09 Nov Discrimination on the basis of gender with regard to the right to a family pension

In the case of Beeler v. Switzerland (application no. 78630/12, 11.10.2022) the European Court of Human Rights held, by a majority (12 votes to 5), that there had been a violation of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to for private and family life) of the European Convention on Human Rights.

The case concerned the termination of the applicant’s widower’s pension after his younger child reached the age of majority. The Federal Law on old-age and survivors’ insurance provided that entitlement to a widower’s pension ended when the youngest child reached the age of 18, whereas this was not the case for a widow.

Before the Court, the applicant argued that he had been discriminated against in relation to widows in a comparable situation, who would not have lost their entitlement to the pension. The Government 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. In their view, the difference in treatment was therefore based not on gender stereotyping but on social reality. 

Firstly, the Court noted that between 1997 and 2010, the applicant had been in receipt of the widower’s pension and had organised the key aspects of his family life, at least partially, on the basis of the existence of the pension. The delicate financial situation in which he had found himself at the age of 57, in view of the loss of the pension and his difficulties in returning to an employment market from which he had been absent for 16 years. This was the consequence of the decision he had made years earlier in the interests of his family, he had devoted himself entirely to looking after, bringing up and caring for his children and had given up his job supported from 1997 onwards by receipt of the widower’s pension. 

The Court therefore held that Articles 8 and 14 of the Convention were applicable in the present case. Next, the Court found that although the applicant had been in an analogous situation in terms of his subsistence needs, he had not been treated in the same way as a woman/widow. He had therefore been subjected to unequal treatment. The Government had not shown that there were very strong reasons or “particularly weighty and convincing reasons” justifying the difference in treatment on grounds of sex. In the Court’s view, the Government could not rely on the presumption that the husband supported the wife financially (the “male breadwinner” concept) in order to justify a difference in treatment that put widowers at a disadvantage in relation to widows. It found that the legislation in question contributed rather to perpetuating prejudices and stereotypes regarding the nature or role of women in society and was disadvantageous both to women’s careers and to men’s  family life.

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