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issued by the Registrar of the Court   ECHR 202 (2016)   14.06.2016   Inability of surviving same-sex partner who was not married to receive   survivor’s pension: not discriminatory   In today’s Chamber judgment1 in the case of Aldeguer Tomás v. Spain (application no. 35214/09)   the European Court of Human Rights held, unanimously, that there had been:   no violation of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to   respect for private and family life) of the European Convention on Human Rights and Article 1 of   Protocol No. 1 (protection of property) to the Convention.   The case concerned the applicant’s complaint of having been discriminated against on the ground of   his sexual orientation in that he was denied a survivor’s pension following the death of his partner,   with whom he had lived in a de facto marital relationship. 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.   The Court concluded that that there had been no discrimination in Mr Aldeguer Tomás’ case. In   particular, his situation following the entry into force of the law legalising same-sex marriage in   Spain in 2005 had not been relevantly similar to that of a surviving partner of a heterosexual   cohabiting couple, who had been unable to marry his or her partner before the law legalising divorce   entered into force in 1981 and who qualified for a survivor’s pension by virtue of a provision of that   law.   Moreover, States had, at the relevant time, a certain room for manoeuvre (“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 was regarded as one of   evolving rights with no established consensus.   Principal facts   The applicant, Antonio Aldeguer Tomás, is a Spanish national who was born in 1955 and lives in   Pozuelo de Alarcón (Madrid), Spain.   Mr Aldeguer Tomás’ partner, with whom he had lived together in a homosexual relationship 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.   Following the entry into force of the law legalising same-sex marriage in Spain in July 2005, Mr   Aldeguer Tomás filed an administrative complaint against the INSS’ 2003 decision. The INSS   dismissed his complaint, noting that under the legislation in force he could not gain the status of a   widower. Mr Aldeguer Tomás challenged that decision before the courts, and in November 2005 the   Social Tribunal found for him, holding that the facts of the case had to be assessed in the light of the   new law on same-sex marriage. It also recalled that a provision of the law legalising divorce of 1981   recognised the right to obtain a survivor’s pension for individuals who had been prevented from   1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,   any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges   considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final   judgment. If the referral request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.   Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.   marrying a person with whom they had lived in a heterosexual relationship similar to marriage under   the legislation in force before 1981 because one or both partners had still been married to another   person and divorce was legally impossible at the time. The Social Tribunal considered that treating   those who had been unable to marry on account of their sexual orientation differently from   cohabiting heterosexual couples who had been prevented from marrying because divorce had been   prohibited at the time would not be in harmony with the strong egalitarian intention pursued by the   law legalising same-sex marriage.   On appeal by the INSS and the Treasury General of Social Security, the Madrid High Court of Justice   reversed the first-instance judgment in September 2006, finding that the law on same-sex marriage   had not been intended by the legislature to cover same-sex partnerships which had been ended by   the death of one partner before the law entered into force; the law therefore had no retroactive   effect in the circumstances of Mr Aldeguer Tomás’ case. Both his appeal on points of law and his   amparo appeal were declared inadmissible, by the Supreme Court and the Constitutional Court   respectively, the final decision being taken in February 2009.   Complaints, procedure and composition of the Court   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   of Protocol No. 1 (protection of property), Mr Aldeguer Tomás complained that he was   discriminated against on the ground of his sexual orientation in that he was denied a survivor’s   pension following the death of his partner.   The application was lodged with the European Court of Human Rights on 22 June 2009.   Judgment was given by a Chamber of seven judges, composed as follows:   Helena Jäderblom (Sweden), President,   Helen Keller (Switzerland),   Johannes Silvis (the Netherlands),   Branko Lubarda (Serbia),   Pere Pastor Vilanova (Andorra),   Alena Poláčková (Slovakia) and,   Blanca Lozano Cutanda (Spain - ad hoc Judge), judges   and also Stephen Phillips, Section Registrar.   Decision of the Court   The Court confirmed that Mr Aldeguer Tomás’ relationship with his late partner fell within the   notion of “private life” and that of “family life” under Article 8, in line with its recent case-law   concerning the situation and the rights of cohabiting same-sex couples.   Mr Aldeguer Tomás alleged 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 Spanish Government, however, argued that there   was no true analogy since same-sex couples had not been able to marry at all before the entry into   force of the 2005 law, whereas the different-sex couples in question had been eligible for marriage   but had been unable to exercise such right before 1981 because divorce had not been legal.   While the Court observed that there were certain similarities between both situations taken 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 a heterosexual couple who had been   unable to marry before the law of 1981. As noted by the Government, the provision in question of   the 1981 law had the specific purpose of providing an extraordinary solution to the couples   concerned, giving the surviving partner access to a survivor’s pension under certain conditions. That   solution had to be seen against the background of a situation where the participation in building up   pension rights by paid work had not been equally distributed among the sexes, since women were   underrepresented in the work force.   Furthermore, the legal impediment in question was of a different nature in both situations. What   was at stake in the case of a heterosexual couple concerned by the legislation 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.   In conclusion, 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. That 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.   The Court recalled that in a previous case concerning the inability of a homosexual couple to marry2   it had held that States had a certain room for manoeuvre (“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 was regarded as one of evolving rights with   no established consensus.   It followed that there had been no discrimination in Mr Aldeguer Tomás’ case and therefore no   violation of Article 14 read in conjunction with Article 8 of the Convention and Article 1 of Protocol   No. 1.   Separate opinion   Judge Keller expressed a separate opinion, which is annexed to the judgment.   The judgment is available only in English.   This press release is a document produced by the Registry. It does not bind the Court. Decisions,   judgments and further information about the Court can be found on www.echr.coe.int. To receive   the Court’s press releases, please subscribe here: www.echr.coe.int/RSS/en or follow us on Twitter   @ECHRpress.   Press contacts   [email protected] | tel.: +33 3 90 21 42 08   Nina Salomon (tel: + 33 3 90 21 49 79)   Tracey Turner-Tretz (tel: + 33 3 88 41 35 30)   Denis Lambert (tel: + 33 3 90 21 41 09)   Inci Ertekin (tel: + 33 3 90 21 55 30)   Schalk and Kopf v. Austria (30141/04), Chamber judgment of 24 June 2010   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member   States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   4