FIFTH SECTION 
CASE OF DOMENECH ARADILLA AND RODRÍGUEZ GONZÁLEZ v. SPAIN
(Applications nos. 32667/19 and 30807/20)
 
 
JUDGMENT
 
Art 1 P1 • Peaceful enjoyment of possessions • Refusal by domestic authorities to grant survivor’s pension to applicants due to unforeseeable retrospective application of a new eligibility requirement • Impugned measures placing excessive burden on applicants • Unjustified absence of transitionary period for legislative change • Fair balance between competing interests not struck
 
STRASBOURG
19 January 2023
 
FINAL
 
19/04/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Domenech Aradilla and Rodríguez González v. Spain,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Georges Ravarani, President,
 Carlo Ranzoni,
 Mārtiņš Mits,
 María Elósegui,
 Mattias Guyomar,
 Kateřina Šimáčková,
 Mykola Gnatovskyy, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the applications (nos. 32667/19 and 30807/20) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Spanish nationals, Ms Mercè Domenech Aradilla and Ms Encarnación Rodríguez González (“the applicants”), on the dates indicated in the appended table;
the decision to give notice to the respondent Government of application no. 32667/19 and part of application no. 30807/20 and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 6 December 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the refusal by the authorities to grant a survivor’s pension to the two applicants. They complain under Article 1 of Protocol No. 1 taken together with Article 6 § 1 of the Convention that the authorities failed to have regard to the fact that when they initially applied for the survivor’s pension there was still no requirement for them to register their respective partnerships, as the 2014 Constitutional Court’s judgment which introduced this requirement was not yet in force. The applicants considered that the retroactive application of such formal requirement to them amounted to a violation of their right to legal certainty as well as of their right of property. THE FACTS
2. The applicants were born in 1986 and 1960 respectively and live in Caldes de Montbui and Salt, respectively. The first applicant was represented by Mr A. de Ribot Saurina, a lawyer practising in Salt, Girona. The second applicant was represented by Mr X. Asensio Castro, a lawyer practising in Martorelles. 3. The Government were represented by their Agent, Ms H.E. Nicolás Martínez, co-Agent of Spain before the European Court of Human Rights. 4. The facts of the case may be summarised as follows. First applicantRelevant background

5. The first applicant and her partner claim to have lived together from early 2007. They opened a common bank account on 8 September 2005, bought a car together on 5 March 2008, signed a lease contract on 1 March 2012, and were registered in the local municipality as living together since 16 June 2012. 6. The first applicant’s partner died in a work-related accident on 5 November 2013. The fact that the applicant and her partner lived together for at least five years before that is undisputed. At the time when he died, the applicant was pregnant with a child from her partner, who was born in 2014. The administrative proceedings
7. On, 21 January 2014, the first applicant made a request for a survivor’s pension to the National Institute of the Social Security (hereinafter, “INSS”). On 24 January 2014, the INSS sent the application to the insurance company with which the Spanish Social Security system collaborates, and with which her partner had insurance to cover work-related accidents. 8. On 30 July 2014, the insurance company issued a decision which rejected the applicant’s request for the survivor’s pension (although their daughter was awarded an orphan’s pension amounting to 432.06 euros (EUR) per month and a one-time payment of EUR 2,160.34). The rejection was based on the applicant’s alleged failure to meet one of the legal requirements to be eligible for the survivor’s pension: the formalisation of the partnership in a register or notarial deed at least two years prior to the death of one of them. The domestic judicial proceedings
9. The first applicant then lodged a judicial appeal against the said decision to reject her application. On 19 January 2015, the Labour Court No. 33 of Barcelona upheld the applicant’s appeal against the INSS, the Treasury of the Social Security, and the insurance company, and recognised the applicant’s right to be granted a survivor’s pension (which amounted to nearly EUR 27,000 per year) to be paid by the insurance company. The INSS and the General Treasury of the Social Security were held to their respective legally established responsibilities. 10. The Labour Court considered that since the death of the applicant’s partner, the application for the survivor’s pension, and the first decision from the INSS all had taken place before the Constitutional Court’s judgment 40/2014 had been adopted, the new requirement could not be imposed on the applicant. The opposite would, in the Labour Court’s view, violate the applicant’s right to legal certainty, since the effects of the Constitutional Court’s judgment could only be applicable for future cases. It considered that, at the moment in which the applicant’s partner died, the couple had been together for six years, and the applicant was pregnant with a daughter that was born shortly after her father’s death. Since the applicant also met all the economic requirements to be eligible for the survivor’s pension, she should be granted it. 11. Both the INSS and the private insurance company appealed the above judgment. The first applicant opposed both appeals. 12. On 20 November 2015, the High Court of Justice of Catalonia upheld the appeals made by the INSS and the private insurance company, overturning the judgment issued by the Labour Court, and refusing to award the first applicant the survivor’s pension. The High Court of Justice of Catalonia considered that according to the Constitutional Court’s judgment 40/2014, its effects would also be applicable to those situations where an administrative decision is not final yet. Hence, in this case, the applicant’s situation was affected by the formal requirement to have had the partnership registered two years prior to the death of one of the partners. The High Court of Justice of Catalonia did not question the fact that the applicant and her partner had been living together for over five years and had had a daughter in common, or that they had met the economic requirements. 13. The first applicant lodged an appeal on points of law (casación) with the Labour Chamber of the Supreme Court, insisting on the fact that the formal requirement to have had the partnership registered two years prior to the death of one of the partners was simply not applicable to her situation, having regard to the moment at which her partner died and she had made the application for the pension. The Supreme Court declared the appeal inadmissible on 30 November 2016 because the appeal did not meet the requirements for the Supreme Court to declare her appeal on points of law admissible. The applicant then lodged a motion for annulment with the Supreme Court, in which she invoked both her right to legal certainty in the recognition of her right to the pension and her right not to be discriminated against (compared to the people who had been granted the survivor’s pension directly in administrative proceedings and not following an appeal in judicial proceedings), which was also declared inadmissible. 14. She subsequently lodged an amparo appeal with the Constitutional Court. She claimed that the High Court of Justice of Catalonia’s judgment infringed the principle of legal certainty (because the criteria were not applicable to her retroactively and no transitionary period was established by the Constitutional Court judgment) as well as the principle of equality before the law and the right not to be discriminated against based on gender (indirect discrimination against women because they were statistically the main beneficiaries of survivor’s pensions) and social circumstances (essentially having had a partnership in Catalonia and losing the partner between 10 April 2012 and 10 April 2016). Thus, she requested that the said judgment be declared void and, consequently, that the survivor’s pension which had been awarded to her by the Labour Court no. 33 of Barcelona be reinstated. 15. On 10 December 2018 the Constitutional Court declared the applicant’s amparo appeal inadmissible on the grounds of the lack of special constitutional relevance. Second applicantRelevant background

16. The second applicant and her partner started living together on 10 June 2008 in an apartment in Girona (Catalonia), and remained living there until the end of their lease contract on 9 June 2013, when they moved to Portbou – also in the province of Girona, Catalonia. 17. On 2 March 2009, the applicant officially divorced her former husband. 18. The second applicant’s partner died on 7 January 2014. 19. The applicant lodged an application for a “survivor’s pension” (a benefit aimed at surviving partners who had been economically dependent on their deceased partner) on 2 April 2014, asserting that she met both the economic requirements and civil-partnership requirements (namely, the status of the relationship between her and her deceased partner had been that of a civil partnership). 20. The Catalan Civil Partnerships’ Public Register was not created until 1 April 2017. However, the formal registration of partnerships could take place at any time before that by means of a notarial deed. The administrative proceedings
21. On 2 April 2014, three months after the death of her partner, the second applicant lodged an application for a survivor’s pension with the INSS. In her application, she submitted that they had lived together since 10 June 2008 until his death on 7 January 2014, and that their relationship had constituted a civil partnership without their having had any need to formalise their situation. 22. On 4 April 2014, the applicant’s request was dismissed for her failure to prove (as provided by the fourth paragraph of section 174(3) of the General Social Security Act (hereinafter, “LGSS”) ˗ see paragraph 41 below) that she had maintained an uninterrupted cohabitation of at least five years immediately prior to the death as a registered civil partnership with the deceased. 23. The Constitutional Court published its judgment STC 40/2014 introducing a new formal requirement to apply for a survivor’s pension on 10 April 2014. 24. On 15 May 2014, the second applicant lodged an administrative complaint against the INSS’s decision, submitting that (i) she had demonstrated a period of cohabitation of at least five years; and (ii) the registration of her partnership with the deceased had not been necessary under the fifth paragraph of section 174(3) of the LGSS, which provided that those Autonomous Communities (such as Catalonia) that have their own body of civil law shall apply their own specific provisions concerning the method of proving the existence of civil partnerships; and (iii) she had complied with the Catalan-law requirements for her union with her deceased partner to be considered to be a civil partnership by the time of his death. 25. On 3 June 2014, the INSS Provincial Director in Girona dismissed the applicant’s complaint, stating that under Constitutional Court judgment STC 40/2014, proving the existence of a civil partnership for the purpose of accessing a survivor’s pensions was only possible if the partnership had been formalised by means of an entry in a register or by notarial deed at least two years prior to the death of the partner (see paragraphs 41 and 45 below). The domestic judicial proceedings
26. On 11 July 2014, the second applicant lodged a judicial appeal against the INSS’s decisions with Labour Court no. 2 of Girona, reiterating that she had demonstrated that she had cohabited with her deceased partner for more than the minimum requirement of five uninterrupted years, and that – under the fifth paragraph of section 174(3) of the LGSS and Article 234-1 of the Catalan Civil Code – she had not needed to register that partnership. 27. The parties were summoned to the hearing, which took place on 20 January 2016. On 4 March 2016, Labour Court no. 2 of Girona acknowledged that the applicant and her deceased partner had been living together for over five years, but nevertheless dismissed the applicant’s complaint on two grounds: firstly, that the regulatory basis on which the applicant relied (namely, the fifth paragraph of section 173(4) of the LGSS) had been declared unconstitutional and, as a result, null and void by Constitutional Court judgment STC 40/2014; secondly, that the LGSS’s aim was to limit the granting of pension rights to people in civil partnerships that had been formalised (either by entry in a specific public register or by means of attestation in a notarial deed) – but the applicant had not complied with that requirement. The judgment did not refer to the fact that the applicant had applied for a survivor’s pension before Constitutional Court judgment STC 40/2014 had been published. 28. On 26 April 2016, the applicant lodged an appeal with the High Court of Justice of Catalonia, asserting that:
The fifth paragraph of section 174(3) of the LGSS had been in force at the time of the death of the applicant’s partner and Constitutional Court judgment STC 40/2014 should not have been applied retroactively as this had violated the principle of legal certainty, the prohibition on the retroactive application of unfavourable legal provisions, and the right to effective judicial protection;
alternatively, the applicant and her partner had signed a lease agreement and made a deposit under a notarial deed in 2008 – that public document should have been considered to constitute sufficient formalisation of their civil partnership for the purposes of the fourth sub-paragraph of section 174(3) of the LGSS;
the decision not to grant her a survivor’s pension amounted to a violation of the principle of legal certainty, the right to effective legal protection under Articles 9 § 3 and 24 of the Spanish Constitution, the right to a fair trial under Article 6 of the Convention, and the right to social security under Articles 22 of the Universal Declaration on Human Rights and Article 9 of the International Covenant on Economic, Social and Cultural Rights. 29. The second applicant provided documentary evidence that attested to her state of economic precariousness and vulnerability, which was another requirement for accessing the survivor’s pension. 30. On 3 October 2016, the High Court of Justice of Catalonia dismissed the appeal, upholding the decision of the first-instance court, and responding to the applicant’s assertions as follows:
Constitutional Court judgment STC 40/2014 stipulated that its provisions applied to “future cases or administrative or judicial proceedings in which a final judgment has not yet been pronounced” – that applied to the instant case, as a final administrative decision had not been granted until 3 June 2014;
the applicant did not have an acquired right to the pension – all that could be said was that her application for a survivor’s pension was still ongoing;
the fourth sub-paragraph of section 174(3) of the LGSS required the signing of a public document whose specific function was specifically the constitution (constitución) of a civil partnership – that was not the function of a lease contract, which was therefore not suitable as a means of proving the concurrence of the wills of the two members of a couple to constitute a civil partnership. 31. On 25 October 2016, the second applicant lodged an appeal on points of law (casación) with the Spanish Supreme Court, seeking the unification of case-law; she cited a series of judgements that she claimed contradicted the decision of the High Court of Justice of Catalonia, and asked the Supreme Court to lodge a request with the Court of Justice of the European Union (CJEU) for a preliminary ruling on the non-retroactivity of the declaration of unconstitutionality in respect of the fifth sub-paragraph of section 174(3) of the LGSS. 32. On 12 February 2019, the Spanish Supreme Court ruled the appeal inadmissible, finding no contradiction between the cited judgments, confirming the findings of the High Court of Justice of Catalonia, and asserting that a request for a preliminary ruling from the CJEU was not appropriate at that stage of the proceedings (when only formal and material requirements were being analysed – not the merits of the case). The Supreme Court considered that the applicant had not been placed in a position whereby it had been impossible for her to comply with the requirements because of death of her partner earlier than two years following a formalisation of their civil partnerships by means of an entry in a register or by means of a notarial deed; rather, she had not formalised the partnership at any time. 33. On 7 May 2019, the second applicant lodged an amparo appeal with the Spanish Constitutional Court, submitting that her right to effective protection and legal certainty had been violated by the retroactive application of Constitutional Court judgment STC 40/2014; she further asserted that the principle of equality and the prohibition of discrimination had also been violated because the refusal to grant her a survivor’s pension had amounted to indirect discrimination against all civil partners living in those Autonomous Communities which had their own civil-law regulations and which had fallen under the application of the fifth sub-paragraph of section 174(3) of the LGSS prior to the application of Constitutional Court judgment STC 40/2014. 34. On 12 November 2019, the Constitutional Court ruled the amparo appeal inadmissible for lack of any particular constitutional relevance. RELEVANT LEGAL FRAMEWORK AND PRACTICE
35. The relevant provisions of the Spanish Constitution read as follows:
Article 9 § 3 (The principle of legal certainty)
“3. The Constitution guarantees [i] the principle of legality, [ii] the hierarchy of guiding principles,[iii] the publicity of rules (la publicidad de las normas), [iv] the non-retroactivity of punitive provisions that are not favourable towards or restrictive of individual rights, [v] legal certainty, and [iv] the responsibility for and the prohibition of arbitrariness on the part of the public authorities.”
Article 14 (The prohibition of discrimination)
“Spaniards are equal before the law, and no discrimination may prevail on the grounds of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.”
Article 24 (The right to an effective remedy and to a fair trial)
“1. Every person has the right to obtain the effective protection of the Judges and the Courts in the exercise of his or her legitimate rights and interests, and in no case may he go undefended. 2. Likewise, all persons have the right of access to the ordinary judge predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence; to not make self-incriminating statements; to not declare themselves guilty; and to be presumed innocent. The law shall determine the cases in which, for reasons of family relationship or professional secrecy, it shall not be compulsory to make statements regarding alleged criminal offences.”
Article 33 (The right to private property)
“1. The right to private property and the right to inheritance are recognised.”
2. The social function of these rights shall define their content, in accordance with the law. 3. No one may be deprived of his property and rights except for justifiable reasons of public ... or social interest, for the corresponding compensation, and in accordance with the provisions of the law.”

Outcome for Article P1-1: violation