JOINT DISSENTING OPINION OF JUDGES RAVARANI, RANZONI AND GUYOMAR

(Translation)

1. We regret that we are unable to follow the majority in finding that there has been a violation of Article 1 of Protocol No. 1 to the Convention in the present case. First of all, we would stress that we are conscious of the difficult situation in which the applicant found herself. We would also point out that, in the judgment delivered on 19 January 2023 in the case of Domenech Aradilla and Rodríguez González v. Spain (nos. 32667/19 and 30807/20), we voted in favour of finding a violation of that provision. But in our view Article 1 of Protocol No. 1 is not applicable in the circumstances of the present case.

2. As regards the general principles deriving from the Court’s case-law on Article 1 of Protocol No. 1, in particular regarding social benefits, we would refer to the arguments set out in the joint dissenting opinion annexed to the judgment in Béláné Nagy v. Hungary ([GC], no. 53080/13, 13 December 2016), with which we very largely agree. The issue at stake here is the notion of “legitimate expectation”. It should be pointed out that in order to amount to an interest protected by Article 1 of Protocol No. 1, a “legitimate expectation” must constitute an “asset”. According to the Court’s settled case-law, an applicant cannot claim such a “legitimate expectation” unless he or she can be said to have a currently enforceable claim that is sufficiently established (see, to that effect, Kopecký v. Slovakia [GC], no. 44912/98, §§ 48-49, ECHR 2004-IX). While Article 1 of Protocol No. 1 places no restriction on the Contracting States’ freedom to decide whether or not to have in place any form of social-security or pension scheme, any such legislation that is in place must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements. However, a conditional claim which lapses as a result of the non-fulfilment of one of the conditions laid down cannot be considered a possession within the meaning of that provision.

3. In the present case the applicant would have qualified for a survivor’s pension had her partner died before the Constitutional Court judgment of 11 March 2014, which was published on 10 April 2014 and which introduced an additional condition for entitlement in the form of a requirement for the civil partnership to have been registered at least two years prior to the death of one of the partners. In the present case, the applicant and her partner decided to formalise their union after the adoption of the Constitutional Court judgment and just three days before her partner’s death on 25 July 2014. The dispute centred on this new requirement, which not only did the applicant not satisfy but which, owing to the tragic circumstances of the case, could not possibly be satisfied.

4. In finding Article 1 of Protocol No. 1 to be applicable, contrary to the position of the respondent State, the judgment follows a line of reasoning comprising the following steps.

(i) First of all, the judgment acknowledges that, in principle, the date to be taken into account in order to verify whether or not the applicant complied with the requirements to become eligible for a survivor’s pension was the date on which her partner died, and that on that date the requirement for the couple’s civil partnership to have been registered at least two years before the death of one of the partners was not satisfied (see paragraph 58 of the judgment).

(ii) Next, the judgment notes that the crux of the applicant’s claim is that she met the requirements of eligibility for the survivor’s pension prior to the Constitutional Court’s judgment which resulted in the imposition, without any transitional provisions, of a new, more stringent requirement which was thus to be regarded as disproportionate (see paragraph 59 of the judgment).

(iii) After emphasising the contributory nature of the survivor’s pension scheme, the judgment goes on to observe that the applicant met all the other requirements for eligibility, before examining whether, as a result, she could be regarded as having a “legitimate expectation”, within the meaning of the Court’s case-law, on the date of entry into force of the new rule (paragraphs 60-61).

(iv) The judgment then sets out the core of the majority’s reasoning. Firstly, it states, on the basis of all the foregoing considerations, that “it can be said that prior to the change operated by the Constitutional Court’s judgment, the applicant was entitled to a survivor’s pension and, moreover, could legitimately rely on her obtaining such a pension, in the event of her partner’s death” (paragraph 62). After noting, secondly, that “after the entry into force of the new requirement in April 2014, she and her partner did try to fulfil it” (ibid.), the judgment states, thirdly, that “this change effectively imposed on a certain category of persons, including the applicant, 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 possibly satisfy once the new requirement entered into force”. The judgment infers from this that “in this particular case, the applicant could have entertained a ‘legitimate expectation’ that she was eligible for a survivor’s pension” (paragraph 64), and that Article 1 of Protocol No. 1 is therefore applicable (paragraph 65).

5. In our view, this conclusion is based on a false premise. A distinction needs to be made between the present case and that of Domenech Aradilla and Rodríguez González (cited above), in which the applicants’ partners had died before the change in the rules resulting from the Constitutional Court judgment. Accordingly, it appears that on that date, and indeed on the date on which the applications for a survivor’s pension were submitted, the applicants had a “legitimate expectation” of obtaining the pension, as all the conditions for eligibility were met, such that the claim could be regarded as currently enforceable. In the present case, by contrast, the applicant’s partner died after the new requirement had been introduced. We cannot therefore subscribe to the majority’s argument, leading to the finding that Article 1 of Protocol No. 1 is applicable, that the applicant could have entertained a “legitimate expectation” of obtaining the survivor’s pension, both before and after the Constitutional Court’s judgment. In our view, while the applicant’s partner was still alive her hope of qualifying for a survivor’s pension in the event of his death did not amount to a currently enforceable claim falling within the ambit of Article 1 of Protocol No. 1. Even though the applicant satisfied all the other requirements, it merely amounted to a prospect of eligibility whose materialisation presupposed the occurrence of the event triggering the claim, namely her partner’s death. In other words, at the time of the Constitutional Court’s judgment, the applicant simply entertained a hope corresponding to this prospective eligibility for the survivor’s pension, and not a “legitimate expectation” of obtaining an asset, which must be more concrete. Furthermore, that judgment, by establishing a new condition of eligibility for a survivor’s pension in addition to those that already existed, meant that the applicant’s partner’s death was not sufficient to crystallise a “legitimate expectation” amounting to a possession within the meaning of Article 1 of Protocol No. 1 in the case of the applicant, who did not satisfy the new condition requiring the civil partnership to have been registered at least two years before the date of death. However strong, seen from the applicant’s viewpoint – which we can quite understand – the hope she entertained prior to the Constitutional Court judgment and her feeling of injustice caused by the immediate application of a new, more stringent rule without any transitional arrangements (an injustice which, in a number of countries, could have been remedied on the basis of the authorities’ strict liability), we are of the view that the applicant did not at any time have a “legitimate expectation”, amounting to an asset, of being eligible for a survivor’s pension, either before the judgment of 11 March 2014, when her partner was still alive, or after his death, which occurred after that judgment. What she had was purely and simply a hypothetical claim. While the criteria employed in paragraph 63 of the judgment in order to conclude that a possession existed, and which are echoed in part in the examination of the merits of the complaint (see paragraph 81 of the judgment in particular), seem to us to be relevant in assessing whether or not the interference with the right to the peaceful enjoyment of possessions was proportionate, we believe that they cannot be applied in order to establish the existence of such a possession for the purposes of Article 1 of Protocol No. 1.

6. The situation in the present case cannot be likened to that under consideration in the Béláné Nagy judgment (cited above), which already, in our view, defined the scope of application of Article 1 of Protocol No. 1 very broadly. It is more akin to the situation at issue in Richardson v. the United Kingdom ((dec.), no. 26252/08, 10 April 2012), in which the Court held as follows : “Where, however, the person concerned does not satisfy, or ceases to satisfy, the legal conditions laid down in domestic law for the grant of any particular form of benefits or pension, there is no interference with the rights under Article 1 of Protocol No. 1” (§ 17). In those circumstances, finding Article 1 of Protocol No. 1 to be applicable in the present case goes further still and marks a fresh step, which we find regrettable, in the ongoing expansion of the notion of a possession for the purposes of that provision.

7. To conclude, we would point out that the Court has consistently acknowledged the possibility for States to amend social-security legislation in response to societal changes and evolving views on the categories of persons who need social assistance, and also to the evolution of individual situations (see Wieczorek v. Poland , no. 18176/05, 8 December 2009), especially as regards the conditions of eligibility for a benefit or pension and the amount thereof. We fear that the approach taken by the majority entails a risk, going beyond the very specific circumstances of the present case, that the protection afforded by Article 1 of Protocol No. 1 may ultimately, through an excessively broad interpretation of its substantive scope, hamper the ability of the competent authorities to reform their social-security systems or amend pensions legislation.