30 Oct Discrimination based on sex with regard to the right to a family pension

In the case of B. v. Switzerland (application no. 78630/12, 20.10.2020) the European Court of Human Rights held, unanimously, that there had been a violation of Article 14 (prohibition of discrimination) taken together with Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

 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 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. 

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found that the presumption that the husband provided financially for his wife, particularly when she had children, was no longer valid and could not justify the difference in treatment of which the applicant had been a victim.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 failed to see why the applicant would have had less difficulty returning to the labour 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. 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.

Reference from the official website of the European Court of Human Rights