Last Updated on October 11, 2022 by LawEuro
Information Note on the Court’s case-law 267
October 2022
Beeler v. Switzerland [GC] – 78630/12
Judgment 11.10.2022 [GC]
Article 14
Discrimination
Discriminatory treatment of widower, taking care full-time of children, by terminating his survivor’s pension when youngest child reached adulthood, while widows continued to receive one: violation
Facts – In 1994, following the death of his wife, the applicant left his employment and devoted himself entirely to looking after their two young children. In 1997, when the survivor’s pension was extended to widowers, he was granted a “widower’s pension” under 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. At that time, he was 57 years old and had not been in gainful employment for over sixteen years. He was not yet eligible for an old‑age pension and, in his submission, was no longer able to find a job. The applicant unsuccessfully challenged the termination of his widower’s pension as being discriminatory, arguing that the relevant law did not deprive widows of their entitlement to such pension even after their youngest child had reached the age of majority.
In a judgment of 20 October 2020, a Chamber of the Court, held unanimously that there had been a violation of Article 14 taken together with Article 8. In 2021 the case was referred to the Grand Chamber at the Government’s request.
Law –
Article 14 in conjunction with Article 8:
(a) Applicability – The Government stated that social welfare benefits such as the one in issue in the present case ordinarily fell within the scope of Article 1 of Protocol No. 1 (Protocol not ratified by Switzerland), and not within that of Article 8. The Court had therefore to first determine whether the applicant’s interests that had been adversely affected by the survivor’s pension system fell within the ambit of Article 8.
(i) Development and current state of case‑law on social welfare benefits – In the vast majority of cases where the Court had ruled on alleged discrimination in the sphere of entitlement to social welfare benefits, it had concentrated its analysis on Article 1 of Protocol No. 1, or else under Article 14 in conjunction with Article 1 of Protocol No. 1, and not on Article 8.
The Court’s case‑law had taken on sufficient maturity and stability for it to give a clear definition of the threshold required for the applicability of Article 1 of Protocol No. 1, including in the sphere of social welfare benefits. In this respect, the Court reiterated and summarised the relevant principles as set out in Belane Nagy v. Hungary [GC] (§§ 74-70 and 86-89).
The situation, however, was not as clear as regards the scope of Article 8 in this sphere. While the concept of “family life” within the meaning of Article 8 also covered, in addition to social, moral and cultural relations, certain material interests which had necessary pecuniary consequences, that interpretation had been chiefly adopted in cases concerning a failure to recognise parent‑child relationships in law and the consequences of such failure for the transfer of property between private individuals. There had been fewer cases in which complaints concerning social welfare benefits, that is to say, payments from public funds, including social insurance funds, had been examined by the Court under Article 8 read alone. It could not be inferred from those cases that Article 8 read alone could be interpreted as imposing any positive obligations on the State in the social security sphere.
Nevertheless, certain guidelines for the identification of the factors capable of bringing the facts of a case of this kind within the ambit of Article 8 could be gleaned from the more numerous cases in which the Court had examined complaints concerning welfare benefits under Article 14 in conjunction with Article 8. While Article 8 did not guarantee the right to a social welfare benefit, where a State decided to go beyond its obligations under Article 8 in creating such a right – a possibility open to it under Article 53 of the Convention – it could not, in the application of that right, take discriminatory measures within the meaning of Article 14.
Consequently, the scope of Article 14 read in conjunction with Article 8 might be more extensive than that of Article 8 read alone. In finding that complaints concerning social welfare benefits fell within the ambit of Article 8, thus bringing Article 14 into play, the Court has had regard to a number of different factors over time. In sum there had been three approaches:
– First, in cases concerning parental leave and related allowances, which saw the emergence of the concept of “organisation of family life”, the applicability of Article 14 read in conjunction with Article 8 stemmed from a combination of circumstances involving the granting of leave and an allowance, which in the applicants’ specific situation had necessarily affected the way in which their family life had been organised (Konstantin Markin v. Russia [GC]).
– Second, another approach adopted by the Court, was based instead on the hypothesis that the fact of granting or refusing the benefit was liable to affect the way in which family life was organised (this approach had been followed by the Chamber in the instant case).
– Third, in other judgments, the Court had recourse to a legal presumption to the effect that in providing the benefit in question the State was displaying its support and respect for family life.
(ii) Approach to be followed henceforth – An analysis of the case‑law indicated thus that the Court had not always been entirely consistent in defining the factors leading it to find that complaints concerning social welfare benefits fell within the ambit of Article 8. Although all financial benefits generally had a certain effect on the way in which the family life of the person concerned was managed, that fact alone was not sufficient to bring them within the ambit of Article 8. Such an approach would be excessive. It was thus necessary to clarify the relevant criteria in order to specify, or indeed to circumscribe, what fell within the ambit of that provision the welfare benefit sphere.
It transpired from the case‑law that in the field of social welfare benefits, the sphere of protection of Article 1 of Protocol No. 1 and that of Article 8 intersected and overlapped, although the interests secured under those Articles were different. In determining which complaints fell within the ambit of Article 8, the Court redressed the inconsistencies noted under Article 8, particularly when read in conjunction with Article 14 of the Convention
The Court could no longer simply accept either the second or the third approach (see above). Rather the Grand Chamber judgment in Konstantin Markin v. Russia [GC] had to be taken as the main reference. In that case, the applicability of Article 14 of the Convention in conjunction with Article 8 had stemmed from the fact that the parental leave and the corresponding allowance had “necessarily affect[ed] the way in which [family life was] organised”. Thus, a close link between the allowance associated with parental leave and the enjoyment of family life had been considered necessary.
Accordingly, for Article 14 of the Convention to be applicable in that specific context, the subject matter of the alleged disadvantage must constitute one of the modalities of exercising the right to respect for family life as guaranteed by Article 8, in the sense that the measures sought to promote family life and necessarily affect the way in which it is organised. A range of factors were relevant for determining the nature of the benefit in question which had to be examined as a whole. These included: the aim of the benefit, as determined by the Court in the light of the legislation concerned; the criteria for awarding, calculating and terminating the benefit as set forth in the relevant statutory provisions; the effects on the way in which family life was organised, as envisaged by the legislation; and the practical repercussions of the benefit, given the applicant’s individual circumstances and family life throughout the period during which the benefit was paid.
(iii) Application to the present case – Firstly, having regard to the wording of the relevant statutory provisions and the conditions for entitlement to the pension, the Court found that the survivors pension in fact sought to promote family life for the surviving spouse by enabling the latter to look after his or her children full‑time if that was previously the role of the deceased parent, or, in any event, to devote more time to them without having to face financial difficulties that would force him or her to engage in an occupation. By virtue of that legislation, the applicant, after the loss of his wife who previously had had primary responsibility for looking after their children, had been entitled to the widower’s pension solely because he was the father of dependent children. The termination of that pension had also been the consequence of the applicant’s family circumstances, specifically the age of his children.
Secondly, in the specific circumstances of the case the receipt of the widower’s pension had necessarily affected the way in which the applicant’s family life had been organised throughout the period he had been receiving the benefit. It follows that from the point at which the applicant had been granted the widower’s pension until its termination, he and his family had organised the key aspects of their daily life, at least partially, on the basis of the receipt of the pension. The delicate financial situation in which the applicant found himself at the age of 57 in view of the loss of the pension and his difficulties in returning to an employment market from which he had been absent for sixteen years had been the consequence of the decision he had made years earlier in the interests of his family, supported from 1997 onwards by receipt of the widower’s pension.
Consequently, the facts of the case fell within the ambit of Article 8 and thus Article 14 was applicable.
Conclusion: preliminary objection dismissed (ratione materiae)
(b) Merits –
(i) Whether there was a ground of discrimination prohibited by Article 14 – The applicant could claim to have been the victim of discrimination on grounds of “sex” within the meaning of Article 14 as a widow in the same situation would not have lost her pension entitlement.
(ii) Whether there was a difference in the treatment of persons in analogous or relevantly similar situations – The applicant had stopped receiving the widower’s pension simply because he was a man. In other respects, he was in an analogous situation to a woman, including in terms of his subsidence, and it has not been argued that he did not satisfy any other statutory condition for entitlement to the benefit in question. As he was not treated in the same way as a widow, he had been subjected to unequal treatment on account of the termination of his widower’s pension.
(iii) Whether the difference in treatment was objectively and reasonably justified – The advancement of gender equality was a major goal in the member States of the Council of Europe. Very weighty reasons would have to be put forward before a difference of treatment based on the ground of sex could be regarded as compatible with the Convention, and the margin of appreciation afforded to States in justifying such a difference was narrow. Accordingly, references to traditions, general assumptions or prevailing social attitudes in a particular country would be insufficient.
In this connection, the Court attached fundamental importance to the considerations set out in the Federal Supreme Court’s judgment in the applicant’s case, finding that the rules in question were in breach of the principle of gender equality enshrined the Swiss Constitution. This assessment and the various attempted reforms showed that the old “factual inequalities” between men and women had become less marked in Swiss society. The relevant legislation contributed rather to perpetuating prejudices and stereotypes regarding the nature or role of women in society and was disadvantageous both to women’s careers and to men’s family life.
The Grand Chamber shared the Chamber’s view that there was no reason to believe that the applicant, at the age of 57 and following a lengthy absence from the labour market, would have had less difficulty in returning to employment than a woman in a similar situation, or that the termination of the pension would have had less impact on him than on a widow in comparable circumstances. Indeed, the Government had not provided information on the percentage of widows or widowers who had successfully returned to the employment market after many years of absence once their children had reached the age of majority. Consequently, there had not been “very strong” or “particularly weighty and convincing reasons” justifying the difference in treatment on grounds of sex in the present case. Accordingly, the unequal treatment to which the applicant had been subjected could not be said to have been reasonably and objectively justified.
Conclusion: violation (twelve votes to five).
Article 41: EUR 5,000 in respect of non-pecuniary damage. Although there was a direct causal link between the violation found and the pecuniary damage resulting from the non‑payment of the pension, there was no need to make an award under this head, as it was open to the applicant, under domestic law, to submit a claim for compensation in the context of an application for review of the Federal Supreme Court judgment.
(See also Petrovic v. Austria, 20458/92, 27 March 1998, Legal Summary; Konstantin Markin v. Russia [GC], 30078/06, 22 March 2012, Legal Summary; Béláné Nagy v. Hungary [GC], 53080/13, 13 December 2016, Legal Summary)
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