CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 11 octobre 2022

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page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8E1F03D8 { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sB479198 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } GRAND CHAMBER CASE OF BEELER v. SWITZERLAND (Application no. 78630/12)     JUDGMENT Art 14 (+ Art 8) • Discriminatory treatment of widower, taking care of children full-time, through termination of his survivor’s pension when youngest child reached adulthood, while widows continued to receive one • Family life • Clarification of criteria specifying or circumscribing which welfare benefits fall within ambit of Art   8 • Approach adopted in Konstantin Markin v.   Russia [GC] to be followed • Benefit in issue seeking to promote family life and necessarily affecting way in which applicant’s family life was organised, and therefore within ambit of Art   8 • Domestic rules governing survivor’s pension based on outdated considerations and assumptions • Return to labour market equally difficult for both sexes at applicant’s age and after several years of not working • No indication that termination of pension of less impact on applicant than on widow in comparable situation • Narrow margin of appreciation • Absence of “very strong” or “particularly weighty and convincing reasons” justifying difference in treatment on grounds of sex   STRASBOURG 11 October 2022   This judgment is final but it may be subject to editorial revision.   In the case of Beeler v. Switzerland, The European Court of Human Rights, sitting as a Grand Chamber composed of: Robert Spano, Jon Fridrik Kjølbro, Síofra O’Leary, Marko Bošnjak, Gabriele Kucsko-Stadlmayer, Yonko Grozev, Stéphanie Mourou-Vikström, Pere Pastor Vilanova, Pauliine Koskelo, Jovan Ilievski, Péter Paczolay, Arnfinn Bårdsen, Saadet Yüksel, Anja Seibert-Fohr, Peeter Roosma, Ioannis Ktistakis, Andreas Zünd, judges , and Søren Prebensen, Deputy Grand Chamber Registrar , Having deliberated in private on 16 June 2021 and on 12 January and 15   June 2022, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 78630/12) against the Swiss Confederation lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Swiss national, Mr Max Beeler (“the applicant”), on 19   November 2012. The President of the Section to which the case had been assigned acceded to the applicant’s request not to have his name disclosed (Rule   47 §   4 of the Rules of Court). The President of the Grand Chamber subsequently acceded to the applicant’s request for the lifting of his anonymity following the hearing before the Grand Chamber. 2.     The applicant was represented by Mr J. Luginbühl, a lawyer practising in Zürich. The Swiss Government (“the Government”) were represented by their Agent, Mr A. Chablais, of the Federal Office of Justice. 3.     In his application the applicant submitted that as a widower who had been bringing his children up alone since his wife’s death, he had suffered discrimination as compared with widows looking after their children alone, given that he had lost his entitlement to a widower’s pension when his younger daughter had reached the age of majority, while the corresponding pension remained payable to widows with children of the same age. 4.     On 22 November 2016 notice of the application was given to the Government. 5.     The application was allocated to the Third Section of the Court (Rule   52 §   1). On 20 October 2020 a Chamber of that Section, composed of Paul Lemmens, President, Georgios A. Serghides, Helen Keller, Alena Poláčková, María Elósegui, Gilberto Felici and Lorraine Schembri Orland, judges, and Milan Blaško, Section Registrar, gave judgment. The Chamber unanimously declared the application admissible and found a violation of Article   14 of the Convention read in conjunction with Article   8. The concurring opinion of Judge Keller was annexed to the judgment. 6.     On 19 January 2021 the Government requested that the case be referred to the Grand Chamber in accordance with Article   43 of the Convention. On 8   March 2021 the panel of the Grand Chamber granted that request. 7.     The composition of the Grand Chamber was subsequently determined in accordance with the provisions of Article   26 §§   4 and   5 of the Convention and Rule   24. 8.     A hearing took place in public in the Human Rights Building, Strasbourg, on 16 June 2021. There appeared before the Court: (a)     for the Government Mr A. Chablais,   Agent , Ms C. Mascetta, Ms V. Ruffieux, Ms D. Steiger Leuba, Ms S. Heegaard-Schroeter, Mr R. Baumann,   Advisers ; (b)     for the applicant Mr J. Luginbühl, Ms F. de Weck,   Counsel .   The Court heard addresses by Mr Chablais, Mr Luginbühl, Ms de Weck and Ms Mascetta. THE FACTS 9.     The applicant was born in 1953 and lives in Schwellbrunn. 10.     He is the father of two children. Having lost his wife in an accident in August 1994, he decided to leave his job at an insurance company and to devote himself full ‑ time to bringing up his daughters, who at the time were 21   months old and four years old. 11.     In 1997, when the survivor’s pension was extended to widowers (see paragraph   22 below), the applicant was granted a widower’s pension at a monthly rate of approximately 920   Swiss francs (CHF), together with supplementary benefits. His daughters were granted orphans’ pensions amounting to CHF   459 per month, and later received education allowances up to the age of   25. 12.     On 9 September 2010, having noted that the applicant’s younger daughter was about to reach the age of majority, the Compensation Office ( Ausgleichskasse ) of the Canton of Appenzell Outer Rhodes terminated the payment of the applicant’s widower’s pension. The applicant lodged an objection, relying on the principle of gender equality enshrined in the Swiss Constitution. 13.     In a rejection decision dated 20 October 2010, the Compensation Office noted that the Swiss legal system did not provide for a review of constitutionality, but that the authorities had to interpret federal laws in accordance with the Constitution in cases where they had any discretion. However, the Compensation Office considered itself bound by the terms of section   24(2) of the Federal Law on old ‑ age and survivors’ insurance (see paragraph   20 below), which was, in its view, a clear provision that was not open to interpretation. 14.     The applicant subsequently appealed to the Cantonal Court, arguing that there were no grounds for treating him less favourably than a widow with children above the age of 18, who remained eligible for a widow’s pension. He submitted that he was 57 years old and had raised his two children alone. 15.     On 22 June 2011 the Cantonal Court dismissed the applicant’s appeal. It noted that the conditions for entitlement to a pension that were applicable to widows and widowers respectively under sections   23 and 24 of the Federal Law on old ‑ age and survivors’ insurance were indeed different, a situation that on the face of it was incompatible with the requirements of Article   8 of the Constitution. Nevertheless, it pointed out that during the tenth revision of the old ‑ age and survivors’ insurance (“OASI”) system in 1997 (see paragraph   22 below), the legislature had been aware of the difference in treatment between widowers and widows but had taken the view that since there were still relatively few house ‑ husbands, they could be expected to return to employment once their child ‑ raising duties had ended. The Cantonal Court held that only the legislature could change that state of affairs, and that at all events the courts could not refuse to apply the clear letter of the law. 16.     The applicant lodged an appeal with the Federal Supreme Court, alleging a violation of Article   14 of the Convention read in conjunction with Article   8. 17 .     In a judgment of 4 May 2012 (9C_617/2011), the Federal Supreme Court dismissed the appeal. It pointed out that under Article   8 §   3 of the Constitution, distinctions on grounds of sex could only be justified where the biological or functional differences between men and women rendered equal treatment quite simply impossible. It further noted that Switzerland had not ratified Protocol No.   1 to the Convention and was therefore not bound by that instrument and the related case ‑ law. As regards the complaint under Article   14 in conjunction with Article   8 of the Convention, the Federal Supreme Court found that it could not be inferred from the case ‑ law of the European Court that Article   8 of the Convention required States to provide specific social security benefits. As to the legal provisions concerning the right to a widower’s pension, the Federal Supreme Court held that they were based on the idea that it was the husband who provided for his wife’s needs, particularly if there were children, and that gender ‑ neutral regulations would not be based on sex but on whether a particular individual (male or female) had lost the person who provided for him or her. The Federal Supreme Court noted that, during the tenth revision of the OASI system, the Federal Council had proposed the recognition of a limited right to a widower’s pension and that the legislature had opted for the regulations in issue, which were still in force, while being aware that they established an unacceptable distinction on grounds of sex, contrary to Article   4 §   2 (since 1   January 2000, Article   8 §   3) of the Constitution. It added that by applying different conditions for entitlement to the pension according to whether the person concerned was a widow or a widower, the legislature had made a distinction on the basis of sex which was not necessary for either biological or functional reasons. Lastly, the Federal Supreme Court pointed out that in its message on the eleventh revision (which had ultimately been rejected) of the OASI system, the Federal Council had made it clear that the rule that widowers were entitled to a pension only if they had children under the age of 18 was contrary to the principle of gender equality and should therefore be adjusted in line with an approach linked to loss of support. The Federal Supreme Court noted that, following the failure of the eleventh revision of the OASI system, the impugned provisions remained in force and that Article   190 of the Constitution required it – like all other authorities – to apply them. LEGAL FRAMEWORK RELEVANT DOMESTIC LAW AND PRACTICE 18.     The relevant provisions of the Swiss Federal Constitution read as follows: Article   8 – Equality before the law “1.     Every person is equal before the law. 2.     No person may be discriminated against, in particular on grounds of origin, race, gender, age, language, social position, way of life, religious, ideological or political convictions, or because of a physical, mental or psychological disability. 3.     Men and women have equal rights. The law shall ensure their equality, both in law and in practice, most particularly in the family, in education and in the workplace. Men and women have the right to equal pay for work of equal value. 4.     The law shall provide for the elimination of inequalities that affect persons with disabilities.” 19 .     According to the Federal Supreme Court’s case ‑ law, Article   8 §   3 of the Constitution excludes sex as a valid criterion for making a distinction in law (ATF (Judgments of the Federal Supreme Court) 134   V   131), and a difference in treatment between men and women is permissible only if biological or functional differences preclude any equality of treatment (ATF   108 Ia   22). In the judgment adopted in the applicant’s case, the Federal Supreme Court added that this reservation allowing for functional differences did not mean, in particular, that the traditional division of roles, assuming that it still corresponded to present ‑ day reality, could be of any legal relevance in the future. 20 .     The relevant provisions of the Federal Law of 20   December 1946 on old-age and survivors’ insurance are worded as follows: Section 23 – Widows’ and widowers’ pensions “1.     Widows and widowers shall be entitled to a pension if they have one or more children at the time of their spouse’s death. 2.     The following shall be treated as the children of widows or widowers: (a)     children of the deceased spouse who, at the time of the latter’s death, had been living together with the widow or widower and have been taken in by the surviving spouse as foster children within the meaning of section   25(3); (b)     foster children within the meaning of section   25(3) who, at the time of the death in question, had been living together with the widow or widower and have been adopted by the surviving spouse. 3.     Entitlement to a widow’s or widower’s pension shall begin on the first day of the month following the spouse’s death and, where a foster child has been adopted in accordance with subsection   2 (b) above, on the first day of the month following the adoption. 4.     Entitlement shall end: (a)     on remarriage; (b)     on the widow’s or widower’s death. 5.     Entitlement shall resume in the event of annulment of marriage or divorce. The Federal Council shall regulate the details.” Section   24 – Special provisions “1.     Widows shall be entitled to a pension if, on their husband’s death, they have no children or foster children within the meaning of section   23, but have reached the age of   45 and have been married for at least five years. If a widow has been married more than once, the calculation shall take into account the overall length of the marriages in question. 2.     In addition to the causes of termination mentioned in section   23(4), entitlement to a widower’s pension shall end when the youngest child reaches the age of 18.” Section   25 – Orphans’ pensions “1.     Children whose father or mother has died shall be entitled to an orphan’s pension. In the event of the death of both parents, they shall be entitled to two orphans’ pensions. 2.     Foundlings shall be entitled to an orphan’s pension. 3.     The Federal Council shall regulate the entitlement of foster children to orphans’ pensions. 4.     Entitlement to an orphan’s pension shall begin on the first day of the month following the death of the father or mother. It shall end on the 18th birthday or the death of the orphan. 5.     In the case of children pursuing training or studies, entitlement to the pension shall continue until the end of the course, but not beyond the age of 25. The Federal Council may define what is meant by ‘training or studies’.” PREPARATORY WORK ON THE FEDERAL LAW ON OLD ‑ AGE AND SURVIVORS’ INSURANCE CONCERNING WIDOWS’ AND WIDOWERS’ PENSIONS, AND ATTEMPTED REFORMS 21 .     Widows’ pensions were introduced in Switzerland in 1948, at the same time as the OASI system. At the time, married women found themselves excluded from the labour market at the time of starting a family, so mothers were especially affected. The main question in defining the conditions for entitlement to the pension was therefore whether widows could reasonably be expected to begin or, less frequently, to resume gainful employment on the death of their husband (report of 16   March 1945 by the Federal Commission of Experts on the introduction of the OASI system, pp.   64 et seq., and message of 24   May 1946 from the Federal Council on the Bill on old ‑ age and survivors’ insurance, Federal Gazette ( Feuille fédérale – “FF”) 1946   II   353). 22 .     Widowers’ pensions were introduced in   1997 at the time of the tenth revision of the OASI system. The government set out the following considerations during the presentation of the Bill in Parliament (message of 5   March 1990 from the Federal Council concerning the tenth revision of the OASI system, FF   1990 II   1, pp.   37 ‑ 38): “Current legislation only provides for widows’ pensions, and not widowers’ pensions. Yet nowadays, wives are increasingly often in gainful employment, whether on a full ‑ time or part ‑ time basis. In cases where the husband devotes himself to household chores and bringing up children, he is not eligible for any OASI benefits in the event of his wife’s death. We therefore propose introducing the principle of a widower’s pension. However, entitlement to such a pension should only arise if the widower has dependent children under the age of   18. We realise that this restriction means that widows and widowers will not enjoy equal treatment; nevertheless, we consider that the envisaged difference in treatment is still justified for the time being. Granting widowers’ pensions under the same conditions as for widows would go beyond the financial framework set for the present revision. A possible alternative might be to set out more restrictive conditions for the award of a widow’s pension, along the lines of the proposal which we submitted in April   1988. That alternative was, quite rightly, criticised because of the difficulties inherent in the idea of older widows returning to employment. Indeed, it cannot be denied that the image of family support traditionally conveyed by marriage is still widespread. The OASI system cannot overlook the fact that women who left employment many years ago would be likely to face serious financial problems after their husband’s death if the conditions for entitlement to a widow’s pension became stricter. Marriages involving a ‘house ‑ husband’ are still fairly rare. In our view, however, even in such cases, the husband can be expected to resume gainful employment after having brought up his children. Accordingly, we consider that the inequality of treatment being proposed between widows and widowers is still defensible today.” 23 .     Since 2000 the government has made several unsuccessful attempts to reform the widows’ and widowers’ pensions system, particularly with a view to gradually bringing widows’ entitlement to the pension into line with that of widowers. 24.     Thus, in 2000 the government presented a proposal for the eleventh revision of the OASI system. Finding that the rule that widowers were not entitled to a pension unless they had children under the age of 18 was contrary to the principle of gender equality and should therefore be adjusted, the Federal Council proposed gradually limiting widows’ entitlement to the pension in order to bring it into line with that of widowers after a transitional phase, while relaxing the conditions for entitlement to a widower’s pension (FF   2000   1771   1862   s.). Those proposals would have helped improve the situation of widowers. However, they were mainly aimed at tightening up the conditions applicable to widows, since the Federal Council had not envisaged bringing the situation of widowers into line with that of widows with children by extending benefits. In any event, that reform was rejected by referendum in 2004. 25.     In 2005 the government presented a new version of its proposal for the eleventh revision of the OASI system, although the conditions for entitlement to a surviving spouse’s pension remained unchanged. The new proposal was rejected by a final vote in Parliament in 2010. 26.     In response to a motion submitted to the Council of States on 26   March 2007 by the Social Security and Public Health Commission (motion 07.3276), asking the Federal Council to draft a bill bringing the status of widowers with children into line with that of widows, the Federal Council expressed its opposition to the motion for a number of reasons, including the extra cost of such an adjustment, an estimated CHF   200 million, while accepting that the rules in force at the time led to inequalities between widows and widowers with children. In view of the foreseeable trend in the funds required for the OASI system, the Federal Council refused such an increase in costs. 27.     In 2014 the government presented a proposed reform under the heading “Old ‑ Age Pensions 2020” ( Prévoyance vieillesse 2020 – “the 2020 reform”), which proposed, inter alia , adapting survivors’ benefits to the situation applicable to widows at that time, albeit without placing widowers and widows on an equal footing. The government considered that the system operating at the time was no longer suited to the contemporary context, but that social realities did not allow complete standardisation of the conditions for entitlement to a widow’s pension and a widower’s pension under the Federal Law on old ‑ age and survivors’ insurance. In drawing up its proposals the government relied on objective data from a survey of the financial situation of widows and widowers, which had shown that Switzerland had an effective mechanism for covering the loss of income consequent upon bereavement and that widowhood could entail a change of behaviour on the employment market. The survey showed that widowers were usually in a sounder financial position than widows, for reasons mainly linked to the employment market and continuing inequalities between women and men in that sphere. In view of the increasing number of women in gainful employment and the changes in the distribution of roles in the family and at work, the government considered that the bereavement risk ought to be covered in a more targeted manner. The 2020 reform consequently envisaged abolishing widows’ pensions for childless women after a long transitional period, but only very slightly modified the conditions for entitlement to a widower’s pension, payment of which was to end – as was already the case at the time – on the youngest child’s eighteenth birthday. 28 .     The 2020 reform was approved by Parliament on 17   March 2017. After deliberating on the matter, both houses decided not to amend the existing system for widows’ and widowers’ pensions. Following a referendum held on 24   September 2017, the “Old ‑ Age Pensions   2020” proposal was rejected. WORK BY THE COUNCIL OF EUROPE Recommendation no. R (85) 2 of 5 February 1985 on legal protection against sex discrimination 29 .     In this Recommendation, the Committee of Ministers, signalling its awareness of ongoing inequalities between men and women in spite of the extensive work carried out by member States, called upon the latter to take or reinforce, as the case might be, any measures they considered appropriate with a view to securing gender equality. Concerning legislative measures, the Recommendation states (principle   I.   2.) that in the field of social security and pensions, men and women should be treated in an equal way with regard to access to official social security and pension systems or to any other similar systems set up under public law and with regard to the benefits paid by such systems. RELEVANT INTERNATIONAL INSTRUMENTS 30 .     The relevant part of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which was ratified by Switzerland in 1997, reads: Article 2 “States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (a)     To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle; (b)     To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c)     To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d)     To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e)     To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise; (f)     To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g)     To repeal all national penal provisions which constitute discrimination against women.” THE LAW 31.     The applicant submitted that unlike a widow in a similar situation, he had ceased to be entitled to a widower’s pension since his younger daughter had reached the age of majority, and alleged that he had been discriminated against on that account. He relied on Article   14 of the Convention read in conjunction with Article   8, the relevant parts of which provide: Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex ...” Article   8 “1.     Everyone has the right to respect for his ... family life ... 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” THE GOVERNMENT’S PRELIMINARY OBJECTION The parties’ submissions The Government 32.     The Government reiterated the objection which they had raised before the Chamber (see paragraphs   23 ‑ 28 of the Chamber judgment) and urged the Court to declare the complaint under Article 14 read in conjunction with Article   8 inadmissible as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article   35 §   3   (a) of the Convention. 33.     The Government stated that it was clear from the case ‑ law of the Court (particularly that of the Grand Chamber) that social welfare benefits such as the one in issue in the present case generated pecuniary rights, which ordinarily fell within the scope of Article   1 of Protocol No.   1. They observed that disputes specifically relating to unequal treatment of widows and widowers as regards the payment of a survivor’s pension had been examined by the Court under Article   14 of the Convention in conjunction with Article   1 of Protocol No.   1 (they cited, in particular, Willis v.   the United Kingdom , no.   36042/97, ECHR 2002 ‑ IV; Runkee and White v.   the United Kingdom , nos.   42949/98 and 53134/99, 10   May 2007; and Şerife Yiğit v.   Turkey [GC], no.   3976/05, 2 November 2010). The few cases which the Court had considered under Article   14 of the Convention in conjunction with Article   8, including Petrovic v.   Austria (27   March 1998, Reports of Judgments and Decisions 1998 ‑ II), Dhahbi v.   Italy (no.   17120/09, 8   April 2014), Weller v.   Hungary (no.   44399/05, 31   March 2009) and Konstantin Markin v.   Russia   ([GC], no.   30078/06, ECHR   2012), had concerned “family” welfare benefits of a very different kind from the one in issue in the present case. Furthermore, those cases had been characterised by the existence of a direct and especially close link between the provision of the welfare benefit and family life, stemming in particular from the aim of the allowance in question, inasmuch as the latter had been directly intended to facilitate or promote family life. 34.     The Government observed that that approach had been applied in a clear, consistent and foreseeable manner until the departure from previous case-law in Di Trizio v.   Switzerland (no.   7186/09, 2   February 2016) and Belli and Arquier ‑ Martinez v.   Switzerland (no.   65550/13, 11   December 2018). In those cases, which appeared to constitute a special body of case ‑ law tailored to Switzerland as a State that had not ratified Protocol No.   1, the Court had simply relied on a tenuous, indeed highly indirect, link between the benefit in question and the enjoyment of family life, on the grounds that the issues arising were bound up with the organisation of family life. In the Government’s view, the Court’s findings in those Swiss cases amounted to holding that any decision on whether or not to grant a pension fell automatically within the scope of Article   8, thus expanding that scope, given that a social welfare benefit was always liable to affect an individual’s family life in one way or another. Such an approach also risked weakening the requirement that Article   14 of the Convention should be accessory in nature. 35.     The Government stated that they were convinced that the Court should consider under Article   8 only such cases as presented a close and direct link between the provision of the social welfare benefit in question and the enjoyment of family life, adding that such a link should be examined objectively in the light of the nature and aim of the benefit as determined by the law and practice of the State concerned. 36 .     However, in the present case, in which a very close link of this kind was clearly absent, the Chamber had failed to explain why it had considered it legitimate to depart from the approach of systematically considering such complaints under Article   1 of Protocol No.   1. The Government reaffirmed in that connection that the sole aim of the widow’s and widower’s pension was to prevent any financial difficulties that might arise as a result of the spouse’s death, by meeting the surviving spouse’s basic needs. Unlike a parental ‑ leave allowance or large ‑ family allowance, and contrary to the Chamber’s conclusion in paragraph   43 of its judgment, the pension in question was not aimed at promoting the family and had no effect on the organisation of family life either. This was demonstrated by the fact that the widow’s pension could, subject to certain conditions, also be paid to widows without any children. The Government further explained that costs relating to the maintenance of the deceased’s children were covered by their orphans’ pensions. Moreover, given that the presence of children over the age of   15 was no obstacle to their parents’ engaging in an occupation, the widower’s pension was no longer necessary when the children reached the age of majority, at the very latest, and did not affect family life outside of working or school hours. This meant, in addition, that the survivor’s pension provided for in Swiss law was clearly different from the social welfare benefits found by the Court to fall within the scope of Article   8, which was narrower than that of Article   1 of Protocol No.   1. 37.     The Government took the view that in the present case it had not been shown how, in practical terms, the termination of the applicant’s widower’s pension when his younger daughter had come of age had affected his family life. They further contended that the termination of the pension had been foreseeable for the applicant and that he had not established that he could not have resumed paid employment once both his daughters had reached the age of majority. In fact, it was more likely that the payment of the pension had dictated the way in which the applicant’s family life was organised, that is, his choice to stay at home, rather than vice versa; the Government pointed out that the widower’s pension had not existed when the applicant had lost his wife in 1994. That being so, neither the grant of the widower’s pension to the applicant in 1997 nor, a fortiori , its termination in 2010 had been family-related or had any real impact on the organisation of his family life. If the termination of the pension had had any financial impact, it could only have affected the applicant’s personal sphere. 38 .     The Government further argued that when Switzerland had acceded to the Convention, it had been clear that Article   8 did not cover entitlement to welfare benefits, and that was still the case today. In their view, it was under Article   1 of Protocol No.   1 that the Court had extended the scope of its protection to cover welfare benefits. Moreover, sources including a recent Federal Council report indicated that the reasons why Switzerland had not ratified Protocol No.   1 related to its desire to comply with international law and to the fact that its domestic law did not cover all the requirements deriving from that Protocol, particularly in the sphere of social security benefits. Since a treaty was valid only among the parties to it, the right of property deriving from Article   1 of Protocol No.   1 could not be relied on against the Swiss State on the basis of an extensive interpretation of Article   8, as that would be liable to frustrate that State’s sovereign will and impose obligations on it to which it had not voluntarily subscribed. Furthermore, in accordance with Article   31 §   1 of the Vienna Convention of 1969 on the Law of Treaties, an extensive interpretation could not be used to confer on a term an effect which a State had precisely wished to avoid by not ratifying a different treaty. It followed that if the facts of the present case, by reason of their pecuniary dimension, were found to fall within the ambit of Article   1 of Protocol No.   1 rather than Article   8 of the Convention, the applicant’s complaint should be excluded from the scope of the latter Article and declared inadmissible as incompatible ratione materiae with the Convention. 39.     The Government submitted that the adoption by the parties to a treaty of a protocol covering certain specific subjects was a clear sign of the parties’ shared intention that the subjects in question should not be governed by the original treaty. As regards Protocol No.   1, they contended that the parties’ intentions were clear from the Preamble thereto and from Article   5 thereof, and that it followed that Protocol No.   1 could only supplement the Convention. Although the Convention was a living instrument that was intended to guarantee rights that were practical and effective, the Court could not derive rights from the Convention which had been deliberately omitted from it at the outset, as was the case for social rights (which were set forth in the European Social Charter). Accordingly, the Court could not disregard the protection afforded by an additional protocol and extend the scope of Article   8 of the Convention, or indeed circumvent its usual meaning, in such a way as to encompass the obligations deriving from Article   1 of Protocol No.   1, and if it did so, the latter provision would in a sense be superfluous. In the Government’s submission, while it was not entirely inconceivable to consider, as the Court’s case ‑ law did, that within the same protocol certain provisions were subsumed within a right set forth in a Convention Article while others were not, that nonetheless required an interpretation in keeping with the methods referred to in the Vienna Convention. The applicant 40 .     The applicant began by explaining that he had worked as a textile technician until 1992, and subsequently for an insurance company. After his wife’s death in August 1994 he had ceased working and brought up his daughters alone, until they had completed their education and graduated from university. His widower’s pension, once granted from 1997 onwards, and supplementary benefits had allowed him to devote himself entirely to looking after, bringing up and caring for his daughters. The termination of his pension when he was 57   years old had caused him serious family and financial problems, because he had been unable to find a job on account of his age, the computerisation of his occupation and his long absence from the labour market. At the same time, his daughters had nevertheless remained dependent on him because they had not completed their education. He had therefore on several occasions had to apply for welfare assistance in order to meet their needs. Moreover, between the termination of his widower’s pension and the first instalments of his old ‑ age pension his family life had been significantly restricted, ruling out the usual family activities for lack of money. Financial difficulties had prevented him from inviting his daughters to family occasions, giving them birthday or Christmas presents, or going on holiday with them. 41.     The applicant accordingly submitted that the present case struck at the very concept of family life, which was protected by Article   8 of the Convention. The case did not concern the payment of a pension as such – the only issue which would fall within the scope of Article 1 of Protocol No.   1 – but rather a difference in the treatment of identical, specific family relationships, resulting in unequal amounts of pension. The facts of the case therefore clearly fell within the ambit of Article   8, and this was unaffected by the fact that such discrimination could also have pecuniary consequences or involve material interests. Any attempt to examine the present case under Article   14 read in conjunction with Article   1 of Protocol No.   1, arbitrarily excluding any reference to the applicant’s family situation, would mean calling the Court’s case ‑ law into question. Moreover, for the protection secured under Article   8 of the Convention to be applicable in conjunction with Article   14, there was no need for there to be a close link between the payment of the pension and the applicant’s enjoyment of his family life, let alone for there to be a violation of Article   8. 42.     The applicant submitted that the Government’s argument that there had to be a close link between entitlement to the pension and the enjoyment of family life was not supported by the Court’s case ‑ law. He argued that even if such a link were necessary, it would not be lacking in the instant case, because in accordance with the relevant legislation, the survivor’s pension was aimed at protecting married couples, particularly families with children, in the event of the death of one of the spouses and parents. In the applicant’s view, therefore, it could not be maintained that that benefit was not aimed at facilitating or contributing to family life. It was also clear that his daughters and he had been specifically and individually affected, not only when the payment of the pension had ended. Indeed, the law had penalised the applicant for having looked after his daughters during their childhood and for not having organised his family life in line with what he saw as the false assumption underpinning the survivor’s pension system to the effect that the man’s role was that of the breadwinner. 43.     The applicant considered it obvious that the guarantees provided in additional protocols added new rights to those set out in the Convention, but could neither restrict nor extend the Convention rights. Moreover, it was well established in the case ‑ law that a given situation could fall under both Article   8 of the Convention and Article   1 of Protocol No.   1, whereas the latter did not constitute a lex specialis in relation to Article   8. Even where the Court had considered a complaint under Article   1 of Protocol No.   1, it had not ruled out the possibility that the same complaint could be examined under Article   8 of the Convention, as was illustrated, for example, by Şerife Yiğit (cited above), Sawden v.   the United Kingdom ((dec.), no.   38550/97, 8   June 1999) and Aldeguer Tomás v.   Spain (no.   35214/09, 14   June 2016). Indeed, it would be dangerous to claim otherwise, because that would mean that an additional protocol restricted the rights secured under the Convention. The applicant emphasised that this did not, however, imply that Article 1 of Protocol No.   1 had no independent existence, since there were many cases concerning property rights and the fields of social security and taxation which had nothing to do with Article   8. The applicant further observed that widows’ and widowers’ pensions were aimed, in principle, at exempting surviving spouses from having to engage in paid work and at providing them with social welfare protection, so that they had time to look after their children. Just as a widow’s pension paid after the children had reached the age of majority enabled a widow to continue to look after her family, a widower’s pension paid after the children reached the age of majority would enable a father to continue to care for his family. If such a mode of provision for the family was no longer considered necessary once the children had come of age, the pension should be discontinued for parents of both sexes, although that would amount to ignoring the fact that by that time in their lives, widows and widowers had often reached an age at which it was de facto impossible to resume employment. The Chamber judgment 44.     The Chamber first of all observed that the concept of “family life” not only included social, moral or cultural relations but also compris