JOINT CONCURRING OPINION OF JUDGES ELÓSEGUI AND ŠIMÁČKOVÁ

1. We fully agree with the Chamber’s decision to find a violation of the applicant’s legitimate expectations, and we concur with the finding of a violation of Article 1 of Protocol No. 1 to the Convention.

2. We regret, however, that the Chamber has overlooked the applicant’s argument that there has been a violation of the prohibition of discrimination (Article 14 of the Convention) in respect of her property rights. In our view, this case represents a typical example of an androcentric perception of law and lack of sensitivity to the life trajectories of persons in weaker social and societal positions, who are much more likely to be women.

3. The Spanish Constitutional Court found unconstitutional the situation in Catalonia, where, unlike in other parts of Spain, no formal partnership had previously been required to obtain a survivor’s pension. Before that ruling, it had sufficed to fulfil the substantive requirements of cohabitation, economic dependence and childcare. The Constitutional Court further decided that applications for survivor’s pensions in respect of which a final administrative decision had not yet been handed down at the time the judgment took effect would be impacted by the declaration of unconstitutionality. That declaration would also apply to all new applications received after the judgment took effect. Persons who had relied on the original regulation and whose partners had died within the relevant period found themselves in an impasse. As the Chamber points out in the reasoning of this judgment, the lack of any transitional provisions, combined with insensitive interpretation of the Constitutional Court’s decision by the relevant authorities in individual cases, meant that some applicants for a survivor’s pension simply could not fulfil the newly established formal requirements.

4. The Constitutional Court ruled without taking into account the importance of the pension for the lives of the persons concerned. According to statistics provided by the Instituto Nacional de la Seguridad Social at the Court’s request, more than 90% of the beneficiaries of this pension in Spain are women. After the death of a partner, those women are also very likely to be in a vulnerable position, not only economically but also socially. Neither the legislator, nor the administrative authorities, nor the courts deciding this and other similar cases have paid sufficient attention to this vulnerability.

5. Survivor’s pensions constitute a fundamental pillar of the Spanish welfare state in that they prevent situations of poverty during old age for a large number of women. Indeed, 92% of survivor’s pensions are received by women, 40% of whom are not entitled to a retirement pension because they have not contributed enough. For men, on the other hand, survivor’s pensions do not play an important role. The main reason is that men have a lower life expectancy than women, but also that, unlike women, most men are entitled to a retirement pension. In fact, there is significant gender inequality in contributory pensions in Spain. The survivor’s pension reduces the gender gap in pensions which is attributable to men and women’s unequal participation in the labour force. As subsequent generations of Spanish women have joined the global workforce in greater numbers, the gap in social security contributions has narrowed. According to data from 2017, it is likely that within about twenty years the vast majority of Spain’s retired women will receive a retirement pension, and the survivor’s pension will no longer play the essential role it plays today in avoiding poverty for women in their old age (see Fuster L., “Las pensiones de viudedad en España” in Fundación de Estudios de Economía Aplicada, Estudios sobre la Economía Española (2021) no. 06, abstract).

6. We emphasise that no one has disputed that the applicant had met the substantive requirements for a grant of a survivor’s pension before those requirements changed. She had been cohabitating with her partner for at least five years, had children with him and was economically dependent on him. Most importantly, the applicant was not given an opportunity to comply with the new requirements, since she did not know them in advance. The new requirement to formalise the partnership at least two years before the death of the other partner simply turned out to be, in the applicant’s case, impossible to fulfil. It was entirely because of the lack of fair transitional provisions or conditions that the persons affected were unable to meet the newly imposed requirement of formal constitution of a civil partnership at least two years before the death of the partner on whom they were economically dependent. This requirement could not be met where the other partner had died before the partnership could be formalised or before the newly set time ‑ limit expired.

7. We understand the reasons behind the decision of the Constitutional Court and are aware that it is not for this Court to interfere with national policy concerning social and economic rights in the member States. That being said, we must point out that the national authorities failed to take into account the individual life stories of a certain group of persons – unprivileged, unmarried, economically dependent women with children – and did not consider the details of their lives. Because of their different life trajectories, the only group hit hard by the change in regulation was unmarried and dependent (and thus unprivileged) women, as evidenced by the gender and life stories of the applicant and other persons in similar circumstances. We are confident that regulation could have been enacted in a way that was fair and did not create an unattainable and seemingly discriminatory threshold for certain people in vulnerable positions.

8. A general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory even where it is not specifically aimed at that group and even if there is no discriminatory intent. This is only the case, however, if such policy or measure has no “objective and reasonable” justification (see, among other authorities, Biao v. Denmark [GC], no. 38590/10, § 91, 24 May 2016; S.A.S. v. France [GC], no. 43835/11, § 161, ECHR 2014 (extracts); and D.H. and Others v. the Czech Republic , no. 57325/00, §§ 175 and 184-85, ECHR 2007-IV). The absence of transitional provisions or conditions in the case of the introduction of a new formal requirement for obtaining a pension does not, in our view, have a fair explanation.

9. The State authorities that introduced (the Constitutional Court) and applied (the administrative authorities and administrative courts) the new requirement must have been aware of the situation in which some persons ‑ predominantly women – found themselves. First, they had fulfilled the requirements in the past, but that did not suffice. Second, if they wanted to fulfil the new requirements, time worked against them. Not only were they left with an emotional void after having lost their loved ones; they also found themselves in a legal void, not being able to fulfil the pension requirements, and in an economic void, having no income and not qualifying to receive the survivor’s pension.

10. In cases of domestic violence, where the victims are most often women, the Court has not hesitated to find violations not only of Articles 2 and 3, but also of Article 14 (see, for example, Opuz v. Turkey , no. 33401/02, ECHR 2009; Talpis v. Italy , no. 41237/14, 2 March 2017; Tunikova and Others v. Russia , nos. 55974/16 and 3 others, 14 December 2021; Eremia v. the Republic of Moldova , no. 3564/11, 28 May 2013; and Tkhelidze v. Georgia , no. 33056/17, 8 July 2021). In the present case, we also witness a situation where a seemingly neutral problem is, in fact, not neutral at all. Let us not remain blind to the fact that the respective national authorities ‑ the Constitutional Court, the legislature, the administrative authorities and the national courts that ruled in individual cases – did not take into account the fact that the change in requirements disproportionately affected unprivileged and vulnerable women, much more than anyone else. Where a national policy that hits someone very hard financially cannot be foreseen or prevented, an issue may arise in relation to the right to property. Where such a policy negatively impacts a group which largely overlaps with a vulnerable segment of the population, there also arises an issue of (indirect) discrimination. We are thus led to conclude that this case also engages Article 14.

11. Moreover, the application of Article 14 in conjunction with Article 1 of Protocol No. 1 may be persuasive to those who do not find that Article itself to be applicable in this case in the light of our previous case ‑ law. Indeed, it is precisely the conjunction with Article 14 that extends the applicability of the law in question. The application of Article 14 does not necessarily presuppose a violation of one of the substantive rights guaranteed by the Convention. It is necessary, but it is also sufficient, for the facts of the case to fall within the ambit of one or more Convention Articles. Likewise, the prohibition of discrimination enshrined in Article 14 extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to secure. It applies also to those additional rights, falling within the ambit of any Convention Article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court’s case‑law (see, among many other authorities, Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 39, ECHR 2005-X; Andrejeva v. Latvia [GC], no. 55707/00, § 80, ECHR 2009; and Beeler v. Switzerland [GC], no. 78630/12, § 48, 20 October 2020). Article 14 of the Convention is pertinent if “the subject matter of the disadvantage ... constitutes one of the modalities of the exercise of a right guaranteed ...” or if the contested measures are “linked to the exercise of a right guaranteed ...” (see Konstantin Markin v. Russia [GC], no. 30078/06, § 129, ECHR 2012 (extracts)).

12. We are convinced that this case falls within the ambit of the right to protection of property and that the lack of protection of the rights of the woman concerned is due to her being a part of an under-represented group and to the fact that survivor’s pension beneficiaries are overwhelmingly women.

13. It is certainly a good thing that the applicant will ultimately receive her pension. However, she also deserves recognition that she was affected not only in respect of her right to property but also in respect of her right to be treated equally. Not only did she suffer an interference with her property rights; she also, once again, realised that being a woman means belonging to a gender to which more injustice is generally done and whose interests are often overlooked.