Last year, the Court issued the judgment of Oliari and Others v. Italy, described on this blog as “a stepping stone towards full legal recognition of same-sex relationships in Europe.” In this judgment the Court recognized that Article 8 ECHR encompasses a positive obligation on States to put in place a legal framework providing for the legal recognition and protection of same-sex relationships. The Court in particular emphasised that such legal framework must at least provide for the “core rights relevant to a couple in a stable and committed relationship” – as opposed to supposedly “supplementary” rights, such as for example the question whether such legal framework should allow same-sex couples to marry, a question which the Court in its Schalk and Kopf judgment considered to fall within the State’s margin of appreciation. The Court however failed to provide any guidance on what should be understood under those enigmatic “core rights”.
In the recent case of Aldeguer Tomás v. Spain, the Court however fails to build upon the Oliari judgment in order to provide more guidance in the area of the legal recognition of same-sex relationships. The case concerns the inability of the surviving partner of a same-sex relationship to receive a survivor’s pension. Since the applicant’s partner had died in 2002, three years before the entry into force of the same-sex marriage act in Spain, they had not been legally capable of marrying and consequently the applicant was unable to benefit from a survivor’s pension. The question before the Court was whether this situation was compatible with Article 14 (the principle of discrimination) in conjunction with Article 8 (the right to respect for family life) and Article 1 Protocol 1 (the right to property).
The wrong comparator
The main part of the judgment resolved around the question whether the applicant had been discriminated in comparison with a partner from a stable, non-married, heterosexual relationship, who had not been able to marry with his or her partner because one of them was still married and legally incapable of obtaining a divorce, of which the partner had died before the entry into force of the 1981 Act legalising divorce, and who by way of exception was nonetheless entitled to a survivor’s pension. The Court does not find a violation of Article 14, since it considers that both categories are not in a relevantly similar position. On the one hand, the Court considers that one has to take into account the background to the extraordinary solution provided for the second type of couple, being “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.” On the other hand, the legal impediment to marriage was of a different nature. While the inability of the heterosexual couples concerned to marry resulted not from an impediment to marrying at such, but from an impediment to remarrying, same-sex couples had been ineligible for marriage in absolute terms, irrespective of the marital status of one or both of its members. Since the applicant, according to the Court, is not in a relevantly similar situation to that of a surviving partner of such a heterosexual couple, the Court considers that he has not been discriminated against and that there thus has not been a violation of Article 14 in conjunction with Article 8 and Article 1 Protocol 1.
The judgment is however problematic in the sense that the Court completely misses the point that the genuine reason why the applicant was denied a survivor’s pension was because he was in a same-sex relationship. The comparison with the exception provided in the 1981 Divorce Act is a far-fetched one indeed, in particular taking into account the fact, as stressed by Judge Keller in her Separate Opinion, that “the legislator acted regarding the first group more than 25 years earlier than in the case of the second.” The problem is that the Court, admittedly based on the applicant’s argumentation, focuses on the wrong comparator. The obvious comparator would have been a person in a heterosexual relationship that, unlike the applicant before the entry into force of the 2005 same-sex marriage act, had been able to contract a marriage and had consequently been able to enjoy a survivor’s pension. The crux of the case is the fact that the applicant was worse off than a heterosexual surviving partner would have been.
The Court does not genuinely examine this question. Rather it confines itself to recalling, by way of obiter dicta, its ruling from Schalk and Kopf “that States enjoyed 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 was regarded as one of evolving rights with no established consensus.” It this respect, it emphasizes that “the Spanish legislature cannot be criticised under the terms of the Convention 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.”
While the passage of time – the applicant’s partner having died in 2002 – and the fact that progressive changes have meanwhile been introduced in Spanish legislation may well explain the Court’s hesitance to compare both categories in the case under consideration, such approach is unsatisfactorily nonetheless since the Court fails to provide guidance for later cases. The Court for example fails to offer any guidance as to the required pace of legislative change. While the Court may have rightly considered Spain to have acted at an acceptable pace, it gives no indication as to how it would assess the situation in which a State were to continue excluding the surviving partner of a same-sex couple from a survivor’s pension, while providing such benefits for the surviving partner of a heterosexual couple. The Court also fails to indicate whether survivor’s pensions should be considered as “core” or “supplementary” rights in the meaning of the Oliari judgment, continuing its failure to provide guidance as to what minimum requirements the legal protection of same-sex couples should exactly consist of under the Convention. In all, the judgment is more disappointing in what it does not say than in what it says. While wasting its energy on comparing what is beyond comparison, the Court left the more fundamental questions unaddressed.