The applicant, Mr Aldeguer Tomás, had been unable to marry his partner under the law in force during the latter’s lifetime. Three years after his partner’s death, the law legalising same-sex marriage in Spain entered into force.
Mr Aldeguer Tomás is a Spanish national who was born in 1955 and lives in Pozuelo de Alarcón (Madrid), Spain. His partner, with whom he had lived together since 1990, died in 2002. In 2003, Mr Aldeguer Tomás claimed social security allowances as a surviving spouse. The National Institute of Social Security (“INSS”) refused to grant him a survivor’s pension on the grounds that he had not been married to the deceased person. Challenges to this in the domestic courts ultimately failed.
Complaint to the ECtHR
Relying on Article 14 (prohibition of discrimination) read in conjunction with Article 8 of the Convention (right to respect for private and family life) and, in substance, in conjunction with Article 1 of Protocol No. 1 (protection of property), Mr Aldeguer Tomás complained that he was discriminated against on the grounds of his sexual orientation in that he was denied a survivor’s pension following the death of his partner.
The Court's judgment
Mr Aldeguer Tomás complained that he had been discriminated against on the grounds of his sexual orientation in that, as a survivor of a de facto same-sex union, he had been denied a survivor’s pension. He claimed in particular that his situation was relevantly similar or analogous to that of a surviving partner of a heterosexual cohabiting couple who, while having been unable to marry his or her partner before the law legalising divorce entered into force in 1981, qualified for a survivor’s pension by virtue of a provision of that law. The Court concentrated on this particular aspect of the complaint.
In response to this aspect of the complaint, the Court observed that although there were certain similarities between the situations of same-sex and opposite-sex couples who were unable to marry when considered in the abstract, those elements alone were not sufficient to place Mr Aldeguer Tomás in 2005 in a relevantly similar position to that of a surviving partner of an opposite-sex couple. This was because the legal impediment in question was of a different nature in both situations. What was at stake in the case of an opposite-sex couple, before the law of 1981, was an impediment to remarrying which had affected one or both partners, not an impediment to marrying per se. The specific factual and legal situation addressed by the 1981 legislation could therefore not be genuinely compared to the position of a same-sex couple who had been ineligible for marriage in absolute terms before the 2005 law.
On this basis, the Court concluded that Mr Aldeguer Tomás’ situation in 2005 had been fundamentally different from that of different-sex couples covered by the provision in question of the 1981 law. It stated that this view was unaffected by the fact that the Spanish legislature had recognised the right to a survivor’s pension to same-sex couples after the death of Mr Aldeguer Tomás’ partner, by introducing in 2005 same-sex marriage. The enactment of that legislation could not be taken as an admission by the domestic authorities that the non-recognition of same-sex marriage, or the exclusion of same-sex couples from some of the rights and benefits available to married couples, had at the relevant time been incompatible with the Convention.
Furthermore, the Court recalled that Contracting States enjoy "a margin of appreciation as regards the timing of the introduction of legislative changes in the field of legal recognition of same-sex couples and the exact status conferred on them", an area which is "regarded as one of evolving rights with no established consensus". Additionally, it recalled that "the Convention does not oblige Contracting States to grant same-sex couples access to marriage [...], marriage being widely accepted as conferring a particular status and particular rights on those who enter it."
The Court concluded that Mr Aldeguer Tomás was not in a relevantly similar situation to that of a surviving partner of a different-sex couple who had been unable to marry because of an impediment to remarrying which had affected one or both members of the couple before 1981. There had thus been no discrimination and, therefore, no violation of Article 14 taken in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1.
The relevance of the judgment
Hot on the heels of Chapin and Charpentier v France, the Court has again reiterated that the Convention does not require Contracting States to grant same-sex couples access to marriage or to the rights and benefits attached to marriage. The Court has further reiterated that Contracting States have a margin of appreciation available to them regarding the "timing" of when they grant same-sex couples legal recognition and the nature of the status conferred by this (in this respect, the judgment is consistent with previous decisions in M.W. v the United Kingdom and Courten v the United Kingdom). Clearly, a State can sometimes "run out of time" and be required to grant same-sex couples access to a specific legal framework that gives recognition to their relationships (Oliari and Others v Italy) but, once a State does this, the Court will not consider "retrospective" complaints.
What is curious (and perhaps troubling) about this judgment is that it is founded on a point about same-sex and opposite-couples not being in a relevantly similar or analogous position (in 2005). In the case of Mata Esteves v Spain, a case with similar facts, the Court, although it declared the complaint inadmissible, did not base its decision on a point about same-sex and opposite-sex couples not being in a relevantly similar situation (and, indeed, stated that the applicant in that case "might have been treated differently if his partner had been of the opposite sex"). To base its judgment on this point in the present case is therefore odd, because it relies on a narrow comparison between same-sex couples who were unable to marry, and opposite-sex couples who were unable to remarry because one or both of them was unable to obtain a divorce from a previous marriage. As the Court put it: "[w]hat was at stake [for opposite-sex couples] was an impediment to remarrying which affected one or both partners, not [as in the case of same-sex couples] an impediment to marrying".
It seems obvious that a more suitable comparison in this case would have been between unmarried same-sex couples (who were unable to marry) and married opposite-sex couples. Of course, this is not a comparison the Court has ever been willing to make. Although the Court has stated that a same-sex couple is "in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship" (Schalk and Kopf v Austria) it will not compare unmarried same-sex couples with married opposite-sex couples when the former are denied access to marriage and to its rights and benefits that are afforded to the latter (see X. and Others v Austria, § 109).
In my view, this judgment is yet another example of the Court making crystal clear that it has no intention of interfering with Contracting States' discretion to decide whether or not to allow same-sex couples to enter into marriage and to have access to the rights and benefits available to married couples. In addition, it acts to reassure States that do allow same-sex couple access to marriage (or an "alternative" framework of recognition) that no "retrospective" claims about discrimination will be upheld. As Judge Keller puts it, in his separate opinion, affording "the State a wide margin of appreciation" in a situation which has "considerable financial implications" seems "to be the right approach". In other words, the message from the Court to States is: if you allow same-sex couples to marry, don't worry about being sued for your previous discriminatory treatment of them, because it will not be recognised as such under the Convention.
The Spanish legislature made same-sex marriage available in 2005, thus allowing same-sex married couples to benefit from survivors’ pensions (and in 2007 extended the right to a survivor’s pension to stable de facto unions, both same and opposite-sex, under certain conditions). The Court concluded that "the Spanish legislature cannot be criticised [...] for not having introduced the 2005 or the 2007 legislation at an earlier date which would have entitled the applicant to obtain the benefit of a survivor’s pension". In my view, the Court should have "criticised" the Spanish government by declaring that Mr Aldeguer Tomás had been discriminated against in a manner that amounted to a violation of his human rights guaranteed by the Convention.