CEDH · CASELAW;CLIN;ENG — 26 janvier 2023

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Spain - 22386/19 Judgment 26.1.2023 [Section V] Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Peaceful enjoyment of possessions Refusal by domestic authorities to grant survivor’s pension based on unforeseeable application of a new eligibility requirement impossible for the applicant to comply with: violation Facts – The applicant requested a survivor’s pension shortly after her partner’s death with whom she had a daughter and although not being married had been living together in excess of eight years in the Catalonia region. Three days before her partner’s death they had formally registered their civil partnership. The administrative authorities dismissed 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 death – a new requirement ushered in by a judgment of the Constitutional Court three months before her partner’s death. This change was prompted by a desire to uniformise the legal regime applicable in all parts of Spain (the formal registration requirement was already applicable in some regions). The applicant’s appeals to the domestic courts were also dismissed on similar grounds that she had lodged her application after the Constitutional Court judgment had come into effect and therefore was not eligible to receive a survivor’s pension as a result of not having a formally registered partnership earlier. Law – Article 1 of Protocol No. 1: (a) Whether Article 1 of Protocol No. 1 is applicable – The legislation should have been assessed to verify whether the applicant complied with the requirements to become eligible for a survivor’s pension on the date which her partner died. Under the relevant legislation, as in force at that specific moment, she needed to have been formally registered as being in a civil partnership in a specific register or by means of a notarial deed for two years. The applicant and her partner had met the other legal requirements and economic criteria to be eligible for a survivor’s pension before the Constitutional Court’s judgment came into force and could legitimately rely on her obtaining such a pension, in the event of a partner’s death. The requirement to formalise their civil partnership had only been introduced three months prior to the death of the applicant’s partner, and they had proceeded to register the partnership within a reasonable time but simply had not been able to meet the two year period requirement because he died three days after the formalisation. Therefore, the applicant could have entertained a “legitimate expectation” that she was eligible for a survivor’s pension and Article 1 of Protocol No. 1 was applicable. (b) Compliance with Article 1 of Protocol No. 1 – The refusal of the applicant’s application for a survivor’s pension had been an interference with her right to the peaceful enjoyment of her possessions. The impugned measures, specifically the Constitutional Court judgment and the subsequent legislation as applied to the applicant’s case fell to be examined under the “control of the use of property” rule of Article 1 of Protocol No. 1. They complied with the requirement of lawfulness, pursuing the general interest in eliminating a previous difference in treatment on the grounds of place of residence. Assessing the proportionality of the interference, the Constitutional Court’s judgment had introduced a legislative change ushering in a new legal requirement that objectively could not be met by the applicant: although she and her partner promptly formalised their partnership, he had died before two years had elapsed, and neither the Constitutional Court nor the legislature had provided for any transitional period for such cases. Therefore, the legal reform had not been foreseeable for the applicant and persons in the same situation. The Court recognised that the requirements for having access to a survivor’s pension changed before the applicant became eligible for that benefit. However, prior to this change the applicant had been eligible in case of death of her partner. Therefore, the impugned measure had been unexpected in the context of the present case. The authorities had not established the necessary measures to avoid that people who had until the Constitutional Court judgment complied with the necessary requirements became, unforeseeably, prevented from being eligible to the pension. The domestic courts had not upheld the applicant’s arguments that the condition had been impossible for her to meet and she should have therefore been exempted from it. Although the reversal of a previous difference in treatment constituted a compelling reason of general interest, this general principle could not prevail automatically in a situation where the individual concerned had been required to bear   an excessive burden as a result of a measure divesting him or her of a legitimate expectation. The Court also noted that survivor pensions were significantly more often awarded to women, who were in a disadvantageous or vulnerable situation of financial dependency from their partners and found themselves in need of social benefits following the partner’s death. The requirement to formalise a partnership at least two years before the death of one of the partners in order for the other partner to be eligible for a survivor’s pension was in reality an additional safeguard that enabled the public authorities to prevent fraud and to ensure that survivor’s pensions were only allocated in accordance with their intended purpose – namely, to protect the vulnerable member of a stable couple, who was economically dependent on the person who has died. Prior to the Constitutional Court’s judgment, the applicant and her partner had been living together uninterruptedly for more than eight years, they had a child in common, and in the light of their economic situation, the applicant had had a legitimate basis for assuming that she would be eligible for a survivor’s pension in the event of her partner’s death. It had not been alleged that the fact that they had formalised their relationship only three days before her partner died could be taken as an indication of fraud. The three months that it had taken the applicant and her partner to comply with the new legal requirement could not be seen as unreasonable. The absence of any transitionary period for unmarried couples to make adequate arrangements to respond to the impending change to their eligibility for a potential survivor’s pension had not been alleviated by any positive measures on the part of the legislature. The Government had not explained why the general interest could not have been achieved without imposing such a serious consequence on the applicant, all the more so as the impugned difference of treatment was attributable to public authorities. There had not been compelling reasons of general interest which justified not establishing a transitionary period for the applicant and people in the same category of persons to be considered in compliance with the requirements and not become immediately prevented from being eligible for the pension. The lack of any transitional period in which to comply with the new requirements resulted in practice in the applicant being prevented, once and for all, from obtaining a survivor’s pension which she could have legitimately expected to benefit from. The applicant had not been given the possibility to comply with the new requirement, since it was not known in advance. The requirement to formalise the partnership at least two years before the death of one of the partners simply turned out to be, in the applicant’s case, one of impossible observance. No particular urgency justifying a refusal to envisage a transitional regime, taking due account of existing legitimate expectations, appeared to have existed in the particular circumstances of the present case. The otherwise legitimate aim of the impugned measures could not justify the absence of transitional arrangements corresponding to the particular situation in cases such as that of the applicant. Such a fundamental interference with the applicant’s rights was disproportionate and inconsistent with preserving a fair balance between the interests at stake. Conclusion: violation (four votes to three). Article 41: no claim in respect of damage. (See also Pressos Compania Naviera S.A. and Others v. Belgium , 17849/91, 20 November 1995, Legal Summary ; Kjartan Ásmundsson v. Iceland , 60669/00, 12 October 2004, Legal Summary ; Béláné Nagy v.   Hungary [GC], 53080/13, 13 December 2016, Legal Summary ; Domenech Aradilla and Rodríguez González v. Spain, 32667/19 and 30807/20, 19 January 2023, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .