JOINT DISSENTING OPINION OF JUDGES KJØLBRO, KUCSKO-STADLMAYER, MOUROU-VIKSTRÖM, KOSKELO AND ROOSMA

1. We have regrettably not been able to agree with the majority in this case. The core issue concerns the applicability of Article 14 in conjunction with Article 8 to the facts of the case, more specifically the question of the “ambit” of Article 8 in matters relating to social welfare benefits.

2. The applicant’s complaint arises from the fact that the survivor’s pension granted to him was discontinued when his children reached the age of majority whereas, in otherwise similar circumstances, a widow would have remained entitled to such a pension. As a matter of policy, such a difference in treatment based on sex may indeed be considered outdated. It is, however, an entirely separate question whether, as a matter of Convention law, such a matter of social welfare policy should be considered to fall within the Court’s supervision under Article 14 in conjunction with Article 8. This crucial issue is one with wide ‑ ranging implications, and the apparently facile conclusion on the specific point of policy at hand should not blur the underlying issue that goes to the scope of the Court’s powers of supervision. In this regard, we think that several reasons would have called for judicial restraint on the part of this Court.

3. The line taken by the majority significantly expands the applicability of Article 8 – at least when invoked together with Article 14 – in the field of social welfare benefits. This is the main aspect, and our primary concern, in the case.

4. It is well known that the Court has previously adopted a very wide interpretation of the notion of “possessions” in the context of Article 1 of Protocol No. 1. This has been extended to also cover various claims under domestic law relating to social welfare benefits. Indeed, the issue in the present case has arisen because Switzerland has not ratified Protocol No. 1 and is therefore not bound by it. From the Government’s submissions it transpires that the decision not to ratify Protocol No. 1 was taken essentially with a view to avoiding the application of the Convention in the field of social welfare claims. The decision taken by a member State of the Council of Europe not to accede to Protocol No. 1 to the Convention is a sovereign political decision which might be aimed at preserving national regulations and ensuring an overall balance in the granting of certain benefits and advantages of various kinds. To the extent that Article 8 is extended to cover matters relating to pecuniary entitlements which would normally fall within the protection guaranteed under Article 1 of Protocol No. 1, such an expansion of the ambit of Article 8 could be perceived as a way of circumventing the will of a State not to be bound by a specific international obligation and could thereby harm confidence in the Convention system. Paradoxically, however, the above situation has now prompted the Court to proceed to expand the applicability of Article 8 in matters of social welfare – with an effect on all Contracting States. We find such a course of action dubious in principle.

5. As a result, the ensuing legal implications and novel uncertainties will from now on affect the entire Convention system throughout all the jurisdictions within its geographical sphere. For instance, it is to be noted that the starting-points under Article 1 of Protocol No. 1 and Article 8 are different. Whereas the former comprehensively protects the right to property, including acquired entitlements, per se – or, in conjunction with Article 14, the obligation to provide such entitlements without discrimination – Article 8 protects the right to respect for family life, which will place the focus on the manner in which various benefits affect that aspect of an individual’s life. The methodologies of application in terms of general principles under the two provisions are distinct. A parallel application of both provisions in the field of social welfare benefits, whether taken alone or in conjunction with Article 14, thus becomes a source of many legal questions and uncertainties.

6. In this case, the Grand Chamber had the opportunity to clarify matters in a limitative sense, but the majority have instead chosen to broaden the applicability of Article 8 in this context. While the judgment purports to rely on, and to maintain, criteria already found in previous case ‑ law, the real impact of the evolution in the detailed reasoning and the conclusion reached is not to contain but to expand the reach of Article 8 in the field of social welfare benefits. This is revealed by several aspects in the reasoning.

7. Firstly, the majority build upon the distinction made between the “scope” of Article 8 when taken alone and its “ambit”, which is wider, when taken in conjunction with Article 14 (see paragraph 62 of the judgment). It is indeed well established that the prohibition of discrimination enshrined in Article 14 extends beyond the enjoyment of the rights and freedoms which the Convention requires each State to guarantee. Article 14 also applies to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide (see, inter alia , Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 40, ECHR 2005 ‑ X, and E.B. v. France [GC], no. 43546/02, § 48, 22 January 2008). Thus, while there is no positive obligation arising under a substantive Convention provision, such as Article 1 of Protocol No. 1 or Article 8, imposing a duty on the Contracting States to provide social welfare benefits, and while the discontinuation of such a benefit in accordance with its original terms and conditions – as in the present case – would entail no interference with the rights protected under those provisions, the prohibition of discrimination may nonetheless be applicable in the context of such benefits if the right in question may be considered to fall “within the general scope” of a Convention Article.

8. Even if the distinction between the notions of “scope” and “ambit” is no novelty in the case-law, this distinction does not in itself mandate, or justify, any expansion of either aspect of Article 8 to matters concerning social welfare benefits. On the contrary, the inherently multifarious nature of notions such as private or family life should not be taken by the Court as a licence to occupy any subject matter that might somehow be subsumed thereunder but rather as a call for reflection as to the appropriate tasks of an international court of human rights.

9. Secondly, the judgment defines the ambit of the right to respect for family life in a problematic way. According to the majority, for Article 14 to be applicable in the present context, that is to say, for the facts of the case to fall within the “ambit” of Article 8, “the subject matter of the alleged disadvantage must constitute one of the modalities of exercising the right to respect for family life as guaranteed by Article 8” (see paragraph 72 of the judgment). It is difficult to grasp the meaning of this phrase. The “subject matter of the disadvantage” suffered by the applicant was not an inability to receive a survivor’s pension when his children were still minors, something he was entitled to under domestic law, but the inability to receive a survivor’s pension once his children had reached adulthood. In general, the Court has held that there is no “family life” within the meaning of Article 8 between parents and adult children unless additional elements of dependence exist (see Slivenko v. Latvia [GC], no. 48321/99, § 97, ECHR 2003 ‑ X; A.W. Khan v. the United Kingdom , no. 47486/06, § 32, 12 January 2010; Narjis v. Italy , no. 57433/15, § 37, 14 February 2019; and Khan v. Denmark, no. 26957/19, §§ 58 and 80, 12 January 2021). No such elements of dependence have been submitted in the present case. The applicant has complained that he could no longer afford to spend on leisure or gifts for his adult children, but such circumstances can hardly be characterised as elements of dependence in the sense of the Court’s case ‑ law. It is therefore not readily understandable in what sense the “subject matter of the disadvantage” could “constitute one of the modalities” of the “exercise of family life” as protected under Article 8, unless the idea really is to convert into a legal criterion the obvious fact that the level of available income has a bearing on how an individual may lead his or her life, including within the family circle. In any event, the formulation cited above provides no real guidance on what might be considered to fall within the “ambit” and what might remain outside.

10. Moreover, that obscure phrase appears to stand in contradiction with the set of criteria mentioned subsequently (see paragraph 72 of the judgment). According to these, the “ambit” encompasses “measures [which] seek to promote family life and necessarily affect the way in which it is organised”. Here, focus is shifted from the point of the “disadvantage” complained of to the general nature of the welfare benefit in question.

11. This criterion, however, also remains very vague. The reference to the aim of “promoting family life” excludes various subsidies which are not payable to families but is otherwise quite broad and indefinite. The criterion of “necessarily affecting” the organisation of family life, too, is potentially very wide ‑ ranging, as it can easily be argued that the availability of financial support, or its withdrawal, will always “necessarily” affect the manner in which family life may be conducted. If “necessarily” is to be understood as “inevitably”, an alternative argument can also be made: for a well ‑ off family a relatively modest financial benefit would have hardly any, let alone a “necessary”, effect on the organisation of the family life.

12. It is important to note that while the test of “necessarily affecting the manner in which family life is organised” was relied on in the case of Konstantin Markin v. Russia ([GC], no. 30078/06, § 130, ECHR 2012), the context there was different from that of the present case. In Konstantin Markin , the necessary impact arose from the very conditions of the benefit at issue, namely the right to parental leave and a financial allowance, tied to absence from service during the period of primary care for an infant. By contrast, in the present case the majority expressly disconnect the notion of “necessary impact” from the terms and conditions of the benefit in question, broadening that criterion to encompass circumstances where the “necessity” of the impact does not stem from the terms and conditions to which the benefit is made subject under domestic law but results from the individual’s specific factual situation, including the choices made in the organisation of his life. Thus, although the test is formulated in similar terms, it entails a clear and radical departure from its original version. The substance of the criterion is now very different, and much wider than in the context of Konstantin Markin .

13. This expansion of circumstances which may be found to satisfy the test of “necessary impact” is made explicit in paragraph 72 of the judgment, according to which “a range of factors” will be relevant for determining the “nature of the benefit”. These will include, in particular, the “aim of the benefit” – notably not as set out by the domestic legislature but as determined by the Court; the “criteria for awarding, calculating and terminating” the benefit; the “effects on the way in which family life is organised, as envisaged by the legislation”; and, perhaps most remarkably, the “practical repercussions” on the individual’s specific circumstances and family life throughout the period during which the benefit is paid.

14. We will return below to the highly problematic features among this “range of factors” set out by the majority. At this stage, we would reiterate in general terms that the novel version of the test originally set out in Konstantin Markin has now become, in substance, essentially quite different and much broader.

15. Thirdly, with a view to the expansion of the “ambit” of Article 8, the present case as such is only concerned with “family life” and the question of when matters concerning social benefits may come within the “ambit” of the “family life” aspect of that provision in conjunction with Article 14. There is, however, no convincingly identifiable reason why the expansive interpretation of the notion of “ambit” in the field of social benefits should remain limited to the “family life” aspect of Article 8 and halt at the boundary to “private life” – a boundary which itself is not always clear-cut. It appears difficult to see on what basis a watershed could be maintained between the two. On the contrary, one may predict that sooner or later the expansive thrust will spill over to assessments directed at the manner in which various social benefits, or their withdrawal, “necessarily affect” the private lives of the individuals concerned.

16. Fourthly, as regards the overall extent of the Court’s supervisory powers in the field of social welfare policies and benefits, the interpretation of the “ambit” of Article 8 is not the only factor to consider. The other key factor relates to the scope of Article 14 itself, in particular the interpretation of the grounds for differences in treatment which may engage the application of that provision, whether in conjunction with Article 8 or with another substantive provision such as Article 1 of Protocol No. 1. Although the present case concerns a difference in treatment based on sex, which is one of the protected grounds expressly enumerated in Article 14, it is worth noting the broader repercussions that may follow from the manner in which the reach of that provision is construed. The more the notion of “other status” under Article 14 is extended to cover not only certain fundamental personal or legal characteristics but also various factual circumstances relating to the individual’s situation, the wider the combined repercussions will be on the extent of the Court’s supervisory role. Whereas some differences in treatment are inherently illicit or dubious depending on the ground relied on, other criteria for making distinctions may be essential elements and key determinants in the definition of various areas of policy, be they economic, fiscal, social, environmental or other. In the field of social welfare policies, for instance, the award of benefits is regularly tied to, and limited by reference to; criteria such as income level, number and age of family members or the like. A transformation of Article 14 from a prohibition of discrimination on certain specific grounds into a general equal treatment clause, capable of being invoked on the grounds of any difference in treatment regardless of the nature of the criterion on which it is made, would produce wide ‑ ranging consequences for the Court’s powers of review.

17. Thus, the nebulous interpretation of the questions of “ambit” together with an expansive interpretation of the scope of protection under Article 14 might entail the consequence that the exercise of supervisory powers by the Court would not be subject to any distinct limits whatsoever. We submit that the Court, with the processes and capacities under which it functions, would be institutionally ill ‑ suited for such “all ‑ encompassing” tasks of judicial review relating to domestic policies.

18. In this context, it should be noted that the present judgment addresses the question of the “ambit” of Article 8 in conjunction with Article 14, whereas the question of whether and how measures in the field of social welfare benefits might engage the application of Article 8 taken alone (the issue of “scope”) remains outside the subject matter of this case. In the context of Article 1 of Protocol No. 1, the Court has consistently held that that provision, standing alone, entails no “positive obligations” requiring the Contracting States to make provision for welfare benefits. Where such benefits are awarded, it follows from Article 14 taken in conjunction with Article 1 of Protocol No. 1 that such entitlements must be provided in compliance with Article 14. Even on the assumption that a similar line of interpretation would prevail in the context of Article 8, the extent of the grounds on which Article 14 may be invoked will also have an impact on the extent to which positive obligations relating to social welfare benefits would in effect be capable of arising from the application of that provision.

19. In our view, these are matters of serious concern, not least in the light of the current realities which have already rendered the Court unable to fulfil some of its basic functions in the international enforcement of core human rights. The risk of creating an increasingly dysfunctional Court through the pursuit of overreaching ambitions of substantive omnipotence should not be underestimated.

20. Last but not least, it is inevitable that matters of social welfare policies are at the heart of political and democratic processes at the domestic level. The forms and levels of benefits, the setting of priorities in the face of competing needs and scarcity of resources, as well as the funding arrangements necessary to meet the costs of policies, vary and depend heavily on the prevailing economic capacities and social conditions. These may not only differ greatly between States but may also change over time within a given State. As social welfare benefits consist of claims against the public purse, or other funds raised from the collective of contributors, there is a necessary and tight link between social, economic and fiscal policies. There are complex choices to be made, and they may often be both hard and controversial. It is obvious that the basic battlefields and corrective mechanisms in such matters must remain at the domestic levels of political democracy. Such functions cannot be shifted to the courts. In particular, an international human rights court cannot legitimately place itself at the forefront of disputes relating to social welfare entitlements or turn itself into a final arbiter in the complex matters of income distribution and social rights. Furthermore, many practical difficulties for the Court’s assessment will stem from the fact that financial benefits are only one tool used in the complex system of social policies, which may include, among other elements, a range of free or subsidised services and tax benefits. The Court was never intended to function as a standard ‑ setter for these types of policies, nor should it aspire to assume such a role.

21. Against this background, it is particularly striking to note that the respondent State in the present case is one with a prominent tradition of not only representative but also direct democracy. It seems somewhat paradoxical, therefore, that this case should nonetheless become a landmark in the Court’s case-law in terms of expanding and enhancing the international judicial supervision of social welfare policies.

22. As a final remark, the manner in which the majority define the parameters for engaging the Court’s supervisory power gives rise to some particular concerns. We have noted above that the majority expressly underline that the nature of a given welfare benefit for the purposes of determining whether it comes within the ambit of Article 8 will not be decided on the basis of its aims as set out by the domestic legislature but will depend on the Court’s own assessment (see paragraph 72 of the judgment). In the same context, it is made clear that the assessment of the nature of the benefit will not depend on its underlying terms and conditions as set out in domestic law but also on the “practical repercussions” which the enjoyment of the benefit has had on the specific circumstances of the individual and his life. Such an approach is problematic especially with a view to benefits which are not, as a matter of principle, granted according to an assessment of specific individual needs (as in the case of benefits in the form of “last resort” assistance) but which form part of systems of social insurance, such as pensions. In order to achieve uniform treatment of beneficiaries and to ensure the sustainability of the funding of such systems, it is essential that the entitlements are based on predetermined criteria and do not depend on the manner in which an individual may choose to organise his life in reliance on the income derived from the system. It would be quite anomalous to allow beneficiaries to generate, through the intervention of this Court, entitlements based on self ‑ created dependencies on benefits received, contrary to the intentions and conditions as set out in the governing domestic legislation. Moreover, the majority’s new, “case ‑ specific” definition of the “ambit” of Article 8 will make it difficult for domestic legislators to determine how to formulate social law in a Convention ‑ compliant manner.

23. The observations above indicate our general concerns with regard to the line taken by the majority and the potential wider implications. The judgment entails a further expansion of the “ambit” of Article 8, going well beyond the position in Konstantin Markin . We are not able to endorse such a development towards a further shift in the direction of bringing social rights under the Convention and the jurisdiction of this Court.

24. In the present case, the applicant had been the beneficiary of a survivor’s pension. His entitlement to that pension was conditional on his position as the surviving parent of minor children. Neither the receipt of the pension nor its amount were tied to the applicant becoming a full ‑ time career of those children. The decision to quit his job and to fully devote himself to the parenting role during the entire period until the children reached adulthood was his own. He would have received the survivor’s pension regardless of the manner in which the care of the children was organised. The circumstances of this case are therefore decisively different from those in Konstantin Markin , where, unlike in the present case, it was accurate to consider that the nature of the measure at issue was such as to “necessarily affect” the manner in which family life was organised.

25. Furthermore, in the present case the applicant knew from the very beginning that the duration of the pension was limited in time and would not continue beyond the point at which both his children had reached the age of majority. We note that the majority place their focus on the constraints under which the applicant took his decisions to leave his job and to remain without employment throughout the period until his children became adults, and the ensuing difficulties he faced (see paragraphs 79 and 81 of the judgment). Implicitly, such an approach suggests that the individual is entitled to rely on the collective of contributors to the welfare system to assume the predictable consequences of his life arrangements, even contrary to the principles on which the system is based. While that may be a respectable ideological position to take, we would not agree that an international judicial body such as the Court may legitimately impose such an ideological approach on the domestic, democratically based institutions whose task it is to set up, maintain and finance the systems of social protection.

26. For the reasons explained above, we consider, contrary to the majority, that the circumstances of the present case should not have been found to fall within the ambit of Article 8. We have voted accordingly.

27. As in our view Article 14 in conjunction with Article 8 is not applicable, we have also voted against the finding of a violation of those provisions. This does not mean that we would endorse the impugned difference in treatment as a matter of policy. It is simply a consequence of our legal view according to which this is not a matter that should fall within this Court’s powers of adjudication.

[1] The Swiss people accepted the proposed amendment by a narrow majority. The text of this opinion was written before the referendum of 25 September.