DI TRIZIO proti Švýcarsku

FORMER SECOND SECTION

CASE OF DI TRIZIO v. SWITZERLAND

(Application no. 7186/09)

JUDGMENT

(Extracts)

STRASBOURG

2 February 2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of di Trizio v. Switzerland,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

András Sajó, President,
Nebojša Vučinić,
Helen Keller,
Paul Lemmens,
Egidijus Kūris,
Robert Spano,
Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 12 May 2015 and on 8 December 2015,

Delivers the following judgment, which was adopted on the last‑mentioned date:

PROCEDURE

1. The case originated in an application (no. 7186/09) 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 an Italian national, Ms Vita Maria di Trizio (“the applicant”), on 3 February 2009.

2. The applicant was represented by Ms A. Mengis, a lawyer practising with Procap, a Swiss association working for the disabled and based in Olten (Canton of Solothurn).

The Swiss Government (“the Government”) were represented by their Agent, Mr F. Schürmann, of the Federal Office of Justice.

3. The applicant complained mainly of the fact that the “combined method” applied in order to calculate her degree of disability had resulted in her being refused a benefit because she had worked part-time. In her view, this amounted to a breach of Article 8 of the Convention.

She also alleged that the method in question was discriminatory for the purposes of Article 14 of the Convention, taken in conjunction with Article 6 and Article 8 of the Convention respectively.

The applicant further complained of certain aspects of the domestic proceedings which in her view constituted a breach of her right to a fair hearing under Article 6 § 1 of the Convention.

4. On 14 October 2010 the Government were given notice of the application under Article 14 of the Convention taken in conjunction with Article 8.

In her observations the applicant requested that a public hearing be held in accordance with Rule 59 § 3 of the Rules of Court. The Court did not consider it necessary to hold a hearing in the present case and rejected the applicant’s request.

5. By letter of 22 October 2010 the Italian Government were informed of the possibility of submitting written observations under Article 36 § 1 of the Convention and Rule 44 if they so wished. In a letter of 18 May 2011 the Italian Government informed the Court that they did not intend to exercise their right to intervene.

6. On 13 May 2014 the Court requested the parties to submit further observations in writing (Rule 54 § 2 (c)).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The facts of the case, as submitted by the parties, may be summarised as follows.

8. The applicant was born in 1977 in Uznach and lives in Rapperswil‑Jona, in the Canton of St Gallen.

9. After originally training to be a hairdresser the applicant took up full‑time work as a shop assistant. In June 2002 she was forced to stop work owing to back trouble.

10. On 24 October 2003 the applicant applied to the Disability Insurance Office of the Canton of St Gallen (“the Office”) for a disability benefit on account of her lower back and spinal pain.

11. On 6 February 2004 she gave birth to twins. Her back pain had worsened further during the pregnancy.

12. On 15 March 2005 the Office carried out a household assessment (Abklärung im Haushalt) at the applicant’s home, during which the applicant stated

(i) that she suffered from constant back pain which often extended down to her left foot; that she had particular difficulty standing in the same place for any length of time and could not remain seated for more than ten minutes; that she could walk for half an hour, but not on a daily basis; and that the pain became worse when she was carrying the children;

(ii) that she would have to work half-time for financial reasons since her husband’s net salary was just 3,700 Swiss francs (CHF) (approximately 3,602 euros (EUR)).

The report on the assessment concluded that the applicant’s capacity to perform household tasks was reduced by 44.6%.

In its report dated 2 May 2005 the Office found that the applicant should be classified

(i) as a person in full-time paid employment (Vollerwerbstätige) up to the end of 2003;

(ii) as a housewife (Hausfrau) between January and May 2004;

(iii) as a person theoretically capable of working 50% (zu 50 % hypothetisch Erwerbstätige) as of June 2004.

13. On 16 June 2005 Dr Ch.A.S. informed the Office that the applicant was unable to work more than half-time in a suitable occupation and that any increase in her working hours appeared to be ruled out.

14. In a decision of 26 May 2006 the Office found that the applicant should be granted a benefit for the period from 1 June 2003 to 31 August 2004, but did not qualify for any benefit from 1 September 2004 onwards.

The Office arrived at this result by the following means.

With regard to the period from 20 June 2002 until the end of May 2004, it assessed the applicant’s degree of disability at 50% on the basis of a calculation of her income.

As to the subsequent period, the Office considered that the so‑called combined method should be applied, taking the view that even if she had not had a disability the applicant would have reduced her working hours following the birth of her children. It based that finding, in particular, on the applicant’s assertion that she felt able to work only half-time and wished to devote the remainder of her time to her household tasks and her children. Furthermore, on the basis of the household assessment referred to above, the Office estimated the applicant’s capacity to perform household tasks at 56% (that is to say, her degree of disability at 44%). When the formula set out below was applied, the degree of disability obtained on the basis of these various factors was only 22%, meaning that the applicant did not reach the minimum 40% degree of disability needed to trigger entitlement to a benefit:

50 % (paid employment): no loss of earnings 0.5 x 0 % = 0 %

50 % (household tasks and childcare): 0.5 x 44 % = 22 %

Total[1] = 22 %

15. The applicant lodged a complaint with the Office, which was dismissed on 14 July 2006. Following a fresh calculation the Office recognised the applicant as having a 27% disability, still below the minimum required in order to qualify for a benefit.

This figure was obtained by applying the combined method, using the following parameters:

50 % (paid employment): 0.5 x 10 % = 5 %

50 % (household tasks and childcare): 0.5 x 44 % = 22 %

Total[2] = 27 %

In completing the first line of the formula, the Office took as a basis a hypothetical income (for full-time work) of CHF 48,585 (approximately EUR 47,308), calculated on the basis of the statistical data for the socio‑professional category to which the applicant, as an auxiliary worker (Hilfsarbeiterin), belonged. Working at a rate of 50%, the applicant would therefore have had a salary of CHF 24,293 if she had been able to continue working without any difficulty (Valideneinkommen). The Office estimated that, given her disability, the salary which the applicant would actually be able to earn in a suitable occupation would be CHF 21,863 (Invalideneinkommen). It therefore assessed the applicant’s degree of disability in respect of the “paid employment” component at 10%.

16. On 14 September 2006 the applicant appealed against that decision.

Relying on Article 14 of the Convention, read in conjunction with Article 8, the applicant argued that

(i) the method applied discriminated against the less well-off, as those persons who could afford not to do paid work were classified simply as housewives and could therefore be recognised as having a higher degree of disability and thus qualify more easily for a benefit;

(ii) the way in which the degree of disability was calculated did not take sufficient account of the interplay (Wechselwirkungen) between the “household” and “paid employment” components;

(iii) in reality, even if she only worked half-time, her degree of disability for the purposes of performing household tasks would increase well beyond 44% as a result.

17. In support of her appeal the applicant submitted a medical report issued by Dr Ch.A.S. on 28 September 2006, in which the latter stated in substance that, in view of her state of health, the applicant could not engage in paid work on a half-time basis in the same way as someone without a disability, and that if she had to take up paid employment, her capacity to take care of the household and of her children would drop to around 10%.

18. In a judgment of 30 November 2007 the Insurance Court of the Canton of St Gallen allowed the applicant’s appeal in part.

In a departure from the case-law of the Federal Court ..., it considered that the usual application of the combined method should be disregarded in favour of an “improved” version. In the court’s view, the basis for calculation should be the level of activity which the applicant might reasonably have resumed after the birth of her twins if she had not had health problems.

The Insurance Court found that the “household” component of the combined method, as that method was applied in the Federal Court’s case‑law, did not take sufficient account of the person’s disability.

According to the court, the Office had not taken into consideration the fact that the applicant could only take care of the household on a half-time basis, and had incorrectly calculated her incapacity for work on the basis of a twelve-hour working day.

Instead of taking as a basis the household assessment – which, in the Insurance Court’s view, should be applicable only to individuals who were engaged full-time in caring for the household – the Office should have examined the applicant’s actual capacity to perform household tasks, which had been established by a doctor.

The court also criticised the Office for not examining whether, if she had been in good health, the applicant would have been able to engage in paid work after the birth of her children. In particular, it noted that the report drawn up following the household assessment gave scant information as to the work entailed for the applicant in caring for her children (Betreuungsaufwand) and whether or not any possibilities existed for entrusting part of their care to other persons. As these factors had not been taken into consideration by the Office, the applicant’s degree of disability had been established on the basis of an incomplete set of facts. The court also considered it unlikely that the applicant would have worked only half‑time if she had been in good health, given her husband’s modest salary and what she could reasonably expect to earn as a hairdresser or auxiliary worker. The household assessment therefore appeared to be deficient in that respect also.

Consequently, the Insurance Court remitted the case to the Office for further investigation.

19. The Office lodged an appeal against the Insurance Court judgment.

20. In a judgment of 28 July 2008 (9C_49/2008) the Federal Court allowed the Office’s appeal, finding that the applicant was not eligible for a benefit.

In its reasoning the Federal Court began by describing the context in which it viewed the case, stating that

(i) the aim of disability insurance was to provide cover for insured persons against the risk of becoming unable, for medical reasons, to carry on a paid occupation or perform household tasks which they had actually been able to carry out before becoming disabled and would still be able to perform if the event triggering the disability had not occurred;

(ii) the aim was not to provide compensation in respect of activities which the insured persons would never have carried out even if they had remained in good health;

(iii) this approach was designed to prevent situations in which, for instance, individuals who were well-off and had never previously worked could be recognised as having a disability if they developed health problems, even though they would probably never have worked had they remained in good health.

21. Accordingly, the Federal Court considered that the combined method was not discriminatory. It found as follows:

“3.4 ... It is true that the combined method, as applied by the [Federal] Court in its settled case-law, may result in a loss of benefit where the insured person is more than likely – generally on account of the birth of a child – to cease paid employment, at least on a full-time basis. However, it is not the disability that [then] causes the loss of income; many people in good health also suffer a loss of income when they reduce their hours or stop working. The criticism of the combined method is directed at the fact that individuals (mostly women) suffer a drop in earnings when they reduce their working hours after having children. Nevertheless, this sociological reality is not the result of factors linked to the person’s health and should not therefore be covered by the disability insurance scheme. It does not give rise to any discrimination or other breach of the European Convention on Human Rights.”

Nevertheless, the Federal Court conceded that the interplay between the “household” and “paid employment” aspects was not taken sufficiently into account in the combined method. With regard to the applicant, however, it found

(i) that the aggravation of her health problems as a result of her paid work should not be regarded as reducing her capacity to perform household tasks by more than 15%;

(ii) that, accordingly, even taking the interplay in question into account, the applicant’s degree of disability did not reach the 40% minimum required in order to qualify for a benefit:

50 % (paid employment): 0.5 x 10 % = 5 %

50 % (household tasks): 0.5 x (44 + 15 %) = 29.5 %

Total[3] = 34.5 %

The argument that her husband was unemployed, which was raised by the applicant for the first time before the Federal Court, was rejected on the grounds that it had not been relied upon in the court below and was not substantiated.

However, the Federal Court granted the applicant legal aid in view of her lack of means.

...

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8

48. The applicant alleged that she had been discriminated against, arguing that the combined method of calculating the degree of disability had resulted in her being refused a disability benefit because of her part-time work. In her submission, the method was based on the very traditional notion that only one partner in a couple – most often, the man – carried on a paid occupation, while the other partner was engaged full-time in taking care of the household and children (Aufgabentrennung). Where, on the other hand, a couple decided to share roles (Aufgabenteilung), a more modern approach in her view, they ran the risk of losing entitlement to a benefit in the event of a disability.

For the above reasons, the applicant alleged a violation of Article 14 of the Convention taken in conjunction with Article 8. The provisions in question read as follows:

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, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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.”

49. The applicant contended that she was placed at a disadvantage, first of all, compared with individuals who did not perform any paid work. In a case like hers, such persons would be considered to have a 44% disability and would therefore be entitled to a benefit (the minimum degree of disability was 40%).

She was also discriminated against compared with individuals who did not have to take care of a household or children and who could therefore work full-time. In a situation identical to hers, such persons would be deemed to have a 55% disability.

As the combined method did not apply to these two categories of persons, they would be entitled to a disability benefit.

In the applicant’s view, this legal situation discriminated against her on two counts:

(i) firstly, on the grounds of her disability, as the combined method was apt to discourage persons with a disability from making any effort to join the workforce by taking up part-time work, given that this would place them at risk of losing their benefit;

(ii) secondly, on the grounds of her gender, as the legal arrangements in force, in the vast majority of cases, affected women after childbirth.

50. The Government contested the applicant’s arguments.

...

B. Merits

1. Applicability of Article 14 of the Convention taken in conjunction with Article 8

(a) Whether the facts of the case fall within the ambit of Article 8

(i) The parties’ submissions

(α) The Government

52. The Government submitted that the right to respect for family life did not give rise in principle to direct entitlement to positive benefits from the State aimed at facilitating family life. The rights guaranteed by the Convention did not encompass an obligation for the Contracting Parties to provide certain financial benefits or ensure a certain standard of living.

53. In cases where it had been called upon to examine a refusal to grant an applicant a particular social insurance benefit, the Court had based its findings on Protocol No. 1 to the Convention, which had not been ratified by Switzerland.

The Government inferred from this that Article 14 of the Convention, taken in conjunction with Article 8, was not applicable in the present case. In their submission, the complaints alleging a violation of that provision should therefore be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4 of the Convention.

54. The Government argued that the disability benefit was not aimed at enabling the family of the disabled person to allocate tasks in a particular way, either before or after the disability had occurred (for instance, in order to allow the spouse of the insured person to work part-time).

In the context of application of the combined method, the insured person had to make a choice, before the benefit was calculated, as to how the distribution of tasks would be organised if he or she were in good health. Considerations relating to the law on disability insurance, such as the method used to assess disability or the prospect of obtaining a benefit, should not enter into the equation.

Likewise, the question of the disability benefit did not influence the decision whether and to what extent the insured person, as a person with a disability, used his or her remaining work capacity in the context of the hypothetical division of tasks based on the assumption that he or she was in good health.

Accordingly, the Government argued that the disability benefit in no way affected the allocation of tasks within the family of the disabled person.

(β) The applicant

55. In the applicant’s view, the present case fell within the scope of Article 8. While it was true that entitlement to a disability benefit existed irrespective of whether a family within the meaning of Article 8 was involved, as observed by the Government, the discrimination of which she complained affected precisely those insured persons who had decided to work only part-time because of their household or parental responsibilities.

In the case of other insured persons – those, for instance, who did not work full-time because they wished to pursue a hobby – the Federal Court was less incisive in applying the combined method of calculating the degree of disability. This meant that it was easier for persons who worked part-time to obtain a benefit if they devoted their free time to leisure activities rather than to household tasks. Hence, the combined method only penalised families. The negative impact of the combined method was even greater when the disabled person was a single parent who could not rely on a spouse’s financial contribution.

56. In view of the foregoing, the applicant argued that the case did indeed concern the implications of the method used to determine whether a benefit was granted, and its implications for the family. Contrary to the Government’s assertion, the way in which tasks were allocated had a direct impact on the granting or refusal of a disability benefit.

57. Hence, in the applicant’s submission, Article 14 taken in conjunction with Article 8 was applicable in the present case.

(ii) The Court’s assessment

58. As regards protection against discrimination, the Court reiterates that Article 14 only complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence because it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions (see, among many other authorities, Sahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003-VIII). The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights protected by the Convention. It is necessary but also sufficient for the facts of the case to fall “within the ambit” of one or more of the Articles of the Convention or its Protocols (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 72, ECHR 2013 (extracts)).

59. The Court further reiterates that the Convention does not guarantee, as such, the right to an old-age pension or any social benefit of a particular amount (see Yuriy Romanov v. Russia, no. 69341/01, § 45, 25 October 2005). Furthermore, the Convention does not confer on an individual a right to enjoy any given standard of living (see Vassilenkov v. Ukraine, no. 19872/02, § 18, 3 May 2005).

60. As regards the “family life” aspect of Article 8, the Court observes at the outset that this notion does not include only social, moral or cultural relations; it also comprises interests of a material kind (see Merger and Cros v. France, no. 68864/01, § 46, 22 December 2004).

61. The Court also reiterates that measures which enable one of the parents to stay at home to look after the children promote family life and necessarily affect the way in which it is organised. Such measures therefore come within the scope of Article 8 of the Convention (see, in particular, Petrovic v. Austria, 27 March 1998, § 27, Reports of Judgments and Decisions 1998‑II, and Konstantin Markin v. Russia [GC], no. 30078/06, § 130, ECHR 2012 (extracts); see also, to similar effect, Weller v. Hungary, no. 44399/05, § 29, 31 March 2009, and Dhahbi v. Italy, no. 17120/09, § 41, 8 April 2014).

62. The present case also concerns issues linked to the organisation of family life, albeit in a different way. The available statistics show that in the great majority of cases the legal arrangements in place – the combined method – concern women who wish to work part-time after having children. In its judgment of 28 July 2008 concerning the applicant (see paragraph 20 above), the Federal Court acknowledged that the combined method could sometimes result in the loss of the benefit, particularly in the case of women who worked part-time following the birth of their children. The Court considers that the application of the combined method in the applicant’s case was apt to influence her and her husband in deciding how to divide up tasks within the family and, accordingly, to have an impact on the organisation of their family and professional life. In its leading judgment ... the Federal Court also explicitly acknowledged that the combined method could have negative repercussions for someone who worked part‑time for family reasons, if he or she became disabled. These considerations are sufficient for the Court to find that the present complaint falls within the ambit of the “family life” aspect of Article 8.

63. As regards the “private life” aspect of Article 8, the Court has had previous occasion to remark that the concept of “private life” is a broad term not susceptible to exhaustive definition. It can sometimes embrace aspects of an individual’s physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I). It also covers the right to personal development and to establish and develop relationships with other human beings and the outside world (see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007‑I). Lastly, the Court has held that the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article 8 (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002‑III, and Haas v. Switzerland, no. 31322/07, § 51, ECHR 2011).

64. The present case also concerns the “private life” aspect of Article 8 in so far as that provision guarantees the right to personal development and personal autonomy. To the extent that the combined method places individuals wishing to work part-time at a disadvantage compared with those in full-time paid work and those who do not work at all, it cannot be ruled out that this method of calculating disability will limit persons falling into the first of these categories in their choice as to how to divide their private life between work, household tasks and childcare.

65. In view of the foregoing, this complaint falls within the ambit of Article 8.

(b) Nature of the alleged discrimination

66. It is clear from these observations, and in particular from the statistical data furnished by the parties, that in the overwhelming majority of cases the combined method concerns women who wish to reduce the amount of time they spend in paid work following the birth of a child or children. Accordingly, the Court considers that the applicant is entitled to claim that she has been the victim of discrimination on the grounds of sex within the meaning of Article 14 of the Convention.

67. This finding makes it unnecessary for the Court to examine whether the refusal to grant the applicant a disability benefit also amounts in the present case to discrimination on grounds of her disability.

(c) Conclusion

68. It follows that Article 14 of the Convention, taken in conjunction with Article 8, is applicable in the present case.

2. Compliance with Article 14 taken in conjunction with Article 8 of the Convention

(a) The parties’ submissions

(i) The applicant

69. The applicant conceded the Government’s point that, in theory, the combined method applied without distinction to men and women. However, the Government appeared to overlook the issue of indirect discrimination. It was true that the combined method had the same consequences irrespective of whether the man or the woman engaged in part-time paid work and carried out household tasks. However, its effects were felt disproportionately by women, given that they were the ones concerned in the great majority of cases, as confirmed by the Government’s statistics.

70. In the applicant’s view, the Government had not addressed the question of the existence of an objective and reasonable justification for the situation complained of, but instead had merely presented detailed documents showing the different methods used to calculate the restriction of an individual’s capacity caused by his or her health problems. The subject‑matter of the application did not concern the fact that the restrictions caused by the person’s health problems were measured differently according to whether he or she was engaged in paid work or in household tasks, but rather the discrimination suffered by persons engaged in both types of activities simultaneously, resulting from the means of calculation on which the combined method was based.

71. The applicant sought to demonstrate that her criticisms did not relate to the idea of a combined method of assessment as such, stressing that such a method could also be implemented in a non-discriminatory way. This was borne out in particular by the case-law prior to the Federal Court judgment of 26 April 1999 (ATF 125 V 146 ...). Before that judgment, the fact of working part‑time was entered into the calculation only once (during the weighting of the person’s activities between the paid part and the household part) rather than twice (as was currently the case, since it was already taken into account in comparing the person’s income with and without a disability). Under the earlier procedure, insured persons were free to assign tasks within the family as they saw fit, without running the risk of forfeiting any disability benefits if they became disabled. The hardening of the case-law operated to the detriment of part-time employees – hence, mostly women – who developed health problems, even though the disability insurance legislation had not changed.

72. In the applicant’s submission, the application of the combined method by the Federal Court could not be justified by considerations of feasibility or other economic considerations. The applicant referred in that regard to the findings of the St Gallen Cantonal Court, according to which the introduction of the combined method as applied under the earlier case‑law had resulted in an overspend of thirty-five million Swiss francs. While saving such an amount should be regarded as a legitimate aim, that aim should on no account be pursued to the principal detriment of women.

73. The applicant also submitted that stopping a benefit for the sole reason that the insured person had given birth to a child had already been found by the Court to be discriminatory (she referred to the judgment in Schuler-Zgraggen v. Switzerland, 24 June 1993, § 67, Series A no. 263).

(ii) The Government

74. The Government submitted that the method of assessing disability applied by the Federal Court in the instant case, which was based on a hypothetical level of activity, was justified by the aim of disability insurance, which was to insure individuals against the risk of becoming unable, owing to a disability, to engage in paid work or perform routine tasks which they had actually been able to carry out before becoming disabled and which they would still be able to perform if they were in good health. The aim was not to provide compensation in respect of activities which the insured persons would never have carried out even if they had remained in good health.

75. In its judgment of 28 July 2008 the Federal Court had acknowledged that the combined method could result in the loss of the benefit if the insured person had decided when he or she was still in good health – often in connection with the birth of a child – no longer to carry on a full-time paid occupation (in order to work part-time or to stop paid work altogether). However, the loss of income was not always attributable to the disability; persons in good health also suffered a drop in income if they reduced their working hours or gave up paid work following the birth of a child.

76. The Government noted that the criticism of the Federal Court’s case‑law concerning the combined method centred mainly on the fact that individuals who reduced their working hours following the birth of a child suffered a drop in income, and that they were mostly women.

Nevertheless, this societal phenomenon did not result from health-related factors. Accordingly, it should not be covered by the disability insurance scheme.

77. The Federal Court had also ruled in the past that the method of assessment chosen was not based on the gender of the insured person or on any of the other characteristics enumerated by Article 14 of the Convention, but on the loss, as a result of disability, of the capacity to carry on an occupation and/or perform routine tasks.

78. The Government further maintained that the possibility of altering the method of assessing disability for insured persons who worked part-time had been discussed regularly at the political level, but that the idea had been abandoned. This showed that, despite the various political efforts, no sustainable alternative to the combined method of assessing disability had been found.

79. The Government therefore contended that Switzerland had not been in breach of Article 14.

(b) The Court’s assessment

(i) Summary of the relevant principles

(α) Indirect discrimination

80. According to the Court’s settled case-law, discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV, and Okpisz v. Germany, no. 59140/00, § 33, 25 October 2005). Nevertheless, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed, in certain circumstances a failure to attempt to correct inequality through different treatment may, without an objective and reasonable justification, give rise to a breach of that Article (see Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, p. 34, § 10, Series A no. 6; Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; and Stec and Others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006‑VI). The Court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory even where it is not specifically aimed at that group (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001) and that discrimination potentially contrary to the Convention may result from a de facto situation (see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006‑VIII).

81. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Gaygusuz v. Austria, 16 September 1996, § 42, Reports 1996‑IV). The scope of this margin will vary according to the circumstances, the subject-matter and its background (see Rasmussen v. Denmark, 28 November 1984, § 40, Series A no. 87, and Inze v. Austria, 28 October 1987, § 41, Series A no. 126), but the final decision as to observance of the Convention’s requirements rests with the Court. Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see Weller, cited above, § 28; Stec and Others, cited above, §§ 63-64; Ünal Tekeli v. Turkey, no. 29865/96, § 54, ECHR 2004‑X (extracts); and, mutatis mutandis, Stafford v. the United Kingdom [GC], no. 46295/99, § 68, ECHR 2002‑IV).

82. The Court further reiterates that the advancement of gender equality is today a major goal in the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention (see Konstantin Markin, cited above, § 127; Burghartz v. Switzerland, 22 February 1994, § 27, Series A no. 280-B; and Schuler-Zgraggen, cited above, § 67). In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex. For example, States are prevented from imposing traditions that derive from the man’s primordial role and the woman’s secondary role in the family (see Ünal Tekeli, cited above, § 63).

83. On the other hand, a wide margin is usually allowed to the State when it comes to general measures of economic or social strategy for example (see Stec and Others, cited above, § 52, and Hämäläinen v. Finland [GC], no. 37359/09, § 109, ECHR 2014).

(β) Proof as regards discrimination

84. As regards the burden of proof in this sphere, the Court has previously held that, once the applicant has shown that there has been a difference in treatment, it is then for the respondent Government to show that the difference in treatment could be justified (see, for example, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999‑III, and Timishev v. Russia, nos. 55762/00 and 55974/00, § 57, ECHR 2005‑XII). As far as allegations of indirect discrimination are concerned, the applicant must adduce evidence of disproportionately harmful effects on a particular group, giving rise to a presumption of indirect discrimination; it is then for the respondent State to rebut that presumption by showing that the difference in treatment was the result of objective factors unrelated to the factor indicated by the applicant (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 188, 189 and 195, ECHR 2007‑IV; see also Oršuš and Others v. Croatia [GC], no. 15766/03, § 152, ECHR 2010).

85. As to whether statistics can constitute evidence, the Court stated in the past that statistics could not in themselves disclose a practice which could be classified as discriminatory (see Hugh Jordan, cited above, § 154). However, in more recent cases on the question of discrimination in which the applicants alleged a difference in the effects of a general measure or de facto situation (see Hoogendijk v. the Netherlands (dec.), no. 58641/00, 6 January 2005, and Zarb Adami, cited above, §§ 77-78), the Court relied extensively on statistics produced by the parties in finding a difference in treatment between two groups in similar situations (see D.H. and Others, cited above, § 180, and Oršuš and Others, cited above, § 152).

86. Hence, in its decision in Hoogendijk, cited above, the Court found as follows:

“ ... where an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule – although formulated in a neutral manner – in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on grounds of sex. If the onus of demonstrating that a difference in impact for men and women is not in practice discriminatory does not shift to the respondent Government, it will be in practice extremely difficult for applicants to prove indirect discrimination.”

(ii) Application of the above-mentioned principles to the present case

87. The Court considers it appropriate to examine whether there has been “indirect” discrimination in the present case.

(α) Existence of a presumption of indirect discrimination in the present case

88. The applicant complained that the application of the combined method for calculating disability was discriminatory. According to the figures supplied by the Government ..., the combined method was applied in 4,168 cases in 2009, that is to say, in approximately 7.5% of all the decisions on disability. Of this total of 4,168, 4,045 cases (in other words, 97%) concerned women and 123 (3%) concerned men.

89. In its judgments of 28 July 2008 (see paragraph 20 above) and 8 July 2011 ..., the Federal Court itself acknowledged that the combined method of assessing disability was applied in the majority of cases to women who had reduced their working hours following the birth of a child. In their observations before the Court the Government did not dispute the fact that the combined method primarily affected women. Furthermore, in its report of 1 July 2015 ..., the Federal Council noted that the combined method was applied in 98% of cases to women (on the basis of the benefits calculated in December 2013).

90. In view of these data, the Court considers that the evidence adduced can be regarded as sufficiently reliable and significant to give rise to a presumption of indirect discrimination.

(β) Whether there was an objective and reasonable justification for the difference in treatment

91. The Court reiterates that a difference in treatment is discriminatory if it lacks objective and reasonable justification, that is, if it does not pursue a “legitimate aim” or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see paragraph 80 above).

– Legitimate aim

92. In the instant case the Government endeavoured to explain the difference in treatment of the persons concerned by the rule in question, the majority of whom were women who had given birth to children, by referring to the aim of disability insurance, which was to cover individuals against the risk of becoming unable, owing to a disability, to engage in paid work or perform routine tasks which they had actually been able to carry out previously and which they would still be able to perform if they were in good health.

93. The Court considers that the aim pursued by the disability insurance legislation, relied on by the Government, is a legitimate aim apt to justify the differences observed. The Court must therefore ascertain whether the treatment to which the applicant was subjected was reasonable and proportionate.

– Proportionality

94. The Court notes that the applicant originally worked full-time, as a shop assistant, but had to stop work in 2002 because of back problems. She was granted a 50% disability benefit for the period from 20 June 2002 to the end of May 2004. The benefit was stopped following the birth of her twins owing to the application of the combined method, based on the assumption that – according to her own statements to the Office – if she had not become disabled, the applicant would have reduced her working hours after the birth of her children.

95. The Government argued that the combined method was not based on the gender of the insured person. They submitted that it simply took into consideration the loss of the insured person’s capacity, as a result of disability, to carry on an occupation or perform routine tasks, or both.

In the Government’s view, the loss of income suffered by individuals who reduced their working hours or stopped paid work following the birth of a child was an entirely separate matter, as family considerations of this kind could apply both to persons with a disability and to those in good health.

96. The Court considers, as stated above, that the aim of disability insurance advanced by the Government – namely to cover individuals against the risk of becoming unable, owing to a disability, to engage in paid work or perform routine tasks which they would actually be able to perform if they were in good health – is in itself consistent with the essence and the constraints of such an insurance scheme, which has limited resources and must therefore be guided in part by the principle of control of expenditure.

Nevertheless, the Court considers that this goal must be assessed in the light of equality between the sexes, since the case concerns alleged discrimination against women. As observed above, very weighty reasons have to be put forward before a difference of treatment based on this ground can be regarded as compatible with the Convention (see paragraph 82 above). The Court thus concludes that the authorities’ margin of appreciation was considerably reduced in the present case.

97. The Court is well aware that it is in the first place for the national authorities, notably the courts, to interpret and apply the domestic law (see Winterwerp v. the Netherlands, 24 October 1979, § 46, Series A no. 33). Nevertheless, it notes, on the basis of the relevant domestic law and practice set out above, that the applicant would in all likelihood have obtained a partial disability benefit had she worked full-time or devoted her time entirely to household tasks. Furthermore, as she had previously worked full‑time she was initially granted such a benefit, which she continued to receive until the birth of her children. It follows clearly that the refusal to grant her entitlement to a benefit was based on her assertion that she wished to reduce her paid working hours in order to take care of her home and her children. In practice, for the great majority of women wishing to work part‑time following the birth of a child, the combined method is a source of discrimination.

98. The Court also observes that the application of the combined method in accordance with the case-law of the Federal Court has been the subject of criticism for some time from certain courts and legal commentators. Hence, in its judgment concerning the applicant (see paragraph 20 above), the Federal Court explicitly conceded that the interplay between the “household” and “paid employment” aspects was not taken sufficiently into account in the combined method and that this could result in a complete loss of benefit where the insured person stopped paid work or reduced his or her working hours, often following the birth of a child. Moreover, this finding was upheld by the Federal Council in its report of 1 July 2015 ... The Federal Council added that the combined method also attracted criticism because the fact of working part-time was taken into account twice: once in determining the person’s income in the absence of a disability, and again in weighting the relative proportions of the two aspects.

99. In its leading judgment on the subject, the Federal Court acknowledged that the combined method was applied in the majority of cases to women and was open to question. However, it considered that it was for the legislature rather than the courts to propose a solution that would take greater account of sociological developments in society and the situation of half-time workers, most of whom were women ...

100. The Court further observes that, in its report of 1 July 2015, the Federal Council summarised and analysed in detail the criticisms of the combined method. It acknowledged that the combined method could result in a lowering of the degree of disability recognised and that a question could arise regarding possible discrimination, at least of an indirect nature.

In the Court’s view, these are clear indications of a growing awareness of the fact that the combined method is no longer consistent with efforts to achieve gender equality in contemporary society, in which women increasingly and legitimately seek to reconcile family life and career.

101. The Court also notes that even some specialised tribunals, such as the Cantonal Court in the instant case (see paragraph 18 above), support a method that would be more favourable to insured persons who work part‑time and would take due account of their disability in both the “paid employment” and “household tasks” components. Moreover, the Court observes that several methods of calculating disability exist under Swiss law ... Accordingly, the Court notes that alternative calculation methods are possible which would take greater account of women’s choice to work part‑time following the birth of a child, thus enabling the aim of greater gender equality to be pursued without jeopardising the objective of disability insurance.

102. In addition to these general considerations concerning the combined method, the Court considers that the refusal to grant the applicant even a partial benefit has significant practical repercussions for her, even assuming that she could work part-time. Her notional income, calculated on the basis of half-time work, was estimated by the Office at only CHF 24,293 (approximately EUR 23,654) when her degree of disability was calculated (see paragraph 15 above).

Conclusion

103. In view of the foregoing, the Court is not persuaded that the difference in treatment to which the applicant was subjected – having been refused a disability benefit owing to the application of the combined method of calculating the degree of disability, used for persons working part-time – had a reasonable justification.

104. It follows that there has been a violation of Article 14 of the Convention taken in conjunction with Article 8 in the present case.

...

FOR THESE REASONS, THE COURT

...

3. Holds, by 4 votes to 3, that there has been a violation of Article 14 of the Convention taken in conjunction with Article 8;

...

Done in French, and notified in writing on 2 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith András Sajó
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Keller, Spano and Kjølbro is annexed to this judgment.

A.S.
S.H.N.

JOINT DISSENTING OPINION OF JUDGES KELLER, SPANO AND KJØLBRO

(Translation)

I. Introduction

1. To our regret, we cannot subscribe to the view of the majority as regards the admissibility of the complaint alleging a violation of Article 14 of the Convention taken in conjunction with Article 8. As this complaint is primarily of a pecuniary nature, we are of the view that it does not come within the ambit of Article 8 of the Convention.

2. The present case concerns the refusal of the Swiss disability insurance scheme to continue to pay the applicant, after the birth of her twins, the 50% disability benefit to which she had been found to be entitled during the preceding period. Following a fresh calculation using the “combined method” the competent authorities assessed her degree of disability at 27%, which meant that she no longer qualified for a benefit. In the proceedings before the Court the applicant alleged, inter alia, a violation of Article 14 of the Convention taken in conjunction with Article 8. She argued that she had been discriminated against on two counts in the enjoyment of her right to private and family life.

II. Inapplicability of Article 8

3. We have a number of reservations regarding the majority’s analysis of the applicability of Article 8 of the Convention in the present case.

4. Firstly, we believe that the starting-point for that analysis is erroneous. The Court examines the issue from the outset from the standpoint of Article 8 of the Convention, without considering the purely pecuniary dimension of the applicant’s complaint. There are undoubtedly instances in which the granting, payment or refusal of a social benefit such as the one at issue here may be significant in terms of the Convention. However, the majority omit to mention that in the vast majority of cases in which it has ruled on alleged discrimination with regard to social-security benefits, the Court has based its analysis not on Article 8 of the Convention but on Protocol No. 1 (see, for example, Moskal v. Poland, no. 10373/05, §§ 93 et seq., 15 September 2009; Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 53, ECHR 2006‑VI; Koua Poirrez v. France, no. 40892/98, §§ 43 et seq., ECHR 2003‑X; Kjartan Ásmundsson v. Iceland, no. 60669/00, §§ 39 et seq., ECHR 2004‑IX; and Wieczorek v. Poland, no. 18176/05, §§ 56 et seq., 8 December 2009). It should be pointed out that, as Switzerland has not ratified Protocol No. 1, it is not bound by the Court’s case-law concerning Article 1 of that instrument.

5. In examining the issue of admissibility from the standpoint of Article 8, the majority then draw a distinction between the “family life” aspect on the one hand and the “private life” aspect on the other. In both cases the Court reaches the same conclusion – with which we disagree – namely, that Article 8 is applicable.

6. As regards the “family life” aspect, it is true that in some specific cases the Court has examined a social benefit from the perspective of Article 8 of the Convention, for instance in the case of a parental leave allowance (see Petrovic v. Austria, 27 March 1998, § 27, Reports of Judgments and Decisions 1998‑II, and Konstantin Markin v. Russia [GC], no. 30078/06, § 130, ECHR 2012 (extracts)), and an allowance for large families (see Dhahbi v. Italy, no. 17120/09, § 41, 8 April 2014). The majority cite this case-law (see paragraphs 61 et seq. of the judgment), but, in our view, they omit to establish the relevant principles for determining the scope of application of Article 8.

7. In paragraph 62 of the judgment the Court states as follows:

“...the application of the combined method in the applicant’s case was apt to influence her and her husband in deciding how to divide up tasks within the family and, accordingly, to have an impact on the organisation of their family and professional life.”

Hence, this reasoning is based on a very flexible criterion for applicability, suggesting that for Article 8 to be applicable it is sufficient for the benefit in question to have an impact of some kind on the applicant’s family (or private) sphere. We fear that this may be tantamount to saying that any decision to grant or refuse a benefit automatically comes within the scope of Article 8, given that a social benefit is always likely to have some impact on the enjoyment or organisation of an individual’s family life. Accordingly, any employment-law measure, for instance, would come within the ambit of Article 8 of the Convention.

8. However, such an outcome would scarcely be compatible with our settled case-law to the effect that the provisions of the Convention must be construed in the light of the entire Convention system, including the Protocols (see Maaouia v. France [GC], no. 39652/98, § 36, ECHR 2000‑X). With regard to Article 2 of Protocol No. 4, for example, the Grand Chamber stressed in the case of Austin and Others v. the United Kingdom that “Article 5 should not, in principle, be interpreted in such a way as to incorporate the requirements of Protocol No. 4 in respect of States which have not ratified it, including the United Kingdom” (see Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 55, ECHR 2012). Prior to that, the Court had already applied the same reasoning in relation to Protocol No. 12, and also in reiterating that Article 14 did not independently impose a blanket prohibition on all discrimination (see Sahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003‑VIII), and again in the context of the guarantees of Article 1 of Protocol No. 7, finding that Article 6 did not apply to expulsion proceedings (see Maaouia, cited above, § 36).

9. Pecuniary losses in the sphere of social benefits generally fall within the scope of Article 1 of Protocol No. 1 (see paragraph 4 above). It follows, in the light of the case-law cited in the previous paragraph, that it is not possible to circumvent the fact that Protocol No. 1 has not been ratified by dealing with cases of this kind from the standpoint of Article 14 read, instead, in conjunction with Article 8 of the Convention. To put it another way, full account must be taken of the fact that Switzerland has not ratified Protocol No. 1.

10. As we see it, the majority disregard the fact that the cases cited above (see paragraph 6) were in fact characterised by a much closer link between the granting of the allowance, benefit or pension, on the one hand, and the enjoyment of family life on the other. This close link resulted in particular from the aim of the allowance in question, in so far as it was designed in those cases to facilitate family life or contribute to it. Applying this more stringent criterion in the present case leads us to the conclusion that the applicant’s complaint is not covered by the “family life” aspect of Article 8. As is clear from the Government’s observations (see paragraph 54 of the judgment) and from the case-law of the Federal Court (... ATF 137 V 334, point 6.1.2 of the reasoning), the disability insurance scheme in issue is not aimed at organising family life. Rather, it is aimed at compensating for the permanent financial impact of disability. We are therefore not convinced by the Court’s reasoning in paragraph 62.

11. As to the “private life” aspect of Article 8, we are likewise not persuaded by the arguments of the majority. Although they refer to the relevant case-law (see paragraph 63 of the judgment), the majority do not explain how the combined method would affect the applicant’s personal development or personal autonomy. The Government rightly point out that the method for calculating the benefit should not be a factor in the hypothetical choice of the number of hours worked. In the instant case there was nothing to prevent the applicant from stating that she would have liked to work 100%, 80% or even not at all after the birth of her daughters. In all those cases the applicant would have received a disability benefit under the combined method. That, too, is what distinguishes this case from the case of Schuler-Zgraggen.

III. Conclusion

12. In the light of the foregoing we are of the view that the Court was too ready to accept the applicability of Article 8 in the present case. The approach taken by the majority extends the scope of Article 8 considerably, making Article 1 of Protocol No. 1 to some extent superfluous.

13. According to our interpretation of the relevant case-law, the applicant did not demonstrate sufficiently – either before the domestic authorities or before the Court – the extent to which the application of the combined method actually affected the organisation of her family or private life for the purposes of Article 8 of the Convention. For these reasons we believe that the Court should have rejected this complaint, in accordance with Article 35 §§ 3 (a) and 4 of the Convention, as being incompatible ratione materiae with the provisions of the Convention.

[1] Note: This figure was obtained by adding the two lines.

[2] See previous footnote.

[3] See footnote 1.