CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 janvier 2023

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vertical-align:top }     FIFTH SECTION CASE OF DOMENECH ARADILLA AND RODRÍGUEZ   GONZÁLEZ v. SPAIN (Applications nos. 32667/19 and 30807/20)     JUDGMENT   Art 1 P1 • Peaceful enjoyment of possessions • Refusal by domestic authorities to grant survivor’s pension to applicants due to unforeseeable retrospective application of a new eligibility requirement • Impugned measures placing excessive burden on applicants • Unjustified absence of transitionary period for legislative change • Fair balance between competing interests not struck   STRASBOURG 19 January 2023   FINAL   19/04/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Domenech Aradilla and Rodríguez González v. Spain, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Georges Ravarani , President ,   Carlo Ranzoni,   Mārtiņš Mits,   María Elósegui,   Mattias Guyomar,   Kateřina Šimáčková,   Mykola Gnatovskyy , judges , and Victor Soloveytchik, Section Registrar, Having regard to: the applications (nos.   32667/19 and 30807/20) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Spanish nationals, Ms Mercè Domenech Aradilla and Ms Encarnación Rodríguez González (“the applicants”), on the dates indicated in the appended table; the decision to give notice to the respondent Government of application no. 32667/19 and part of application no. 30807/20 and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 6 December 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns the refusal by the authorities to grant a survivor’s pension to the two applicants. They complain under Article 1 of Protocol No. 1 taken together with Article 6 § 1 of the Convention that the authorities failed to have regard to the fact that when they initially applied for the survivor’s pension there was still no requirement for them to register their respective partnerships, as the 2014 Constitutional Court’s judgment which introduced this requirement was not yet in force. The applicants considered that the retroactive application of such formal requirement to them amounted to a violation of their right to legal certainty as well as of their right of property. THE FACTS 2.     The applicants were born in 1986 and 1960 respectively and live in Caldes de Montbui and Salt, respectively. The first applicant was represented by Mr A. de Ribot Saurina, a lawyer practising in Salt, Girona. The second applicant was represented by Mr X. Asensio Castro, a lawyer practising in Martorelles. 3.     The Government were represented by their Agent, Ms H.E. Nicolás Martínez, co-Agent of Spain before the European Court of Human Rights. 4.     The facts of the case may be summarised as follows. First applicant Relevant background 5 .     The first applicant and her partner claim to have lived together from early 2007. They opened a common bank account on 8 September 2005, bought a car together on 5 March 2008, signed a lease contract on 1 March 2012, and were registered in the local municipality as living together since 16   June 2012. 6 .     The first applicant’s partner died in a work-related accident on 5   November 2013. The fact that the applicant and her partner lived together for at least five years before that is undisputed. At the time when he died, the applicant was pregnant with a child from her partner, who was born in 2014. The administrative proceedings 7.     On, 21 January 2014, the first applicant made a request for a survivor’s pension to the National Institute of the Social Security (hereinafter, “INSS”). On 24 January 2014, the INSS sent the application to the insurance company with which the Spanish Social Security system collaborates, and with which her partner had insurance to cover work-related accidents. 8.     On 30 July 2014, the insurance company issued a decision which rejected the applicant’s request for the survivor’s pension (although their daughter was awarded an orphan’s pension amounting to 432.06 euros (EUR) per month and a one-time payment of EUR 2,160.34). The rejection was based on the applicant’s alleged failure to meet one of the legal requirements to be eligible for the survivor’s pension: the formalisation of the partnership in a register or notarial deed at least two years prior to the death of one of them. The domestic judicial proceedings 9 .     The first applicant then lodged a judicial appeal against the said decision to reject her application. On 19 January 2015, the Labour Court No.   33 of Barcelona upheld the applicant’s appeal against the INSS, the Treasury of the Social Security, and the insurance company, and recognised the applicant’s right to be granted a survivor’s pension (which amounted to nearly EUR 27,000 per year) to be paid by the insurance company. The INSS and the General Treasury of the Social Security were held to their respective legally established responsibilities. 10 .     The Labour Court considered that since the death of the applicant’s partner, the application for the survivor’s pension, and the first decision from the INSS all had taken place before the Constitutional Court’s judgment   40/2014 had been adopted, the new requirement could not be imposed on the applicant. The opposite would, in the Labour Court’s view, violate the applicant’s right to legal certainty, since the effects of the Constitutional Court’s judgment could only be applicable for future cases. It considered that, at the moment in which the applicant’s partner died, the couple had been together for six years, and the applicant was pregnant with a daughter that was born shortly after her father’s death. Since the applicant also met all the economic requirements to be eligible for the survivor’s pension, she should be granted it. 11.     Both the INSS and the private insurance company appealed the above judgment. The first applicant opposed both appeals. 12 .     On 20 November 2015, the High Court of Justice of Catalonia upheld the appeals made by the INSS and the private insurance company, overturning the judgment issued by the Labour Court, and refusing to award the first applicant the survivor’s pension. The High Court of Justice of Catalonia considered that according to the Constitutional Court’s judgment 40/2014, its effects would also be applicable to those situations where an administrative decision is not final yet. Hence, in this case, the applicant’s situation was affected by the formal requirement to have had the partnership registered two years prior to the death of one of the partners. The High Court of Justice of Catalonia did not question the fact that the applicant and her partner had been living together for over five years and had had a daughter in common, or that they had met the economic requirements. 13.     The first applicant lodged an appeal on points of law ( casación ) with the Labour Chamber of the Supreme Court, insisting on the fact that the formal requirement to have had the partnership registered two years prior to the death of one of the partners was simply not applicable to her situation, having regard to the moment at which her partner died and she had made the application for the pension. The Supreme Court declared the appeal inadmissible on 30 November 2016 because the appeal did not meet the requirements for the Supreme Court to declare her appeal on points of law admissible. The applicant then lodged a motion for annulment with the Supreme Court, in which she invoked both her right to legal certainty in the recognition of her right to the pension and her right not to be discriminated against (compared to the people who had been granted the survivor’s pension directly in administrative proceedings and not following an appeal in judicial proceedings), which was also declared inadmissible. 14.     She subsequently lodged an amparo appeal with the Constitutional Court. She claimed that the High Court of Justice of Catalonia’s judgment infringed the principle of legal certainty (because the criteria were not applicable to her retroactively and no transitionary period was established by the Constitutional Court judgment) as well as the principle of equality before the law and the right not to be discriminated against based on gender (indirect discrimination against women because they were statistically the main beneficiaries of survivor’s pensions) and social circumstances (essentially having had a partnership in Catalonia and losing the partner between 10   April 2012 and 10 April 2016). Thus, she requested that the said judgment be declared void and, consequently, that the survivor’s pension which had been awarded to her by the Labour Court no. 33 of Barcelona be reinstated. 15.     On 10 December 2018 the Constitutional Court declared the applicant’s amparo appeal inadmissible on the grounds of the lack of special constitutional relevance. Second applicant Relevant background 16 .     The second applicant and her partner started living together on 10   June 2008 in an apartment in Girona (Catalonia), and remained living there until the end of their lease contract on 9 June 2013, when they moved to Portbou – also in the province of Girona, Catalonia. 17 .     On 2 March 2009, the applicant officially divorced her former husband. 18.     The second applicant’s partner died on 7 January 2014. 19.     The applicant lodged an application for a “survivor’s pension” (a benefit aimed at surviving partners who had been economically dependent on their deceased partner) on 2   April 2014, asserting that she met both the economic requirements and civil-partnership requirements (namely, the status of the relationship between her and her deceased partner had been that of a civil partnership). 20.     The Catalan Civil Partnerships’ Public Register was not created until 1   April 2017. However, the formal registration of partnerships could take place at any time before that by means of a notarial deed. The administrative proceedings 21.     On 2 April 2014, three months after the death of her partner, the second applicant lodged an application for a survivor’s pension with the INSS. In her application, she submitted that they had lived together since 10   June 2008 until his death on 7 January 2014, and that their relationship had constituted a civil partnership without their having had any need to formalise their situation. 22 .     On 4 April 2014, the applicant’s request was dismissed for her failure to prove (as provided by the fourth paragraph of section 174(3) of the General Social Security Act (hereinafter, “LGSS”) ˗ see paragraph 41 below) that she had maintained an uninterrupted cohabitation of at least five years immediately prior to the death as a registered civil partnership with the deceased. 23.     The Constitutional Court published its judgment STC 40/2014 introducing a new formal requirement to apply for a survivor’s pension on 10   April 2014. 24.     On 15 May 2014, the second applicant lodged an administrative complaint against the INSS’s decision, submitting that (i) she had demonstrated a period of cohabitation of at least five years; and (ii) the registration of her partnership with the deceased had not been necessary under the fifth paragraph of section 174(3) of the LGSS, which provided that those Autonomous Communities (such as Catalonia) that have their own body of civil law shall apply their own specific provisions concerning the method of proving the existence of civil partnerships; and (iii) she had complied with the Catalan-law requirements for her union with her deceased partner to be considered to be a civil partnership by the time of his death. 25.     On 3 June 2014, the INSS Provincial Director in Girona dismissed the applicant’s complaint, stating that under Constitutional Court judgment STC   40/2014, proving the existence of a civil partnership for the purpose of accessing a survivor’s pensions was only possible if the partnership had been formalised by means of an entry in a register or by notarial deed at least two years prior to the death of the partner (see paragraphs 41 and 45 below). The domestic judicial proceedings 26.     On 11 July 2014, the second applicant lodged a judicial appeal against the INSS’s decisions with Labour Court no. 2 of Girona, reiterating that she had demonstrated that she had cohabited with her deceased partner for more than the minimum requirement of five uninterrupted years, and that – under the fifth paragraph of section 174(3) of the LGSS and Article 234-1 of the Catalan Civil Code – she had not needed to register that partnership. 27 .     The parties were summoned to the hearing, which took place on 20   January 2016. On 4 March 2016, Labour Court no. 2 of Girona acknowledged that the applicant and her deceased partner had been living together for over five years, but nevertheless dismissed the applicant’s complaint on two grounds: firstly, that the regulatory basis on which the applicant relied (namely, the fifth paragraph of section 173(4) of the LGSS) had been declared unconstitutional and, as a result, null and void by Constitutional Court judgment STC 40/2014; secondly, that the LGSS’s aim was to limit the granting of pension rights to people in civil partnerships that had been formalised (either by entry in a specific public register or by means of attestation in a notarial deed) – but the applicant had not complied with that requirement. The judgment did not refer to the fact that the applicant had applied for a survivor’s pension before Constitutional Court judgment STC   40/2014 had been published. 28.     On 26 April 2016, the applicant lodged an appeal with the High Court of Justice of Catalonia, asserting that: The fifth paragraph of section 174(3) of the LGSS had been in force at the time of the death of the applicant’s partner and Constitutional Court judgment STC 40/2014 should not have been applied retroactively as this had violated the principle of legal certainty, the prohibition on the retroactive application of unfavourable legal provisions, and the right to effective judicial protection; alternatively, the applicant and her partner had signed a lease agreement and made a deposit under a notarial deed in 2008 – that public document should have been considered to constitute sufficient formalisation of their civil partnership for the purposes of the fourth sub-paragraph of section   174(3) of the LGSS; the decision not to grant her a survivor’s pension amounted to a violation of the principle of legal certainty, the right to effective legal protection under Articles 9 § 3 and 24 of the Spanish Constitution, the right to a fair trial under Article 6 of the Convention, and the right to social security under Articles 22 of the Universal Declaration on Human Rights and Article 9 of the International Covenant on Economic, Social and Cultural Rights. 29 .     The second applicant provided documentary evidence that attested to her state of economic precariousness and vulnerability, which was another requirement for accessing the survivor’s pension. 30.     On 3 October 2016, the High Court of Justice of Catalonia dismissed the appeal, upholding the decision of the first-instance court, and responding to the applicant’s assertions as follows: Constitutional Court judgment STC 40/2014 stipulated that its provisions applied to “future cases or administrative or judicial proceedings in which a final judgment has not yet been pronounced” – that applied to the instant case, as a final administrative decision had not been granted until 3 June 2014; the applicant did not have an acquired right to the pension – all that could be said was that her application for a survivor’s pension was still ongoing; the fourth sub-paragraph of section 174(3) of the LGSS required the signing of a public document whose specific function was   specifically the constitution ( constitución ) of a civil partnership – that was not the function of a lease contract, which was therefore not suitable as a means of proving the concurrence of the wills of the two members of a couple to constitute a civil partnership. 31.     On 25 October 2016, the second applicant lodged an appeal on points of law ( casación ) with the Spanish Supreme Court, seeking the unification of case-law; she cited a series of judgements that she claimed contradicted the decision of the High Court of Justice of Catalonia, and asked the Supreme Court to lodge a request with the Court of Justice of the European Union (CJEU) for a preliminary ruling on the non-retroactivity of the declaration of unconstitutionality in respect of the fifth sub-paragraph of section 174(3) of the LGSS. 32.     On 12 February 2019, the Spanish Supreme Court ruled the appeal inadmissible, finding no contradiction between the cited judgments, confirming the findings of the High Court of Justice of Catalonia, and asserting that a request for a preliminary ruling from the CJEU was not appropriate at that stage of the proceedings (when only formal and material requirements were being analysed – not the merits of the case). The Supreme Court considered that the applicant had not been placed in a position whereby it had been impossible for her to comply with the requirements because of death of her partner earlier than two years following a formalisation of their civil partnerships by means of an entry in a register or by means of a notarial deed; rather, she had not formalised the partnership at any time. 33.     On 7 May 2019, the second applicant lodged an amparo appeal with the Spanish Constitutional Court, submitting that her right to effective protection and legal certainty had been violated by the retroactive application of Constitutional Court judgment STC 40/2014; she further asserted that the principle of equality and the prohibition of discrimination had also been violated because the refusal to grant her a survivor’s pension had amounted to indirect discrimination against all civil partners living in those Autonomous Communities which had their own civil-law regulations and which had fallen under the application of the fifth sub-paragraph of section 174(3) of the LGSS prior to the application of Constitutional Court judgment STC   40/2014. 34.     On 12 November 2019, the Constitutional Court ruled the amparo appeal inadmissible for lack of any particular constitutional relevance. RELEVANT LEGAL FRAMEWORK AND PRACTICE 35.     The relevant provisions of the Spanish Constitution read as follows: Article 9 § 3 (The principle of legal certainty) “3. The Constitution guarantees [i] the principle of legality, [ii] the hierarchy of guiding principles,[iii] the publicity of rules ( la publicidad de las normas ), [iv] the non-retroactivity of punitive provisions that are not favourable towards or restrictive of individual rights, [v] legal certainty, and [iv] the responsibility for and the prohibition of arbitrariness on the part of the public authorities.” Article 14 (The prohibition of discrimination) “Spaniards are equal before the law, and no discrimination may prevail on the grounds of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.” Article 24 (The right to an effective remedy and to a fair trial) “1. Every person has the right to obtain the effective protection of the Judges and the Courts in the exercise of his or her legitimate rights and interests, and in no case may he go undefended. 2. Likewise, all persons have the right of access to the ordinary judge predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence; to not make self-incriminating statements; to not declare themselves guilty; and to be presumed innocent. The law shall determine the cases in which, for reasons of family relationship or professional secrecy, it shall not be compulsory to make statements regarding alleged criminal offences.” Article 33 (The right to private property) “1. The right to private property and the right to inheritance are recognised.” 2. The social function of these rights shall define their content, in accordance with the law. 3. No one may be deprived of his property and rights except for justifiable reasons of public ... or social interest, for the corresponding compensation, and in accordance with the provisions of the law.” Article 41 (The social security system) “The public authorities shall maintain a public social security system for all citizens, guaranteeing adequate social assistance and benefits in situations of need (particularly in the event of unemployment). Assistance and supplementary benefits shall be free.” 36.     The recognition of the right to a contributory survivor’s pension under the Spanish system traditionally required that the person applying for the pension have previously undergone a marriage ceremony with the deceased person. Under the original wording of the relevant legislation, if the couple had been married, the date on which the marriage had taken place was irrelevant for the purposes of becoming eligible to receive a pension, provided that the economic requirements had been met. Subsequent reforms aimed at preventing fraud introduced a requirement that, in the event that death had resulted from an illness pre-dating the date of a couple’s wedding, then their marriage had to have taken place at least one year prior to the date of the deceased spouse’s death (or alternatively, prior to the birth of any shared biological children), unless proof of cohabitation for two years prior to the death could be provided. 37.     Although religious marriage is possible, marriage under Spanish law may be strictly civil. 38.     The Constitutional Court has held that there is no general constitutional parity between married and unmarried partners, and that the legislature has discretion to establish differences in treatment between married and unmarried partners without violating the principle of equality. In particular, the Constitutional Court has stated that although the legislature may extend the right to a survivor’s pension to stable common-law partners, failure to do so does not violate Article 14 of the Spanish Constitution (principle of equality and the prohibition of discrimination – see, inter alia , judgments of the plenary Constitutional Court no. 184/1990 of 15 November 1990 and no. 41/2013 of 14 February 2013). 39.     In Spain, certain Autonomous Communities have their own civil legislation, and all of them have the authority to regulate several aspects of civil law. The recognition of civil partnerships (and hence, the requirements for constituting one) is not nationally uniform; it may be regulated by each Autonomous Community. 40.     In 2007, in order to adapt existing legislation to the new social and family reality in Spain, an amendment to the General Social Security Act was introduced in order to recognise civil partners’ eligibility to opt for a survivor’s pension (which until then had been reserved for surviving marriage spouses), provided that certain economic and other requirements were met. 41 .     The LGSS, which was approved by Royal Legislative Decree 1/1994, as amended by Law 40/2007, reads in its relevant parts as follows: Section 174 (Survivor’s pension) “1. The surviving spouse shall be entitled to a survivor’s pension for life ... In exceptional cases in which the death of the deceased is the result of a common illness [ enfermedad común ] [that existed before the commencement of the marital relationship], it is also required that the marriage have been entered into at least one year before the date of death or, alternatively, that there are children [whose biological parents are] both spouses. This [minimum] duration of the marriage shall not be required if, as at the date of the contracting of the marriage, there is proof of a period of cohabitation with the deceased (in the terms set out in the fourth sub-paragraph of section 3, which – when added to the duration of the marriage – exceeds two years. ... 3. Once the registration and contribution requirements set out in the first paragraph of this section have been met, anyone who [i] was united with the deceased at the time of [the deceased’s] death, forming a civil partnership, and [ii] who can prove that his [or her] income during the previous calendar year [amounted to] less than 50% of the sum of his [or her] own income plus that of the deceased during the same period, shall ... be entitled to a survivor’s pension. This percentage shall [amount to] 25% if there are no common children entitled to an orphan’s pension. However, entitlement to a survivor’s pension shall also be recognised when the survivor’s income amounts to less than 1.5 times the amount of the minimum inter-professional wage [the legal minimum wage that applies to all occupations unless otherwise established] ... at the time of the trigger event ( hecho causante ) [the death of the partner]; [this is] a requirement that must be met both at the time of the trigger event and during the period during which the benefit is received. The above-mentioned limit shall be increased by 0.5 times the amount of the current minimum inter-professional wage for each common child living with the survivor who is entitled to an orphan’s pension. Income from investments and assets – as well as from work – shall be considered to constitute income for the purposes of the calculation of [extra amounts to be awarded over and above] the minimum pension. For the purposes of the provisions of this section, a civil partnership shall be considered to be [a partnership] – analogous to that of marriage – formed by those who, not being prevented from getting married, [nevertheless] do not have a marital relationship with any other person and can prove, by means of the corresponding census registration certificate, a stable and generally-known [period of] cohabitation immediately prior to the death of the deceased ... [for] an uninterrupted duration of no less than five years. The existence of a civil partnership shall be recognised by means of a certificate of registration in one of the specific registers existing in the Autonomous Communities or town councils of the [couple’s] place of residence or by means of a public document recording the constitution of the said partnership. Both the above-mentioned registration and the formalisation of the corresponding public document must have taken place at least two years before the date of death of the deceased. In Autonomous Communities with their own body of civil law, if the requirement of cohabitation referred to in the previous paragraph is met, an assessment of the domestic partnership in question and its recognition as a civil partnership shall be carried out in accordance with the provisions of the respective legislation of [those Autonomous Communities] ...” 42.     Therefore, under the fourth sub-paragraph of section 174(3) of the LGSS, the general regime was such that, in order to establish a civil partnership for the purposes of being eligible to receive a survivor’s pension, the two following requirements had to be cumulatively fulfilled: (i) A substantive requirement that the partners have cohabited for at least five years prior to the death of the deceased person; (ii) A formal requirement that – at least two years prior to the death of the deceased person – the couple have been formally constituted as a civil partnership through its registration in a public register set up for this purpose or a notarial deed. The fifth sub-paragraph of section 174(3) of the LGSS set out an exception to the formal requirement established by general rule in the fourth sub ‑ paragraph of the same section – namely, that in Autonomous Communities with their own civil law, “recognition [of a couple] as a civil partnership and the recording thereof shall be carried out in accordance with the provisions of [the relevant] regulation”, provided that the five-year cohabitation requirement has been fulfilled. 43.     Catalonia is one of those Autonomous Communities that have their own civil-law regulations. Law 25/2010 concerning the person and the family, of Book   I of the Civil Code of Catalonia, provides as follows: Article 234-1 (Stable partnership) “Two persons living together in a commonly-shared life analogous to marriage are considered to be a stable couple in any of the following cases: (a) If the cohabitation lasts for more than two uninterrupted years. b) If, during the cohabitation, they have a common child. c) If they formalise the relationship in a notarial deed.” Therefore, following the entry into force of Law 40/2007 (which amended the LGSS), Catalonian couples could be considered to have formed a stable partnership without having to register it formally (provided that one of the above-noted requirements was met); moreover, were one member of such a couple to die, the surviving partner would have access to a survivor’s pension if her or she was economically eligible. 44.     In the light of the different requirements for the constitution of a civil partnership in the different Autonomous Communities, eligibility for a survivor’s pension also became subject to different criteria. Questions were raised about (i) compliance with the principle that all Spanish citizens are equal in the exercise of their rights and duties in the area of social security, and (ii) the public authorities’ constitutional mandate to maintain a unitary social security system guaranteeing all citizens uniform access to social benefits throughout the country. On 15 February 2014, the Labour Chamber of the Supreme Court lodged an appeal against the alleged unconstitutionality of the fifth sub-paragraph of section 174(3) of the LGSS. In particular, it considered that the fact that some Autonomous Communities had different criteria for recognising the existence of a civil partnership had the effect of also imposing different requirements that survivors had to meet in order to become eligible for a survivor’s pension, which could amount to discrimination on the grounds of the place of residence of the survivor. 45 .     By a judgment of the Constitutional Court (STC 40/2014) of 11 March 2014, published on 10 April 2014, the Constitutional Court ruled that the fifth sub-paragraph of section 174(3) of the LGSS was indeed unconstitutional, and it accordingly declared that provision null and void. The relevant excerpts of the said judgment stated as follows: “3. ... In effect, Law 40/2007 amended section 174 of the LGSS, and specifically, in its third sub-section, established those requirements that unmarried partners must meet in order to be eligible for a widow’s or widower’s pension. Thus, in addition to the requirements of registration, contribution and economic dependency, two simultaneous requirements are demanded of the surviving partner in order that [he or she] be able to obtain a survivor’s pension: a) on the one hand, stable and generally-known cohabitation immediately after the death of the deceased and with an uninterrupted duration of not less than five years (to be proved by means of the corresponding census registration certificate); and, b) on the other hand, the publicising of the cohabitation [of the couple in question] more uxorio , which requires (with a constitutive character and at least two years prior to the death) registration in a register of unmarried couples ([that is to say] in one of the specific registers existing in the Autonomous Communities or town councils of the place of residence) or in a notarial deed. As the Supreme Court has pointed out, the solution chosen by the legislature does not consist of a duplicated evidentiary requirement regarding the same point (the existence of [a stable union with the] unmarried partner); rather, section 174(3) of the LGSS refers to two different requirements: the material one (that is, cohabitation as a stable unmarried partner for a minimum period of five years immediately prior to the date of death of [his or her] deceased [partner]); and the formal one, ad solemnitatem (that is, verification that the partnership was constituted as such before the law and was in “an affectionate relationship that was analogous to a conjugal [relationship]” for [at least] two years prior to the trigger event. Thus, the widow’s/widower’s pension that the rule establishes does not benefit all unmarried couples with five years of [officially recognised] cohabitation, but only those couples who registered themselves as partners at least two years prior to the death of the deceased (or who formalised their relationship within the same time frame by means of a notarial deed) and who also met the above-mentioned requirement of cohabitation. On the other hand, the fifth sub-paragraph of section 174(3) of the LGSS refers to the legislation of those Autonomous Communities that have their own body of civil law concerning all matters relating to the “consideration” and “proof of existence” of unmarried partners, except for the “cohabitation requirement”. Thus, section 174(3) of the LGSS differentiates between two different regimes; which regime will apply shall depend on whether the unmarried partner resides in an Autonomous Community with its own body of civil law or not. Section 174(3) of the LGSS, as can be deduced from a literal interpretation [thereof], does not refer to the rules on civil partnerships approved by the vast majority of the Autonomous Communities; rather, it refers exclusively to the legislation on civil partnerships of those Autonomous Communities that have “their own [body of] civil law”. Thus, it may be the case that the specific legislation of Autonomous Communities with their own body of civil law establishes a definition of a civil partnership that differs from that provided in the fourth sub-paragraph of section 174 (3) of the LGSS, or that no registration or public document is required for the constitution of a civil partnership. If the concept of civil partnership and the proof of its existence in those Autonomous Communities with their own body of civil law was the same as that provided in the fourth sub-paragraph of section 174(3) of the LGSS, there would be no peculiarity; however, a problem arises in practice owing to the difference in criteria. ... 4. ... For the Supreme Court, the fifth sub-paragraph of section 174(3) of the LGSS may infringe the principle of equality before the law set out in Article 14 of the Spanish Constitution, as it may happen that, in the case of unmarried couples in identical factual situations [ en idéntica situación fáctica ], the right to a widow’s or widower’s (a survivor’s) pension may be recognised or denied solely [at the discretion of] the Autonomous Community in which they have their residence or neighbourhood, and more specifically, on the basis of whether or not that Community has its own body of civil law. Referral by the State legislature would also contravene Article 149 § 1 (17)   [of the Spanish Constitution].... 5. ... In fact, section 174 of the LGSS (under its wording following its amendment by Law 40/2007) has established two types of prior legal relationship between a deceased partner and his or her surviving partner that afford possible means of access to a widow’s or widower’s (survivor’s) pension: marriage, or a duly legalised civil partnership. As the explanatory memorandum to Law 40/2007 points out, the absence of a general legal regulation in respect of civil partnerships makes it essential to define (albeit exclusively for the purposes of social security [payments] the identifying characteristics of this situation. And this is precisely what section 174(3) of the LGSS does: it establishes the means of recognising the requirements for unmarried couples to access a [survivor’s] pension, a matter characterised by ... ‘a legal system whose limits include, among others, respect for the principle of equality’ and ‘the prohibition of arbitrariness’ ([Constitutional Court judgment] STC 134/1987, 21 July, FJ 4). Lastly, we must point out that, in addition to lacking sufficient justification, the application of the sub-paragraph in question could also lead to a disproportionate result, since – depending on the Autonomous Community of residence – the surviving partner may or may not have access to the corresponding pension. Consequently, we must conclude that it is not possible to deduce an objective, reasonable and proportionate purpose that would justify the establishment of differential treatment of applicants for the widow’s or widower’s pension on the basis of whether or not they reside in an Autonomous Community, with its own body of civil law, that has adopted specific legislation in respect of civil partnerships. 6. In order to eliminate the inequality arising from the fifth sub-paragraph of section 174(3) of the LGSS with regard to the means of proving the existence of civil partnerships, in relation to the fourth sub-paragraph of the same section, the Chamber (regarding the question of the unconstitutionality [of the fifth sub-paragraph of section 174(3) of the LGSS]) proposes as an alternative that the reference in the fifth sub-paragraph to the specific legislation of those Autonomous Communities with their own [respective bodies of] civil law be understood as being made to the laws concerning civil partnerships of [all] Autonomous Communities – whether or not they [in fact] have their own civil law. However, [even] if this solution were to be accepted, the inequality arising from the very diversity of those Autonomous Community laws concerning civil partnerships would persist, because the basic problem that the provision in question raises is not the limitation of the reference to those Autonomous Communities with their own [body of] civil law, but the reference to the Autonomous Community legislation itself when it comes to determining the requirements for access to a social security benefit. Consequently, the conclusions reached in the examination of the constitutionality of the sub-paragraph of the section in question must be extended by way of connection or consequence (by virtue of section 39(1) of the Organic Law of the Constitutional Court) to the whole of the fifth sub-paragraph of section 174(3) of the LGSS. For all of the above reasons, we must uphold the question raised in respect of the unconstitutionality of [the fifth sub-paragraph of section 174(3) of the LGSS], and declare [that provision] unconstitutional and null and void owing to its violation of Article 14 of the Spanish Constitution in conjunction with Article 149 § 1 (17) of the Spanish Constitution. At this point, it is necessary to rule on ... the effects of our declaration of unconstitutionality and nullity, which – in accordance with the doctrine contained in, among many others, [ Constitutional Court judgment] STC 45/1989, of 20 February, paragraph 11; 180/2000, of 29 June, paragraph 7; 365/2006, of 21 December, paragraph   8, and 161/2012, of 20 September, paragraph 7 – will not only have to [maintain the principle of] res judicata (section 40(1) of the Organic Law of the Supreme Court), but also, by virtue of the constitutional principle of legal certainty (Article 9 § 3 of the Spanish Constitution), extend in this case to possible final administrative situations, such that this declaration of unconstitutionality will only be effective pro futuro – that is, in relation to new cases or to administrative proceedings and judicial proceedings where a final decision has not yet been handed down.” 46.     Under Constitutional Court judgment STC 40/2014, the LGSS was repealed and replaced by a new General Social Security Act, approved by Royal Legislative Decree 8/2015. 47 .     Some case-law of the Spanish Supreme Court concerning the means of proving the existence of a civil partnership after Law 40/20107 came into force may be relevant to the case at hand: Judgment of the Supreme Court (Social Chamber) no. 5121/2014 of 4 November 2014: “... The legally correct doctrine is that contained in the Supreme Court judgment of 28 November 2011, invoked in contrast ...; this doctrine establishes, in short, the application of the essential general principle of law of ad impossibilia nemo tenetur (no one may be obliged to do the impossible), exempting [the claimant] not from the requirement of formalisation as a civil partnership, but from the additional requirement that this formalisation must have taken place [at least] two years prior to the death of the deceased, because such a requirement is impossible in cases where death occurs prior to the expiry of this period, calculated ... from 01-01-2008 (the date of the entry into force of the rule providing this additional requirement) ... The above-mentioned doctrine being applied to the case at hand – in which, as has already been mentioned, the plaintiff and the deceased lived together at the same address for more than ten years, having two daughters in common and having requested [that their partnership] be constituted as a civil partnership after the entry into force of Law 40/2007 (a request that was granted on 4 March 2008, the deceased subsequently dying on 10 April 2009) – the appeal must be upheld, in accordance with the information provided by the Public Prosecutor’s Office. ... Law 40/2007 does not contain any temporary provision in respect of cases such as this one; [therefore,] provided that the rest of the legal provisions are met, literal compliance with the above-mentioned time requirement that the registration must have taken place ‘at least two years before the date of death of the deceased’ cannot be required in the event that such compl