More human rights at the cost of the state sovereignty? Clarifying the scope of applicability of Article 8 ECHR to social welfare benefits in Beeler v Switzerland

By Maija Dahlberg

In Beeler v Switzerland the European Court of Human Rights (ECtHR) had to balance between its far-reaching human rights interpretations and the principle of state sovereignty. Concretely, the case concerned an interesting interpretative question whether to extend the scope of applicability of Article 8 ECHR to social welfare benefits.

Formally, the ECHR does not include economic and social rights, but instead a wide range of civil and political rights. In the Council of Europe (CoE) legal system, economic and social rights are protected through the European Social Charter. The aim has been to protect both civil rights and social rights, but in the separate CoE conventions. Despite this formal distinction, the ECtHR has long emphasized that the ECHR should be interpreted under ‘present day conditions’ and in a manner which protects the rights provided for under the ECHR ‘practically and effectively’. Through its dynamic methods of interpretation, the ECtHR has de facto included many economic and social rights in the interpretation of many ECHR provisions (for further information see here and here).

The ECtHR’s case-law shows that cases relating to social welfare benefits are usually handled under Article 1 of Protocol No. 1, which concerns the protection of property. The ECtHR has, however, on occasion also addressed issues relating to social welfare benefits under Article 8, which concerns the right to respect for private and family life. In Beeler v Switzerland the question arose as to whether it is justified to interpret social welfare benefits exceptionally under Article 8 instead of Article 1 of Protocol No. 1.

Short overview of the facts

The facts of the present case were introduced in an earlier blog post by Dr Alice Margaria where the case is analysed from the perspective of the interpretation of Article 14 in conjunction with Article 8. As regards the key facts, the applicant essentially stated that unlike a widow in a similar situation, he had ceased to be entitled to a widower’s pension on his younger daughter reaching the age of majority. The applicant claimed that he had been discriminated against and relied on Article 14 read in conjunction with Article 8. In essence, the interpretation of the applicability of Article 8 was crucial since it was decisive as to whether the ECtHR could evaluate the merits of the case at all.

It should be noted that Switzerland has not ratified either the Social Charter or Protocol No. 1. The ECtHR has regularly assessed issues relating to eligibility for social welfare benefits under Article 1 of Protocol No. 1 concerning the protection of property. The Swiss Government explained that it decided not to ratify Protocol No. 1 in order to keep questions relating to social rights and welfare benefits under its own command (para. 38).  Consequently, the key point at issue in the case is as follows: if it is not possible to evaluate a case concerning social welfare benefits under Article 1 of Protocol No. 1 and it was the clear aim of the sovereign state to ensure that questions relating to social rights and welfare benefits would not fall under the scope of the application of the ECHR, is it right to extend the scope of Article 8 and include social rights under that Article?

Assessment of social welfare benefits under Article 8

The Grand Chamber began by outlining its case-law practice concerning the question of whether social welfare benefits fall under the scope of Article 8 or under Article 1 of Protocol No. 1. The Grand Chamber noted that in the vast majority of cases where the ECtHR has ruled on alleged discrimination in the sphere of entitlement to social welfare benefits, its analysis has focused on Article 1 of Protocol No. 1, and not on Article 8. Generally, questions relating to social welfare benefits are analysed under Article 1 of Protocol No. 1.

Next, the Grand Chamber analysed its case-law and explained in which circumstances social welfare benefits are included under Article 8. At first, the Grand Chamber emphasized that the case-law praxis is not clear as regards the scope of Article 8 and social welfare benefits (para. 66). At the same time, it admitted that the ECtHR has sometimes examined claims concerning social welfare benefits under Article 8 (para. 60). In those cases, the ECtHR has highlighted that while Article 8 does not guarantee the right to a social welfare benefit, where a state decides to create such a right it cannot take discriminatory measures within the meaning of Article 14 (see Konstantin Markin v Russia and Aldeguer Tomás v Spain). Consequently, the Grand Chamber concluded that the scope of Article 14 read in conjunction with Article 8 may be more extensive than that of Article 8 read alone (para. 62).

The threshold and criteria for applying Article 8 to welfare benefits have not been clear as, according to the ECtHR’s previous case law, it could either be that parental leave and an allowance related to it ‘necessarily affected’ the way in which their family life was organized (see, e.g. Konstantin Markin v Russia) or the benefit is ‘liable to affect’ the way in which family life is organized (see, e.g. Di Trizio v Switzerland).

Against this backdrop, the Grand Chamber conceded that the interpretation of social welfare benefits under Article 8 in its case-law had not been consistent (para. 66). It also noted that all financial benefits have a certain effect on family life, which could lead to the conclusion that all social welfare benefit issues fall within the scope of Article 8. The Grand Chamber, however, rejected this conclusion since such an approach would be too excessive (para. 67). As a result, the Grand Chamber opted for ‘necessarily affect’ as the threshold for evaluating whether welfare benefits may fall under Article 8 (para. 72).

Importantly, besides setting interpretative standards relating to parental leave allowances and their applicability under the scope of Article 8 (para. 71), the Grand Chamber aimed to set up more general criteria to be able to assess when social welfare benefit may fall under Article 8. In this sense, for a social welfare benefit to be assessed as falling under the scope of Article 8 the nature of the benefit must be taken into account, paying attention to the following criteria: (1) the aim of the benefit; (2) the criteria for awarding, calculating and terminating the benefit as set forth in the relevant statutory provisions; (3) the effects on the way in which family life is organized; and (4) the practical repercussions of the benefit given the applicant’s individual circumstances and family life throughout the period during which the benefit is paid. (para. 72)

Next, the Grand Chamber applied the criteria to the present case. It emphasized that the criteria must be considered as a whole by taking into account the entire period (1997 to 2010 in the case at hand) during which the applicant received a widower’s pension. The Grand Chamber first evaluated the aim of this pension, emphasizing the conditions applicable to it, which clearly state that the surviving parent must have one child or more at the time of the spouse’s death and surviving spouse must be living together with the deceased spouse’s children. In this case, the applicant was entitled to a widower’s pension on its introduction in 1997 solely because he was the father of dependent children.

Second, the Grand Chamber pointed out that the termination of the widower’s pension was also the consequence of the applicant’s family circumstances, specifically the age of his children, since his entitlement to the pension lapsed when his younger daughter reached the age of 18. All in all, the pension in question seeks to promote family life for the surviving spouse by enabling the latter to look after his children full-time. Furthermore, the Grand Chamber took the view that receipt of the widower’s pension necessarily affected the way in which the applicant’s family was organized. Finally, the Grand Chamber concluded that the facts of the case meant that it fell within the ambit of Article 8.

Dissenting opinion

Five judges dissented from the majority decision (judges Kjølbro, Kucsko-Stadlmayer, Mourou-Vikström, Koskelo and Roosma) on the conclusion that social welfare benefits should be included within the scope of Article 8. The dissenting judges criticized the majority’s decision to broaden the applicability of Article 8 to the field of social welfare benefits. In essence, the dissenting judges called for the ECtHR to exercise judicial restraint in matters relating to social welfare policy. Questions relating to social policy include political deliberation on how to distribute scarce resources and how to balance the various kinds of benefits and advantages to be granted. From the dissenting judges’ point of view, matters relating to social welfare policy do not fall within the ECtHR’s supervision but should instead be addressed at domestic level by the democratically elected national decision-makers. Here, the dissenting judges are touching significant constitutional principles such as the principle of subsidiarity, the separation of powers, the principle of democracy and the role of courts in a democratic societies. Importantly, from the separation of powers point of view it is not a court’s task to decide political questions, as it should leave the political decision-making to the legislature.

In addition, the dissenting opinion points out that it was an explicit decision by a sovereign Swiss state not to ratify Protocol No. 1. The point was to avoid the application of the ECHR provisions in the field of social welfare claims. The dissenting judges took the view that the majority’s circumvention of the will of a sovereign state by applying Article 8 would also damage confidence in the ECHR system in the long run. Both the amendments of the ECHR and legal research have emphasised the principle of subsidiarity in the work of the ECtHR. In essence, the aim has been to strengthen the Court’s legitimacy by respecting the decisions of the sovereign states and by emphasising that the ECtHR’s role is only to supervise that national authorities have respected the standards of the ECHR provisions. Especially regarding questions which concern allocating resources and societally or culturally sensitive questions, the Court has left a wide discretion to national authorities. Against this background, the majority neglects the principle of subsidiarity and the principle of state sovereignty quite bluntly. In the present case, the exact will of the sovereign state has been to keep the decision-making relating to social welfare benefits at the national level. The majority does not give any reasons why it decided to ignore the explicit decision of the state to keep the distribution of social welfare benefits at the national level.

Lastly, the dissenting judges emphasized the circumstances of the case under consideration and the individual’s responsibility. The applicant’s 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. The applicant would have received the survivor’s pension regardless of the manner in which the care of the children was organized. In addition, the applicant knew from the outset 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. The dissenting judges criticized the majority’s argumentation which suggests that an individual is entitled to rely on the collective of contributors to the welfare system in any circumstances. They argued that the majority’s interpretation was steered by an ideological stance, which, I think, is a rather serious allegation since from the judicial independence point of view political ideologies should not steer the judicial deliberation. At the same time, legal research has questioned the possibility for a neutral and unbiased judicial decision-making. In addition,  tensions between law, politics and morals are inherently part of human rights adjudication.

Conclusions

Since at least the beginning of the 21st century, there has been debate on the ECtHR’s extensive and dynamic interpretations of ECHR rights and the role of the Court more generally. Some take the view that stretching interpretative boundaries risks irritating Contracting States and jeopardizing their faith in the ECHR system, while others laud the importance of the ECHR system and the bulk of the ECtHR’s decisions as being of significant human rights value (see discussion, for example, here; here and here). The debate intensifies when the question of including social rights within the ECHR provisions comes into play, in which context the classical question on the relationship between supranational human rights courts and national legal systems also comes to the fore.

In this era of constitutional populism, the debate over the legitimacy of the ECHR system intensifies even further. There is ever-growing mistrust towards supranational institutions and particularly towards far-reaching interpretations of international human rights obligations and standards. Against this background, supranational human rights courts must pay particular attention to the legal reasoning in their judgments. In-depth, comprehensive and coherent legal reasoning is the means by which the ECtHR can maintain its judicial legitimacy: even if one does not agree with the ECtHR, on the basis of the strength of its legal argumentation and reasoning one can accept its decisions.

In the present case, the majority extended the scope of Article 8 in the field of social welfare rights. As regards the argumentation, the majority, first, opted for the ‘necessarily affect’ threshold created in Konstantin Markin v Russia (para. 72) but then suddenly applied it differently so that the threshold is actually different from the one applied in that case. Frankly, the criteria established by the Grand Chamber are quite flexible in the sense that it is hard to see what kind of social welfare benefit available to families could not be included within the scope of Article 8. The broad interpretation by the majority contradicts also its own argument which highlighted that an interpretation which includes all welfare benefits under Article 8 would be a too excessive approach (para. 67). The acceptability of the ECtHR’s judgments can be gained through rational legal argumentation under which the acceptability of judicial decisions derives from the quality of the legal reasoning carried out. In this sense, acceptability is gained, in essence, by taking competing sides of the case into account, by expressing the values behind these competing interests, and lastly, by balancing the conflicting values openly against each other. The legal reasoning in this case leaves much to be desired. For example, there are well-founded reasons why in the ECHR system sovereignty-friendly interpretative approaches must usually step aside. These reasons should be openly stated by the ECtHR. In addition, there is a complete silence as regards balancing the conflicting principles against each other. Consequently, only coherent, consistent, and open human rights argumentation leads to acceptability.

Above all, the case touches on sensitive questions relating to respect for the will of a sovereign state and the role of the ECtHR. It appears that traditional questions as to the role of the ECtHR and the balance to be struck between far-reaching interpretations of ECHR provisions and respect for the will of sovereign states are topical and relevant again. At the same time, it is important to be able to take one step backwards in respect of the debates over whether to include social rights within the ECHR provisions and concentrate instead on the legal argumentation, which should take both sides of the coin into account and deliver decisions that most can accept even if they do not agree with them. In this present case, the majority should have argued more openly as to how it had taken into account the counter-arguments in the case, particularly the will of the sovereign state and where the limits to the extensive interpretative approach taken in respect of the ECHR lie.