CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 janvier 2023

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text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s35008A5F { width:18.55pt; display:inline-block } .sAD92BA88 { width:125.76pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .s53E9AB06 { margin-top:36pt; margin-bottom:0pt; text-align:right; page-break-inside:avoid; page-break-after:avoid } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s1721E4C5 { margin-top:14pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid }   FIFTH SECTION CASE OF VALVERDE DIGON v. SPAIN (Application no. 22386/19)     JUDGMENT Art 1 P1 • Peaceful enjoyment of possessions • Refusal by domestic authorities to grant survivor’s pension due to unforeseeable application of a new eligibility requirement impossible for the applicant to comply with • Excessive burden on applicant • Unjustified absence of transitionary period for legislative change • Fair balance between competing interests not struck   STRASBOURG 26 January 2023   FINAL   22/05/2023     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Valverde Digon 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 application (no.   22386/19) 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 a Spanish national, Ms Sofia Valverde Digon (“the applicant”), on 16 April 2019; the decision to give notice of the application to the Spanish Government (“the Government”); 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 applicant. She complains under Article 1 of Protocol   No. 1 that the authorities failed to have regard to the objective impossibility for her to comply with a formal registration requirement which did not apply to her case prior to a 2014 judgment of the Constitutional Court. She further stated that the impugned refusal amounted to discrimination, under Article   14 of the Convention read in conjunction with Article 1 of Protocol No. 1, in respect of surviving members of partnerships whose partners had died before the Constitutional Court judgment or more than two years after the delivery of that judgment. THE FACTS 2.     The applicant was born in 1978 and lives in Valdepeñas. The applicant was represented by Mr A.F. Holgado Torquemada, a lawyer practising in Ciudad Real. 3.     The Government were represented by their Agent, Mrs H.E. Nicolás Martínez, Co-Agent of the Kingdom of Spain to the European Court of Human Rights. 4.     The facts of the case may be summarised as follows. RELEVANT BACKGROUND 5.     The applicant and her partner had been living together in Santa Coloma de Gramanet, Catalonia, since 10 February 2006, and they had been registered as resident in the municipality ever since their arrival. They had already bought an apartment together in December 2004. On 18 November 2008 they had a daughter. On 22 July 2014, the applicant and her partner formalised their stable civil partnership by means of a notarial deed. In the deed, they declared that they had formed a stable civil partnership (albeit not registered at that time) in 2005. 6.     The applicant’s partner died on 25 July 2014, three days after the formal registration of their civil partnership. The applicant was designated as her partner’s heir in his will. 7.     The applicant lodged an application for a survivor’s pension on 12   September 2014, asserting that she met both the relevant economic requirements and the status civil partnership requirements. 8.     The applicant moved from Santa Coloma de Gramanet, Catalonia, to Ciudad Real, in Castilla La Mancha, on 17 September 2014. The administrative proceedings 9.     On 16 September 2014, the National Institute of Social Security (hereinafter, “INSS”) issued a decision dismissing the applicant’s application on the grounds that she had failed to meet the requirement of having registered her civil partnership with the deceased at least two years prior to his or her death under the fourth sub-paragraph of section 174(3) of the General Act on the Social Security (hereinafter, “LGSS”) in the wording given by Law 40/2007 (see paragraphs 21 and 25 below). The INSS also stated that the applicant had not demonstrated that she met the relevant economic requirements to be eligible for the pension, and that neither she nor her partner had demonstrated that they had not previously been married to anybody else. 10.     The applicant appealed against the decision; the appeal was dismissed on 21   October 2014 by a decision of the INSS’s Provincial Director in Barcelona. The Director’s decision deemed that Constitutional Court judgment STC 40/2014 was already applicable to the case and that as a result she did not meet the formal requirement of having registered her civil partnership two years before her partner’s death in order to be eligible to receive a survivor’s pension. It reiterated that the applicant had not demonstrated that she had met all the eligibility requirements. the domestic judicial proceedings 11.     On 6 November 2014, the applicant lodged a judicial appeal against the INSS’s decisions with Labour Court no. 2 of Ciudad Real, reiterating that she had unequivocally demonstrated that she had cohabited with her deceased partner for five uninterrupted years, and that the fifth sub-paragraph of section   174(3) of the LGSS and Article 234-1 of the Catalan Civil Code had not stipulated that there was any need for her partnership to be registered. She asserted that ultimately, the existence of a civil partnership could be considered to have been formally proved by other means. 12.     On 11 April 2016, the Labour Court dismissed the appeal, holding that the requirement to have been registered two years prior to the death of the deceased partner was applicable. Constitutional Court judgment STC   40/2014 had been published on 11 April 2014 and had a pro futuro effect (that is, it concerned new cases or administrative proceedings), and the applicant had lodged her application for a survivor’s pension on 12   September 2014. As a consequence, her case was affected by the new regulation, which required all civil partners not only to have cohabitated uninterruptedly for at least five years, but also to have formally registered their partnership at least two years before the death of one of the partners in order for the other partner (subject to meeting all other economic requirements) to be eligible for a survivor’s pension. The judicial decision did not rule on the compliance or lack of compliance of the applicant with the economic requirements for qualifying for a survivor’s pension or on the question of whether or not the partners had been previously married, which had also been questioned by the INSS. 13.     The applicant lodged another appeal, which was also dismissed by the High Court of Justice of Castilla La Mancha (hereinafter “the HCJ”) on 18   May 2017 on the grounds that at that point there was well-established case-law according to which a civil partnership could only be formally established by registering the partnership in a specific register or by means of a notarial deed, and that this should have been done at least two years prior to the death of one of the partners. The judgment insisted that the legislature had had the clear intention of not automatically recognising the eligibility for a survivor’s pension of all members of a stable couple, but only the eligibility of those who (i) had willingly formalised their respective partnerships through one of the available methods (namely, entry in a register or by means of a notarial deed), and (ii) had done so at least two years prior to the death of one of the partners. The applicant simply had not met those requirements. 14.     She then lodged an appeal on points of law with the Labour Chamber of the Supreme Court, which declared it inadmissible on 25 April 2018 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 an amparo appeal with the Constitutional Court complaining of a violation of her right not to be discriminated against, given the fact that a survivor of an unregistered civil partnership in Catalonia would be treated differently depending on whether the death of his/her partner had taken place before the date on which Constitutional Court judgment STC 40/2014 had been adopted, in the two years following it, or two or more years after that date. She also alleged that there had been a violation of her right to effective judicial protection, because registering her partnership with the deceased two years before the latter’s death had been impossible in view of the date of that death. On 16 October 2018 the Constitutional Court declared the amparo appeal inadmissible owing to the case’s lack of any particular constitutional relevance. RELEVANT LEGAL FRAMEWORK AND PRACTICE 15.     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.” 16.     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. 17.     Although religious marriage is possible, marriage under Spanish law may be strictly civil. 18.     The Constitutional Court has held that there is no general constitutional parity between married and unmarried partners, and that the legislature has discretion to treat married and unmarried partners differently 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). 19.     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. 20.     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. 21 .     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] ...” 22.     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. 23.     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 he or she was economically eligible. 24.     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. 25 .     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 disparity of the 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.” 26.     According to the Constitutional Court, those applications for survivor’s pensions which were underway at the time of the entry into force of the judgment would be impacted by the declaration of unconstitutionality as long as a final administrative decision had not been handed down yet. The declaration of unconstitutionality also applied to all new applications received after the entry into force of the judgment. 27.     Shortly after the entry into force of 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. 28 .     Some case-law of the Spanish Supreme Court concerning the means of proving the existence of a civil partnership after Law 40/2007 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 compliance is impossible. In the present case, there is evidence that the couple carried out their public registration with adequate diligence, given that the registration took place two months and a few days after the entry into force of the above-mentioned Law (a reasonable [period of] time and one that indicates adequate diligence on the part of [the couple], who registered themselves as a common-law couple in the register ...” Judgment of the Supreme Court (Social Chamber) regarding appeal no. 286/2011 of 28 November 2011: “... The contradiction between the two judgments lies in the fact that the judgment of the High Court of the Balearic Islands states that, with or without registration, in cases such as those examined (in which death occurred only a few months after the entry into force of Law 40/2007), the required registration or public documentation of the unmarried couple two years in advance ‘was impossible unless it had been fulfilled before the enactment of the law establishing it’ ... As stated above, the death occurred on 17 February 2009 (i.e. one year and forty-eight days after the above-mentioned legal requirement came into force); thus, as rightly reasoned in the lower-court judgement that was overturned by the judgement under appeal today, given that Law 40/2007 does not set out any temporary provision for cases such as this (unlike the benefits arising in respect of deaths that occurred before its entry into force), it is not possible to request, when the rest of the legal provisions are met, literal compliance with the above-mentioned time requirement in cases in which such compliance is impossible and there is evidence that the couple carried out their public registration with adequate diligence (given that [that registration] took place two months and a few days after the entry into force of the Law – a reasonable [period of time [that] indicates an adequate level of diligence on the part of [the couple], who registered as unmarried partners in the register after gathering the documentation required by section 5 of the above-mentioned regulation of the Autonomous Community [in question]).” Judgment of the High Court of Catalonia (Social Chamber), appeal no. 2122/2021 of 15 April 2021: “... The applicability of a Constitutional Court judgment declaring a provision unconstitutional, and the effects thereof, are determined by section 40(1) of the Law on the Constitutional Court; but even if this is the case, it should not be applied in a generalised manner when there are circumstances that, if not addressed, would place the person in an unjust [or] even an arbitrary situation, which our legal and constitutional law cannot and should not allow. [T]he present case, unlike others that this Court has heard, [is] clearly [exceptional], and it should be treated as such. The obligation to formalise a domestic partnership by means of a notarial deed or registration in the register created by the Autonomous Community [in question] was established by Law 40/2007 and [was] required as of 1   January   2008 – that is, more than twelve years after the deceased was no longer able to act for herself owing to the serious neurological condition from which she suffered, and thus after she was unable to assume the obligations and rights arising from the constitution of a civil partnership of her own free will. This incapacity remained unchanged after the above-mentioned Constitutional Court judgment of 2014 until her death in 2018. In the case at hand, the plaintiff was not able to demonstrate the formal “constitution” of the civil partnership in question in the manner required by the relevant rule, for reasons beyond his control – either because ... he had no need or obligation to do so, or because when he could and should have registered [the partnership], his partner was absolutely incapable of giving her consent. In this case, the failure to [meet] the formal requirement cannot, despite the INSS’s assertions, receive the same legal treatment as those other situations involving couples who have never proven the existence of any [issue, problem, matter] limiting their capacity to give their consent to the constitution of a civil partnership of their own free will. Moreover, in these proceedings it was established that the couple had been living together uninterruptedly since 1987, and they met the rest of the requirements, so the plaintiff would be entitled to a survivor’s pension. This Court recognises that the argument made by the INSS is formally correct, and that if it were not for the exceptional nature of this case, we would have to agree with it. [However], our obligation goes beyond the simple general application of the [relevant] rule – we must resolve the specific case; ... if the [relevant] rule or case-law does not offer any answer in this respect, the obligation of this Chamber is to [develop and bring to completion] the rule and to do so with absolute respect for the constitutional dimension of the right of every citizen to obtain adequate protection provided for in our social security system (Article 41 of the Spanish Constitution) ...” THE LAW THE APPLICANT’S COMPLAINT AND ITS LEGAL CLASSIFICATION 29 .     The applicant complained of the refusal of the authorities to grant her a survivor’s pension. She considered that the authorities failed to have regard to the objective impossibility for her to comply with a formal registration requirement which did not apply to her case prior to a 2014 judgment of the Constitutional Court. She further stated that the impugned refusal amounted to discrimination in respect of surviving members of partnerships whose partners had died before the Constitutional Court judgment or more than two years after the delivery of that judgment. She invoked Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 to the Convention. 30 .     The Court, being the master of characterisation to be given in law to the facts of the case, considers that this complaint falls to be examined under Article 1 of Protocol No. 1 to the Convention taken alone. That provision reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” ADMISSIBILITY The parties’ submissions The Government 31.     According to the Government, the applicant’s complaint was incompatible ratione materiae with the provisions of the Convention. However, they considered that this ground of inadmissibility was directly related to the merits of the case, which the Government examined jointly. 32.     The Government also held that the applicant had failed to exhaust the available domestic remedies, as required under Article 35 § 1 of the Convention, on two grounds: (i) she had pursued an ineffective remedy in appealing against the decision not to grant her a survivor’s pension, when an effective remedy had been available to her; and (ii) she had not raised her complaint with the Court previously with the domestic authorities (to whom she raised the issue from a different perspective, citing different legal provisions). 33.     As to the first part of their objection, the Government held that the applicant had lodged an appeal against the INNS’s decision to dismiss her application for a pension (and further appeals after that), when she should have known that the decision had been based on the new requirement provided by Constitutional Court judgment STC 40/2014, which she had not met. The Government argued that, given the binding nature of the Constitutional Court’s judgments on all public authorities, neither the INSS nor the domestic courts could disregard the requirement that civil partnerships be formalised; hence, a judicial appeal against the decision could not be considered to constitute an effective remedy. However, the Government considered that she could have sought another type of remedy: a request for the State to be held liable on the grounds of the damage caused by a regulation that had later been declared unconstitutional – that is, to claim a pension by way of compensation for damage caused by the legislative reform resulting from the declaration of the unconstitutionality of the provision that had recognised her right to a pension. 34.     Concerning the second part of their objection, the Government considered that the complaint made by the applicant in her application was one about alleged discrimination under Article 14 in conjunction with Article   1 of Protocol No. 1 and noted that at no point in the domestic proceedings, save the proceedings before the Constitutional Court, had the applicant complained of a breach of the principle of equality and non-discrimination.   The applicant 35.     The applicant held that she had had a legitimate expectation of receiving a survivor’s pension and that, as a result, Article 1 of Protocol   No.   1 to the Convention was applicable to her complaint. 36.     The applicant contested the Government’s objections about an alleged non-exhaustion of domestic remedies. First, she held that the appeals that she had lodged against the decision to reject her application for a pension had constituted the only logical administrative and judicial course of action open to her. She also pointed to other cases where a similar remedy had led to the overturning of an initial refusal by the INSS to grant a pension; therefore, it constituted an effective remedy. 37.     As to the second part of the Government’s objection, the applicant claimed that she had indeed at the various domestic instances raised the issue of discrimination. The Court’s assessment Inadmissibility ratione materiae 38.     The Court notes that the question of whether or not the applicant had a legitimate expectation of being awarded a survivor’s pension (and, as a consequence, whether Article 1 of Protocol No. 1 applied) is inextricably linked to an assessment of the merits of the case; consequently, it should be joined to the merits. Non-exhaustion of domest