Termination of widow’s pension after the children came of age, because as a man is able to return to work. Violation of gender equality and family life

JUDGMENT

Β. v. Switzerland  20.10.2020 ( app. no. 78630/12)

see here

SUMMARY

The case concerned the widower’s pension to which the applicant had ceased to be entitled after his
younger daughter had reached the age of majority. The Federal Law on Old-Age and Survivors’
Insurance provides that entitlement to a widower’s pension ends when the youngest child reaches
the age of 18, whereas this is not the case for a widow.

The Court reiterated that the Convention was a “living instrument” which had to be interpreted in
the light of present-day conditions and found that the presumption that the husband provided
financially for his wife, particularly when she had children, was no longer valid and could not justify
the difference in treatment of which the applicant had been a victim.

The Court was unable to conclude that there had been “very weighty reasons” in the present case to
justify the difference in treatment on grounds of sex alleged by the applicant. It therefore found that
the Government had failed to provide any reasonable justification for the inequality in the treatment
of the applicant

PRINCIPAL FACTS

The applicant, B., is a Swiss national who was born in 1953. He is the father of two children, whom
he raised alone after losing his wife in an accident when the children were one year and nine months
and four years old.

On 9 September 2010, after noting that the applicant’s younger daughter was about to reach the
age of majority, the Compensation Office of the Canton of Appenzell Outer Rhodes terminated the
payment of the applicant’s widower’s pension. He lodged an appeal, invoking the principle of gender
equality laid down in the Swiss Constitution, an argument which the Office rejected. He then
appealed to the Cantonal Court, arguing that there was no reason to place him at a disadvantage in
relation to a widow. The Cantonal Court dismissed his appeal, observing that the legislature had
been aware of the unequal treatment of widows and widowers when drafting and amending the
Federal Law on Old-Age and Survivors’ Insurance and had taken the view that widowers with
childcare responsibilities could be expected to return to work when those responsibilities ended,
whereas this could not reasonably be required of women in the same circumstances.

An appeal by the applicant to the Federal Supreme Court was dismissed in a judgment of 4 May
2012.

Relying on Article 14 (prohibition of discrimination) taken together with Article 8 (right to respect for
private and family life), the applicant complained that he had been discriminated against in relation
to widowed mothers with sole responsibility for raising their children.

THE DECISION OF THE COURT…

Article 14 taken together with Article 8

The Court found that the applicant’s complaint fell within the scope of Article 8 because the purpose
of a widow’s or widower’s pension was to enable the surviving spouse to organise his or her family
life. Moreover, as he had been 57 years old when he had stopped receiving the pension and 59 when
the Federal Supreme Court had delivered its judgment, it would have been difficult for him to
envisage returning to the labour market, a factor that had had a practical impact on the way in
which he had organised his family life. Accordingly, Article 14 taken together with Article 8 was
applicable in the present case.

With regard to applicant’s allegation of discrimination on grounds of “sex”, the Court observed that
he had indeed suffered unequal treatment in that the payment of his widower’s pension had been
terminated when his younger daughter had reached the age of majority, whereas a widow in the
same situation would not have lost her entitlement to a pension.

As to the objective nature of the discrimination, the Court was prepared to accept the Government’s
argument that there was a presumption that the husband provided financially for his wife,
particularly when she had children. However, it considered that careful scrutiny of the
reasonableness of the inequality in treatment was required. It reiterated that only “very weighty
reasons” could justify discrimination on grounds of sex, whether the victim was a woman or a man.

The Court could not rule out that the introduction of a pension limited to widows might have been
justified by the role and status assigned to women at the time the relevant law had been passed, in
1948. However, it pointed out that the Convention was a “living instrument” which had to be
interpreted in the light of present-day conditions and found that the presumption that the husband
provided financially for his wife, particularly when she had children, was no longer valid and could
not justify the difference in treatment of which the applicant had been a victim.

The Court noted that the applicant’s wife had died in an accident when their children had been one
year and nine months and four years old. Since then, the applicant had brought up the children
alone without being able to carry on his career. Having been 57 years old when he had stopped
receiving the pension, the applicant had not been engaged in any gainful activity for more than
16 years. The Court failed to see why the applicant would have had less difficulty returning to the abour market at that age than a woman in a similar situation, or why the termination of the pension would have affected him to a lesser extent than a widow in comparable circumstances.

The Court was unable to conclude that there had been “very weighty reasons” in the present case to
justify the difference in treatment on grounds of sex alleged by the applicant. It therefore found that
the Government had failed to provide any reasonable justification for the inequality in the treatment
of the applicant.

There had therefore been a violation of Article 14 taken together with Article 8 of the Convention.

Just satisfaction (Article 41)

The Court held that Switzerland was to pay the applicant 5,000 euros (EUR) in respect of
non-pecuniary damage and EUR 6,380 in respect of costs and expenses.

Separate opinion

Judge Keller expressed a separate opinion, which is annexed to the judgment.


ECHRCaseLaw

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