25 Feb Discrimination due to a legal reform related to obtaining a family pension

In the case of Valverde Digon v. Spain (no. 22386/19, 26.01.2023) the European Court of Human Rights found a violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights. 

The case concerns the refusal by the National Institute of Social Security to grant her a survivor’s pension. Ms Valverde Digon’s partner died in July 2014 three days after their civil partnership had been registered. The requirement to register civil partnerships at least two years prior to the death of one of the partners in order to be eligible for a survivor’s pension had entered into force only three months prior to her partner’s death. The courts in her case stated that a partnership had to be registered two years prior to the death of the deceased partner.

Relying on Article 14 (prohibition of discrimination) read in conjunction with Article 1 of Protocol No. 1, Ms Valverde Digon complains of the authorities’ refusal to grant her a survivor’s pension.

TheCourt was not satisfied that the legal reform had been foreseeable for persons in the same situation as the applicant. The fact that a question of constitutionality was presented by the Supreme Court to the Constitutional Court in 2012 cannot be considered a warning that the legislation would change, 

The Court recognised that the requirements for having access to a survivor’s pension changed before the applicant became eligible for that benefit. However, as noted above, prior to this change in April 2014 the applicant was eligible in case of death of her partner. Therefore, while the impugned measure was sufficiently foreseeable from a qualitative perspective, that is to say, its formulation was made with sufficient precision, it was unexpected in the context of the present case. What is more, the authorities did not establish the necessary measures to avoid that people who had until 10 April 2014 complied with the necessary requirement became, unforeseeably, prevented from being eligible to the pension. lthough the reversal of a previous difference in treatment constitutes a compelling reason of general interest, the Court must, nonetheless, observe that the above general principle cannot prevail automatically in a situation where the individual concerned is required to bear an excessive burden as a result of a measure divesting him or her of a legitimate expectation. The Court also notes the applicant’s argument that survivor pensions are significantly more often awarded to women, who are in a disadvantageous or vulnerable situation of financial dependency from their partners and find themselves in need of social benefits following the partner’s death.

Moreover, the Court does not find a basis to consider that the applicant and her partner were required to pre-emptively formalise their partnership by means of a public document from the moment when the admissibility of the question of unconstitutionality was published on 21 May 2012, as that decision did not create a legal requirement at the time in question. It was not until the declaration of unconstitutionality was published on 10 April 2014 (only three months before the applicant’s partner died) that the new requirement came into force. The Government’s argument that the applicant and her partner had always been free to marry is beside the point, it being undisputed that the law provided for survivor pensions for civil partners and that the applicant could legitimately rely on that legal regime. 

In the light of the above considerations, the Court is of the view that the disputed measure, albeit aimed at eliminating a previous difference in treatment that needed to be tackled by the legislature (different requirements for the constitution of a civil partnership in the different Autonomous Communities), failed to strike a fair balance between the interests at stake. There has been therefore a violation of Article 1 of Protocol No. 1 to the Convention.

Reference from the official website of the European Court of Human Rights