CONCURRING OPINION OF JUDGE SEIBERT-FOHR

I. Introduction: Non-discrimination in the field of social security

1. I fully agree with the majority’s finding of a violation of Article 14 of the Convention read in conjunction with Article 8. I write separately to further clarify the reasons leading to this conclusion and to refute arguments which may be raised against that finding. For this purpose, I will clarify the elements which are relevant for delimiting the ambit of Article 8 in the field of social security and further elaborate on the lack of objective and reasonable justification for the difference in treatment in the present case.

II. The relevant elements for delimiting the ambit of Article 8

A. The notion of ambit

2. According to the Court’s settled case ‑ law, the application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 63, ECHR 2010). It extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee, applying also to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide. It is therefore sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 39, ECHR 2005 ‑ X, and Andrejeva v. Latvia [GC], no. 55707/00, § 74, ECHR 2009). Article 14 of the Convention is pertinent if “the subject matter of the disadvantage ... constitutes one of the modalities of the exercise of a right guaranteed ...”, or if the contested measures are “linked to the exercise of a right guaranteed ...” (see Konstantin Markin v. Russia ([GC], no. 30078/06, § 129, ECHR 2012).

B. No presumed or hypothetical link to family life

3. When it comes to establishing this link, I fully agree with the majority in rejecting a legal presumption to the effect that in providing a socio ‑ economic benefit, such as in the present case, a State is displaying its support and respect for family life (see paragraph 69 of the present judgment). Nor should a hypothetical causal link be accepted if a benefit is “liable to affect the way in which family life is organised” (ibid.). If any effect, however tenuous, of a social welfare benefit on private or family life were to suffice, there would be hardly any financial benefit left that would not fall within the ambit of Article 8 (see paragraph 67 of the present judgment).

C. The need for a close link

4. What is needed for the facts of the case to fall within the ambit of Article 8 is a close link between the provision of the welfare benefit and the enjoyment of family life (ibid., § 71), “close” meaning substantively close and close in terms of direct effect. Such a close link can be established if a financial benefit enables the beneficiary to exercise the right to family life (see Konstantin Markin , cited above, § 130). Whereas States are free to decide how to promote family life, they are prevented from excluding individuals on discriminatory grounds once they provide financial aid to families (compare Fábián v. Hungary [GC], no. 78117/13, § 112, 5 September 2017; Biao v. Denmark [GC], no. 38590/10, § 88, 24 May 2016; İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 158, 26 April 2016; Carson and Others , cited above, § 63; E.B. v. France [GC], no. 43546/02, § 48, 22 January 2008; X and Others v. Austria [GC], no. 19010/07, § 135, ECHR 2013; Genovese v. Malta , no. 53124/09, § 32, 11 October 2011; and Beeckman and Others v. Belgium (dec.), no. 34952/07, § 19, 18 September 2018).

1. Legislative intent is not decisive

5. Whereas a legislative intent to facilitate or improve family life would be a significant indicator for a close link to the organisation of family life, the latter can also be established by other relevant factors which demonstrate that a financial benefit necessarily affects the way in which family life is organised (for this notion see Konstantin Markin , cited above, § 130). Thus, the aim of the benefit is one amongst several elements to be examined as a whole, which also include the criteria for awarding, calculating and terminating the benefit as set forth in the relevant statutory provisions; the effects on the way in which family life is organised, as envisaged by the legislation; and the practical repercussions of the benefit (see paragraph 72 of the present judgment). To limit the applicability of Article 14 only to those welfare benefits which reflect a State’s intention to facilitate or improve family life would be prone to inviting legislators to provide reasons for social benefits that were unrelated to any of the rights protected under the Convention in an effort to dispense with the applicability of Article 14. Moreover, it is not the Court’s role to second ‑ guess legislative intent.

6. This is also evidenced by the Court’s judgment in Konstantin Markin , where the issue of intent was not taken into account when the Court determined the applicability of Article 14 read in conjunction with Article 8 (see Konstantin Markin , cited above; compare §§ 129 ‑ 30 in respect of applicability with § 132, which relates to the merits). The judgment in the present case, which affirms the standard set out in Konstantin Markin (see paragraph 70 of the present judgment with reference to Konstantin Markin , cited above, §§ 129 ‑ 30), is thus not to be read as providing for a cumulative test which requires legislative intent plus a necessary effect. Paragraph 72 clarifies that the aim of the benefit is but one of the elements to be considered in assessing whether the facts of the case fall within the ambit of Article 8 (see also paragraph 73 of the present judgment). What is crucial are the nature and the direct effect of the benefit paid.

2. The nature and effect of the welfare benefit

(a) Substantively closely related to and with a direct effect on family life

7. What is decisive for the determination of whether an allowance necessarily affects the way in which family life is organised is the question of whether an allowance is substantively closely related to (for example, in terms of the conditions for entitlement to the allowance) and has a direct, that is, a close causal, effect on family life. This is a factual question which is not limited to legislative intent (see paragraphs 74 ‑ 76 of the present judgment). For this purpose, more is needed than indirect factual effects (but see Di Trizio v. Switzerland , no. 7186/09, 2 February 2016, and Belli and Arquier ‑ Martinez v. Switzerland , no. 65550/13, 11 December 2018, which had proceeded from the tenuous notion of “liable to affect” which the Court overrules in paragraph 69 of the present judgment). A regulatory effect which is evidence of the close substantive connection between the welfare benefit and family life can be established on the basis of the statutory criteria for awarding, calculating and terminating the benefit, which are indicative of whether a benefit objectively serves to facilitate family life (see paragraphs 74 ‑ 77 of the present judgment), whereas a direct effect is to be determined on the basis of the effects on the organisation of family life, including those envisaged by the legislation and the practical repercussions of the benefit, given the applicant’s individual circumstances and family life throughout the period during which the benefit is paid (see paragraphs 72 and 78 ‑ 81 of the present judgment).

(b) Application to the present case

8. In the present case, the applicant decided to stay at home in order to raise his minor children full ‑ time after his wife had died in an accident in 1994. By doing so, he exercised his right to family life. The pension which he started to receive in 1997 allowed him to continue staying at home while taking the risk of not being able to return to his occupation after a period of sixteen years. The risk materialised as a direct consequence of his decision to stay with his children when his youngest daughter turned 18 years old. While widows in the same position continued to benefit from the widow’s pension, he was debarred from the benefit pursuant to section 24(2) of the Federal Law on old ‑ age and survivors’ insurance, a provision which explicitly relates only to widowers (see paragraph 20 of the present judgment).

9. This welfare benefit was closely linked to the right to enjoy family life, for the following reasons. The pension was paid only to surviving spouses with children, indicating that its objective was to facilitate family life. The financial support offered a direct incentive and enabled the applicant to stay with his minor children for an extended period of time in order to raise them full ‑ time without the financial need to return to his employment (a comparable situation to that examined in Konstantin Markin , cited above, § 130, where the Court found that the provision of a parental leave allowance enabled one of the parents to stay at home to look after the children and thus promoted family life and necessarily affected the way in which it was organised). Thus, key aspects of his family life were at least partially organised on the basis of the receipt of the pension (see paragraph 80 of the present judgment). The survivor’s pension, therefore, was substantively closely related to family life and helped directly to sustain family life and thus fell within the ambit of Article 8.

10. The fact that the survivor’s pension was paid to surviving spouses with children irrespective of whether they stopped working or continued to work after their spouse’s death and that the surviving spouses were not asked to give up their occupation and remain at home in order to bring up their children cannot be decisive for determining whether the applicant, who decided to exercise his right to family life, suffered from discrimination. Since the allowance was substantively closely related to and had a direct effect on family life, the applicant was protected against discrimination once he decided to stay at home with his minor children. To disregard the fact that he did so in order to look after his daughters full ‑ time only because he was not required to do so by the law would not only fail to give recognition to an autonomous decision that is protected under Article 8 but would also fail to understand the difficult situation that the family experienced after the death of the mother. The fact that the applicant took the risk of not being able to return to the job market of his own motion when his children were small can thus hardly be decisive for the applicability of Article 14.

III. Article 14: No objective and reasonable justification

11. Given the applicability of Article 14 in the present case, the distinction made on grounds of sex in section 24(2) of the Federal Law on old ‑ age and survivors’ insurance is clearly not justifiable on objective and reasonable grounds. This was most aptly explained by the Federal Supreme Court (see paragraph 17 of the present judgment). According to its judgment of 4 May 2012, the provisions concerning the right to a widower’s pension were based on the idea that it was the husband who provided for his wife’s needs, particularly if there were children. The court recognised that gender ‑ neutral regulations would not be based on sex but on whether a particular individual had lost the person who provided for him or her (ibid.). However, during the tenth revision of the OASI system the legislature had opted for the regulations in issue, while being aware that they established an unacceptable distinction on grounds of sex (ibid.). The distinction was neither necessary for either biological or functional reasons.

12. The Government’s argument that gender equality had not yet been entirely achieved in practice as far as involvement in paid employment was concerned (see paragraph 91 of the present judgment) cannot serve as a justification for a blanket de jure distinction between widowers and widows with respect to survivor’s pensions without taking into account their needs, namely their ability to return to the job market. If such factual disparities within the population at large and presumptions of this kind could justify distinctions between survivors with children based on their sex irrespective of real factual needs, this would be tantamount to reinforcing inequalities and stereotypes in contravention of Article 2 (a) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), in accordance with which States Parties undertake to embody the principle of equality of men and women in their legislation and to ensure through law the practical realisation of this principle (see paragraph 30 of the present judgment). The United Nations Human Rights Committee found as long ago as 1987 that a regulation based on the breadwinner concept, placing one sex at a disadvantage compared to the other, was not reasonable und thus not justified (see Zwaan de Vries v. the Netherlands , U.N. Doc. CCPR/C/29/D/182/1984, § 14). The same applies to the widower’s pension which was introduced ten years later in the respondent State.

13. It is for these reasons that I fully agree with the majority’s finding of a violation of Article 14 of the Convention read in conjunction with Article 8 in the present case.