In his application the applicant submitted that as a widower who had been bringing his children up alone since his wife\u2019s death, he had suffered discrimination as compared with widows looking after their children alone, given that he had lost his entitlement to a widower\u2019s pension when his younger daughter had reached the age of majority, while the corresponding pension remained payable to widows with children of the same age.<\/p>\n
GRAND CHAMBER Art 14 (+ Art 8) \u2022 Discriminatory treatment of widower, taking care full-time of children, by terminating his survivor\u2019s pension when youngest child reached adulthood, while widows continued to receive one\u2022 Family life \u2022 Clarification of criteria specifying or circumscribing welfare benefits falling within ambit of Art\u00a08 \u2022 Approach adopted in Konstantin Markin v.\u00a0Russia [GC] to be followed \u2022 Benefit in issue seeking to promote family life and necessarily affecting the way in which the applicant\u2019s family life was organised, and therefore with the ambit of Art\u00a08 \u2022 Domestic rules governing survivors\u2019 pension based on outdated considerations and assumptions \u2022Return to labour market equally difficult for both sexes at applicant\u2019s age and after several years without working \u2022 No indication that termination of pension of less impact on applicant than on a widow in a comparable situation \u2022 Narrow margin of appreciation \u2022 Absence of \u201cvery strong\u201d or \u201cparticularly weighty and convincing reasons\u201d justifying the difference in treatment on grounds of sex<\/p>\n STRASBOURG This judgment is final but it may be subject to editorial revision.<\/p>\n In the case of Beeler v. Switzerland,<\/strong><\/p>\n The European Court of Human Rights, sitting as a Grand Chamber composed of: PROCEDURE<\/strong><\/p>\n 1. The case originated in an application (no. 78630\/12) against the Swiss Confederation lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Swiss national, Mr Max Beeler (\u201cthe applicant\u201d), on 19\u00a0November 2012. The President of the Section to which the case had been assigned acceded to the applicant\u2019s request not to have his name disclosed (Rule\u00a047 \u00a7\u00a04 of the Rules of Court). The President of the Grand Chamber subsequently acceded to the applicant\u2019s request for the lifting of his anonymity following the hearing before the Grand Chamber.<\/p>\n 2. The applicant was represented by Mr J. Luginb\u00fchl, a lawyer practising in Z\u00fcrich. The Swiss Government (\u201cthe Government\u201d) were represented by their Agent, Mr A. Chablais, of the Federal Office of Justice.<\/p>\n 3. In his application the applicant submitted that as a widower who had been bringing his children up alone since his wife\u2019s death, he had suffered discrimination as compared with widows looking after their children alone, given that he had lost his entitlement to a widower\u2019s pension when his younger daughter had reached the age of majority, while the corresponding pension remained payable to widows with children of the same age.<\/p>\n 4. On 22 November 2016 notice of the application was given to the Government.<\/p>\n 5. The application was allocated to the Third Section of the Court (Rule\u00a052\u00a7\u00a01). On 20\u00a0October 2020 a Chamber of that Section, composed of Paul Lemmens, President, Georgios A. Serghides, Helen Keller, Alena\u00a0Pol\u00e1\u010dkov\u00e1, Mar\u00eda El\u00f3segui, Gilberto Felici and Lorraine\u00a0Schembri\u00a0Orland, judges, and Milan Bla\u0161ko, Section Registrar, gave judgment. The Chamber unanimously declared the application admissible and found a violation of Article\u00a014 of the Convention read in conjunction with Article\u00a08. The concurring opinion of Judge Keller was annexed to the judgment.<\/p>\n 6. On 19 January 2021 the Government requested that the case be referred to the Grand Chamber in accordance with Article\u00a043 of the Convention. On 8\u00a0March 2021 the panel of the Grand Chamber granted that request.<\/p>\n 7. The composition of the Grand Chamber was subsequently determined in accordance with the provisions of Article\u00a026 \u00a7\u00a7\u00a04 and\u00a05 of the Convention and Rule\u00a024.<\/p>\n 8. A hearing took place in public in the Human Rights Building, Strasbourg, on 16 June 2021.<\/p>\n There appeared before the Court: The Court heard addresses by Mr Chablais, Mr Luginb\u00fchl, Msde Weck and Ms Mascetta.<\/p>\n THE FACTS<\/strong><\/p>\n 9. The applicant was born in 1953 and lives in Schwellbrunn.<\/p>\n 10. He is the father of two children. Having lost his wife in an accident in August\u00a01994, he decided to leave his job at an insurance company and to devote himself full\u2011time to bringing up his daughters, who at the time were 21\u00a0months old and four years old.<\/p>\n 11. In 1997, when the survivor\u2019s pension was extended to widowers (see paragraph\u00a022 below), the applicant was granted a widower\u2019s pension at a monthly rate of approximately 920\u00a0Swiss francs (CHF), together with supplementary benefits. His daughters were granted orphans\u2019 pensions amounting to CHF\u00a0459 per month, and later received education allowances up to the age of\u00a025.<\/p>\n 12. On 9 September 2010, having noted that the applicant\u2019s younger daughter was about to reach the age of majority, the Compensation Office (Ausgleichskasse) of the Canton of Appenzell Outer Rhodes terminated the payment of the applicant\u2019s widower\u2019s pension. The applicant lodged an objection, relying on the principle of gender equality enshrined in the Swiss Constitution.<\/p>\n 13. In a rejection decision dated 20 October 2010 the Compensation Office noted that the Swiss legal system did not provide for a review of constitutionality, but that the authorities had to interpret federal laws in accordance with the Constitution in cases where they had any discretion. However, the Compensation Office considered itself bound by the terms of section\u00a024(2) of the Federal Law on old\u2011age and survivors\u2019 insurance (see paragraph\u00a020 below), which was, in its view, a clear provision that was not open to interpretation.<\/p>\n 14. The applicant subsequently appealed to the Cantonal Court, arguing that there were no grounds for treating him less favourably than a widow with children above the age of18, who remained eligible for a widow\u2019s pension. He submitted that he was 57years old and had raised his two children alone.<\/p>\n 15. On 22 June 2011 the Cantonal Court dismissed the applicant\u2019s appeal. It noted that the conditions for entitlement to a pension that were applicable to widows and widowers respectively under sections\u00a023 and 24 of the Federal Law on old\u2011age and survivors\u2019 insurance were indeed different, a situation that on the face of it was incompatible with the requirements of Article\u00a08 of the Constitution. Nevertheless, it pointed out that during the tenth revision of the old\u2011age and survivors\u2019 insurance (\u201cOASI\u201d) system in 1997 (see paragraph\u00a022 below), the legislature had been aware of the difference in treatment between widowers and widows but had taken the view that since there were still relatively few house\u2011husbands, they could be expected to return to employment once their child\u2011raising duties ended. The Cantonal Court held that only the legislature could change that state of affairs, and that at all events the courts could not refuse to apply the clear letter of the law.<\/p>\n 16. The applicant lodged an appeal with the Federal Supreme Court, alleging a violation of Article\u00a014 of the Convention read in conjunction with Article\u00a08.<\/p>\n 17. In a judgment of 4 May 2012 (9C_617\/2011), the Federal Supreme Court dismissed the appeal. It pointed out that under Article\u00a08 \u00a7\u00a03 of the Constitution, distinctions on grounds of sex could only be justified where the biological or functional differences between men and women rendered equal treatment quite simply impossible. It further noted that Switzerland had not ratified Protocol No.\u00a01 to the Convention and was therefore not bound by that instrument and the related case\u2011law. As regards the complaint under Article\u00a014 in conjunction with Article\u00a08 of the Convention, the Federal Supreme Court found that it could not be inferred from the case\u2011law of the European Court that Article\u00a08 of the Convention required States to provide specific social security benefits.<\/p>\n As to the legal provisions concerning the right to a widower\u2019s pension, the Federal Supreme Court held that they were based on the idea that it was the husband who provided for his wife\u2019s needs, particularly if there were children, and that gender\u2011neutral regulations would not be based on sex but on whether a particular individual (male or female) had lost the person who provided for him or her. The Federal Supreme Court noted that, during the tenth revision of the OASI system, the Federal Council had proposed the recognition of a limited right to a widower\u2019s pension and that the legislature had opted for the regulations in issue, which were still in force, while being aware that they established an unacceptable distinction on grounds of sex, contrary to Article\u00a04 \u00a7\u00a02 (since 1\u00a0January 2000, Article\u00a08 \u00a7\u00a03) of the Constitution. It added that by applying different conditions for entitlement to the pension according to whether the person concerned was a widow or a widower, the legislature had made a distinction on the basis of sex which was not necessary for either biological or functional reasons. Lastly, the Federal Supreme Court pointed out that in its message on the eleventh revision (which had ultimately been rejected) of the OASI system, the Federal Council had made it clear that the rule that widowers were entitled to a pension only if they had children under the age of\u00a018 was contrary to the principle of gender equality and should therefore be adjusted in line with an approach linked to loss of support. The Federal Supreme Court noted that, following the failure of the eleventh revision of the OASI system, the impugned provisions remained in force and that Article\u00a0190 of the Constitution required it \u2013 like all other authorities \u2013 to apply them.<\/p>\n LEGAL FRAMEWORK<\/strong><\/p>\n I. RELEVANT DOMESTIC LAW AND PRACTICE<\/strong><\/p>\n 18. The relevant provisions of the Swiss Federal Constitution read as follows:<\/p>\n Article\u00a08 \u2013 Equality before the law<\/p>\n \u201c1. Every person is equal before the law.<\/p>\n 2. No person may be discriminated against, in particular on grounds of origin, race, gender, age, language, social position, way of life, religious, ideological or political convictions, or because of a physical, mental or psychological disability.<\/p>\n 3. Men and women have equal rights. The law shall ensure their equality, both in law and in practice, most particularly in the family, in education and in the workplace. Men and women have the right to equal pay for work of equal value.<\/p>\n 4. The law shall provide for the elimination of inequalities that affect persons with disabilities.\u201d<\/p>\n 19. According to the Federal Supreme Court\u2019s case\u2011law, Article\u00a08 \u00a7\u00a03 of the Constitution excludes sex as a valid criterion for making a distinction in law (ATF (Judgments of the Federal Supreme Court)134\u00a0V\u00a0131), and a difference in treatment between men and women is permissible only if biological or functional differences preclude any equality of treatment (ATF\u00a0108 Ia\u00a022). In the judgment adopted in the applicant\u2019s case, the Federal Supreme Court added that this reservation allowing for functional differences did not mean, in particular, that the traditional division of roles, assuming that it still corresponded to present\u2011day reality, could be of any legal relevance in the future.<\/p>\n 20. The relevant provisions of the Federal Law of 20\u00a0December 1946 on old\u2011age and survivors\u2019 insurance are worded as follows:<\/p>\n Section 23 \u2013 Widows\u2019 and widowers\u2019 pensions<\/p>\n \u201c1. Widows and widowers shall be entitled to a pension if they have one or more children at the time of their spouse\u2019s death.<\/p>\n 2. The following shall be treated as the children of widows or widowers:<\/p>\n (a) children of the deceased spouse who, at the time of the latter\u2019s death, had been living together with the widow or widower and have been taken in by the surviving spouse as foster children within the meaning of section\u00a025(3);<\/p>\n (b) foster children within the meaning of section\u00a025(3) who, at the time of the death in question, had been living together with the widow or widower and have been adopted by the surviving spouse.<\/p>\n 3. Entitlement to a widow\u2019s or widower\u2019s pension shall begin on the first day of the month following the spouse\u2019s death and, where a foster child has been adopted in accordance with subsection\u00a02 (b) above, on the first day of the month following the adoption.<\/p>\n 4. Entitlement shall end:<\/p>\n (a) on remarriage;<\/p>\n (b) on the widow\u2019s or widower\u2019s death.<\/p>\n 5. Entitlement shall resume in the event of annulment of marriage or divorce. The Federal Council shall regulate the details.\u201d<\/p>\n Section\u00a024 \u2013 Special provisions<\/p>\n \u201c1. Widows shall be entitled to a pension if, on their husband\u2019s death, they have no children or foster children within the meaning of section\u00a023, but have reached the age of\u00a045and have been married for at least five years. If a widow has been married more than once, the calculation shall take into account the overall length of the marriages in question.<\/p>\n 2. In addition to the causes of termination mentioned in section\u00a023(4), entitlement to a widower\u2019s pension shall end when the youngest child reaches the age of\u00a018.\u201d<\/p>\n Section\u00a025 \u2013 Orphans\u2019 pensions<\/p>\n \u201c1. Children whose father or mother has died shall be entitled to an orphan\u2019s pension. In the event of the death of both parents, they shall be entitled to two orphans\u2019 pensions.<\/p>\n 2. Foundlings shall be entitled to an orphan\u2019s pension.<\/p>\n 3. The Federal Council shall regulate the entitlement of foster children to orphans\u2019 pensions.<\/p>\n 4. Entitlement to an orphan\u2019s pension shall begin on the first day of the month following the death of the father or mother. It shall end on the 18th birthday or the death of the orphan.<\/p>\n 5. In the case of children pursuing training or studies, entitlement to the pension shall continue until the end of the course, but not beyond the age of\u00a025. The Federal Council may define what is meant by \u2018training or studies\u2019.\u201d<\/p>\n II. PREPARATORY WORK ON THE FEDERAL LAW ON OLD\u2011AGE AND SURVIVORS\u2019 INSURANCE CONCERNING WIDOWS\u2019 AND WIDOWERS\u2019 PENSIONS, AND ATTEMPTED REFORMS<\/strong><\/p>\n 21. Widows\u2019 pensions were introduced in Switzerland in 1948, at the same time as the OASI system. At the time, married women found themselves excluded from the labour market at the time of starting a family, so mothers were especially affected. The main question in defining the conditions for entitlement to the pension was therefore whether widows could reasonably be expected to begin or, less frequently, to resume gainful employment on the death of their husband (report of 16\u00a0March 1945 by the Federal Commission of Experts on the introduction of the OASI system, pp.\u00a064 et seq., and message of 24\u00a0May 1946 from the Federal Council on the Bill on old\u2011age and survivors\u2019 insurance, Federal Gazette (Feuille f\u00e9d\u00e9rale \u2013 \u201cFF\u201d) 1946\u00a0II\u00a0353).<\/p>\n 22. Widowers\u2019 pensions were introduced in\u00a01997 at the time of the tenth revision of the OASI system. The government set out the following considerations during the presentation of the Bill in Parliament (message of 5\u00a0March 1990 from the Federal Council concerning the tenth revision of the OASI system, FF\u00a01990 II\u00a01, pp.\u00a037\u201138):<\/p>\n \u201cCurrent legislation only provides for widows\u2019 pensions, and not widowers\u2019 pensions. Yet nowadays, wives are increasingly often in gainful employment, whether on a full\u2011time or part\u2011time basis.<\/p>\n In cases where the husband devotes himself to household chores and bringing up children, he is not eligible for any OASI benefits in the event of his wife\u2019s death.<\/p>\n We therefore propose introducing the principle of a widower\u2019s pension. However, entitlement to such a pension should only arise if the widower has dependent children under the age of\u00a018.<\/p>\n We realise that this restriction means that widows and widowers will not enjoy equal treatment; nevertheless, we consider that the envisaged difference in treatment is still justified for the time being.<\/p>\n Granting widowers\u2019 pensions under the same conditions as for widows would go beyond the financial framework set for the present revision.<\/p>\n A possible alternative might be to set out more restrictive conditions for the award of a widow\u2019s pension, along the lines of the proposal which we submitted in April\u00a01988. That alternative was, quite rightly, criticised because of the difficulties inherent in the idea of older widows returning to employment. Indeed, it cannot be denied that the image of family support traditionally conveyed by marriage is still widespread. The OASI system cannot overlook the fact that women who left employment many years ago would be likely to face serious financial problems after their husband\u2019s death if the conditions for entitlement to a widow\u2019s pension became stricter.<\/p>\n Marriages involving a \u2018house\u2011husband\u2019 are still fairly rare. In our view, however, even in such cases, the husband can be expected to resume gainful employment after having brought up his children. Accordingly, we consider that the inequality of treatment being proposed between widows and widowers is still defensible today.\u201d<\/p>\n 23. Since 2000 the government has made several unsuccessful attempts to reform the widows\u2019 and widowers\u2019 pensions system, particularly with a view to gradually bringing widows\u2019 entitlement to the pension into line with that of widowers.<\/p>\n 24. Thus, in 2000 the government presented a proposal for the eleventh revision of the OASI system. Finding that the rule that widowers were not entitled to a pension unless they had children under the age of\u00a018 was contrary to the principle of gender equality and should therefore be adjusted, the Federal Council proposed gradually limiting widows\u2019 entitlement to the pension in order to bring it into line with that of widowers after a transitional phase, while relaxing the conditions for entitlement to a widower\u2019s pension (FF\u00a02000\u00a01771\u00a01862\u00a0s.). Those proposals would have helped improve the situation of widowers. However, they were mainly aimed at tightening up the conditions applicable to widows, since the FederalCouncil had not envisaged bringing the situation of widowers into line with that of widows with children by extending benefits. In any event, that reform was rejected by referendum in 2004.<\/p>\n 25. In 2005 the government presented a new version of its proposal for the eleventh revision of the OASI system, although the conditions for entitlement to a surviving spouse\u2019s pension remained unchanged. The new proposal was rejected by a final vote in Parliament in 2010.<\/p>\n 26. In response to a motion submitted to the Council of States on 26\u00a0March 2007 by the Social Security and Public Health Commission (motion 07.3276), asking the Federal Council to draft a bill bringing the status of widowers with children into line with that of widows, the Federal Council expressed its opposition to the motion for a number of reasons, including the extra cost of such an adjustment, an estimated CHF\u00a0200\u00a0million, while accepting that the rules in force at the time led to inequalities between widows and widowers with children. In view of the foreseeable trend in the funds required for the OASI system, the Federal Council refused such an increase in costs.<\/p>\n 27. In 2014 the government presented a proposed reform under the heading \u201cOld\u2011Age Pensions 2020\u201d (Pr\u00e9voyance vieillesse 2020 \u2013 \u201cthe 2020 reform\u201d), which proposed, inter alia, adapting survivors\u2019 benefits to the situation applicable to widows at that time, albeit without placing widowers and widows on an equal footing. The government considered that the system operating at the time was no longer suited to the contemporary context, but that social realities did not allow complete standardisation of the conditions for entitlement to a widow\u2019s pension and a widower\u2019s pension under the Federal Law on old\u2011age and survivors\u2019 insurance. In drawing up its proposals the government relied on objective data from a survey of the financial situation of widows and widowers, which had shown that Switzerland had an effective mechanism for covering the loss of income consequent upon bereavement and that widowhood could entail a change of behaviour on the employment market. The survey showed that widowers were usually in a sounder financial position than widows, for reasons mainly linked to the employment market and continuing inequalities between women and men in that sphere. In view of the increasing number of women in gainful employment and the changes in the distribution of roles in the family and at work, the government considered that the bereavement risk ought to be covered in a more targeted manner. The 2020 reform consequently envisaged abolishing widows\u2019 pensions for childless women after a long transitional period, but only very slightly modified the conditions for entitlement to a widower\u2019s pension, payment of which was to end \u2013 as was already the case at the time \u2013 on the youngest child\u2019s eighteenth birthday.<\/p>\n 28. The 2020 reform was approved by Parliament on 17\u00a0March 2017. After deliberating on the matter, both houses decided not to amend the existing system for widows\u2019 and widowers\u2019 pensions. Following a referendum held on 24\u00a0September 2017, the \u201cOld\u2011Age Pensions\u00a02020\u201d proposal was rejected.<\/p>\n III. WORK BY THE COUNCIL OF EUROPE<\/strong><\/p>\n Recommendation no. R (85) 2 of 5 February 1985 on legal protection against sex discrimination<\/p>\n 29. In this Recommendation, the Committee of Ministers, signalling its awareness of ongoing inequalities between men and women in spite of the extensive work carried out by member States, called upon the latter to take or reinforce, as the case might be, any measures they considered appropriate with a view to securing gender equality. Concerning legislative measures, the Recommendation states (principle\u00a0I.\u00a02.) that in the field of social security and pensions, men and women should be treated in an equal way with regard to access to official social security and pension systems or to any other similar systems set up under public law and with regard to the benefits paid by such systems.<\/p>\n IV. RELEVANT INTERNATIONAL INSTRUMENTS<\/strong><\/p>\n 30. The relevant part of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which was ratified by Switzerland in 1997, reads:<\/p>\n Article 2<\/p>\n \u201cStates Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:<\/p>\n (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;<\/p>\n (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;<\/p>\n (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;<\/p>\n (d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;<\/p>\n (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;<\/p>\n (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;<\/p>\n (g) To repeal all national penal provisions which constitute discrimination against women.\u201d<\/p>\n THE LAW<\/strong><\/p>\n 31. The applicant submitted that unlike a widow in a similar situation, he had ceased to be entitled to a widower\u2019s pension since his younger daughter had reached the age of majority, and alleged that he had been discriminated against on that account. He relied on Article\u00a014 of the Convention read in conjunction with Article\u00a08, the relevant parts of which provide:<\/p>\n Article 14<\/p>\n \u201cThe enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex …\u201d<\/p>\n Article\u00a08<\/p>\n \u201c1. Everyone has the right to respect for his … family life …<\/p>\n 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well\u2011being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\u201d<\/p>\n I. THE GOVERNMENT\u2019S PRELIMINARY OBJECTION<\/strong><\/p>\n A. The parties\u2019 submissions<\/strong><\/p>\n 1. The Government<\/em><\/p>\n 32. The Government reiterated the objection which they had raised before the Chamber (see paragraphs\u00a023\u201128 of the Chamber judgment) and urged the Court to declare the complaint under Article 14 read in conjunction with Article\u00a08 inadmissible as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article\u00a035 \u00a7\u00a03\u00a0(a) of the Convention.<\/p>\n 33. The Government stated that it was clear from the case\u2011law of the Court (particularly that of the Grand Chamber) that social welfare benefits such as the one in issue in the present case generated pecuniary rights, which ordinarily fell within the scope of Article\u00a01 of Protocol No.\u00a01. They observed that disputes specifically relating to unequal treatment of widows and widowers as regards the payment of a survivor\u2019s pension had been examined by the Court under Article\u00a014 of the Convention in conjunction with Article\u00a01 of Protocol No.\u00a01 (they cited, in particular, Willis v.\u00a0the United Kingdom, no.\u00a036042\/97, ECHR\u00a02002\u2011IV; Runkee and White v.\u00a0the United Kingdom, nos.\u00a042949\/98 and 53134\/99, 10\u00a0May 2007;and \u015eerife Yi\u011fit v.\u00a0Turkey [GC], no.\u00a03976\/05, 2November 2010). The few cases which the Court had considered under Article\u00a014 of the Convention in conjunction with Article\u00a08, including Petrovic v.\u00a0Austria (27\u00a0March 1998, Reports of Judgments and Decisions 1998\u2011II), Dhahbi v.\u00a0Italy (no.\u00a017120\/09, 8\u00a0April 2014),Weller v.\u00a0Hungary (no.\u00a044399\/05, 31\u00a0March 2009)and Konstantin Markin v.\u00a0Russia\u00a0([GC], no.\u00a030078\/06, ECHR\u00a02012 (extracts)), had concerned \u201cfamily\u201d welfare benefits of a very different kind from the one in issue in the present case. Furthermore, those cases had been characterised by the existence of a direct and especially close link between the provision of the welfare benefit and family life, stemming in particular from the aim of the allowance in question, inasmuch as the latter had been directly intended to facilitate or promote family life.<\/p>\n 34. The Government observed that that approach had been applied in a clear, consistent and foreseeable manner until the departure from previous case\u2011law in Di\u00a0Trizio v.\u00a0Switzerland (no.\u00a07186\/09, 2\u00a0February 2016) and Belli and Arquier\u2011Martinez v.\u00a0Switzerland (no.\u00a065550\/13, 11\u00a0December 2018). In those cases, which appeared to constitute a special body of case\u2011law tailored to Switzerland as a State that had not ratified Protocol No.\u00a01, the Court had simply relied on a tenuous, indeed highly indirect, link between the benefit in question and the enjoyment of family life, on the grounds that the issues arising were bound up with the organisation of family life. In the Government\u2019s view, the Court\u2019s findings in those Swiss cases amounted to holding that any decision on whether or not to grant a pension fell automatically within the scope of Article\u00a08, thus expanding that scope, given that a social welfare benefit was always liable to affect an individual\u2019s family life in one way or another. Such an approach also risked weakening the requirement that Article\u00a014 of the Convention should be accessory in nature.<\/p>\n 35. The Government stated that they were convinced that the Court should consider under Article\u00a08 only such cases as presented a close and direct link between the provision of the social welfare benefit in question and the enjoyment of family life, adding that such a link should be examined objectively in the light of the nature and aim of the benefit as determined by the law and practice of the State concerned.<\/p>\n 36. However, in the present case, in which a very close link of this kind was clearly absent, the Chamber had failed to explain why it had considered it legitimate to depart from the approach of systematically considering such complaints under Article\u00a01 of Protocol No.\u00a01. The Government reaffirmed in that connection that the sole aim of the widow\u2019s and widower\u2019s pension was to prevent any financial difficulties that might arise as a result of the spouse\u2019s death, by meeting the surviving spouse\u2019s basic needs. Unlike a parental\u2011leave allowance or large\u2011family allowance, and contrary to the Chamber\u2019s conclusion in paragraph\u00a043 of its judgment, the pension in question was not aimed at promoting the family and had no effect on the organisation of family life either. This was demonstrated by the fact that the widow\u2019s pension could, subject to certain conditions, also be paid to widows without any children. The Government further explained that costs relating to the maintenance of the deceased\u2019s children were covered by their orphans\u2019 pensions. Moreover, given that the presence of children over the age of\u00a015 was no obstacle to their parents\u2019 engaging in an occupation, the widower\u2019s pension was no longer necessary when the children reached the age of majority, at the very latest, and did not affect family life outside of working or school hours. This meant, in addition, that the survivor\u2019s pension provided for in Swiss law was clearly different from the social welfare benefits found by the Court to fall within the scope of Article\u00a08, which was narrower than that of Article\u00a01 of Protocol\u00a0No.\u00a01.<\/p>\n 37. The Government took the view that in the present case it had not been shown how, in practical terms, the termination of the applicant\u2019s widower\u2019s pension when his younger daughter had come of age had affected his family life. They further contended that the termination of the pension had been foreseeable for the applicant and that he had not established that he could not have resumed paid employment once both his daughters had reached the age of majority. In fact, it was more likely that the payment of the pension had dictated the way in which the applicant\u2019s family life was organised, that is, his choice to stay at home, rather than viceversa; the Government pointed out that the widower\u2019s pension had not existed when the applicant had lost his wife in 1994. That being so, neither the grant of the widower\u2019s pension to the applicant in 1997 nor, a fortiori, its termination in 2010 had been family\u2011related or had any real impact on the organisation of his family life. If the termination of the pension had had any financial impact, it could only have affected the applicant\u2019s personal sphere.<\/p>\n 38. The Government further argued that when Switzerland had acceded to the Convention, it had been clear that Article\u00a08 did not cover entitlement to welfare benefits, and that was still the case today. In their view, it was under Article\u00a01 of Protocol No.\u00a01 that the Court had extended the scope of its protection to cover welfare benefits. Moreover, sources including a recent Federal Council report indicated that the reasons why Switzerland had not ratified Protocol No.\u00a01 related to its desire to comply with international law and to the fact that its domestic law did not cover all the requirements deriving from that Protocol, particularly in the sphere of social security benefits. Since a treaty was valid only among the parties to it, the right of property deriving from Article\u00a01 of Protocol No.\u00a01 could not be relied on against the Swiss State on the basis of an extensive interpretation of Article\u00a08, as that would be liable to frustrate that State\u2019s sovereign will and impose obligations on it to which it had not voluntarily subscribed. Furthermore, in accordance with Article\u00a031\u00a7\u00a01 of the Vienna Convention of 1969 on the Law of Treaties, an extensive interpretation could not be used to confer on a term an effect which a State had precisely wished to avoid by not ratifying a different treaty. It followed that if the facts of the present case, by reason of their pecuniary dimension, were found to fall within the ambit of Article\u00a01 of Protocol No.\u00a01 rather than Article\u00a08 of the Convention, the applicant\u2019s complaint should be excluded from the scope of the latter Article and declared inadmissible as incompatible ratione materiae with the Convention.<\/p>\n 39. The Government submitted that the adoption by the parties to a treaty of a protocol covering certain specific subjects was a clear sign of the parties\u2019 shared intention that the subjects in question should not be governed by the original treaty. As regards Protocol No.\u00a01, they contended that the parties\u2019 intentions were clear from the Preamble thereto and from Article\u00a05thereof, and that it followed that Protocol No.\u00a01 could only supplement the Convention. Although the Convention was a living instrument that was intended to guarantee rights that were practical and effective, the Court could not derive rights from the Convention which had been deliberately omitted from it at the outset, as was the case for social rights (which were set forth in the European Social Charter). Accordingly, the Court could not disregard the protection afforded by an additional protocol and extend the scope of Article\u00a08 of the Convention, or indeed circumvent its usual meaning, in such a way as to encompass the obligations deriving from Article\u00a01 of Protocol\u00a0No.\u00a01, and if it did so, the latter provision would in a sense be superfluous. In the Government\u2019s submission, while it was not entirely inconceivable to consider, as the Court\u2019s case\u2011law did, that within the same protocol certain provisions were subsumed within a right set forth in a Convention Article while others were not, that nonetheless required an interpretation in keeping with the methods referred to in the Vienna Convention.<\/p>\n 2. The applicant<\/em><\/p>\n 40. The applicant began by explaining that he had worked as a textile technician until 1992, and subsequently for an insurance company. After his wife\u2019s death in August 1994 he had ceased working and brought up his daughters alone, until they had completed their education and graduated from university. His widower\u2019s pension, once granted from 1997 onwards, and supplementary benefits had allowed him to devote himself entirely to looking after, bringing up and caring for his daughters. The termination of his pension when he was 57\u00a0years old had caused him serious family and financial problems, because he had been unable to find a job on account of his age, the computerisation of his occupation and his long absence from the labour market. At the same time, his daughters had nevertheless remained dependent on him because they had not completed their education. He had therefore on several occasions had to apply for welfare assistance in order to meet their needs. Moreover, between the termination of his widower\u2019s pension and the first instalments of his old\u2011age pension his family life had been significantly restricted, ruling out the usual family activities for lack of money. Financial difficulties had prevented him from inviting his daughters to family occasions, giving them birthday or Christmas presents, or going on holiday with them.<\/p>\n 41. The applicant accordingly submitted that the present case struck at the very concept of family life, which was protected by Article\u00a08 of the Convention. The case did not concern the payment of a pension as such \u2013 the only issue which would fall within the scope of Article 1 of Protocol No.\u00a01 \u2013 but rather a difference in the treatment of identical, specific family relationships, resulting in unequal amounts of pension. The facts of the case therefore clearly fell within the ambit of Article\u00a08, and this was unaffected by the fact that such discrimination could also have pecuniary consequences or involve material interests. Any attempt to examine the present case under Article\u00a014 read in conjunction with Article\u00a01 of Protocol No.\u00a01, arbitrarily excluding any reference to the applicant\u2019s family situation, would mean calling the Court\u2019s case\u2011law into question. Moreover, for the protection secured under Article\u00a08 of the Convention to be applicable in conjunction with Article\u00a014, there was no need for there to be a close link between the payment of the pension and the applicant\u2019s enjoyment of his family life, let alone for there to be a violation of Article\u00a08.<\/p>\n 42. The applicant submitted that the Government\u2019s argument that there had to be a close link between entitlement to the pension and the enjoyment of family life was not supported by the Court\u2019s case\u2011law. He argued that even if such a link were necessary, it would not be lacking in the instant case, because in accordance with the relevant legislation, the survivor\u2019s pension was aimed at protecting married couples, particularly families with children, in the event of the death of one of the spouses and parents. In the applicant\u2019s view, therefore, it could not be maintained that that benefit was not aimed at facilitating or contributing to family life. It was also clear that his daughters and he had been specifically and individually affected, not only when the payment of the pension had ended. Indeed, the law had penalised the applicant for having looked after his daughters during their childhood and for not having organised his family life in line with what he saw as the false assumption underpinning the survivor\u2019s pension system to the effect that the man\u2019s role was that of the breadwinner.<\/p>\n 43. The applicant considered it obvious that the guarantees provided in additional protocols added new rights to those set out in the Convention, but could neither restrict nor extend the Convention rights. Moreover, it was well established in the case\u2011law that a given situation could fall under both Article\u00a08 of the Convention and Article\u00a01 of Protocol No.\u00a01, whereas the latter did not constitute a lex specialis in relation to Article\u00a08. Even where the Court had considered a complaint under Article\u00a01 of Protocol No.\u00a01, it had not ruled out the possibility that the same complaint could be examined under Article\u00a08 of the Convention, as was illustrated, for example, by the cases of \u015eerife Yi\u011fit (cited above), Sawden v.\u00a0the United Kingdom ((dec.), no.\u00a038550\/97, 8\u00a0June1999) and Aldeguer Tom\u00e1sv.\u00a0Spain (no.\u00a035214\/09, 14\u00a0June 2016). Indeed, it would be dangerous to claim otherwise, because that would mean that an additional protocol restricted the rights secured under the Convention. The applicant emphasised that this did not, however, imply that Article 1 of Protocol No.\u00a01 had no independent existence, since there were many cases concerning property rights and the fields of social security and taxation which had nothing to do with Article\u00a08.<\/p>\n The applicant further observed that widows\u2019 and widowers\u2019 pensions were aimed, in principle, at exempting surviving spouses from having to engage in paid work and at providing them with social welfare protection, so that they had time to look after their children. Just as a widow\u2019s pension paid after the children had reached the age of majority enabled a widow to continue to look after her family, a widower\u2019s pension paid after the children reached the age of majority would enable a father to continue to care for his family. If such a mode of provision for the family was no longer considered necessary once the children had come of age, the pension should be discontinued for parents of both sexes, although that would amount to ignoring the fact that by that time in their lives, widows and widowers had often reached an age at which it was de facto impossible to resume employment.<\/p>\n B. The Chamber judgment<\/strong><\/p>\n 44. The Chamber first of all observed that the concept of \u201cfamily life\u201d not only included social, moral or cultural relations but also comprised interests of a material kind (see Merger and Cros v.\u00a0France, no.\u00a068864\/01, \u00a7\u00a046, 22\u00a0December 2004). It further pointed out that measures enabling one of the parents to stay at home to look after the children promoted family life and thus affected the way in which it was organised, and that such measures fell within the scope of Article\u00a08 (see, among other authorities, Petrovic, Konstantin Markin and, to similar effect, Weller and Dhahbi, all cited above).<\/p>\n 45. In the light of the principles established in the aforementioned case\u2011law and with reference to the judgments in two previous Swiss cases, Di\u00a0Trizio and Belli and Arquier\u2011Martinez (both cited above), the Chamber considered that the applicant\u2019s complaint fell within the ambit of Article\u00a08 of the Convention. It held that widows\u2019 and widowers\u2019 pensions were aimed at exempting surviving spouses from having to engage in paid work so that they had time to look after their children, and that the benefit in question was therefore clearly \u201cfamily\u2011related\u201d since it had a real impact on the organisation of the applicant\u2019s family life.<\/p>\n 46. As regards the practical consequences of the widower\u2019s pension for the applicant, the Chamber pointed out that since his wife\u2019s death in an accident, when the couple\u2019s children had been 21 months old and four years old, the applicant, who up to that point had been in employment, had devoted himself exclusively to his children\u2019s upbringing and had been unable to pursue his occupation. When payment of the pension had ceased, he had been 57\u00a0years old and had not been in gainful employment for over sixteen years. By the time of the Federal Supreme Court\u2019s judgment, the applicant had already reached the age of\u00a059, making it difficult to envisage a return to the labour market. In those circumstances, the Chamber took the view that the widower\u2019s pension, which had been paid to the applicant since his wife\u2019s death and had been terminated when his younger child had reached the age of majority, had affected the way in which he had organised and managed his family life.<\/p>\n C. The Court\u2019s assessment<\/strong><\/p>\n 1. Preliminary remarks<\/em><\/p>\n 47. According to the consistent case\u2011law of the Court, Article\u00a014 of the Convention only complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to \u201cthe enjoyment of the rights and freedoms\u201d safeguarded by those provisions (see, among many other authorities, \u015eahin v.\u00a0Germany\u00a0[GC], no.\u00a030943\/96, \u00a7\u00a085, ECHR\u00a02003\u2011VIII, and F\u00e1bi\u00e1n v.\u00a0Hungary\u00a0[GC], no.\u00a078117\/13, \u00a7\u00a0112, 5\u00a0September 2017).<\/p>\n 48. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary, but it is also sufficient, for the facts of the case to fall within the ambit of one or more of the Convention Articles. Moreover, the prohibition of discrimination enshrined in Article\u00a014 extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the ambit of any Convention Article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court\u2019s case\u2011law (see, among many other authorities, Konstantin Markin, cited above, \u00a7\u00a0124;Petrovic, cited above, \u00a7\u00a022; Yocheva and Ganeva v.\u00a0Bulgaria, nos.\u00a018592\/15 and 43683\/15, \u00a7\u00a071, 11\u00a0May 2021;and Stec and\u00a0Others v.\u00a0the United Kingdom\u00a0(dec.)\u00a0[GC], nos.\u00a065731\/01 and 65900\/01, \u00a7\u00a039, ECHR\u00a02005\u2011X).<\/p>\n 49. Having regard to the non\u2011autonomous nature of Article\u00a014 of the Convention, and also to the request for referral and the parties\u2019 observations, the Court observes that it must first determine whether the applicant\u2019s interests that were adversely affected by the survivor\u2019s pension system fell within the ambit of Article\u00a08 of the Convention (see, mutatis mutandis, Stec and Others (dec.), cited above, \u00a7\u00a041). Indeed, the answer to that question is decisive in establishing whether the Court has jurisdiction to deal with the merits of the case, relating to the alleged violation of Article\u00a014 of the Convention read in conjunction with Article\u00a08.<\/p>\n 2. Development and current state of case\u2011law on social welfare benefits<\/em><\/p>\n 50. The Court observes that the Convention as adopted in\u00a01950 reflected the idea of a separation between civil and political rights, on the one hand, and economic, social and cultural rights, on the other. The catalogue of rights guaranteed by the Convention and by Protocol No.\u00a01, adopted in\u00a01952, was clearly based on civil and political rights, to which the 1961 European Social Charter added economic and social rights. Moreover, the travaux pr\u00e9paratoires of the Social Charter indicate that that instrument was intended to form a \u201cpendant\u201d to the Convention in the social sphere.<\/p>\n 51. Nevertheless, as the Court itself has noted, \u201c[w]hilst theConvention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature\u201d; furthermore, an interpretation of the Convention may extend into the sphere of social and economic rights, since \u201cthere is no watertight division separating that sphere from the field covered by the Convention\u201d (see Airey v. Ireland, 9\u00a0October 1979, \u00a7\u00a026, Series\u00a0A no.\u00a032, and Stec and Others (dec.), cited above, \u00a7\u00a052).<\/p>\n 52. The Court subsequently built on this approach as regards Article 1 of Protocol No.\u00a01, notably in the social security sphere, finding that its approach should reflect the reality of the way in which welfare protection was currently organised within the member States of the Council of Europe, as deriving in particular from the provisions of the Social Charter (see Stec and\u00a0Others\u00a0(dec.),cited above, \u00a7\u00a7\u00a050 and 52).<\/p>\n 53. In this connection, it should be noted at the outset that Switzerland has ratified neither the Social Charter nor, above all, Protocol No.\u00a01, and the reasons for that particular policy choice have been explained by the Government (see paragraph\u00a038 above). Protocol No.\u00a01 cannot therefore be relied on against Switzerland (see, mutatis mutandis,Demir and Baykara v.\u00a0Turkey\u00a0[GC], no.\u00a034503\/97, \u00a7\u00a7\u00a057, 60 and 149, ECHR\u00a02008).<\/p>\n 54. In the context of the present case, it should be emphasised that in the vast majority of cases where the Court has ruled on alleged discrimination in the sphere of entitlement to social welfare benefits, it has concentrated its analysis on Article\u00a01 of Protocol No.\u00a01, and not on Article\u00a08 of the Convention. First of all, it held that paying contributions into a pension fund or a social security scheme could, under certain circumstances, give rise to property rights for the purposes of Article\u00a01 of Protocol No.\u00a01 (see Bellet,\u00a0Huertas andVialatte v.\u00a0France (dec.), nos.\u00a040832\/98 and 2 others, 27\u00a0April1999; Skorkiewicz v.\u00a0Poland (dec.), no.\u00a039860\/98, 1\u00a0June 1999; Gaygusuz v.\u00a0Austria, 16\u00a0September 1996, \u00a7\u00a7\u00a039 and 41, Reports 1996\u2011IV; and Kjartan\u00a0\u00c1smundsson v.\u00a0Iceland, no.\u00a060669\/00, \u00a7\u00a039, ECHR 2004\u2011IX).<\/p>\n 55. Subsequently, in its decision in Stec and Others, the Court held that, for the purposes of the applicability of Article\u00a01 of Protocol No.\u00a01, there was no longer any justification for drawing a distinction between contributory and non\u2011contributory benefits (see Stec and Others (dec.), cited above, \u00a7\u00a7\u00a052\u201153). It also emphasised that the principles which applied generally in cases under Article\u00a01 of Protocol No.\u00a01 were equally relevant as regards welfare benefits. There can thus be no doubt that that Article places no restriction on the Contracting State\u2019s freedom to decide whether or not to have in place any form of social\u2011security scheme, or to choose the type or amount of benefits to provide under any such scheme. However, if a Contracting State has in force legislation providing for the payment as of right of a welfare benefit or a pension, that legislation must be regarded as generating a proprietary interest falling within the ambit of Article\u00a01 of Protocol No.\u00a01 for persons satisfying its requirements (ibid., \u00a7\u00a054), and it must be compatible with Article\u00a014 of the Convention (see Stec and Others v.the United Kingdom\u00a0[GC], nos.\u00a065731\/01 and 65900\/01, \u00a7\u00a053, ECHR 2006\u2011VI).<\/p>\n 56. Many cases examined to date by the Court (including Willis,cited above; Mu\u00f1oz D\u00edaz v.\u00a0Spain,no.\u00a049151\/07, ECHR 2009; Moskal v.\u00a0Poland, no.\u00a010373\/05, 15\u00a0September 2009; Si\u00a0Amer v.\u00a0France, no.\u00a029137\/06, 29\u00a0October 2009; Santos Hansen v.\u00a0Denmark (dec.), no.\u00a017949\/07, 9\u00a0March2010; Hasani v.\u00a0Croatia (dec.), no.\u00a020844\/09, 30\u00a0September 2010; \u0160ulcs and\u00a0Others v.\u00a0Latvia (dec.), no.\u00a042923\/10, 6\u00a0December 2011; Guberina v.\u00a0Croatia, no.\u00a023682\/13, 22\u00a0March 2016; and B\u00e9lan\u00e9 Nagy v.\u00a0Hungary[GC], no.\u00a053080\/13, 13\u00a0December 2016) show that in the sphere of social welfare benefits,the Court regularly carries out its analysis primarily under Article\u00a01 of Protocol No.\u00a01, or else under Article\u00a014 in conjunction with Article\u00a01 of Protocol No.\u00a01 where the applicant complains that he or she was deprived of a benefit on discriminatory grounds. In particular, in Moskal and B\u00e9lan\u00e9 Nagy (both cited above), the Court chose to examine the complaints concerning welfare benefits under Article\u00a01 of Protocol No.\u00a01 in the first place, and subsequently did not consider it necessary to pursue its examination under Article 8 of the Convention.<\/p>\n 57. On the basis of all the above considerations, the Court observes that its case\u2011law has now taken on sufficient maturity and stability for it to give a clear definition of the threshold required for the applicability of Article\u00a01 of Protocol No.\u00a01, including in the sphere of social welfare benefits. It should be reiterated in this connection that that Article does not create a right to acquire property or to receive a pension of a particular amount. Its protection applies only to existing possessions and, undercertain circumstances, to the \u201clegitimate expectation\u201d of obtaining an asset; for the recognition of a possession consisting in a legitimate expectation, the applicant must have an assertable right which may not fall short of a sufficiently established, substantive proprietary interest under the national law (see B\u00e9lan\u00e9Nagy, cited above, \u00a7\u00a7\u00a074\u201179).<\/p>\n 58. Thus, where the applicant does not satisfy, or ceases to satisfy, the legal conditions laid down in domestic law for entitlement to any particular form of benefits or pension, there is no interference with the rights under Article\u00a01 of Protocol No.\u00a01 if the conditions had changed before the applicant became eligible for the benefit in question.Where the suspension or diminution of a pension was not due to any changes in the applicant\u2019s own circumstances, but to changes in the law or its implementation, this may result in an interference with the rights under Article\u00a01 of Protocol No.\u00a01. Accordingly, where the domestic legal conditions for entitlement to any particular form of benefits or pension have changed and where, as a result, the person concerned no longer fully satisfies them, a careful consideration of the individual circumstances of the case \u2013 in particular, the nature of the change in the conditions \u2013 may be warranted in order to verify the existence of a sufficiently established, substantive proprietary interest under the national law (ibid., \u00a7\u00a7\u00a086\u201189).<\/p>\n 59. The situation has been less clear as regards the scope of Article\u00a08 of the Convention in this sphere. While it is not in doubt that the concept of \u201cfamily life\u201d within the meaning of Article\u00a08 also covers, in addition to social, moral and cultural relations, certain material interests which have necessary pecuniary consequences, that interpretation has been chiefly adopted in cases concerning a failure to recognise parent\u2011child relationships in law and the consequences of such failure for the transfer of property between private individuals (see, among other authorities, Marckx v.\u00a0Belgium, 13\u00a0June 1979, Series\u00a0A no.\u00a031; Camp and Bourimi v.\u00a0the Netherlands, no.\u00a028369\/95, ECHR\u00a02000\u2011X; Pla and Puncernau v.\u00a0Andorra, no.\u00a069498\/01, ECHR\u00a02004\u2011VIII; Merger and Cros, cited above; Schaefer v.\u00a0Germany (dec.), no.\u00a014379\/03, 4\u00a0September 2007; and Brauer v.\u00a0Germany, no.\u00a03545\/04, 28\u00a0May 2009).<\/p>\n Thus, in \u015eerife Yi\u011fit (cited above), the failure to recognise the applicant\u2019s religious marriage and the consequences of that failure in terms of inheritance rights were examined by the Court under Article\u00a08 of the Convention, whereas the financial aspect of the applicant\u2019s complaint, concerning the State\u2019s refusal to award her a survivor\u2019s pension and social security benefits, was considered under Article\u00a014 of the Convention in conjunction with Article\u00a01 of Protocol No.\u00a01.<\/p>\n 60. There have been fewer cases in which complaints concerning social welfare benefits, that is to say, payments from public funds, including social insurance funds, have been examined by the Court under Article\u00a08 read alone (see, for example, La Parola and Others v.\u00a0Italy (dec.), no.\u00a039712\/98, 30\u00a0November 2000; McDonald v.\u00a0the United Kingdom, no.\u00a04241\/12, 20\u00a0May2014; and Belli and Arquier\u2011Martinez, cited above). The Court does not infer from those cases that Article\u00a08 read alone can be interpreted as imposing any positive obligations on the State in the social security sphere.<\/p>\n 61. However, certain guidelines for the identification of the factors capable of bringing the facts of a case of this kind within the ambit of Article\u00a08 can be gleaned from the more numerous cases in which the Court has examined complaints concerning welfare benefits under Article\u00a014 of the Convention in conjunction with Article\u00a08. While Article\u00a08 does not guarantee the right to a social welfare benefit, where a State decides to go beyond its obligations under Article\u00a08 in creating such a right \u2013 a possibility open to it under Article\u00a053 of the Convention \u2013 it cannot, in the application of that right, take discriminatory measures within the meaning of Article\u00a014 (see, mutatis mutandis, Stec and Others (judgment),\u00a7\u00a053; Konstantin Markin, \u00a7\u00a0130; and Aldeguer Tom\u00e1s, \u00a7\u00a076, all cited above).<\/p>\n 62. Consequently, the scope of Article\u00a014 read in conjunction with Article\u00a08 may be more extensive than that of Article\u00a08 read alone. In finding that complaints concerning social welfare benefits fall within the ambit of Article\u00a08, thus bringing Article\u00a014 into play, the Court has had regard to a number of different factors over time.<\/p>\n 63. Mention should first of all be made of the cases concerning parental leave and related allowances, namely Petrovic (cited above), Konstantin\u00a0Markin (cited above) and Top\u010di\u0107\u2011Rosenbergv.\u00a0Croatia (no.\u00a019391\/11, 14\u00a0November 2013). In those cases, which saw the emergence of the concept of \u201corganisation of family life\u201d, the applicability of Article\u00a014 read in conjunction with Article\u00a08 stemmed from a combination of circumstances involving the granting of leave and an allowance, which in the applicants\u2019 specific situation had necessarily affected the way in which their family life was organised.<\/p>\n 64. Another approach, which the Court adopted in cases including Di\u00a0Trizio andBelli and Arquier\u2011Martinez (both cited above), and which guided the Chamber in its judgment in the present case, is based instead on the hypothesis that the fact of granting or refusing the benefit is liable to affect the way in which family life is organised.<\/p>\n 65. Lastly, in other judgments, most of them predating that delivered by the Grand Chamber in Konstantin Markin (cited above), 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. The Court has adopted such an approach in cases concerning, for example, amaternity benefit (see Weller, cited above), a large\u2011family allowance (see Fawsie v.\u00a0Greece, no. 40080\/07, 28\u00a0October 2010,and Dhahbi, cited above), child benefits (see Okpisz v.\u00a0Germany, no.\u00a059140\/00, 25\u00a0October 2005, and Niedzwiecki v.\u00a0Germany, no.\u00a058453\/00, 25\u00a0October 2005) and a family allowance in respect of children with only one living parent (see Yocheva and\u00a0Ganeva, cited above).<\/p>\n 3. Approach to be followed henceforth<\/em><\/p>\n 66. An analysis of the case\u2011law summarised above indicates that the Court has 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\u00a08 of the Convention.<\/p>\n 67. The Court notes at the outset that all financial benefits generally have a certain effect on the way in which the family life of the person concerned is managed, although that fact alone is not sufficient to bring them within the ambit of Article\u00a08. Otherwise, all welfare benefits would fall within the ambit of that Article, an approach which would be excessive.<\/p>\n 68. It is therefore necessary for the Court to clarify the relevant criteria in order to specify, or indeed to circumscribe, what falls within the ambit of Article\u00a08 in the sphere of welfare benefits.<\/p>\n 69. It can also be seen from the case\u2011law summarised above that in the field of social welfare benefits, the sphere of protection of Article\u00a01 of Protocol No.\u00a01 and that of Article\u00a08 of the Convention intersect and overlap, although the interests secured under those Articles are different. In determining which complaints fall within the ambit of Article\u00a08, the Court must redress the inconsistencies noted under Article\u00a08, particularly when read in conjunction with Article\u00a014 of the Convention (see paragraphs\u00a064\u201165 above).<\/p>\n It follows that the Court can no longer simply accept either a legal presumption to the effect that in providing the benefit in question, the State is displaying its support and respect for family life (see the case\u2011law cited in paragraph\u00a065 above), or a hypothetical causal link whereby it ascertains whether the grant of a particular benefit is \u201cliable to affect the way in which family life is organised\u201d (see the case\u2011law cited in paragraph\u00a064above).<\/p>\n 70. In the Court\u2019s view, the Grand Chamber judgment in Konstantin\u00a0Markin (cited above) should be taken as the main reference point here:<\/p>\n \u201c(i) On whether Article 14 taken in conjunction with Article 8 is applicable<\/p>\n 129. The Court must determine at the outset whether the facts of the case fall within the scope of Article\u00a08 and hence of Article\u00a014 of the Convention. It has repeatedly held that Article 14 of the Convention is pertinent if \u2018the subject matter of the disadvantage … constitutes one of the modalities of the exercise of a right guaranteed …\u2019, or if the contested measures are \u2018linked to the exercise of a right guaranteed …\u2019. For Article\u00a014 to be applicable, it is enough for the facts of the case to fall within the ambit of one or more of the provisions of the Convention (see Thlimmenos v.\u00a0Greece\u00a0[GC], no.\u00a034369\/97, \u00a7\u00a040, ECHR\u00a02000\u2011IV; E.B. v.\u00a0France, cited above, \u00a7\u00a7\u00a047\u201148; and Frett\u00e9 v.\u00a0France, no.\u00a036515\/97, \u00a7\u00a031, ECHR\u00a02002\u2011I, with further references.<\/p>\n 130. It is true thatArticle\u00a08 does not include a right to parental leave or impose any positive obligation on States to provide parental\u2011leave allowances. At the same time, by enabling one of the parents to stay at home to look after the children, parental leave andrelated allowances promote family life and necessarily affect the way in which it is organised [emphasis added]. Parental leave and parental allowances therefore come within the scope of Article\u00a08 of the Convention. It follows that Article\u00a014, taken together with Article\u00a08, is applicable. Accordingly, if a State does decide to create a parental\u2011leave scheme, it must do so in a manner which is compatible with Article\u00a014 of the Convention (see Petrovic, cited above, \u00a7\u00a7\u00a026\u201129).\u201d<\/p>\n 71. In the context of Konstantin Markin, the applicability of Article\u00a014 of the Convention in conjunction with Article\u00a08 stemmed from the fact that the parental leave and the corresponding allowance had \u201cnecessarily affect[ed] the way in which [family life was] organised\u201d (compare and contrast the approach followed in the cases referred to in paragraphs\u00a064 and 65 above), both measures having been aimed at enabling one of the parents to remain at home to look after the children (in this case, infants). Thus, a close link between the allowance associated with parental leave and the enjoyment of family life was considered necessary.<\/p>\n 72. Accordingly, for Article\u00a014 of the Convention to be applicable in this 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\u00a08 of the Convention, in the sense that the measures seek to promote family life and necessarily affect the way in which it is organised. The Court considers that a range of factors are relevant for determining the nature of the benefit in question and that they should be examined as a whole. These will include, in particular: 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 is organised, as envisaged by the legislation; and the practical repercussions of the benefit, given the applicant\u2019s individual circumstances and family life throughout the period during which the benefit is paid.<\/p>\n 4. Application to the present case<\/em><\/p>\n 73. In accordance with the approach set out above, with a view to determining whether Article\u00a08 and, consequently, Article\u00a014 of the Convention come into play in the present case, the Court is called upon to consider the relevant factors as a whole and to take into account the entire period from1997 to2010, during which the applicant received the widower\u2019s pension.<\/p>\n 74. The Court considers firstly that in this particular case it must assess the aim of the survivor\u2019s pension. To that end, regard should be had to the wording of the relevant statutory provisions, that is to say, sections\u00a023 and\u00a024 of the Federal Law on old\u2011age and survivors\u2019 insurance (see paragraph\u00a020 above), and the conditions for entitlement to the pension. It observes that section\u00a023 of the Federal Law lays down conditions to the effect that in order to be eligible for this benefit, the surviving parent must have one or more children at the time of the spouse\u2019s death. The same section also refers to the requirement for the surviving spouse to be living together with the deceased spouse\u2019s children (subsection\u00a02) and to the marital status of the pension beneficiary (subsections\u00a04 and\u00a05). However, with the exception of widows satisfying the criteria in section\u00a024(1) of the Federal Law, surviving spouses are not entitled to the pension if the family have no children.<\/p>\n 75. By virtue of that legislation, the applicant, who had lost his wife in\u00a01994, was accordingly entitled to the widower\u2019s pension on its introduction in\u00a01997 solely because he was the father of dependent children. The material before the Court indicates, moreover, that his wife had previously had primary responsibility for looking after the children, whereas the applicant had been in employment, first as a textile technician and then in an insurance company.<\/p>\n 76. Next, it should be noted that the termination of the widower\u2019s pension was also the consequence of the applicant\u2019s family circumstances, specifically the age of his children, since his entitlement to the pension lapsed when his younger daughter reached the age of\u00a018.<\/p>\n 77. The Court is mindful of the Government\u2019s assertion that the sole aim of the widow\u2019s and widower\u2019s pension is to prevent any financial difficulties that might arise as a result of the spouse\u2019s death, by meeting the surviving spouse\u2019s basic needs (see paragraph\u00a036 above). However, irrespective of the intended effect of the legislation as argued by the Government, the Court concludes from the above observations that the pension in question in fact seeks to promote family life for the surviving spouse by enabling the latter to look after his or her children full\u2011time 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.<\/p>\n 78. The Court must also ascertain, in the light of all the specific circumstances of the present case, how the fact that the applicant received the benefit between\u00a01997 and\u00a02010 before being deprived of it when his younger daughter reached the age of majority affected the way in which his family life was organised during that period.<\/p>\n 79. In this connection, the Court observes that at the time of the applicant\u2019s wife\u2019s death in 1994, their daughters were one year and nine months old and four years old. In that situation, which made it necessary to take difficult decisions with a crucial impact on the organisation of his family life, the applicant left his job in order to devote himself full\u2011time to his family, in particular by looking after and bringing up his daughters. The Court has no doubt that the receipt of the widower\u2019s pension necessarily affected the way in which his family life was organised throughout the period concerned.<\/p>\n 80. It follows that from the point at which the applicant was granted the widower\u2019s pension in\u00a01997 until it was terminated in November 2010, he and his family organised the key aspects of their daily life, at least partially, on the basis of the existence of the pension.<\/p>\n 81. The Court notes, lastly, that the delicate financial situation in which the applicant found himself at the age of\u00a057 in view of the loss of the survivor\u2019s pension and his difficulties in returning to an employment market from which he had been absent for sixteen years was the consequence of the decision he had made years earlier in the interests of his family, supported from\u00a01997 onwards by receipt of the widower\u2019s pension.<\/p>\n 82. The above considerations lead the Court to conclude that the facts of the case fall within the ambit of Article\u00a08 of the Convention. This is sufficient to render Article\u00a014 applicable.<\/p>\n 83. The Government\u2019s preliminary objection should therefore be dismissed.<\/p>\n II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 8<\/strong><\/p>\n 84. The applicant submitted that unlike a widow in a similar situation, he had ceased to be entitled to a survivor\u2019s pension since his younger daughter had reached the age of majority, and that on that account he had suffered discrimination on grounds of sex.<\/p>\n A. The parties\u2019 submissions<\/strong><\/p>\n 1. The applicant<\/em><\/p>\n 85. The applicant submitted firstly that, having given up his job following his wife\u2019s death in August\u00a01994, he had then looked after his daughters on his own until they had completed their education, and that during that period he had received a widower\u2019s pension and supplementary benefits. The termination of the pension in November\u00a02010 when he was 57\u00a0years old had caused him serious family and financial problems, because he had no longer been able to find a job. He had therefore had to apply on several occasions for welfare assistance in order to meet his daughters\u2019needs. Thus, the effect on him had not been any different from what would have been the case for a widow. Moreover, between the termination of his widower\u2019s pension and the first payments of his old\u2011age pension in April\u00a02018, his family life had been significantly restricted, ruling out the usual family activities for lack of money.<\/p>\n 86. The applicant further observed that widows\u2019 and widowers\u2019 pensions were aimed, in principle, at exempting surviving spouses from having to engage in paid work and at providing them with social welfare protection, so that they would have time to look after their children. Just as a widow\u2019s pension paid after the children reached the age of majority enabled a widow to continue to look after her family, a widower\u2019s pension paid after the children reached the age of majority would enable a father to continue to care for his family. If such a mode of provision for the family was no longer considered necessary once the children had come of age, the pension should be discontinued for both parents, although that would amount to hindering family life and ignoring the fact that by that time in their lives, widows and widowers had often reached an age at which it was de facto impossible to resume employment.<\/p>\n 87. Next, the applicant maintained that there was no objective reason to put widowers in a less favourable situation than widows as regards the receipt of pensions, especially as regulations of this kind were in his submission unique in Europe. He argued that the existence of discrimination against women, that is to say, their unconstitutional inequality of treatment on the labour market, particularly in terms of salaries, should not be used as justification for perpetuating discrimination against men. The issue here was not positive discrimination aimed at helping women, since, on the contrary, the existing regime reinforced outdated and discriminatory role models and approaches to the division of tasks. Since traditions or social attitudes and behaviours were insufficient, it could not be concluded in the present case that there were very strong arguments that could, in themselves, justify gender inequality. The requirements of Article\u00a014 of the Convention read in conjunction with Article\u00a08 would therefore only be satisfied if the same conditions applied to widowers and widows as regards the termination of their entitlement to a pension.<\/p>\n 88. In that connection, the applicant submitted that the Government\u2019s argument based on the obsolete \u201cbreadwinner model\u201d of marriage, whereby widows in Switzerland still required special protection as compared with widowers on account of their greater financial dependence, was invalid. It was extremely rare to find families in which the man was exclusively responsible for the financial maintenance of the family and the woman for the house and home. Moreover, in finding that there had been manifest discrimination against him, the Federal Supreme Court had already rejected both functional and biological differences between the sexes, as well as the traditional expectations in terms of roles. The justification for the difference in treatment between widows and widowers was therefore based solely on democratic considerations (the will of the people), which were deemed more important than fundamental rights, and on financial concerns. Indeed, when the relevant legislation had been revised, Parliament had observed that ensuring equality of treatment of spouses after their children reached the age of majority entailed an excessive cost. The applicant argued, however, that in view of the central importance of gender equality, it was disproportionate and unacceptable to rely on such grounds.<\/p>\n 2. The Government<\/em><\/p>\n 89. While reiterating that States enjoyed a wide margin of appreciation in adopting general measures of economic or social strategy (and referring in particular to Andrle v.\u00a0the Czech Republic, no.\u00a06268\/08, \u00a7\u00a7\u00a055\u201159, 17\u00a0February 2011), the Government did not dispute the need to readjust the conditions for entitlement to survivors\u2019 pensions to take into account the changes in society in recent decades. Nevertheless, they maintained that despite the progress observed in the position of women in the labour market (pointing out that an update of a\u00a02012 survey on the financial situation of widows and widowers had been launched in March\u00a02021 and was ongoing), the need for a slightly higher level of protection for widows had not entirely disappeared. That being so, the resulting difference in treatment could still be justified on objective and reasonable grounds, pending a more comprehensive reform of the system in accordance with political and democratic processes.<\/p>\n 90. As regards the legitimate aim of the difference in treatment, the Government noted that the widow\u2019s pension, which had been introduced in\u00a01948, had been based on the assumption that the husband provided for his wife\u2019s maintenance, particularly where she had children. Although the Swiss government had made a number of subsequent attempts to reform the widows\u2019 and widowers\u2019 pension system with a view to gradual harmonisation, their plans had not come to fruition.<\/p>\n 91. Concerning proportionality, the Government observed that the situation of surviving spouses was among the changes in society that had to be taken into account and that such changes could not be reflected immediately since they took place gradually over a very lengthy period. Moreover, the margin of appreciation afforded to States also meant that they were free to choose the means they considered the most appropriate to lessen or eliminate any inequalities as they emerged. Thus, when the widower\u2019s pension had been introduced in\u00a01997, equality in the distribution of roles between men and women had not yet been fully achieved. For that reason, the legislature had taken the view that a widower should only be entitled to the pension if he had dependent children under the age of\u00a018. Since then, the legislature had made several attempts to \u201clevel down\u201d the conditions for entitlement to a widow\u2019s pension, but it had abandoned those plans on the grounds that strict equality was not yet appropriate in the light of social realities. The Government maintained in that connection that equality between men and women had not yet been entirely achieved in practice as regards involvement in paid employment and the distribution of roles within the couple. In the present case, the difference in treatment was therefore based not on gender stereotyping but on social reality. Indeed, according to statistics available from\u00a02020, some 87% of men with children under the age of\u00a015 were working full\u2011time, as compared with only 21% of women with children in the same age group. Of the other 79% of women in that category who worked part\u2011time, some 42% were working less than 50% of the time. The situation of fathers on the labour market was therefore objectively still different from that of mothers, and it appeared to be easier for fathers to return to paid employment. When a man lost his wife, he was losing the person who in practice was still mainly responsible for looking after the children, whereas a woman who lost her husband was losing the person who still predominantly provided for the family in financial terms. Therefore, it could still reasonably be considered that widowers\u2019 needs in terms of support decreased and then disappeared as the children grew up and became more independent, whereas the need to provide widows with a more favourable system did not lapse completely when the youngest child reached the age of majority. It was therefore a question of compensating for the less favourable situation of women on the labour market and the persisting unequal distribution of household tasks. However, in the Government\u2019s submission, strict formal equality of the conditions for entitlement to widowers\u2019 and widows\u2019 pensions would be difficult to reconcile with Article\u00a014 of the Convention.<\/p>\n 92. As regards the applicant\u2019s situation in the present case, the Government observed that he had worked up until his wife\u2019s death, that is, until the age of\u00a040. In subsequently choosing to devote himself entirely to looking after his young children, he must have known that payment of his widower\u2019s pension would be terminated when his younger daughter reached the age of majority. It had not been unreasonable to expect him to take steps to return to employment, even on a part\u2011time basis, once his children became more independent. However, the applicant had not indicated any specific steps he had taken to that end or any practical difficulties he might have encountered. The Government further emphasised that the applicant had reached the age of\u00a065 in April\u00a02018, which was the standard retirement age for men in Switzerland, so that he was now eligible for an old\u2011age pension.<\/p>\n B. The Court\u2019s assessment<\/strong><\/p>\n 1. General principles<\/em><\/p>\n 93. The Court reiterates that Article 14 of the Convention affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention and the Protocols thereto. According to the Court\u2019s settled case\u2011law, in order for an issue to arise under Article\u00a014 there must be a difference in the treatment of persons in analogous or relevantly similar situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification, in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, among many other authorities, Biao v.\u00a0Denmark [GC], no.\u00a038590\/10, \u00a7\u00a090, 24\u00a0May 2016, and Khamtokhu and\u00a0Aksenchik v.\u00a0Russia [GC], nos.\u00a060367\/08 and 961\/11, \u00a7\u00a064, 24\u00a0January 2017). In other words, the notion of discrimination generally includes cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention (see Abdulaziz, Cabales and Balkandali v.\u00a0the\u00a0United Kingdom, 28\u00a0May 1985, \u00a7\u00a082, Series\u00a0A no.\u00a094, and Vallianatos and Others v.\u00a0Greece\u00a0[GC], nos.\u00a029381\/09 and 32684\/09, \u00a7\u00a076, ECHR\u00a02013 (extracts)).<\/p>\n 94. As to the burden of proof in relation to Article\u00a014 of the Convention, the Court has held that once the applicant has demonstrated a difference in treatment, it is for the Government to show that the difference was justified (see Biao, \u00a7\u00a092, and Khamtokhu and Aksenchik, \u00a7\u00a065, both cited above).<\/p>\n 95. The advancement of gender equality is today a major goal in the member States of the Council of Europe (see Konstantin Markin, cited above, \u00a7\u00a0127, and \u00dcnal Tekeli v.\u00a0Turkey, no.\u00a029865\/96, \u00a7\u00a059, ECHR\u00a02004\u2011X (extracts)). The Court has repeatedly held that differences based exclusively on sex require \u201cvery weighty reasons\u201d, \u201cparticularly serious reasons\u201d or, as it is sometimes said, \u201cparticularly weighty and convincing reasons\u201d by way of justification (see Stec and Others (judgment), \u00a7\u00a052; Vallianatos and Others, \u00a7\u00a077; and Konstantin Markin, \u00a7\u00a0127, all cited above). In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex (see Konstantin Markin, cited above, \u00a7\u00a7\u00a0126\u201127; X and Others v.\u00a0Austria\u00a0[GC], no.\u00a019010\/07, \u00a7\u00a099, ECHR\u00a02013; and Khamtokhu and\u00a0Aksenchik, cited above, \u00a7\u00a7\u00a077\u201178). For example, States cannot impose traditions deriving from the idea that the man plays a predominant role and the woman a secondary role in the family (see \u00dcnal Tekeli, cited above, \u00a7\u00a063).<\/p>\n 96. It follows that although the Contracting States must be afforded a margin of appreciation in deciding on the timing of the introduction of legislative changes and in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment, where a difference in treatment is based on sex the State\u2019s margin of appreciation is narrow (see X and Others v.\u00a0Austria, \u00a7\u00a099, and Vallianatos and Others, \u00a7\u00a077, both cited above).<\/p>\n 97. Furthermore, while the Convention places no restrictions on the Contracting States\u2019 freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme, if a State does decide to create a benefits or pension scheme it must do so in a manner which is compatible with Article\u00a014 of the Convention (see Stec and Others (judgment), \u00a7\u00a053, and Konstantin\u00a0Markin, \u00a7\u00a0130, both cited above).<\/p>\n 2. Application of those principles in the present case<\/em><\/p>\n (a) Whether there was a ground of discrimination prohibited by Article\u00a014<\/p>\n 98. The applicant submitted that he had suffered discrimination as compared with widows on account of the termination of his widower\u2019s pension when his younger daughter had reached the age of majority. He argued in that connection that a widow in the same situation would not have lost her pension entitlement. In view of the foregoing considerations, the applicant can indeed claim to have been the victim of discrimination on grounds of \u201csex\u201d within the meaning of Article\u00a014 of the Convention.<\/p>\n (b) Whether there was a difference in the treatment of persons in analogous or relevantly similar situations<\/p>\n 99. The Court observes that when he became a widower in August\u00a01994, the applicant stopped working in order to look after his children. Having received a widower\u2019s pension since its introduction in\u00a01997, he lost his entitlement to that benefit when his younger daughter reached the age of\u00a018. At that time the applicant was 57 years old; he was thus not yet eligible for an old\u2011age pension and, in his submission, was no longer able to find a job.<\/p>\n 100. The Court notes that the termination of the applicant\u2019s entitlement to a widower\u2019s pension was based on section\u00a024(2) of the Federal Law on old\u2011age and survivors\u2019 insurance, which, in the case of widowers alone, ends that entitlement at the time when the youngest child reaches the age of majority. Widows, meanwhile, retain their entitlement to a survivor\u2019s pension even after their youngest child has reached the age of majority.<\/p>\n 101. As a result, the applicant stopped receiving the widower\u2019s pension simply because he was a man. In other respects he was in an analogous situation to a woman, and it has not been argued that he did not satisfy any other statutory condition for entitlement to the benefit in question.<\/p>\n 102. Although he was in an analogous situation in terms of his subsistence needs, the applicant was not treated in the same way as a woman\/widow. He was therefore subjected to unequal treatment on account of the termination of his widower\u2019s pension.<\/p>\n 103. It remains to be determined whether this difference in the treatment of widows and widowers had an objective and reasonable justification for the purposes of Article\u00a014 of the Convention.<\/p>\n (c) Whether the difference in treatment was objectively and reasonably justified<\/p>\n 104. The Court is mindful of the fact that the present case concerns the field of social welfare, which constitutes a complex system in which a balance must be preserved, and that accordingly, a wide margin is usually allowed to the State when it comes to general measures of economic or social strategy (see Stec and Others (judgment), cited above, \u00a7\u00a052). In this context, the Court has already accepted that any adjustments of pension schemes must be carried out in a gradual, cautious and measured manner, since any other approach could endanger social peace, the foreseeability of the pension system and legal certainty (see Andrle, cited above, \u00a7\u00a051).<\/p>\n 105. It reiterates, however, that very weighty reasons would have to be put forward before it could regard a difference of treatment based on the ground of sex as compatible with the Convention, and that the margin of appreciation afforded to States in justifying such a difference is narrow (see paragraphs\u00a095\u201196 above).<\/p>\n 106. In the present case, the Court notes that in justifying the difference in the treatment of women and men regarding entitlement to a survivor\u2019s pension, the Government argued that gender equality had not yet been entirely achieved in practice as far as involvement in paid employment and the distribution of roles within the couple were concerned. They contended that it was still justifiable to rely on the presumption that the husband provided for the financial maintenance of the wife, particularly where she had children, and thus to afford a higher level of protection to widows than to widowers. The difference in treatment in issue was therefore based not on gender stereotyping but on social reality (see paragraph\u00a091 above).<\/p>\n 107. For their part, while the Government have provided statistics relating to the percentage of men and women with children under the age of\u00a015 working full\u2011time and part\u2011time, no information has been provided on the percentage of widows or widowers who have successfully returned to the employment market after many years of absence once their children have reached that age or the age of majority. The absence of relevant information is noticeable given repeated attempts to reform the system of widows\u2019 and widowers\u2019 pensions from\u00a02000 onwards and the findings of the Federal Supreme Court in a judgment dating from\u00a02012 in the applicant\u2019s case (see also paragraphs\u00a0111\u2011113 below).<\/p>\n 108. In this connection, the Court observes that in Petrovic (cited above, \u00a7\u00a040), and subsequently in Konstantin Markin (cited above, \u00a7\u00a0140), it noted that contemporary European societies had moved towards a more equal distribution of responsibility between men and women for the upbringing of their children and that there was increasing recognition of the role of men in caring for young children. It concluded from this that a general and automatic restriction applied to a group of people on the basis of their sex, irrespective of their personal situation, fell outside any \u201cacceptable margin of appreciation, however wide that margin might be\u201d, and was therefore \u201cincompatible with Article\u00a014\u201d (ibid., \u00a7\u00a0148).<\/p>\n 109. It should also be emphasised that the advancement of gender equality remains a major goal in the member States of the Council of Europe (see paragraph\u00a095 above). This is reflected in instruments such as Recommendation R\u00a0(85)\u00a02 of 5\u00a0February 1985 on legal protection against sex discrimination, adopted by the Committee of Ministers on 5\u00a0February\u00a01985, which calls for men and women to be guaranteed equal treatment with regard to access to official social security and pension systems and with regard to the benefits paid by such systems (see paragraph\u00a029 above).<\/p>\n 110. The Court accordingly reaffirms that references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex, whether in favour of women or men. It follows that the Government cannot rely on the presumption that the husband supports the wife financially (the \u201cmale breadwinner\u201d concept) in order to justify a difference in treatment that puts widowers at a disadvantage in relation to widows.<\/p>\n 111. Moreover, while accepting that the field of social welfare is among those in which States must be afforded a margin of appreciation in deciding on the timing of the introduction of legislative changes, the Court observes that the Swiss government acknowledged in1997 that women were increasingly often in gainful employment and that protection was necessary for men who devoted themselves to carrying out household tasks and bringing up children. It appears, however, that complete harmonisation of the eligibility conditions for widows\u2019 and widowers\u2019 pensions was thwarted at the time by financial constraints and by criticism stressing the difficulties faced by \u201colder\u201d widows in returning to employment (see paragraph\u00a022 above). Other attempts by the government to reform the system of survivors\u2019 pensions from\u00a02000 onwards, driven by the view that the existing system was no longer suited to the contemporary context and was at variance with the principle of gender equality, were unsuccessful (see paragraphs\u00a023\u201128 above).<\/p>\n 112. In this connection, the Court attaches fundamental importance to the considerations set out in the present case by the Federal Supreme Court (see paragraph\u00a017 above). In its judgment of 4\u00a0May 2012, the court in question observed that the legislature had been aware, at the time the widower\u2019s pension had been introduced, that the relevant rules established an unacceptable distinction on grounds of sex, which was contrary to the Constitution. By applying different conditions for entitlement to the pension according to whether the person concerned was a widow or a widower, the legislature had made a distinction on the basis of sex which was not necessary for either biological or functional reasons. The Federal Supreme Court also drew attention to the message issued by the Federal Council to Parliament at the time of the eleventh revision of the OASI system in2000, in which it had emphasised that the rule that widowers were entitled to a pension only if they had children under the age of\u00a018 was contrary to the principle of gender equality and should therefore be adjusted.<\/p>\n 113. In the Court\u2019s view, the above\u2011mentioned attempted reforms and the assessment of the impugned legislation by the country\u2019s highest court, the Federal Supreme Court, show that the old \u201cfactual inequalities\u201d between men and women have become less marked in Swiss society. Accordingly, the considerations and assumptions on which the rules governing survivors\u2019 pensions had been based over the previous decades are no longer capable of justifying differences on grounds of sex. The Federal Supreme Court\u2019s judgment even indicates that the rules in question are in breach of the principle of gender equality enshrined in Article\u00a08 \u00a7\u00a03 of the Swiss Constitution. The Court would add that in its view, the relevant legislation contributes rather to perpetuating prejudices and stereotypes regarding the nature or role of women in society and is disadvantageous both to women\u2019s careers and to men\u2019s family life (see Konstantin Markin, cited above, \u00a7\u00a0141). In this connection, it should be reiterated that Article 2 of the CEDAW (see paragraph\u00a030 above) requires the States Parties, among other things, to ensure, through law and other appropriate means, the practical realisation of the principle of the equality of men and women and to establish legal protection of the rights of women on an equal basis with men.<\/p>\n 114. Turning again to the present case, the Court observes that after his wife\u2019s death, the applicant devoted himself entirely to looking after, bringing up and caring for his daughters and gave up his job. He was 57\u00a0years old when payment of the pension ceased, and had not been in gainful employment for over sixteen years. In this regard, the Grand Chamber shares the Chamber\u2019s view (see paragraph\u00a075 of the Chamber judgment) that there is no reason to believe that the applicant, at that age 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.<\/p>\n 115. Having regard to the foregoing, and to the narrow margin of appreciation enjoyed by the respondent State in the present case, the Court considers that the Government have not shown that there were very strong reasons or \u201cparticularly weighty and convincing reasons\u201d justifying the difference in treatment on grounds of sex complained of by the applicant. It accordingly finds that the unequal treatment to which the applicant was subjected cannot be said to have been reasonably and objectively justified.<\/p>\n 116. The Court therefore concludes that there has been a violation of Article\u00a014 of the Convention read in conjunction with Article\u00a08.<\/p>\n III. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/strong><\/p>\n 117. Article 41 of the Convention provides:<\/p>\n \u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n A. Damage<\/strong><\/p>\n 1. Pecuniary damage<\/em><\/p>\n 118. The applicant claimed the sum of 189,355\u00a0Swiss francs\u00a0(CHF) in respect of the pecuniary damage he had sustained as a result of the termination of the widower\u2019s pension and supplementary benefits.<\/p>\n 119. The Government submitted that, should the need arise, the domestic courts would be in a better position than the Court to make a precise assessment of the pecuniary damage sustained by the applicant. They pointed out, in particular, that he could bring a claim for compensation in the context of an application for review of the Federal Supreme Court\u2019s judgment of 4\u00a0May 2012.<\/p>\n 120. The Court considers that there is a direct causal link between the violation found and the pecuniary damage resulting from the non\u2011payment of the widower\u2019s pension to the applicant as of 1\u00a0December 2010. It agrees with the Government that the domestic courts are in a better position than the Court to make a precise assessment of the damage in question, bearing in mind in particular that the amount of a pension may vary from one year to the next (see, mutatis mutandis, in relation to a disability benefit, Di\u00a0Trizio, cited above, \u00a7\u00a0120). In addition, regard should be had to the subsidiary nature of the mechanism under Article\u00a041, which provides that the Court is to afford just satisfaction to the injured party if the internal law of the respondent State allows only partial reparation to be made for the consequences of a violation of the Convention.<\/p>\n 121. That said, although the respondent State generally remains free to choose, subject to monitoring by the Committee of Ministers, the means by which it will discharge its obligations under Article\u00a046 \u00a7\u00a01 of the Convention, provided that such means are compatible with the conclusions set out in the Court\u2019s judgment (see Verein gegen Tierfabriken Schweiz (VgT) v.\u00a0Switzerland (no.\u00a02) [GC], no.\u00a032772\/02, \u00a7\u00a088, ECHR\u00a02009), the Court has nevertheless stated on many occasions that a retrial or the reopening of the case, if requested by the applicant, represents in principle an appropriate way of redressing the violation (see, among other authorities, Di Trizio, cited above, \u00a7\u00a0120; Gen\u00e7el v.\u00a0Turkey, no.\u00a053431\/99, \u00a7\u00a027, 23\u00a0October 2003; and Claes and Others v.\u00a0Belgium, nos.\u00a046825\/99 and 6\u00a0others, \u00a7\u00a053, 2\u00a0June 2005).<\/p>\n 122. In the present case, the Court shares the Government\u2019s view that there is nothing to prevent the applicant from submitting a claim for compensation in the context of an application for review of the Federal Supreme Court judgment which he has challenged before the Court. Since such a possibility is explicitly provided for in section\u00a0122 of the Federal Supreme Court Act of 17\u00a0June 2005 and there is no indication that that remedy is illusory, the Court considers that there is no need to make any award in respect of pecuniary damage.<\/p>\n 2. Non\u2011pecuniary damage<\/em><\/p>\n 123. In addition, the applicant claimed the sum of CHF\u00a018,935.50 in respect of the non\u2011pecuniary damage sustained as a result of his lack of contact with his daughters following the termination of his widower\u2019s pension, and the need for him to have recourse to welfare assistance.<\/p>\n 124. The Government submitted that there was no causal link between any discrimination on grounds of sex and the non\u2011pecuniary damage alleged. Consequently, they urged the Court to reject the applicant\u2019s claims under that head and to conclude that the finding of a violation would in itself constitute sufficient satisfaction.<\/p>\n 125. The Court considers that the applicant sustained non\u2011pecuniary damage owing to the authorities\u2019 refusal to grant him a widower\u2019s pension as of 1\u00a0December 2010. Making its assessment on an equitable basis as required by Article\u00a041, it finds it appropriate to award the applicant the sum of 5,000\u00a0euros\u00a0(EUR) under this head.<\/p>\n B. Costs and expenses<\/strong><\/p>\n 126. The applicant firstly claimed CHF\u00a03,300in respect of court fees incurred at domestic level, CHF\u00a0350 for the lodging of the application with the Court, and CHF\u00a07,216.45 in respect of the observations submitted by his lawyer before the Chamber.<\/p>\n With regard to the proceedings before the Grand Chamber, the applicant claimed a total sum of CHF\u00a026,182.20 to cover legal representation, translation costs and other expenses. In support of his claim, he submitted an invoice issued on 8\u00a0June 2021 by his lawyer Ms\u00a0de\u00a0Weck, setting out the details of thirty\u2011seven hours and twenty minutes\u2019 legal work at a reduced hourly rate of CHF\u00a0250 (amounting to CHF\u00a09,300 in total), plus six hours for a return trip to Strasbourg billed at CHF\u00a01,200, and CHF\u00a0255 for the cost of the journey, making an overall total of CHF\u00a011,583.15 for Ms\u00a0de\u00a0Weck, inclusive of value\u2011added tax. The expenses for his principal lawyer, Mr\u00a0Luginb\u00fchl, amounted to CHF\u00a014,598.05, although no invoices or documents were submitted in support of that claim.<\/p>\n In respect of his own travel expenses to attend the Grand Chamber hearing, the applicant claimed CHF\u00a0448.40, without providing any supporting documents.<\/p>\n 127. The Government stated that they were prepared to accept the applicant\u2019s claims in respect of the costs incurred before the domestic courts and those associated with lodging the application, and also the sum of EUR\u00a03,000 awarded by the Chamber for the observations submitted to it.<\/p>\n However, with regard to the costs and expenses incurred before the Grand Chamber, the Government submitted that the costs and legal fees in respect of the applicant\u2019s two representatives were manifestly excessive (relying on Neulinger and Shuruk v.\u00a0Switzerland [GC], no.\u00a041615\/07, \u00a7\u00a0160, ECHR\u00a02010). They noted in addition that the fees for his principal representative had not been substantiated by supporting documents as required by Rule\u00a060 \u00a7\u00a02 of the Rules of Court. The Government therefore submitted that an award of CHF\u00a09,000 would be appropriate to cover all costs and expenses incurred before the Grand Chamber.<\/p>\n 128. The Court reiterates that under Article\u00a041 of the Convention, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In accordance with Rule\u00a060 \u00a7\u00a02, itemised particulars of all claims must be submitted, failing which the Court may reject the claim in whole or in part (see, for example, A, B andC v.\u00a0Ireland\u00a0[GC], no.\u00a025579\/05, \u00a7\u00a0281, ECHR\u00a02010, and Strand Lobben and Others v.\u00a0Norway\u00a0[GC], no.\u00a037283\/13, \u00a7\u00a0234, 10\u00a0September 2019).<\/p>\n In the present case, having regard to the documents in its possession and to its case\u2011law, the Court considers it reasonable to award the applicant the sum of EUR\u00a06,500 in respect of the costs incurred before the domestic courts, the lodging of the application and the observations submitted before the Chamber.<\/p>\n With regard to the proceedings before the Grand Chamber, the Court notes that the applicant did not produce any documents showing that he had paid or was under an obligation to pay all the fees he claimed to have incurred in respect of legal representation, translation and other matters. In the absence of such documents, the Court finds no basis on which to accept that certain costs and expenses claimed by the applicant have actually been incurred. Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant only part of the sums claimed in respect of lawyers\u2019 fees before the Grand Chamber, namely EUR\u00a010,000.<\/p>\n The Court therefore awards the applicant the total sum of EUR\u00a016,500 in respect of costs and expenses.<\/p>\n C. Default interest<\/strong><\/p>\n 129. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT<\/strong><\/p>\n 1. Dismisses, by twelve votes to five, the Government\u2019s preliminary objection that the applicant\u2019s complaint does not fall within the ambit of Article\u00a08 of the Convention;<\/p>\n 2. Holds, by twelve votes to five, that there has been a violation of Article\u00a014 of the Convention read in conjunction with Article\u00a08;<\/p>\n 3. Holds, by twelve votes to five,<\/p>\n (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non\u2011pecuniary damage;<\/p>\n (ii) EUR 16,500 (sixteen thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b) that from the expiry of the above\u2011mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 4. Dismisses, unanimously, the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 11 October 2022, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and\u00a03 of the Rules of Court.<\/p>\n S\u00f8ren Prebensen\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Robert Spano ___________<\/p>\n In accordance with Article 45 \u00a7 2 of the Convention and Rule\u00a074 \u00a7\u00a02 of the Rules of Court, the following separate opinions are annexed to this judgment:<\/p>\n (a) Concurring opinion of Judge Seibert-Fohr;<\/p>\n (b) Concurring opinion of Judge Z\u00fcnd;<\/p>\n (c) Joint dissenting opinion of JudgesKj\u00f8lbro, Kucsko\u2011Stadlmayer, Mourou\u2011Vikstr\u00f6m, Koskelo and Roosma.<\/p>\n R.S. CONCURRING OPINION OF JUDGE SEIBERT-FOHR<\/strong><\/p>\n I. Introduction: Non-discrimination in the field of social security<\/strong><\/p>\n 1. I fully agree with the majority\u2019s finding of a violation of Article\u00a014 of the Convention read in conjunction with Article\u00a08. I write separately to further clarify the reasons leading to this conclusion and to refute arguments which may be raised against that finding. For this purpose, I will clarify the elements which are relevant for delimiting the ambit of Article\u00a08 in the field of social security and further elaborate on the lack of objective and reasonable justification for the difference in treatment in the present case.<\/p>\n II. The relevant elements for delimiting the ambit of Article 8<\/strong><\/p>\n A. The notion of ambit<\/strong><\/p>\n 2. According to the Court\u2019s settled case\u2011law, the application of Article\u00a014 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention (see Carson and Others v.\u00a0the United Kingdom [GC], no.\u00a042184\/05, \u00a7\u00a063, ECHR\u00a02010). It extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee, applying also to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide. It is therefore sufficient for the facts of the case to fall \u201cwithin the ambit\u201d of one or more of the Convention Articles (see Stec and Others v.\u00a0the United Kingdom\u00a0(dec.)\u00a0[GC], nos.\u00a065731\/01 and 65900\/01, \u00a7\u00a039, ECHR\u00a02005\u2011X, and\u00a0Andrejeva v.\u00a0Latvia\u00a0[GC], no.\u00a055707\/00, \u00a7\u00a074, ECHR\u00a02009). Article\u00a014 of the Convention is pertinent if \u201cthe subject matter of the disadvantage … constitutes one of the modalities of the exercise of a right guaranteed …\u201d, or if the contested measures are \u201clinked to the exercise of a right guaranteed …\u201d (see Konstantin Markin v. Russia ([GC], no.\u00a030078\/06, \u00a7\u00a0129, ECHR\u00a02012).<\/p>\n B. No presumed or hypothetical link to family life<\/strong><\/p>\n 3. When it comes to establishing this link, I fully agree with the majority in rejecting a legal presumption to the effect that in providing a socio\u2011economic benefit, such as in the present case, a State is displaying its support and respect for family life (see paragraph\u00a069 of the present judgment). Nor should a hypothetical causal link be accepted if a benefit is \u201cliable to affect the way in which family life is organised\u201d (ibid.). If any effect, however tenuous, of a social welfare benefit on private or family life were to suffice, there would be hardly any financial benefit left that would not fall within the ambit of Article\u00a08 (see paragraph\u00a067 of the present judgment).<\/p>\n C. The need for a close link<\/strong><\/p>\n 4. What is needed for the facts of the case to fall within the ambit of Article\u00a08 is a close link between the provision of the welfare benefit and the enjoyment of family life (ibid., \u00a7\u00a071), \u201cclose\u201d meaning substantively close and close in terms of direct effect. Such a close link can be established if a financial benefit enables the beneficiary to exercise the right to family life (see Konstantin Markin, cited above, \u00a7\u00a0130). Whereas States are free to decide how to promote family life, they are prevented from excluding individuals on discriminatory grounds once they provide financial aid to families (compare F\u00e1bi\u00e1n v.\u00a0Hungary [GC], no.\u00a078117\/13, \u00a7\u00a0112, 5\u00a0September 2017; Biao v.\u00a0Denmark [GC], no.\u00a038590\/10, \u00a7\u00a088, 24\u00a0May 2016; \u0130zzettin Do\u011fan and Others v.\u00a0Turkey [GC], no.\u00a062649\/10, \u00a7\u00a0158, 26\u00a0April 2016; Carson and Others, cited above, \u00a7\u00a063; E.B. v.\u00a0France\u00a0[GC], no.\u00a043546\/02, \u00a7\u00a048, 22\u00a0January 2008; X and Others v.\u00a0Austria\u00a0[GC], no.\u00a019010\/07, \u00a7\u00a0135, ECHR\u00a02013; Genovese v. Malta, no.\u00a053124\/09, \u00a7\u00a032, 11\u00a0October 2011; and Beeckman and Others v.\u00a0Belgium\u00a0(dec.), no.\u00a034952\/07, \u00a7\u00a019, 18\u00a0September 2018).<\/p>\n 1. Legislative intent is not decisive<\/em><\/p>\n 5. Whereas a legislative intent to facilitate or improve family life would be a significant indicator for a close link to the organisation of family life, the latter can also be established by other relevant factors which demonstrate that a financial benefit necessarily affects the way in which family life is organised (for this notion see Konstantin Markin, cited above, \u00a7\u00a0130). Thus, the aim of the benefit is one amongst several elements to be examined as a whole, which also include 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 is organised, as envisaged by the legislation; and the practical repercussions of the benefit (see paragraph\u00a072 of the present judgment). To limit the applicability of Article\u00a014 only to those welfare benefits which reflect a State\u2019s intention to facilitate or improve family life would be prone to inviting legislators to provide reasons for social benefits that were unrelated to any of the rights protected under the Convention in an effort to dispense with the applicability of Article\u00a014. Moreover, it is not the Court\u2019s role to second\u2011guess legislative intent.<\/p>\n 6. This is also evidenced by the Court\u2019s judgment in Konstantin\u00a0Markin, where the issue of intent was not taken into account when the Court determined the applicability of Article\u00a014 read in conjunction with Article\u00a08 (see Konstantin\u00a0Markin, cited above; compare \u00a7\u00a7\u00a0129\u201130 in respect of applicability with \u00a7 132, which relates to the merits). The judgment in the present case, which affirms the standard set out in Konstantin\u00a0Markin (see paragraph\u00a070 of the present judgment with reference to Konstantin\u00a0Markin, cited above, \u00a7\u00a7\u00a0129\u201130), is thus not to be read as providing for a cumulative test which requires legislative intent plus a necessary effect. Paragraph\u00a072 clarifies that the aim of the benefit is but one of the elements to be considered in assessing whether the facts of the case fall within the ambit of Article\u00a08 (see also paragraph\u00a073 of the present judgment). What is crucial are the nature and the direct effect of the benefit paid.<\/p>\n 2. The nature and effect of the welfare benefit<\/strong><\/p>\n (a) Substantively closely related to and with a direct effect on family life<\/p>\n 7. What is decisive for the determination of whether an allowance necessarily affects the way in which family life is organised is the question of whether an allowance is substantively closely related to (for example, in terms of the conditions for entitlement to the allowance) and has a direct, that is, a close causal, effect on family life. This is a factual question which is not limited to legislative intent (see paragraphs\u00a074\u201176 of the present judgment). For this purpose, more is needed than indirect factual effects (but see Di\u00a0Trizio v.\u00a0Switzerland, no.\u00a07186\/09, 2\u00a0February 2016, and Belli and Arquier\u2011Martinez v.\u00a0Switzerland,no.\u00a065550\/13, 11\u00a0December 2018, which had proceeded from the tenuous notion of \u201cliable to affect\u201d which the Court overrules in paragraph\u00a069 of the present judgment). A regulatory effect which is evidence of the close substantive connection between the welfare benefit and family life can be established on the basis of the statutory criteria for awarding, calculating and terminating the benefit, which are indicative of whether a benefit objectively serves to facilitate family life (see paragraphs\u00a074\u201177 of the present judgment), whereas a direct effect is to be determined on the basis of the effects on the organisation of family life, including those envisaged by the legislation and the practical repercussions of the benefit, given the applicant\u2019s individual circumstances and family life throughout the period during which the benefit is paid (see paragraphs\u00a072 and\u00a078\u201181 of the present judgment).<\/p>\n (b) Application to the present case<\/p>\n 8. In the present case, the applicant decided to stay at home in order to raise his minor children full\u2011time after his wife had died in an accident in\u00a01994. By doing so, he exercised his right to family life. The pension which he started to receive in\u00a01997 allowed him to continue staying at home while taking the risk of not being able to return to his occupation after a period of sixteen years. The risk materialised as a direct consequence of his decision to stay with his children when his youngest daughter turned 18\u00a0years old. While widows in the same position continued to benefit from the widow\u2019s pension, he was debarred from the benefit pursuant to section\u00a024(2) of the Federal Law on old\u2011age and survivors\u2019 insurance, a provision which explicitly relates only to widowers (see paragraph\u00a020 of the present judgment).<\/p>\n 9. This welfare benefit was closely linked to the right to enjoy family life, for the following reasons. The pension was paid only to surviving spouses with children, indicating that its objective was to facilitate family life. The financial support offered a direct incentive and enabled the applicant to stay with his minor children for an extended period of time in order to raise them full\u2011time without the financial need to return to his employment (a comparable situation to that examined in Konstantin Markin, cited above, \u00a7\u00a0130, where the Court found that the provision of a parental leave allowance enabled one of the parents to stay at home to look after the children and thus promoted family life and necessarily affected the way in which it was organised). Thus, key aspects of his family life were at least partially organised on the basis of the receipt of the pension (see paragraph\u00a080 of the present judgment). The survivor\u2019s pension, therefore, was substantively closely related to family life and helped directly to sustain family life and thus fell within the ambit of Article\u00a08.<\/p>\n 10. The fact that the survivor\u2019s pension was paid to surviving spouses with children irrespective of whether they stopped working or continued to work after their spouse\u2019s death and that the surviving spouses were not asked to give up their occupation and remain at home in order to bring up their children cannot be decisive for determining whether the applicant, who decided to exercise his right to family life, suffered from discrimination. Since the allowance was substantively closely related to and had a direct effect on family life,the applicant was protected against discrimination once he decided to stay at home with his minor children. To disregard the fact that he did so in order to look after his daughters full\u2011time only because he was not required to do so by the law would not only fail to give recognition to an autonomous decision that is protected under Article\u00a08 but would also fail to understand the difficult situation that the family experienced after the death of the mother. The fact that the applicant took the risk of not being able to return to the job market of his own motion when his children were small can thus hardly be decisive for the applicability of Article 14.<\/p>\n III. Article 14: No objective and reasonable justification<\/strong><\/p>\n 11. Given the applicability of Article\u00a014 in the present case, the distinction made on grounds of sex in section\u00a024(2) of the Federal Law on old\u2011age and survivors\u2019 insurance is clearly not justifiable on objective and reasonable grounds. This was most aptly explained by the Federal Supreme Court (see paragraph\u00a017 of the present judgment). According to its judgment of 4\u00a0May\u00a02012, the provisions concerning the right to a widower\u2019s pension were based on the idea that it was the husband who provided for his wife\u2019s needs, particularly if there were children. The court recognised that gender\u2011neutral regulations would not be based on sex but on whether a particular individual had lost the person who provided for him or her (ibid.). However, during the tenth revision of the OASI system the legislature had opted for the regulations in issue, while being aware that they established an unacceptable distinction on grounds of sex (ibid.). The distinction was neither necessary for either biological or functional reasons.<\/p>\n 12. The Government\u2019s argument that gender equality had not yet been entirely achieved in practice as far as involvement in paid employment was concerned (see paragraph\u00a091 of the present judgment) cannot serve as a justification for a blanket de jure distinction between widowers and widows with respect to survivor\u2019s pensions without taking into account their needs, namely their ability to return to the job market. If such factual disparities within the population at large and presumptions of this kind could justify distinctions between survivors with children based on their sex irrespective of real factual needs, this would be tantamount to reinforcing inequalities and stereotypes in contravention of Article\u00a02\u00a0(a) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), in accordance with which States Parties undertake to embody the principle of equality of men and women in their legislation and to ensure through law the practical realisation of this principle (see paragraph\u00a030 of the present judgment). The United Nations Human Rights Committee found as long ago as\u00a01987 that a regulation based on the breadwinner concept, placing one sex at a disadvantage compared to the other, was not reasonable und thus not justified (see Zwaan de Vries v. the Netherlands, U.N. Doc. CCPR\/C\/29\/D\/182\/1984, \u00a7\u00a014). The same applies to the widower\u2019s pension which was introduced ten years later in the respondent State.<\/p>\n 13. It is for these reasons that I fully agree with the majority\u2019s finding of a violation of Article\u00a014 of the Convention read in conjunction with Article\u00a08 in the present case.<\/p>\n <\/p>\n CONCURRING OPINION OF JUDGE Z\u00dcND<\/strong><\/p>\n (Translation)<\/strong><\/p>\n 1. I agree with the present judgment, which confirms and refines the verdict reached by the Chamber. The Court rightly finds that the applicant\u2019s complaint of discrimination falls within the ambit of Article\u00a08 of the Convention and that Article\u00a014 read in conjunction with Article\u00a08 has been breached in the present case. I am writing separately because I consider it appropriate to clarify certain points in the light of Swiss law.<\/p>\n 2. Switzerland is, besides the Principality of Monaco, the only member State of the Council of Europe not to have ratified Additional Protocol No.\u00a01 to the Convention. Why is this? Switzerland ratified the Convention in\u00a01974. It opted not to ratify the Additional Protocol on that occasion. The Federal Council (that is, the government) justified its decision by arguing that there were (still) too many divergences between Swiss law as applicable at the time and the Protocol. Such divergences related to the question of the right to free elections by secret ballot (voting rights for women had yet to be introduced in all cantons, and the elections held by a show of hands in some cantons raised issues as to voting secrecy), and the right to education (Feuille f\u00e9d\u00e9rale 1972\u00a0I p.\u00a0998, 1974\u00a0I p.\u00a01021). At that time, nevertheless, the right to protection of property for the purposes of Article 1 of the Protocol did not constitute an obstacle to accession to the Protocol. It was only from\u00a02003 onwards that the Federal Council, in its reports to Parliament on Switzerland and the Council of Europe conventions, found that accession to Protocol No.\u00a01 was hindered by the scope that the Court had conferred on the protection of property \u201cby extending\u201d (as the Federal Council put it) that protection to social welfare benefits.<\/p>\n 3. The Court observes that in the vast majority of cases in which it has ruled on alleged discrimination in the sphere of entitlement to social welfare benefits, it has concentrated its analysis on Article\u00a01 of Protocol No.\u00a01 (see paragraphs\u00a054\u201156 of the judgment), which admittedly would appear on the face of it to be the most \u201cnatural\u201d safeguard in relation to such benefits. While Article\u00a08 does not guarantee the right to a social welfare benefit, a State may decide to go further in accordance with Article\u00a053 of the Convention, but in that case it is bound by Article\u00a014 and cannot take discriminatory measures within the meaning of that Article (see paragraph\u00a061 of the judgment). For Switzerland, which has not ratified Protocol No.\u00a01, it is extremely important to ascertain whether a case falls within the ambit of the protection of property alone or whether it also comes under Article\u00a08. That said, it must be noted that in the field of social welfare benefits, the sphere of protection of the right to protection of property and that of the right to respect for private and family life intersect and overlap (see paragraph\u00a069 of the judgment). In other words, the fact that Switzerland has not ratified Protocol No.\u00a01 does not give rise either to a broader interpretation of Article\u00a08, or to a narrower interpretation of the protection of family life. Nevertheless, it remains crucial for Switzerland to determine whether or not a welfare benefit falls within the ambit of Article\u00a08. This issue must, however, be assessed independently, and irrespectively, of whether such a benefit would also fall within the ambit of Article\u00a01 of Protocol No.\u00a01. The principle of lex specialis, even if it were applicable to those two provisions (which I strongly doubt), is immaterial here, seeing that only one of the provisions in question applies to Switzerland.<\/p>\n 4. It is true that all financial benefits may generally have certain repercussions on family life, although \u2013 of course \u2013 that fact alone is not sufficient for a case to fall within the ambit of Article\u00a08. What is decisive, as the Court notes, is whether a measure seeks to promote family life and necessarily affects the way in which it is organised. In examining whether that is the case, the Court will adopt a holistic approach by taking a number of aspects into account, such as the aim of the benefit, as determined by the Court in the light of the legislation; the criteria for awarding, calculating and terminating the benefit; its effects on the way in which family life is organised, as envisaged by the legislation; and its practical repercussions, given the circumstances of the person concerned (see paragraph\u00a072 of the judgment).<\/p>\n 5. In view of those aspects, it seems very clear to me that a pension paid to the surviving member of a married couple with minor children falls within the ambit of the right to protection of family life. The aim of such a benefit is to alleviate the surviving partner\u2019s situation, and its impact on the way in which family life is organised is linked precisely to the fact that it offers the surviving partner greater room for manoeuvre in organising family life (see paragraph\u00a077 of the judgment). That being so, in order to avoid any discrimination, a widower\u2019s pension should be awarded under the same conditions as a widow\u2019s pension. Yet entitlement to the widower\u2019s pension ends when the youngest child reaches the age of majority, whereas the widow\u2019s pension continues to be paid.<\/p>\n 6. In order to execute the present judgment (Articles\u00a01 and\u00a046 of the Convention) and remedy the situation by removing any inequalities in treatment, Switzerland has a number of solutions available, all of which are compatible with the Convention. Firstly, it could consider abolishing the limit applicable to a widower\u2019s pension linked to the children reaching the age of majority, and thus bring widowers\u2019 pensions into line with widows\u2019 pensions. It could also decide to discontinue the widow\u2019s pension once the children have reached the age of majority, which would amount to bringing widows\u2019 pensions into line with widowers\u2019 pensions. An intermediate solution could be to continue awarding the survivor\u2019s pension \u2013 to men and women alike \u2013 after the children have reached the age of majority, until they have completed their studies.<\/p>\n 7. It should also be noted that Swiss legislation provides for payment of a widow\u2019s pension in another scenario that is very different from the one with which the present case is concerned. The pension in question is paid to widows, even without children, if at the time of their husband\u2019s death they had been married for at least five years and were at least 45\u00a0years old (see section\u00a024(1) of the Federal Law of 20\u00a0December\u00a01946 on old-age and survivors\u2019 insurance, quoted in paragraph\u00a020 of the judgment); there is no equivalent provision for widowers. In my view, according to the criteria adopted by the Court in the present case, Article\u00a08 would not be applicable to this benefit since it does not seek to facilitate the organisation of family life, which, moreover, does not depend on the pension.<\/p>\n 8. Lastly, mention should be made of the fact that Swiss law entails another significant difference between men and women in the field of old-age pensions. The retirement age is currently 65\u00a0years for men, but\u00a064 for women. I consider that this difference does not come under Article\u00a08 either, and that it probably only falls within the ambit of Article\u00a01 of Protocol No.\u00a01. On 25\u00a0September\u00a02022 the Swiss people will be asked to decide in a referendum whether the retirement age for women should be brought into line with that for men.[1] Irrespective of the result of the vote, the Swiss legislation remains compatible with the Convention since, firstly, the pension in question does not fall within the ambit of Article\u00a08 and, secondly, Protocol No.\u00a01 is not applicable to Switzerland, and nor, indeed, is Article\u00a01 of Protocol No.\u00a012 \u2013 which provides for a general prohibition of discrimination \u2013 as Switzerland has likewise decided not to ratify that Protocol.<\/p>\n <\/p>\n JOINT DISSENTING OPINION OF JUDGES KJ\u00d8LBRO, KUCSKO-STADLMAYER, MOUROU-VIKSTR\u00d6M, KOSKELO AND ROOSMA<\/strong><\/p>\n 1. We have regrettably not been able to agree with the majority in this case. The core issue concerns the applicability of Article\u00a014 in conjunction with Article\u00a08 to the facts of the case, more specifically the question of the \u201cambit\u201d of Article\u00a08 in matters relating to social welfare benefits.<\/p>\n 2. The applicant\u2019s complaint arises from the fact that the survivor\u2019s pension granted to him was discontinued when his children reached the age of majority whereas, in otherwise similar circumstances, a widow would have remained entitled to such a pension. As a matter of policy, such a difference in treatment based on sex may indeed be considered outdated. It is, however, an entirely separate question whether, as a matter of Convention law, such a matter of social welfare policy should be considered to fall within the Court\u2019s supervision under Article\u00a014 in conjunction with Article\u00a08. This crucial issue is one with wide\u2011ranging implications, and the apparently facile conclusion on the specific point of policy at hand should not blur the underlying issue that goes to the scope of the Court\u2019s powers of supervision. In this regard, we think that several reasons would have called for judicial restraint on the part of this Court.<\/p>\n 3. The line taken by the majority significantly expands the applicability of Article\u00a08 \u2013 at least when invoked together with Article\u00a014 \u2013 in the field of social welfare benefits. This is the main aspect, and our primary concern, in the case.<\/p>\n 4. It is well known that the Court has previously adopted a very wide interpretation of the notion of \u201cpossessions\u201d in the context of Article\u00a01 of Protocol No.\u00a01. This has been extended to also cover various claims under domestic law relating to social welfare benefits. Indeed, the issue in the present case has arisen because Switzerland has not ratified Protocol No.\u00a01 and is therefore not bound by it. From the Government\u2019s submissions it transpires that the decision not to ratify Protocol No.\u00a01 was taken essentially with a view to avoiding the application of the Convention in the field of social welfare claims. The decision taken by a member State of the Council of Europe not to accede to Protocol No.\u00a01 to the Convention is a sovereign political decision which might be aimed at preserving national regulations and ensuring an overall balance in the granting of certain benefits and advantages of various kinds. To the extent that Article\u00a08 is extended to cover matters relating to pecuniary entitlements which would normally fall within the protection guaranteed under Article\u00a01 of Protocol No.\u00a01, such an expansion of the ambit of Article\u00a08 could be perceived as a way of circumventing the will of a State not to be bound by a specific international obligation and could thereby harm confidence in the Convention system. Paradoxically, however, the above situationhas now prompted the Court to proceed to expand the applicability of Article\u00a08 in matters of social welfare \u2013 with an effect on all Contracting States. We find such a course of action dubious in principle.<\/p>\n 5. As a result, the ensuing legal implications and novel uncertainties will from now on affect the entire Convention system throughout all the jurisdictions within its geographical sphere. For instance, it is to be noted that the starting-points under Article\u00a01 of Protocol No.\u00a01 and Article\u00a08 are different. Whereas the former comprehensively protects the right to property, including acquired entitlements, per se \u2013 or, in conjunction with Article\u00a014, the obligation to provide such entitlements without discrimination \u2013 Article\u00a08 protects the right to respect for family life, which will place the focus on the manner in which various benefits affect that aspect of an individual\u2019s life. The methodologies of application in terms of general principles under the two provisions are distinct. A parallel application of both provisions in the field of social welfare benefits, whether taken alone or in conjunction with Article\u00a014, thus becomes a source of many legal questions and uncertainties.<\/p>\n 6. In this case, the Grand Chamber had the opportunity to clarify matters in a limitative sense, but the majority have instead chosen to broaden the applicability of Article\u00a08 in this context. While the judgment purports to rely on, and to maintain, criteria already found in previous case\u2011law, the real impact of the evolution in the detailed reasoning and the conclusion reached is not to contain but to expand the reach of Article\u00a08 in the field of social welfare benefits. This is revealed by several aspects in the reasoning.<\/p>\n 7. Firstly, the majority build upon the distinction made between the \u201cscope\u201d of Article\u00a08 when taken alone and its \u201cambit\u201d, which is wider, when taken in conjunction with Article\u00a014 (see paragraph\u00a062 of the judgment). It is indeed well established that the prohibition of discrimination enshrined in Article\u00a014 extends beyond the enjoyment of the rights and freedoms which the Convention requires each State to guarantee. Article\u00a014 also applies to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide (see, inter alia, Stec and Othersv.\u00a0the United Kingdom\u00a0(dec.) [GC], nos.\u00a065731\/01 and\u00a065900\/01, \u00a7\u00a040, ECHR\u00a02005\u2011X, and\u00a0E.B. v. France\u00a0[GC], no.\u00a043546\/02, \u00a7\u00a048, 22 January\u00a02008). Thus, while there is no positive obligation arising under a substantive Convention provision, such as Article\u00a01 of Protocol No.\u00a01 or Article\u00a08, imposing a duty on the Contracting States to provide social welfare benefits, and while the discontinuation of such a benefit in accordance with its original terms and conditions \u2013 as in the present case \u2013 would entail no interference with the rights protected under those provisions, the prohibition of discrimination may nonetheless be applicable in the context of such benefits if the right in question may be considered to fall \u201cwithin the general scope\u201d of a Convention Article.<\/p>\n 8. Even if the distinction between the notions of \u201cscope\u201d and \u201cambit\u201d is no novelty in the case-law, this distinction does not in itself mandate, or justify, any expansion of either aspect of Article\u00a08 to matters concerning social welfare benefits. On the contrary, the inherently multifarious nature of notions such as private or family life should not be taken by the Court as a licence to occupy any subject matter that might somehow be subsumed thereunder but rather as a call for reflection as to the appropriate tasks of an international court of human rights.<\/p>\n 9. Secondly, the judgment defines the ambit of the right to respect for family life in a problematic way. According to the majority, for Article\u00a014 to be applicable in the present context, that is to say, for the facts of the case to fall within the \u201cambit\u201d of Article\u00a08, \u201cthe 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\u00a08\u201d (see paragraph\u00a072 of the judgment). It is difficult to grasp the meaning of this phrase. The \u201csubject matter of the disadvantage\u201d suffered by the applicant was not an inability to receive a survivor\u2019s pension when his children were still minors, something he was entitled to under domestic law, but the inability to receive a survivor\u2019s pension once his children had reached adulthood. In general, the Court has held that there is no \u201cfamily life\u201d within the meaning of Article\u00a08 between parents and adult children unless additional elements of dependence exist (see Slivenko v.\u00a0Latvia\u00a0[GC], no.\u00a048321\/99, \u00a7\u00a097, ECHR\u00a02003\u2011X; A.W.\u00a0Khanv.\u00a0the United Kingdom, no.\u00a047486\/06, \u00a7\u00a032, 12\u00a0January 2010;\u00a0Narjis v.\u00a0Italy, no.\u00a057433\/15, \u00a7\u00a037, 14\u00a0February 2019; and Khan v.\u00a0Denmark, no.\u00a026957\/19, \u00a7\u00a7\u00a058 and\u00a080, 12\u00a0January 2021). No such elements of dependence have been submitted in the present case. The applicant has complained that he could no longer afford to spend on leisure or gifts for his adult children, but such circumstances can hardly be characterised as elements of dependence in the sense of the Court\u2019s case\u2011law. It is therefore not readily understandable in what sense the \u201csubject matter of the disadvantage\u201d could \u201cconstitute one of the modalities\u201d of the \u201cexercise of family life\u201d as protected under Article\u00a08, unless the idea really is to convert into a legal criterion the obvious fact that the level of available income has a bearing on how an individual may lead his or her life, including within the family circle. In any event, the formulation cited above provides no real guidance on what might be considered to fall within the \u201cambit\u201d and what might remain outside.<\/p>\n 10. Moreover, that obscure phrase appears to stand in contradiction with the set of criteria mentioned subsequently (see paragraph\u00a072 of the judgment). According to these, the \u201cambit\u201d encompasses \u201cmeasures [which] seek to promote family life and necessarily affect the way in which it is organised\u201d. Here, focus is shifted from the point of the \u201cdisadvantage\u201d complained of to the general nature of the welfare benefit in question.<\/p>\n 11. This criterion, however, also remains very vague. The reference to the aim of \u201cpromoting family life\u201d excludes various subsidies which are not payable to families but is otherwise quite broad and indefinite. The criterion of \u201cnecessarily affecting\u201d the organisation of family life, too, is potentially very wide\u2011ranging, as it can easily be argued that the availability of financial support, or its withdrawal, will always \u201cnecessarily\u201d affect the manner in which family life may be conducted. If \u201cnecessarily\u201d is to be understood as \u201cinevitably\u201d, an alternative argument can also be made: for a well\u2011off family a relatively modest financial benefit would have hardly any, let alone a \u201cnecessary\u201d, effect on the organisation of the family life.<\/p>\n 12. It is important to note that while the test of \u201cnecessarily affecting the manner in which family life is organised\u201d was relied on in the case of Konstantin Markin v.\u00a0Russia ([GC], no.\u00a030078\/06, \u00a7\u00a0130,ECHR\u00a02012), the context there was different from that of the present case. In Konstantin\u00a0Markin, the necessary impact arose from the very conditions of the benefit at issue, namely the right to parental leave and a financial allowance, tied to absence from service during the period of primary care for an infant. By contrast, in the present case the majority expressly disconnect the notion of \u201cnecessary impact\u201d from the terms and conditions of the benefit in question, broadening that criterion to encompass circumstances where the \u201cnecessity\u201d of the impact does not stem from the terms and conditions to which the benefit is made subject under domestic law but results from the individual\u2019s specific factual situation, including the choices made in the organisation of his life. Thus, although the test is formulated in similar terms, it entails a clear and radical departure from its original version. The substance of the criterion is now very different, and much wider than in the context of Konstantin Markin.<\/p>\n 13. This expansion of circumstances which may be found to satisfy the test of \u201cnecessary impact\u201d is made explicit in paragraph\u00a072 of the judgment, according to which \u201ca range of factors\u201d will be relevant for determining the \u201cnature of the benefit\u201d. These will include, in particular, the \u201caim of the benefit\u201d \u2013 notably not as set out by the domestic legislature but as determined by the Court; the \u201ccriteria for awarding, calculating and terminating\u201d the benefit; the \u201ceffects on the way in whichfamily life is organised, as envisaged by the legislation\u201d; and, perhaps most remarkably, the \u201cpractical repercussions\u201d on the individual\u2019s specific circumstances and family life throughout the period during which the benefit is paid.<\/p>\n 14. We will return below to the highly problematic features among this \u201crange of factors\u201d set out by the majority. At this stage, we would reiterate in general terms that the novel version of the test originally set out in Konstantin\u00a0Markin has now become, in substance, essentially quite different and much broader.<\/p>\n 15. Thirdly, with a view to the expansion of the \u201cambit\u201d of Article\u00a08, the present case as such is only concerned with \u201cfamily life\u201d and the question of when matters concerning social benefits may come within the \u201cambit\u201d of the \u201cfamily life\u201d aspect of that provision in conjunction with Article\u00a014. There is, however, no convincingly identifiable reason why the expansive interpretation of the notion of \u201cambit\u201d in the field of social benefits should remain limited to the \u201cfamily life\u201d aspect of Article\u00a08 and halt at the boundary to \u201cprivate life\u201d \u2013 a boundary which itself is not always clear-cut. It appears difficult to see on what basis a watershed could be maintained between the two. On the contrary, one may predict that sooner or later the expansive thrust will spill over to assessments directed at the manner in which various social benefits, or their withdrawal, \u201cnecessarily affect\u201d the private lives of the individuals concerned.<\/p>\n 16. Fourthly, as regards the overall extent of the Court\u2019s supervisory powers in the field of social welfare policies and benefits, the interpretation of the \u201cambit\u201d of Article\u00a08 is not the only factor to consider. The other key factor relates to the scope of Article\u00a014 itself, in particular the interpretation of the grounds for differences in treatment which may engage the application of that provision, whether in conjunction with Article\u00a08 or with another substantive provision such as Article\u00a01 of Protocol No.\u00a01. Although the present case concerns a difference in treatment based on sex, which is one of the protected grounds expressly enumerated in Article\u00a014, it is worth noting the broader repercussions that may follow from the manner in which the reach of that provision is construed. The more the notion of \u201cother status\u201d under Article\u00a014 is extended to cover not only certain fundamental personal or legal characteristics but also various factual circumstances relating to the individual\u2019s situation, the wider the combined repercussions will be on the extent of the Court\u2019s supervisory role. Whereas some differences in treatment are inherently illicit or dubious depending on the ground relied on, other criteria for making distinctions may be essential elements and key determinants in the definition of various areas of policy, be they economic, fiscal, social, environmental or other. In the field of social welfare policies, for instance, the award of benefits is regularly tied to, and limited by reference to; criteria such as income level, number and age of family members or the like. A transformation of Article\u00a014 from a prohibition of discrimination on certain specific grounds into a general equal treatment clause, capable of being invoked on the grounds of any difference in treatment regardless of the nature of the criterion on which it is made, would produce wide\u2011ranging consequences for the Court\u2019s powers of review.<\/p>\n 17. Thus, the nebulous interpretation of the questions of \u201cambit\u201d together with an expansive interpretation of the scope of protection under Article\u00a014 might entail the consequence that the exercise of supervisory powers by the Court would not be subject to any distinct limits whatsoever. We submit that the Court, with the processes and capacities under which it functions, would be institutionally ill\u2011suited for such \u201call\u2011encompassing\u201d tasks of judicial review relating to domestic policies.<\/p>\n 18. In this context, it should be noted that the present judgment addresses the question of the \u201cambit\u201d of Article\u00a08 in conjunction with Article\u00a014, whereas the question of whether and how measures in the field of social welfare benefits might engage the application of Article\u00a08 taken alone (the issue of \u201cscope\u201d) remains outside the subject matter of this case. In the context of Article\u00a01 of Protocol No.\u00a01, the Court has consistently held that that provision, standing alone, entails no \u201cpositive obligations\u201d requiring the Contracting States to make provision for welfare benefits. Where such benefits are awarded, it follows from Article\u00a014 taken in conjunction with Article\u00a01 of Protocol No.\u00a01 that such entitlements must be provided in compliance with Article\u00a014. Even on the assumption that a similar line of interpretation would prevail in the context of Article\u00a08, the extent of the grounds on which Article 14 may be invoked will also have an impact on the extent to which positive obligations relating to social welfare benefits would in effect be capable of arising from the application of that provision.<\/p>\n 19. In our view, these are matters of serious concern, not least in the light of the current realities which have already rendered the Court unable to fulfil some of its basic functions in the international enforcement of core human rights. The risk of creating an increasingly dysfunctional Court through the pursuit of overreaching ambitions of substantive omnipotence should not be underestimated.<\/p>\n 20. Last but not least, it is inevitable that matters of social welfare policies are at the heart of political and democratic processes at the domestic level. The forms and levels of benefits, the setting of priorities in the face of competing needs and scarcity of resources, as well as the funding arrangements necessary to meet the costs of policies, vary and depend heavily on the prevailing economic capacities and social conditions. These may not only differ greatly between States but may also change over time within a given State. As social welfare benefits consist of claims against the public purse, or other funds raised from the collective of contributors, there is a necessary and tight link between social, economic and fiscal policies. There are complex choices to be made, and they may often be both hard and controversial. It is obvious that the basic battlefields and corrective mechanisms in such matters must remain at the domestic levels of political democracy. Such functions cannot be shifted to the courts. In particular, an international human rights court cannot legitimately place itself at the forefront of disputes relating to social welfare entitlements or turn itself into a final arbiter in the complex matters of income distribution and social rights. Furthermore, many practical difficulties for the Court\u2019s assessment will stem from the fact that financial benefits are only one tool used in the complex system of social policies, which may include, among other elements, a range of free or subsidised services and tax benefits. The Court was never intended to function as a standard\u2011setter for these types of policies, nor should it aspire to assume such a role.<\/p>\n 21. Against this background, it is particularly striking to note that the respondent State in the present case is one with a prominent tradition of not only representative but also direct democracy. It seems somewhat paradoxical, therefore, that this case should nonetheless become a landmark in the Court\u2019s case-law in terms of expanding and enhancing the international judicial supervision of social welfare policies.<\/p>\n 22. As a final remark, the manner in which the majority define the parameters for engaging the Court\u2019s supervisory power gives rise to some particular concerns. We have noted above that the majority expressly underline that the nature of a given welfare benefit for the purposes of determining whether it comes within the ambit of Article\u00a08 will not be decided on the basis of its aims as set out by the domestic legislature but will depend on the Court\u2019s own assessment (see paragraph\u00a072 of the judgment). In the same context, it is made clear that the assessment of the nature of the benefit will not depend on its underlying terms and conditions as set out in domestic law but also on the \u201cpractical repercussions\u201d which the enjoyment of the benefit has had on the specific circumstances of the individual and his life. Such an approach is problematic especially with a view to benefits which are not, as a matter of principle, granted according to an assessment of specific individual needs (as in the case of benefits in the form of \u201clast resort\u201d assistance) but which form part of systems of social insurance, such as pensions. In order to achieve uniform treatment of beneficiaries and to ensure the sustainability of the funding of such systems, it is essential that the entitlements are based on predetermined criteria and do not depend on the manner in which an individual may choose to organise his life in reliance on the income derived from the system. It would be quite anomalous to allow beneficiaries to generate, through the intervention of this Court, entitlements based on self\u2011created dependencies on benefits received, contrary to the intentions and conditions as set out in the governing domestic legislation. Moreover, the majority\u2019s new, \u201ccase\u2011specific\u201d definition of the \u201cambit\u201d of Article\u00a08 will make it difficult for domestic legislators to determine how to formulate social law in a Convention\u2011compliant manner.<\/p>\n 23. The observations above indicate our general concerns with regard to the line taken by the majority and the potential wider implications. The judgment entails a further expansion of the \u201cambit\u201d of Article\u00a08, going well beyond the position in Konstantin\u00a0Markin. We are not able to endorse such a development towards a further shift in the direction of bringing social rights under the Convention and the jurisdiction of this Court.<\/p>\n 24. In the present case, the applicant had been the beneficiary of a survivor\u2019s pension. His entitlement to that pension was conditional on his position as the surviving parent of minor children. Neither the receipt of the pension nor its amount were tied to the applicant becoming a full\u2011time career of those children. The decision to quit his job and to fully devote himself to the parenting role during the entire period until the children reached adulthood was his own. He would have received the survivor\u2019s pension regardless of the manner in which the care of the children was organised. The circumstances of this case are therefore decisively different from those in Konstantin\u00a0Markin, where, unlike in the present case, it was accurate to consider that the nature of the measure at issue was such as to \u201cnecessarily affect\u201d the manner in which family life was organised.<\/p>\n 25. Furthermore, in the present case the applicant knew from the very beginning that the duration of the pension was limited in time and would not continue beyond the point at which both his children had reached the age of majority. We note that the majority place their focus on the constraints under which the applicant took his decisions to leave his job and to remain without employment throughout the period until his children became adults, and the ensuing difficulties he faced (see paragraphs\u00a079 and\u00a081 of the judgment). Implicitly, such an approach suggests that the individual is entitled to rely on the collective of contributors to the welfare system to assume the predictable consequences of his life arrangements, even contrary to the principles on which the system is based. While that may be a respectable ideological position to take, we would not agree that an international judicial body such as the Court may legitimately impose such an ideological approach on the domestic, democratically based institutions whose task it is to set up, maintain and finance the systems of social protection.<\/p>\n 26. For the reasons explained above, we consider, contrary to the majority, that the circumstances of the present case should not have been found to fall within the ambit of Article\u00a08. We have voted accordingly.<\/p>\n 27. As in our view Article\u00a014 in conjunction with Article\u00a08 is not applicable, we have also voted against the finding of a violation of those provisions. This does not mean that we would endorse the impugned difference in treatment as a matter of policy. It is simply a consequence of our legal view according to which this is not a matter that should fall within this Court\u2019s powers of adjudication.<\/p>\n ___________<\/p>\n [1] The Swiss people accepted the proposed amendment by a narrow majority. The text of this opinion was written before the referendum of 25 September.<\/p>\n
\nCASE OF BEELER v. SWITZERLAND<\/strong>
\n(Application no. 78630\/12)<\/em>
\nJUDGMENT<\/p>\n
\n11 October 2022<\/p>\n
\nRobert Spano,
\nJon Fridrik Kj\u00f8lbro,
\nS\u00edofra O\u2019Leary,
\nMarko Bo\u0161njak,
\nGabriele Kucsko-Stadlmayer,
\nYonko Grozev,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m,
\nPere Pastor Vilanova,
\nPauliine Koskelo,
\nJovan Ilievski,
\nP\u00e9ter Paczolay,
\nArnfinn B\u00e5rdsen,
\nSaadet Y\u00fcksel,
\nAnja Seibert-Fohr,
\nPeeter Roosma,
\nIoannis Ktistakis,
\nAndreas Z\u00fcnd, judges,
\nand S\u00f8ren Prebensen, Deputy Grand Chamber Registrar,
\nHaving deliberated in private on 16 June 2021 and on 12 January and 15\u00a0June 2022,
\nDelivers the following judgment, which was adopted on the last\u2011mentioned date:<\/p>\n
\n(a) for the Government
\nMr A. Chablais, Agent,
\nMs C. Mascetta,
\nMs V. Ruffieux,
\nMs D. Steiger Leuba,
\nMs S. Heegaard-Schroeter,
\nMr R. Baumann, Advisers;
\n(b) for the applicant
\nMr J. Luginb\u00fchl,
\nMs F. de Weck, Counsel.<\/p>\n
\nDeputy to the Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n
\nS.C.P.<\/p>\n