Discriminatory treatment in pension allowances

Insights

On 11 October 2022, in the case of Beeler vs Switzerland, the European Court of Human Rights (‘‘ECHR’’) held that the Swiss government was discriminating against men in its pension rules on widowers’ pensions due to the differences in the grounds for termination of a widower’s entitlement to a survivor’s pension, as opposed to the grounds for termination of a widow’s entitlement to a survivor’s pension. These pension rules were thus deemed to be incompatible with the European Convention on Human Rights (the “Convention”).

By way of background, the dispute at hand concerned Max Beeler (the “Applicant”) who is a Swiss national and father of two children, whom he raised alone after losing his wife in an accident when the children were very young. Section 24(2) of the Swiss Federal Law on Old-Age and Survivors’ Insurance (“Federal Law”), provided that entitlement to a widower’s pension terminated upon the youngest child reaching the age of majority, whereas this was not the case for a widow.

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 (the “Office”) terminated the payment of the Applicant’s widower’s pension. The Applicant contested this termination on the grounds of gender equality, as laid down in the Swiss Constitution, however the Office rejected the Applicant’s claims.

Proceedings before the ECHR 

Following a series of failed attempts by the Applicant to overhaul the termination of a widower’s pension on the basis that such termination amounted to a violation of his human rights, the Applicant brought a case before the ECHR. On 19 November 2012, the Applicant lodged an application with the ECHR for the violation of his right to the prohibition of discrimination and his right to respect for private and family life.

Alleged violation of Article 8 and Article 14 of the Convention

On the alleged violation of Article 8 and Article 14 of the Convention, the ECHR held that the pension in question sought to promote family life for the surviving spouse by enabling the said spouse to allocate more time to look after the children, without facing significant financial detriment.

In the present case, the Applicant’s wife died when their two children were very young, and the Applicant was consequently required to reorganise his family life by resigning from his job in order to devote himself entirely to his family, and to raise the children. The ECHR acknowledged that the Applicant made this decision by relying on the widower’s pension, which financially allowed him to affect the change.

Accordingly, throughout the period within which the Applicant was granted the widower’s pension from 1997 until its termination in November 2010, the Applicant had organised the key aspects of his life and his family’s life, either wholly or partially on the basis of the existence of the pension. Furthermore, at the age of 57, the Applicant was placed in a delicate financial situation upon the termination of the widower’s pension and in view of his difficulties in returning to an employment market after having been absent for 16 years as a direct consequence of the decision which he had made years earlier in the interests of his family.

The ECHR held that the case was sufficient to render Article 8 and Article 14 of the Convention applicable.

Decision

The ECHR held that the Applicant’s claim of discrimination on grounds of sex within the meaning of Article 14 of the Convention was based on sufficient grounds. It observed that the termination of his entitlement to a widower’s pension had been based on Federal Law, which, in the case of widowers, ended that entitlement at the time when the youngest child reached the age of majority. On the other hand, widows would not lose their entitlement to a survivor’s pension after the youngest child reaches the age of majority.

Having considered the facts of the case, the ECHR concluded that there was no reason to believe that the Applicant, at the age of 57 and following a lengthy absence from the labour market, would have had less difficulty in returning to employment than a woman in a similar situation, or that the termination of the pension would be less detrimental to him than to a widow in comparable circumstances. The Applicant lost his entitlement to the survivor’s pension simply because he was a man, irrespective of the fact that the Applicant had been in an analogous situation in terms of his subsistence needs.

The ECHR reaffirmed that references to traditions, general assumptions or prevailing social attitudes in a particular country were no longer sufficient justification for a difference in treatment on grounds of sex, whether in favour of women or men. Weighty reasons are required for the ECHR to 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 was narrow.

The ECHR therefore found that the unequal treatment to which the Applicant had been subjected could not be said to have been reasonably and objectively justified and that there had been a violation of Article 14 of the Convention read in conjunction with Article 8. Consequently, the ECHR awarded the Applicant EUR 5,000 in respect of non-pecuniary damages and an additional EUR 16,500 in respect of costs and expenses.