Legal summary

January 2023

Domenech Aradilla and Rodríguez González v. Spain - 32667/19 and 30807/20

Judgment 19.1.2023 [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 to applicants based on unforeseeable retrospective application of a new eligibility requirement: violation

Facts – The applicants requested a survivor’s pension shortly after their respective partners’ death. Neither couple were married but had lived together in excess of 5 years in the Catalonia region, with the first applicant expecting her partner’s child when he died. During the period when the applicants’ applications were pending before the administrative authorities, a judgment of the Constitutional Court was delivered ushering in a new requirement that a partnership must have been formalised in a register or notarial deed at least two years before the death of one of the partners in order for the surviving partner to qualify to receive a survivor’s pension. The change was prompted by a desire by the Constitutional Court to uniformise the legal regime applicable in all parts of Spain (the formal registration requirement was already applicable in some regions).

Both applicants’ requests for a survivor’s pension were dismissed administratively. The domestic courts eventually decided that the Constitutional Court’s judgment was applicable to situations where an administrative decision was not yet final and therefore dismissed the applicants’ appeals.

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 applicants complied with the requirements to become eligible for a survivor’s pension on the date on which their respective partners died. Under the relevant legislation, as in force at that specific moment and applicable to the applicants, neither of them needed to have been formally registered in a specific register or by a public notary as being in a civil partnership in order to benefit from a survivor’s pension. Neither had there been a requirement, applicable to them, that such registration had to pre-date the respective partner’s death by at least two years. Since they both met the other legal requirements, it was undeniable that at the said moment, both applicants could have entertained a “legitimate expectation” that they were eligible to receive a survivor’s pension. Despite the applicants at the time of lodging their application with the Court no longer satisfying the conditions of entitlement to the benefit in question laid down in national law, Article 1 of Protocol No.1 was applicable.

(b) Compliance with Article 1 of Protocol No. 1

The refusal of the applicants’ application for a survivor’s pension had been an interference with their right to the peaceful enjoyment of their possessions. The impugned measures, specifically the Constitutional Court judgment and the subsequent legislation as applied to the applicant’s cases complied with the requirement of lawfulness and pursued the general interest in eliminating a previous difference in treatment on the grounds of place of residence.

Assessing the proportionality of the interference, the Court noted that survivor pensions were statistically generally awarded to women, who were significantly more often placed 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. That consideration was relevant in the assessment of the burden the applicants had had to bear. Concerning the Constitutional Court’s judgment neither that court, nor the legislation adopted after had taken into account the specific situation of persons as the applicants who had become fully eligible for a survivor’s pension, and had formally requested it, prior to the Constitutional Court’s decision to proceed to uniformising the legal regime applicable in all parts of Spain. No transitional measures for such situations had been provided for. Therefore, the impugned measure had been unexpected in the context of the present case.

In respect of the second applicant, the only reason why the proceedings related to her pension requests had been still pending at the time of publication of the Constitutional Court judgment was due to an erroneous assessment of her not having met the five-year cohabitation requirement by the competent insurance body which had rejected her request. For the first applicant, she had obtained a judicial decision recognising her right to the pension but that decision had been set aside with reference to the new eligibility requirement that had not existed at the time when she applied for a survivor’s pension. The Court considered that the above constituted, in essence, a form of retroactive application of a new, more stringent, eligibility requirement to cases in which the persons concerned had had all reasons to consider that they had an acquired right to a pension.

The requirement that a partnership be formalised at least two years before the death of one of the partners in order that the other partner be eligible for a survivor’s pension was in reality an additional safeguard that helped the public authorities to prevent fraud and to ensure that survivor’s pensions were only allocated for their intended purpose – namely, to protect a vulnerable surviving member of a stable partnership who had been economically dependent on the deceased partner. However, it was highly relevant that, since the applicants’ partners had been already deceased by the time that the Constitutional Court introduced a new eligibility requirement, there was no way that they could have met the new requirement.

The absence of any transitionary period to allow a reasonable solution for those surviving partners who saw the legislative change enter into force when their application for a survivor’s pension was already underway 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 applicants, 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 applicants 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 legislative change effectively imposed on a certain category of persons a new condition for entitlement to the survivor’s pension, whose advent had not been foreseeable and which, without a transitionary period, they could not have possibly satisfied once the new legislation entered into force. The lack of any transitionary period had therefore been a key element impacting on the individual burden placed on the applicants, who had only very limited income.

The otherwise legitimate aim of the impugned measures could not justify their retrospective effect, affecting adversely legal certainty, and the absence of transitional measures. The impugned measures had imposed an excessive burden on the applicants.

Conclusion: violation (unanimously).

Article 41: EUR 8,000 awarded to each applicant in respect of non-pecuniary damage. Claim in respect of pecuniary damage dismissed.

(See also Kjartan Ásmundsson v. Iceland , 60669/00, 12 October 2004, Legal Summary ; Pressos Compania Naviera S.A. and Others v. Belgium , 20 November 1995, Legal Summary ; Béláné Nagy v. Hungary [GC], 53080/13, 13 December 2016, Legal Summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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