Facts

Parties and instances: The Compensation Fund of the Canton of Fribourg (appellant) challenged the judgment of the Cantonal Court of Fribourg of 7 May 2024, which set aside the revocation of the widower’s pension for A. (respondent) and ordered continued payment of the pension. The Federal Social Insurance Office (INO) supported the appeal of the Compensation Fund.

Facts of the case: [A.], born in 1978, was married from May 2002 to December 2014. His former wife and mother of their common daughter (born March 2004) died in August 2021. The Compensation Fund of the Canton of Fribourg then granted [A.] a widower’s pension. With a decision dated 18 February 2022 – served on 14 March 2023 – the Compensation Fund revoked the widower’s pension on the grounds that the daughter had reached the age of majority and discontinued payments at the end of March 2022. [A.] applied for continued payment of the widower’s pension, citing the ECtHR judgment Beeler v. Switzerland of 11 October 2022. The Compensation Fund rejected this request in its appeal decision of 28 November 2023. The Cantonal Court of Fribourg allowed A.’s appeal and ordered payment of the widower’s pension beyond 31 March 2022.

Considerations

Legal basis and equalisation: The entitlement to a widower’s pension exists pursuant to Art. 23 para. 1 OASIA, provided that there are children at the time of the death of the spouse. Pursuant to Art. 24 para. 2 OASIA, the entitlement to a widower’s pension expires when the youngest child reaches the age of 18. Divorced persons are, pursuant to Art. 24a para. 1 OASIA and subject to certain conditions (e.g. a marriage lasting at least ten years, presence of children), equated with widowers. For divorced persons who do not meet these conditions, a special termination ground applies pursuant to Art. 24a para. 2 OASIA: the pension expires as soon as there are no longer any children under 18.

ECtHR judgment Beeler and its effects: In the judgment Beeler v. Switzerland, the ECtHR found that the automatic revocation of the widower’s pension upon the youngest child reaching the age of majority constitutes discrimination under Art. 14 ECHR in conjunction with Art. 8 Cst.. The Federal Supreme Court concluded from this that the termination ground under Art. 24 para. 2 OASIA is no longer applicable to widowers once their youngest child has reached the age of 18. This case law has been confirmed in several Federal Supreme Court decisions (e.g. BGE 143 I 50, BGE 143 I 60, 9C_644/2023, 9C_281/2022).

INO transitional provision and its limits: The INO issued a transitional provision (Circular No. 460) providing for continued payment of the widower’s pension beyond the child’s 18th birthday. However, this provision expressly does not apply to divorced men, whose entitlement to a widower’s pension continues to expire upon the youngest child reaching the age of majority. The Federal Supreme Court emphasised that administrative instructions such as this are not binding on courts and may not introduce restrictions on substantive entitlements that go beyond the law (cf. BGE 148 V 385, BGE 147 V 79).

Interpretation of Art. 24 para. 2 and Art. 24a OASIA: The Federal Supreme Court conducted a comprehensive…