Dismissal of appeal for retroactive widower’s pension after the youngest child reaches adulthood despite ECtHR judgment

Facts

Parties and procedural history:

The complainant, born in 1954, received a widower’s pension from the death of his wife as of 1 July 2001. The compensation fund of the Canton of Zurich discontinued this pension at the end of October 2011, as the youngest daughter had reached the age of 18. In December 2020, the complainant reapplied for a widower’s pension, citing the ECtHR judgment Beeler v. Switzerland of 20 October 2020. The compensation fund initially rejected the application informally and later by decision of 18 January 2021 and by appeal decision of 23 March 2021. The Social Insurance Court of the Canton of Zurich dismissed the appeal lodged against this with a judgment of 9 April 2022. The complainant applied to the Federal Supreme Court for the award of a widower’s pension for the period from 1 November 2011 to 31 May 2019. The Federal Supreme Court suspended the proceedings until the final ECtHR judgment of 11 October 2022 was issued.

Relevant legal developments:

On 11 October 2022, the Grand Chamber of the ECtHR ruled in the case Beeler v. Switzerland that the provision of Art. 24 para. 2 OASIA (expiry of the widower’s pension upon the youngest child reaching adulthood) violates Art. 14 ECHR in conjunction with Art. 8 ECHR, as it discriminates against widowers. The Federal Social Insurance Office (INO) subsequently issued directives for the implementation of this judgment, in particular for cases that were still pending on 11 October 2022.

Considerations

1. Admissibility of the appeal and standard of review:

The Federal Supreme Court examines the appeal in public-law matters for violations of federal law (Art. 95 lit. a FSCA). The factual findings of the lower court are generally binding, unless they are obviously incorrect or based on a violation of the law (Art. 97 para. 1, Art. 105 FSCA). The Federal Supreme Court applies the law ex officio, but generally reviews only the objections raised (Art. 106 para. 1 FSCA, Art. 42 FSCA).

2. Discriminatory effect of Art. 24 para. 2 OASIA and ECtHR judgment:

The ECtHR judgment of 11 October 2022 finds that Art. 24 para. 2 OASIA discriminates against widowers by terminating their widower’s pension upon the youngest child reaching adulthood, unlike widows. This violates Art. 14 ECHR in conjunction with Art. 8 ECHR. The Federal Supreme Court has consistently held in similar cases that the termination of the widower’s pension due to the youngest child reaching adulthood should be waived (cf. BGE 143 I 50, 143 I 60, 9C_481/2021, 9C_749/2020).

3. No retroactive entitlement to benefits due to lack of grounds for reopening:

The complainant argues that the compensation fund unlawfully discontinued his widower’s pension and requires retroactive payment. However, the complainant did not challenge the pension discontinuation in 2011, so it became final. A retroactive entitlement to benefits requires either a procedural ground for reopening (Art. 53 para. 1 GSSLA) or a ground for reconsideration (Art. 53 para. 2 GSSLA). The complainant has neither invoked such a ground…