Judgment;Information — ECLI:EU:C:2021:854
Date: 2021-10-14
Language of the case: Spanish
Court formation: Eighth Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Fundamental rights;European Convention on Human Rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-244/20 — 1 
Case C-244/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
8 June 2020 
Referring court:  
Tribunal Superior de Justicia de Cataluña (High Court of Justice, 
Catalonia, Spain) 
Date of the decision to refer:  
28 May 2020 
Appellant:  
F.C.I. 
Respondent:  
Instituto Nacional de la Seguridad Social (INSS) (National Social 
Security Institute) 
  
Subject matter of the main proceedings 
An appeal lodged by FCI (‘the appellant’) against the judgment of the Juzgado de 
lo Social No 1 de Reus (Social Court No 1, Reus, Spain) of 12 December 2018, 
which dismissed her claim for a survivor’s pension following the death of the 
person with whom she was living in a de facto partnership.  
Purpose and legal basis of the request for a preliminary ruling 
The issue is whether a situation in which, as the result of a judgment of the 
Spanish Tribunal Constitucional (Constitutional Court) and the subsequent 
legislative changes to which it gave rise, surviving members of de facto 
partnerships resident in Catalonia are denied the right to a survivor’s pension, or 
find it particularly difficult to access the pension, due to failure to satisfy a formal 
requirement, is compliant with EU law.  
EN 
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Questions referred 
1. Must Article 3(2) of Directive 79/7 of [19] December 1978 on the 
progressive implementation of the principle of equal treatment for men and 
women in matters of social security, which does not apply to survivors’ benefits or 
family benefits, be declared invalid or treated as such on the ground that it is 
contrary to a fundamental principle of European Union law, namely equality 
between men and women, which is declared a founding principle of the European 
Union in Articles 2 and 3 of the Treaty on European Union and in Article 19 of 
the Treaty on the Functioning of the European Union, and a fundamental right in 
Article 21(1) of the Charter of Fundamental Rights of the European Union and 
also in the long-established and settled case-law of the Court of Justice? 
2. Must Article 6 of the Treaty on European Union and Article 17(1) of the 
Charter of Fundamental Rights of the European Union be interpreted, in the light 
of Article 1 of Additional Protocol No 1 to the European Convention for the 
Protection of Human Rights and Fundamental Freedoms, signed in Rome on 
4 November 1950, as precluding a national measure such as that under 
consideration in the main proceedings (which was prompted by Constitutional 
Court judgment No 40/2014 of 11 March 2014, the ensuing national case-law and 
the legislative amendments that implemented the judgment) which ― in practice, 
given the general lack of awareness of the need for formalisation and the absence 
of any transition period for complying with the requirement ― initially prevented 
members of de facto partnerships governed by the Código Civil Catalán (Catalan 
Civil Code) from obtaining a survivor’s pension, and has subsequently made it 
extremely difficult for them to access this benefit? 
3. Must the fundamental principle of European Union law of equality between 
men and women, which is included as a founding value in Articles 2 and 3 of the 
Treaty on European Union, and the prohibition of discrimination on ground of 
sex, which is recognised as a fundamental right in Article 21 of the Charter of 
Fundamental Rights of the European Union in conjunction with Article 14 of the 
European Convention on Human Rights, be interpreted as precluding a national 
measure such as that under consideration in the main proceedings (which was 
prompted by Constitutional Court judgment No 40/2014 of 11 March 2014, the 
ensuing national case-law and the legislative amendments that implemented the 
judgment) which ― in practice, given the general lack of awareness of the need 
for formalisation and the absence of any transition period for complying with the 
requirement ― initially prevented members of de facto partnerships governed by 
the Catalan Civil Code from obtaining a survivor’s pension, and has subsequently 
made it extremely difficult for them to access this benefit, to the disadvantage of a 
far greater percentage of women than men? 
4. Must the prohibition on grounds of ‘birth’ or, alternatively of ‘membership 
of a national minority’ as reasons or ‘grounds’ for discrimination prohibited by 
Article 21(1) of the Charter of Fundamental Rights of the European Union in 
conjunction with Article 14 of the European Convention on Human Rights, be 
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interpreted as precluding a national measure such as that under consideration in 
the main proceedings (which was prompted by Constitutional Court judgment 
No 40/2014 of 11 March 2014, the ensuing national case-law and the legislative 
amendments that implemented the judgment) which ― in practice, given the 
general lack of awareness of the need for formalisation and the absence of any 
transition period for complying with the requirement ― initially prevented 
members of de facto partnerships governed by the Catalan Civil Code from 
obtaining a survivor’s pension, and has subsequently made it extremely difficult 
for them to access this benefit? 
Provisions of EU law cited 
Treaty on European Union (TEU) 
Article 2; Article 3(3), second subparagraph; Article 6. 
Charter of Fundamental Rights of the European Union  
Article 17(1); Article 21(1); Article 33(1); Article 34(1); Article 52(1), (2), (3) and 
(7). 
Explanations relating to the Charter of Fundamental Rights: explanation relating 
to Article 17 and explanation relating to Article 21. 
Council Directive 79/7/EEC of 19 December 1978 on the progressive 
implementation of the principle of equal treatment for men and women in matters 
of social security 
Article 1; Article 2; Article 3(1), (2) and (3); Article 4; Article 5. 
Provisions of national law cited 
Ley General de la Seguridad Social (General Law on Social Security) (as 
amended by Law 40/2007 of 4 December 2007, in force until its repeal by Royal 
Legislative Decree 8/2015) 
Article 174 ― Survivors’ pensions ― paragraph 3. 
General Law on Social Security (the most recent version, following the 
amendments introduced by Royal Legislative Decree 8/2015 of 30 October 2015) 
Article 221 ― Survivors’ pensions for de facto partnerships ― paragraph 2. 
‘For the purposes of this article, a de facto partnership shall mean a partnership 
analogous to marriage, formed by individuals who are not prevented from 
marrying, who are not married to anyone else and who provide proof, by means of 
the appropriate census registration certificate, that they were in a stable and 
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publicly acknowledged de facto partnership for an uninterrupted period of not less 
than 5 years immediately prior to the deceased’s death. 
Evidence of the existence of a de facto partnership shall be provided by means of 
a certificate of registration in one of the specific registers held in the autonomous 
communities or municipalities for the place of residence or by means of a public 
document recording the formation of the said partnership. The registration or the 
formalisation of the public document must have taken place at least 2 years before 
the date of the deceased’s death.’ 
Catalan Civil Code. Law 25/2010 of 29 July 2010 in book two of the Catalan Civil 
Code, concerning the person and the family 
Article 231-1(1) and Articles 234-1 and 234-2. 
Brief summary of the facts and the main proceedings 
1 The appellant lived with her partner, JMPG (‘the deceased’), in a marriage-like 
relationship for a continuous period of more than 20 years, until the partner’s 
death. The relationship produced two children, born on 9 May 1994 and 3 August 
1998, who were registered in the joint Family Record Book. 
2 On 3 July 2017 they applied for registration of their de facto partnership in the 
Catalonia Register of Stable Partnerships. 
3 On 16 August 2017 the deceased died, and the appellant applied for a survivor’s 
pension, which was refused by the Instituto Nacional de la Seguridad Social 
(National Social Security Institute; ‘the INSS’) by a decision dated 25 October 
2017, due to failure to satisfy two requirements, namely failure to provide proof of 
cohabitation in a marriage-like relationship for a minimum period of 5 years and 
failure to formalise the de facto partnership 2 years before the death. By a final 
decision dated 6 February 2018 on the administrative appeal brought by the 
appellant, the INSS confirmed the earlier decision. 
4 The appellant filed a claim with Social Court No 1, Reus, which dismissed the 
appeal in a judgment of 12 December 2018, on the grounds that, although it had 
been proved that the couple were in a stable and publicly acknowledged de facto 
partnership, the requirement for the de facto partnership to have been formalised 
2 years before the date of death had not been satisfied. 
5 Before they lived together, both members of the de facto partnership had been 
married to other partners. The appellant’s marriage was dissolved due to the death 
of the husband on 3 May 2014. A decree of judicial separation was issued on 
7 May 1984 in respect of the deceased’s marriage, but there is no record of the 
marriage having been dissolved. 
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6 The appellant has lodged an appeal with the referring court against the judgment 
of the Social Court.  
Main arguments of the parties to the main proceedings 
7 In their respective written submissions made in response to the order for the 
submission of arguments issued by the referring court concerning a possible 
reference to the Court of Justice of the European Union for a preliminary ruling, 
the appellant supported such a reference while the INSS opposed it, on the 
grounds that it believed that the discriminatory effects cited had not occurred. 
Brief summary of the reasons for the request for a preliminary ruling 
8 The Ley 40/2007 de 4 de diciembre, de medidas en materia de Seguridad Social 
(Law 40/2007 of 4 December 2007 on Social Security measures) amended 
Article 174 of the General Law on Social Security (‘the LGSS’). Under 
Article 174(3), members of what are termed ‘de facto partnerships’ were able to 
qualify for a survivor’s pension which, until then, had been reserved to married 
couples, provided that they met the social security contribution requirements and 
an additional requirement for the surviving partner to be financially dependent on 
the deceased partner. In this paragraph a de facto partnership was defined as ‘a 
partnership analogous to marriage, formed by individuals who are not prevented 
from marrying, who are not married to anyone else and who provide proof, by 
means of the appropriate census registration certificate, that they were in a stable 
and publicly acknowledged de facto partnership for an uninterrupted period of not 
less than 5 years immediately prior to the deceased’s death’. 
9 Article 174(3) also established that ‘evidence of the existence of a de facto 
partnership shall be provided by means of a certificate of registration in one of the 
specific registers held in the autonomous communities or municipalities for the 
place of residence or by means of a public document recording the formation of 
the said partnership … at least 2 years before the date of the deceased’s death’. It 
then introduced an important exception, in that the fifth and final subparagraph 
of the paragraph established that ‘in autonomous communities that have their own 
system of civil law, provided that the cohabitation requirement established in the 
previous subparagraph is satisfied, the definition of a de facto partnership and the 
accreditation thereof shall be governed by the provisions of their own specific 
legislation’. 
10 Catalonia is a territory which historically has always had its own system of civil 
law; this is currently enshrined in the Catalan Civil Code, the contents of which 
take precedence over any other legislative provision, including the Spanish Civil 
Code. In Catalonia, de facto partnerships or unions are governed by Article 234 of 
the Catalan Civil Code. Article 234-1, entitled ‘Stable partnerships’, establishes 
that ‘two people who live together in a partnership analogous to marriage shall be 
deemed to constitute a stable partnership where any of the following 
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circumstances apply: a) the cohabitation lasts for an uninterrupted period of more 
than 2 years; b) they have a common child during the cohabitation; or c) they 
formalise the partnership in a public deed’. In other words, unlike the 
arrangements established in Article 174(3) of the LGSS, which apply in those 
autonomous communities that do not have their own civil law system, there is no 
requirement for a de facto partnership to be formalised in a constituent instrument: 
accreditation of the existence of a partnership analogous to marriage by any means 
allowed by law is sufficient. Nor is it necessary under the Catalan regime for any 
previous marriage to have been dissolved. 
11 In a judgment of 11 March 2014, published in the Official State Gazette of 
10 April 2014 (‘judgment 40/2014’) the Constitutional Court declared that the 
aforementioned fifth subparagraph of Article 174(3) of the LGSS, which 
provided, as an exception to the general regime, that the specific legislation of 
those autonomous communities with their own civil law systems applied for the 
purposes of defining and accrediting de facto partnerships, was void on grounds of 
unconstitutionality, since the measure entailed unjustified unequal treatment in the 
regulation of survivors’ pensions, which depended on the autonomous community 
of residence of the surviving partner. The Constitutional Court ruled that the 
provision was invalid and unconstitutional ex nunc, so that the ruling applied to 
cases arising after the date of the judgment and to existing proceedings in which a 
final administrative or judicial decision had yet to be issued. In judgment 40/2014 
two judges of the Constitutional Court expressed a dissenting opinion; in their 
view there was no such situation of inequality in access to survivors’ pensions for 
de facto partnerships: it was simply a matter of applying the appropriate law based 
on place of residence.  
12 The terms of the operative part of the judgment gave rise to an administrative and 
judicial practice which, with immediate effect from that point onwards, required 
partnerships to have been either registered or certified by a notary at least 2 years 
previously, as a formal requirement ad solemnitatem; the requirement applied 
even to cases where the death occurred before judgment 40/2014 but there were 
proceedings ongoing in which a final judgment had yet to be issued. 
13 Moreover, the legislature did not amend the legislation on survivors’ pensions in 
order to remove the subparagraph that had been annulled by the Constitutional 
Court until a year and a half after judgment 40/2014 was handed down. Royal 
Legislative Decree 8/2015 of 30 October 2015 approved a new version of the 
LGSS, in which Article 221, entitled ‘Survivors’ pensions for de facto 
partnerships’, establishes the legal concept of de facto partnership in identical 
terms to those of the former Article 174(3) of the LGSS, but without the exception 
for autonomous communities with their own civil law systems. Likewise, the 
autonomous Catalan Government did not react to the new situation until it passed 
Decree Law 3/2015 of 6 October 2015 on the creation of the Catalonia Register of 
Stable Partnerships. This register did not come into operation until 1 April 2017. 
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14 Neither judgment 40/2014 nor the legislature made provision for any transition 
period in applying the aforesaid case-law established by the Constitutional Court 
and the new formal requirement needed in order to qualify for a survivor’s 
pension in Catalonia. Apart from the publication of the aforesaid judgment in the 
Official State Gazette of 10 April 2014, neither the national Government nor the 
autonomous Catalan government informed Catalans of the requirement for 
registration or notarial certification in order to preserve expected access to a 
survivor’s pension in the event of the death of one of the members of a de facto 
partnership. 
15 Consequently, the new situation created by judgment 40/2014 initially prevented 
access to a survivor’s pension for those in facto partnerships in Catalonia, given 
the manifest impossibility of demonstrating that the partnership had been 
registered 2 years beforehand, and thereafter it hindered access to the pension, for 
the reasons described. The preamble to Catalan Decree Law 3/2015, which 
regulates the Register of Stable Partnerships, recognises that ‘the urgent and 
extraordinary need for the proposed regulations stems from the inequality suffered 
by stable partnerships governed by the Catalan Civil Code as compared with 
partnerships in other parts of Spain where provision has been made for the 
aforesaid register, which provides partnerships elsewhere with a means to accredit 
their existence’. 
16 Moreover, in both Catalonia and the rest of Spain, survivors’ pensions, whether 
resulting from marriage or from a de facto partnership, are a notably ‘feminised’ 
benefit; in other words, more than 90% of recipients are female. This statistic has 
not been disputed in the main proceedings and has been explained by the 
traditional distribution of work in family households.  
17 Overall, in the years immediately after judgment 40/2014, the number of new 
recipients of survivors’ pensions resulting from de facto partnerships in Catalonia 
halved, while there was no such decrease across Spain as a whole. 
18 Thus, following the substantial change made to the regulatory framework 
governing this type of survivor’s pension by the Constitutional Court, acting as a 
‘negative legislator’, access to survivors’ pensions not only in Catalonia, but also 
in Aragon and Navarre, has been restricted to ‘de jure partnerships’, that is to say, 
to ‘formalised de facto partnerships’, which have satisfied the formal requirement 
for registration or notarial certification described above. The referring court has 
strictly applied judgment 40/2014 and the temporal effect of the declaration of 
unconstitutionality, since it was under a legal obligation to do so, and 
consequently it has been refusing the award of survivors’ pensions for de facto 
couples where the formal requirement for registration or notarial certification was 
not shown to have been satisfied, even where the death occurred before the 
judgment in question (in those cases where a final decision had yet to be issued in 
proceedings). Out of 39 decisions, 36 were issued in proceedings in which the 
applicant was a woman, reflecting the ‘feminised’ nature of a benefit that is also 
based on a premise of financial dependence. 
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19 Although the law does not allow for the adoption of a flexible and case-by-case 
approach towards the temporal effect of the declaration of unconstitutionality and 
invalidity in judgment 40/2014 (as regards the need for the de facto partnership to 
have been registered or notarially certified 2 years before the death occurred), the 
referring court has doubts over whether the considerable difficulties in accessing 
the survivor’s pension in question experienced in Catalonia as a result of the 
circumstances we have described ― that is, the absence of a transition period to 
allow for adjustment to the new legal requirement, the lack of information for 
citizens and the delay in amending the legislation and creating the register of de 
facto partnerships ― have created a situation of inequality, with a clear gender 
impact, which is contrary to European Union law. 
20 In practice, while in the rest of Spain de facto couples were aware from 1 January 
2008 that, under Law 40/2007, which established the benefit, it was necessary to 
register or obtain notarial certification in order to qualify for a survivor’s pension, 
in Catalonia a legitimate expectation had been created that there was no such 
requirement, given the reference in the LGSS to the specific Catalan legislation. 
The referring court therefore considers, having regard to the facts of the main 
proceedings, that the appellant and the deceased would have formalised their 
relationship had they known in time that this was essential in order to qualify for a 
survivor’s pension. They did indeed complete the procedure in July 2017, 
following the creation of the Catalan Register of Stable Partnerships.  
21 Under the case-law of the Court of Justice of the European Union (‘the Court of 
Justice’), such a restriction on access to the pension, with the consequent 
frustration of the expectation of a contributory welfare pension, could be 
considered to constitute indirect discrimination in that it works to the disadvantage 
of a far greater number of women than men, despite being formulated in neutral 
terms (see the judgment of 20 October 2011, Brachner, C-123/10, paragraphs 56 
and 70, and also the judgments of 22 November 2012, Elbal Moreno, C-385/11, 
paragraph 29, and of 9 November 2017, Espadas Recio, C-98/15, paragraph 38). 
Consequently, if, in view of the circumstances described above, judgment 40/2014 
were considered to have produced a situation that can objectively be classed as 
indirect discrimination on ground of sex, the referring court would be able to 
adopt a more flexible interpretation of the case-law established by the judgment 
and of the present Article 221 of the LGSS on survivors’ pensions, under the 
principle of the primacy of EU law, and, having examined each case on its 
individual merits, the court would be able to recognise an entitlement to the 
aforesaid pension in those cases arising in the years immediately after judgment 
40/2014 where it is completely convinced that the applicant for the survivor’s 
pension and his or her partner did not have an effective opportunity, on equal 
terms with recipients in other autonomous communities, to be aware of and 
comply with the new legal requirement in order to qualify for the benefit. 
22 This conclusion leads to the first question referred by the referring court, which 
believes there is a need to clarify the questions it has over the validity of 
Article 3(2) of Council Directive 79/7/EEC of 19 December 1978 on the 
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progressive implementation of the principle of equal treatment for men and 
women in matters of social security, given that the article stipulates that ‘this 
Directive shall not apply to the provisions concerning survivors’ benefits nor to 
those concerning family benefits’, in the light of a principle which, according to 
Article 4(1) of the directive ‘means that there shall be no discrimination 
whatsoever on ground of sex’. The referring court wonders whether the 
aforementioned exclusion of survivors’ benefits from the protection offered by the 
directive is not contrary to the fundamental principle of equality of treatment for 
men and women enshrined in Articles 2 and 3 TEU, Article 19 TFEU, Article 21 
of the Charter of Fundamental Rights of the European Union (‘the Charter’) and 
the case-law of the Court of Justice of the European Union, as well as in 
Article 33 and Article 34(1) of the Charter.  
23 Nor should it be forgotten that Article 7(1)(b) of Directive 2006/54 on the 
implementation of the principle of equal opportunities and equal treatment of men 
and women in matters of employment and occupation includes ‘survivors’ 
benefits and family allowances’ within the scope of the directive as far as 
occupational social security schemes are concerned, thus demonstrating that the 
exclusion established by Directive 79/7 for the same benefits in relation to state 
social security systems is untenable and outdated, particularly when one considers 
also that the present case concerns a contributory benefit, that is to say, one based 
on prior contributions.  
24 Irrespective of the answer given to the above question regarding validity, the 
referring court also needs to know whether the situation produced by judgment 
40/2014 is contrary to Article 17 and Article 21(1) of the Charter, which enshrine, 
respectively, the right to property and the prohibition of discrimination on grounds 
of sex, birth or membership of a national minority, amongst others. Under 
Article 6 TEU, the Charter has the same legal value as the Treaties. 
25 As far as the relevance of the questions referred is concerned, it should be recalled 
that, under Spanish law, the referring court is required to apply the position 
adopted by the Constitutional Court as regards the ex nunc effect of the 
requirement for the de facto partnership to have been formalised for a prior period 
of 2 years, and it has no scope to depart from the ruling in judgment 40/2014. It 
would therefore only be able to relax the strict application of the case-law of the 
Constitutional Court and the subsequent regulation of survivors’ pensions, under 
the principle of the primacy of EU law, if the Court of Justice were to reply to the 
question referred by stating that the factual and legal situation under examination 
affects the fundamental rights we are seeking to have interpreted. 
26 With regard to the jurisdiction of the Court of Justice to rule on the questions 
referred, it is clear from the most recent case-law of the Court that it undoubtedly 
has such competence (see the judgments of 13 June 2017, Florescu, C-258/14; of 
17 April 2018, Egenberger, C-414/16; of 6 November 2018, Bauer and Brossonn, 
C-569/16 and C-570/16; and of 19 November 2019, AK, C-585/18, C-624/18 and 
C-625/18). The Court of Justice has held that certain fundamental rights are 
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sufficient in themselves and do not need to be made more specific by provisions 
of EU or national law to confer on individuals a right which they may rely on as 
such. That case-law also shows that it is for the Court of Justice to ensure the 
proper interpretation of fundamental rights enshrined in the Charter, particularly 
where they correspond to rights recognised in the Convention for the Protection of 
Human Rights and Fundamental Freedoms (‘ECHR’). In any event, the case 
concerns both the principle of equality and non-discrimination on ground of sex 
and also a social security benefit, and both matters fall within areas of European 
Union competence. 
27 The first question of interpretation relates to Article 17(1) of the Charter, which 
establishes that ‘everyone has the right to own, use, dispose of and bequeath his or 
her lawfully acquired possessions. No one may be deprived of his or her 
possessions, except in the public interest and in the cases and under the conditions 
provided for by law, subject to fair compensation being paid in good time for their 
loss. The use of property may be regulated by law in so far as is necessary for the 
general interest.’ According to the Explanations relating to the Charter of 
Fundamental Rights, this article is based on Article 1 of the Protocol to the ECHR. 
28 According to the case-law of the Court of Justice, citing the judgment of the 
ECtHR of 7 July 2011, Stummer v. Austria, where legislation provides for the 
automatic payment of a social benefit, it generates a proprietary interest for 
persons meeting the requirements thereof falling within the ambit of Article 1 of 
Protocol No 1 to the ECHR. The rights resulting from the payment of 
contributions to a social security scheme thus constitute rights of property for the 
purposes of that article. However, the right of property enshrined in that article is 
not absolute and its exercise may be subject to restrictions justified by objectives 
of general interest pursued by the European Union (see the judgment of 13 June 
2017, Florescu, C-258/14, paragraphs 49, 50 and 51). In this regard, the judgment 
of the ECtHR of 8 February 2018 in Nagy v. Hungary is also highly instructive, in 
particular paragraphs 80, 82 and 88. 
29 In judgment 40/2014, the Constitutional Court bases its decision on the need to 
ensure equal access to the survivor’s pension in all the autonomous communities 
of the Spanish State. However, having regard to the principle of proportionality 
that must apply to any restriction on fundamental rights recognised in the Charter, 
the referring court doubts the admissibility of a declaration of invalidity and 
unconstitutionality that has required the immediate imposition of a formal 
requirement in administrative and judicial practice even in those cases where the 
deceased’s death took place before the date of the judgment. A more logical 
solution, which would have respected the legitimate expectations of those 
affected, would have been to establish a transition period for adapting to the new 
requirement of at least 2 years, which is the prior registration period required of de 
facto partnerships. 
30 Consequently, in the interests of ‘a careful consideration of the individual 
circumstances of the case ― in particular, the nature of the change in the 
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requirement ― … in order to verify the existence of a sufficiently established, 
substantive proprietary interest under the national law’, as paragraph 89 of the 
judgment of the ECtHR of 8 February 2018, Nagy v. Hungary, expresses it, the 
referring court needs clarification of whether it is possible to conclude that a 
proprietary interest protected by Article 17 of the Charter has been affected in 
those cases where the court is convinced that the affected person ― who was fully 
entitled automatically to receive a survivor’s pension at the relevant time (on the 
death of the partner) ― could not have been aware of and complied with the new 
formal requirement or would have found it very difficult to do so, for the reasons 
set out above. 
31 The next question of interpretation refers to the principle of no discrimination on 
ground of sex, enshrined as a fundamental right in Article 21(1) of the Charter, in 
conjunction with Articles 2 and 6 TEU and Article 14 of the ECHR. Article 1 of 
Directive 79/7 is also relevant, depending on the reply given to the question on the 
validity of the exclusion of survivors’ benefits. The ‘Explanation relating to 
Article 21’ of the Charter states that this article draws on Article 14 of the ECHR 
and that, in so far as it corresponds to that article, it applies in compliance with it. 
Article 14 of the ECHR establishes that ‘the enjoyment of the rights and freedoms 
set forth in this Convention shall be secured without discrimination on any ground 
such as sex, race, colour, language, religion, political or other opinion, national or 
social origin, association with a national minority, property, birth or other status’. 
32 The Court of Justice has declared that indirect discrimination arises where a 
national measure, albeit formulated in neutral terms, works to the disadvantage of 
far more women than men (see the judgments of 20 October 2011, Brachner, 
C-123/10, paragraphs 56 and 70 and the case-law cited; of 22 November 2012, 
Elbal Moreno, C-385/11, paragraph 29; of 9 November 2017, Espadas Recio, 
C-98/15, paragraph 38; and of 8 May 2019, VVL, C-161/18). 
33 As noted earlier, the restriction on access to survivors’ pensions in the case of de 
facto partnerships in Catalonia has produced a situation of inequality that has an 
obvious gender impact because the pension is clearly ‘feminised’ in so far as, 
although the restriction is formally neutral, in 90% of cases the person affected is 
a woman; it could therefore be considered to constitute indirect discrimination. In 
this regard, in circumstances such as those of the present case, where a judgment 
of the Constitutional Court and the subsequent legislative change (enshrined in the 
new Article 221 of the LGSS) lead to inequality between groups of people, the 
Court of Justice has declared that it is for the Member State, as the author of the 
allegedly discriminatory rule, to show that that rule reflects a legitimate aim of its 
social policy, that that aim is unrelated to any discrimination based on sex, and 
that it could reasonably take the view that the means chosen were suitable for 
attaining that aim (judgment of 20 October 2011, Brachner, C-123/10, 
paragraph 74). 
34 In any event, it is important to note that, in the view of the referring court, there 
are two measures which the Court of Justice needs to assess separately, namely 
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the main decision of the Constitutional Court to introduce uniform conditions for 
accessing survivors’ pensions for de facto partnerships across all the autonomous 
communities of the Spanish State by imposing a requirement for de facto 
partnerships also to be formalised in Catalonia (and in Aragon and Navarre too), 
contrary to the provisions in the civil law systems of these autonomous 
communities, which take precedence; and secondly, the decision concerning the 
immediate effects of the introduction of those uniform conditions, with no prior 
warning nor any transitional adjustment period. 
35 It is similarly noteworthy that neither the Constitutional Court, when it issued 
judgment 40/2014, nor the legislature, when it passed the new legislation, took 
into account the negative impact which both measures would have on women, 
particularly the ex nunc requirement for formalisation of de facto partnerships, 
bearing in mind the feminisation of survivors’ pensions.  
36 It should also be noted that, since this specific benefit presupposes a financial 
dependence which must exist both at the point when the benefit first becomes 
payable and throughout the period of receipt (Article 221(1) of the LGSS), it is 
clearly a survivors’ welfare benefit; this is not the case with survivors’ pensions 
for married couples, where there is no such requirement. The situation under 
consideration could therefore also infringe the fundamental right ‘of the family to 
social, legal and economic protection’ in Article 33(1) of the Charter in 
conjunction with Article 16 of the European Social Charter. 
37 Finally, with regard to possible reliance on economic grounds concerning the 
sustainability of the social security system, according to the economic data on the 
case record, survivors’ pensions arising from de facto partnerships account for no 
more than 1% of all survivors’ pensions. Moreover, this is a contributory state 
pension, that is, one funded by contributions paid into the social security system 
by the deceased (and the employer). 
38 The fourth question referred raises the possible existence of a second ground of 
discrimination, by reason of birth or, alternatively, membership of a national 
minority. 
39 As noted earlier, while in the other autonomous communities of the Spanish State, 
de facto partnerships were aware from 1 January 2008 ― the date on which the 
benefit came into effect (by virtue of Law 40/2007) ― of the mandatory 
requirement to be registered or formally established in order to qualify for a 
survivor’s pension, in Catalonia, Aragon and Navarre there was a legitimate 
expectation that there was no need to comply with this requirement because the 
legal definition of de facto partnership established in their own civil law applied. 
This expectation was supported by administrative and judicial practice prior to 
judgment 40/2014. 
40 The situation described above that arose in the wake of that Constitutional Court 
judgment has also led to inequality as a result, in the present case, of residing in 
I NSS 
 
13 
Catalonia. In that context, the referring court seeks to establish whether that 
situation could be classed as discrimination by reason of the fact that both partners 
were born in Barcelona or, alternatively, discrimination due to membership of a 
national minority, given their political status as Catalans, bearing in mind that, 
under the Constitution, Catalonia is recognised as a ‘nationality’ and has exclusive 
competence in the regulation of civil law which, in short, has produced the legal 
situation that has led to the potentially discriminatory lack of protection and 
inequality.