CONCURRING OPINION OF JUDGE ZÃœND

(Translation)

1. I agree with the present judgment, which confirms and refines the verdict reached by the Chamber. The Court rightly finds that the applicant’s complaint of discrimination falls within the ambit of Article 8 of the Convention and that Article 14 read in conjunction with Article 8 has been breached in the present case. I am writing separately because I consider it appropriate to clarify certain points in the light of Swiss law.

2. Switzerland is, besides the Principality of Monaco, the only member State of the Council of Europe not to have ratified Additional Protocol No. 1 to the Convention. Why is this? Switzerland ratified the Convention in 1974. It opted not to ratify the Additional Protocol on that occasion. The Federal Council (that is, the government) justified its decision by arguing that there were (still) too many divergences between Swiss law as applicable at the time and the Protocol. Such divergences related to the question of the right to free elections by secret ballot (voting rights for women had yet to be introduced in all cantons, and the elections held by a show of hands in some cantons raised issues as to voting secrecy), and the right to education ( Feuille fédérale 1972 I p. 998, 1974 I p. 1021). At that time, nevertheless, the right to protection of property for the purposes of Article 1 of the Protocol did not constitute an obstacle to accession to the Protocol. It was only from 2003 onwards that the Federal Council, in its reports to Parliament on Switzerland and the Council of Europe conventions, found that accession to Protocol No. 1 was hindered by the scope that the Court had conferred on the protection of property “by extending” (as the Federal Council put it) that protection to social welfare benefits.

3. The Court observes that in the vast majority of cases in which it has ruled on alleged discrimination in the sphere of entitlement to social welfare benefits, it has concentrated its analysis on Article 1 of Protocol No. 1 (see paragraphs 54 ‑ 56 of the judgment), which admittedly would appear on the face of it to be the most “natural” safeguard in relation to such benefits. While Article 8 does not guarantee the right to a social welfare benefit, a State may decide to go further in accordance with Article 53 of the Convention, but in that case it is bound by Article 14 and cannot take discriminatory measures within the meaning of that Article (see paragraph 61 of the judgment). For Switzerland, which has not ratified Protocol No. 1, it is extremely important to ascertain whether a case falls within the ambit of the protection of property alone or whether it also comes under Article 8. That said, it must be noted that in the field of social welfare benefits, the sphere of protection of the right to protection of property and that of the right to respect for private and family life intersect and overlap (see paragraph 69 of the judgment). In other words, the fact that Switzerland has not ratified Protocol No. 1 does not give rise either to a broader interpretation of Article 8, or to a narrower interpretation of the protection of family life. Nevertheless, it remains crucial for Switzerland to determine whether or not a welfare benefit falls within the ambit of Article 8. This issue must, however, be assessed independently, and irrespectively, of whether such a benefit would also fall within the ambit of Article 1 of Protocol No. 1. The principle of lex specialis , even if it were applicable to those two provisions (which I strongly doubt), is immaterial here, seeing that only one of the provisions in question applies to Switzerland.

4. It is true that all financial benefits may generally have certain repercussions on family life, although – of course – that fact alone is not sufficient for a case to fall within the ambit of Article 8. What is decisive, as the Court notes, is whether a measure seeks to promote family life and necessarily affects the way in which it is organised. In examining whether that is the case, the Court will adopt a holistic approach by taking a number of aspects into account, such as the aim of the benefit, as determined by the Court in the light of the legislation; the criteria for awarding, calculating and terminating the benefit; its effects on the way in which family life is organised, as envisaged by the legislation; and its practical repercussions, given the circumstances of the person concerned (see paragraph 72 of the judgment).

5. In view of those aspects, it seems very clear to me that a pension paid to the surviving member of a married couple with minor children falls within the ambit of the right to protection of family life. The aim of such a benefit is to alleviate the surviving partner’s situation, and its impact on the way in which family life is organised is linked precisely to the fact that it offers the surviving partner greater room for manoeuvre in organising family life (see paragraph 77 of the judgment). That being so, in order to avoid any discrimination, a widower’s pension should be awarded under the same conditions as a widow’s pension. Yet entitlement to the widower’s pension ends when the youngest child reaches the age of majority, whereas the widow’s pension continues to be paid.

6. In order to execute the present judgment (Articles 1 and 46 of the Convention) and remedy the situation by removing any inequalities in treatment, Switzerland has a number of solutions available, all of which are compatible with the Convention. Firstly, it could consider abolishing the limit applicable to a widower’s pension linked to the children reaching the age of majority, and thus bring widowers’ pensions into line with widows’ pensions. It could also decide to discontinue the widow’s pension once the children have reached the age of majority, which would amount to bringing widows’ pensions into line with widowers’ pensions. An intermediate solution could be to continue awarding the survivor’s pension – to men and women alike – after the children have reached the age of majority, until they have completed their studies.

7. It should also be noted that Swiss legislation provides for payment of a widow’s pension in another scenario that is very different from the one with which the present case is concerned. The pension in question is paid to widows, even without children, if at the time of their husband’s death they had been married for at least five years and were at least 45 years old (see section 24(1) of the Federal Law of 20 December 1946 on old-age and survivors’ insurance, quoted in paragraph 20 of the judgment); there is no equivalent provision for widowers. In my view, according to the criteria adopted by the Court in the present case, Article 8 would not be applicable to this benefit since it does not seek to facilitate the organisation of family life, which, moreover, does not depend on the pension.

8. Lastly, mention should be made of the fact that Swiss law entails another significant difference between men and women in the field of old-age pensions. The retirement age is currently 65 years for men, but 64 for women. I consider that this difference does not come under Article 8 either, and that it probably only falls within the ambit of Article 1 of Protocol No. 1. On 25 September 2022 the Swiss people will be asked to decide in a referendum whether the retirement age for women should be brought into line with that for men. [1] Irrespective of the result of the vote, the Swiss legislation remains compatible with the Convention since, firstly, the pension in question does not fall within the ambit of Article 8 and, secondly, Protocol No. 1 is not applicable to Switzerland, and nor, indeed, is Article 1 of Protocol No. 12 – which provides for a general prohibition of discrimination – as Switzerland has likewise decided not to ratify that Protocol.