SEPARATE OPINION OF JUDGE KELLER

1. I voted against the majority on the first point of the operative part of this judgment, but was in agreement with my colleagues for the second point. In my view, the Court should have examined this case exclusively under Article 14 in conjunction with Article 1 of Protocol No. 1. The majority, however, chose a different approach and examined the case in the light of Article 14 read in conjunction with Article 8 and Article 1 of Protocol No. 1, respectively. This approach does not take into account that the scope of these two rights is distinct. In many cases, this distinction does not play a decisive role. However, for the two countries – Monaco and Switzerland – that have not ratified Protocol No. 1, the distinction is important.

2. As I have previously argued, together with Judges Spano and Kjølbro in our dissenting opinion in the case of Di Trizio v. Switzerland (no. 7189/09, judgment of 2 February 2016), a financial allowance in the form of support provided by the State primarily falls into the ambit of Article 1 of Protocol No. 1 (see, for example, Moskal v. Poland , no. 10373/05, §§ 93 et seq ., 15 September 2009, and Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 53, ECHR 2006-VI). It is only where some additional elements are fulfilled, such as a clear legislative intent to provide an incentive for the organisation of family life (see, for example, Konstantin Markin v. Russia [GC], no. 30078/08, § 130, ECHR 2012), that a purely financial award can fall into the ambit of Article 8 and can therefore be examined in the light of Article 14. To decide otherwise would blur the lines between the protection of property rights on the one hand and private and family life on the other.

3. The applicant in the present case exclusively invoked Article 14 in conjunction with Article 8. The Court communicated the case under both Article 8 and Article 1 of Protocol No. 1 (both read in conjunction with Article 14) and recharacterised the issue in paragraph 57 of the judgment. Although this is possible under the Court ’ s case-law in accordance with the principle jura novit curia (compare, inter alia , Tarakhel v. Switzerland [GC], no. 29217/12, § 55, ECHR 2014; Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012; and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009), one has to bear in mind that this approach should be the exception rather than the rule, as it causes problems with regard to the exhaustion of domestic remedies on an almost regular basis (this is also true in the case at hand, see paragraph 59 for the Government ’ s objection). In the light of the principle of subsidiarity, it is always most unfortunate if the national courts have not been given the opportunity to deal with a particular legal issue before it is examined by the Court.

4. In paragraph 75 of the present judgment, the Court simply states that the de facto relationship between the applicant and his late partner falls into the ambit of Article 8. This is undoubtedly true. However, this is not the issue in the present case. Rather, the question here concerns the right to retroactive equal treatment in purely financial matters of same-sex de facto couples who could not marry because of their sexual orientation, compared to heterosexual couples who lived in a de facto relationship because they could not legally divorce from their spouses.

5. In my view, the majority fail to provide any convincing reason why the pension in question should fall into the ambit of family or private life as protected under Article 8 as well as under the right enshrined in Article 1 of Protocol No. 1.

6. Once the Court declared the complaint admissible, I had no difficulty in joining the majority. The crucial element in this case is the comparability of two groups: on the one hand, heterosexual partners who lived in a de facto relationship with a new partner while being legally barred from divorce, and, on the other, same-sex partners in a de facto relationship. The legal analysis is made additionally difficult by the fact that the legislator acted regarding the first group more than 25 years earlier than in the case of the second. To grant the State a wide margin of appreciation in such a difficult situation, which also has considerable financial implications, seems to me to be the right approach.