TRIBUNAL CONSTITUCIONAL Portugal

RULING Nº 88/04

10 of February of 2004

Headnotes:

Entitlement to a survivor's pension is independent and separate from any right to a maintenance allowance enforced against either the family members themselves or the deceased partner's estate. This means that attribution of the right to a survivor's pension is a corollary of the right to social security (as set out in Article 63), rather than corresponding to any recognition of the family's need for protection (based on Article 67 of the Constitution).

Under the prevailing interpretation of the provisions in question, in order to qualify for a survivor's pension, payable by the public body to which the deceased partner had paid contributions throughout his or her career, the surviving partner must prove not only that he or she did indeed cohabit with the deceased partner and that he or she is in a state of need, but also, where proceedings are brought against the deceased person's estate, that he or she is unable to obtain a maintenance allowance from his or her family. In other words, in order to qualify for a survivor's pension the surviving partner must prove that he or she is in a state of absolute destitution.

The Court holds the measure in question to be manifestly inappropriate or excessive. Bearing in mind that the right to found a family (Article 36.1 of the Constitution) can be secured in the form of steady, lasting cohabitation, rather than exclusively by marriage (under the conditions set out in accordance with the legislator's discretionary powers), it is doubtful, to say the least, whether this restriction of the right to a survivor's pension can be deemed an acceptable, appropriate way to pursue the possible political aim of protecting or promoting marriage. Having regard to the three conditions set out in the proportionality rule to govern relations between measures adopted and the objectives pursued, although it might straightaway be affirmed that the interpretation of the provisions in question infringes the first of these conditions, i.e. appropriateness vis-à-vis whatever goal is being pursued, and even though it is extremely questionable whether it infringes the second condition, namely the necessary measure principle, it will always undeniably infringe the third, i.e. the principle of proportionality in the strict sense of the term, or the principle of a "fair measure". It must consequently be considered unnecessary, disproportionate and at variance with the principle of outlawing excessive measures.

Summary:

The main question was whether the obligation imposed on a surviving partner who had "cohabited" with a beneficiary of the Caixa Geral de Aposentaçoes [Retirement pension fund] (an administratively and financially autonomous public-law legal entity responsible for managing the pensions branch of the civil service social security scheme) to prove - under proceedings mandatorily brought against the deceased partner's estate - in addition to the fact of cohabitation, that he or she not only is in a state of need but also is facing complete destitution because of an inability to obtain a maintenance allowance from his or her family (descendants, ascendants or collaterals) in order to qualify for a survivor's pension from the public body to which the deceased partner had paid contributions throughout his or her career, constitutes an excessive and disproportionate sacrifice, thus infringing the proportionality rule.

The Court points out that the provisions of the Constitution on the right to found a family and to marry can admittedly be interpreted as meaning that a family may be founded on the basis of a steady, lasting period of cohabitation (in the instant case the couple cohabited for at least 29 years), rather than exclusively on the basis of marriage. However, it cannot be taken for granted that this distinction between "founding a family" and "marrying" (Article 36.1 of the Constitution) and the protection to which the family is entitled "as a basic component of society" (Article 67.1 of the Constitution) necessarily requires the legislator to recognise and protect steady, continuous cohabitation on exactly the same bases as a matrimonial family. It might even be held that specific legislative regulations can be laid down for spouses and that "cohabitees", unlike spouses, cannot inherit.

The right to a maintenance allowance and that to a survivor's pension are fundamentally different: the right to maintenance derives from family or quasi-family relationships and is geared to meeting the needs of the beneficiary of such an allowance, whereas the right to a survivor's pension is based on compulsory contributions which the deceased civil servant was required to pay throughout his or her career (for a minimum period). The criteria for calculating the amount of the pension include both the total contributions paid and the period over which they were paid. Regard must also be had to the fact that the pension is awarded by a public body to which civil servants must pay their compulsory contributions. This makes the right to a survivor's pension separate and independent from any maintenance rights enforced against either the family members themselves or the deceased partner's estate. Accordingly, attribution of the right to a survivor's pension is a corollary of the right to social security (as set out in Article 63), rather than corresponding to recognition of the family's need for protection (based on Article 67 of the Constitution).

The proportionality rule is a restriction on the exercise of public authority, and in the specific field of rights, freedoms and guarantees this rule sets a limit on permissible restrictions. The proportionality requirement here is expressly mentioned in Article 18.2 of the Constitution, although broadly speaking, as a general restriction on the exercise of public authority, we might consider that it derives from the principle of the rule of law (set out in Article 2). The three principles underpinning the proportionality rule, in the broad sense, are the principle of appropriateness (any measures restricting rights, freedoms and guarantees must constitute appropriate means of pursuing the objectives in question, while safeguarding other constitutionally protected rights or interests); the necessary measure principle (the said restrictive measures must be necessary for the purposes of attaining the objectives pursued in the absence of any other less restrictive legislative means of attaining them); and the principle of a "fair measure", or proportionality in the strict sense of the term (avoidance of any excessive measures disproportionate to the aims pursued). This means that the relationship between the measures and the aims pursued must fulfil three requirements: firstly, the appropriateness of the said legislative measure in pursuing the underlying objective; secondly, an assurance that this option, as it stands, comprises the minimum level of disadvantage; and lastly, with reference to the strict sense of the proportionality rule, a guarantee that the result obtained is proportional to the burden which it imposes.

The legislator has wide-ranging discretionary powers in terms of law-making. Consequently, the court's assessment of whether a given provision is unconstitutional on the grounds that it violates the proportionality rule depends on whether it can pinpoint any obvious unsuitability of the measure taken, any manifestly erroneous option on the part of the legislator, any blatant excess in the measure or any drawbacks which are obviously disproportionate to the advantages obtained.

In the instant case, the Court held that, as interpreted by the Court in question, the provision at issue was unconstitutional on the ground that it violated the proportionality rule as set out in Article 18.2 and as also implied by the rule-of-law principle (Article 2), in conjunction with the provisions of Articles 36.1, 61.1 and 61.3 of the Constitution.

Supplementary information:

Re. Constitutional case-law on regulations regarding "cohabitation", cf. Judgment no. 275/02 of 19.06, and Judgment no. 195/03 of 09.04.2003.