no gainful employment for 16 years.
There had therefore not been “very weighty reasons” justifying the difference in treatment complained of in the present case. The Court emphasised that this conclusion was not to be construed as an encouragement to abolish or reduce the corresponding pension paid to women in order to redress the inequality in treatment it had found.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage rejected: possibility of applying for a review under domestic law.
(See also Belli and Arquier-Martinez v. Switzerland, 65550/13, 11 December 2018, Information Note 224, Di Trizio v. Switzerland, 7186/09, 2 February 2016, Information Note 193, and Konstantin Markin v. Russia [GC], 30078/06, 22 March 2012, Information Note 150)
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