Statute governing Survivors' Pensions, 1973
General social security scheme
Specific civil service scheme
RULING No. 313/2008
Case no. 199/08
Rapporteur: Justice Mário Torres
Ruling of the Constitutional Court sitting in Plenary.
I – Report
1. Under the terms of Article 82 of the Law governing the Organisation, Functioning and Procedure of the Constitutional Court (the LTC), which was approved by Law no. 28/82 of 15 November 1982 and was most recently amended by Law no. 13-A/98 of 26 February 1998, the representative of the Public Prosecutors’ Office at the Constitutional Court has asked the Court to consider whether part of the rule set out in the final section of Article 41(2) of the Statute governing Subsistence Pensions (EPS), which was approved by Executive Law no. 142/73 of 31 March 1973 and was amended by Executive Law no. 191-B/79 of 25 June 1979 – the part which says that subsistence pensions are payable from the first day of the month following that during which the pension was applied for – is unconstitutional, and if so, to declare that unconstitutionality with generally binding force.
The rule in question (with the rectification that appeared in Series I of the Diário da República of 22 August 1979, pp. 2032 2033) reads as follows: “2 – The person who, at the moment of the contributor’s death, fulfils the conditions provided for by Article 2020 of the Civil Code shall only be deemed to be a qualified heir for the purposes of a subsistence pension, following a judicial sentence that awards him the right to the allowance, and the subsistence pension shall be due from the first day of the month following that in which the said person applied for it, and for as long as the aforesaid right continues to exist”.
The petitioner goes on to add that the Court has held the above segment of the rule unconstitutional in a number of concrete review cases (Rulings nos. 522/2006, 195/2007 and 233/2007), for a breach of the principle of equality in the shape of the unjustified difference in treatment meted out by this scheme, compared to the scheme which Regulatory Decree no. 1/94 of 18 January 1994 created for beneficiaries of the Social Security System, under which the pension is payable as of the beginning of the month following the beneficiary’s death, when applied for during the six months following the date on which the judicial sentence that recognises the right invoked by the person who is in the situation provided for by Article 2020 of the Civil Code transits in rem judicatam.
2. When notified under the terms and for the purposes of Articles 54 and 55(3) of the Law governing the Constitutional Court (LTC), the Prime Minister replied that he had nothing to add.
3. Once the memorandum which the President of the Court presented in accordance with Article 63 of the LTC had been debated, and the Court had outlined its opinion on the case, the file was allocated to a rapporteur, whereupon the Court must now take its decision.
II – Grounds for Decision
4. There is no doubt that the requirements laid down by Articles 281(3) of the Constitution of the Portuguese Republic (CRP) and 82 of the LTC are met, inasmuch as the Constitutional Court has already held the rule in question unconstitutional in the three rulings referred to by the petitioner: Rulings nos. 522/2006, 195/2007 and 233/2007. Indeed, this finding has since been reiterated in Rulings nos. 298/2007, 484/2007 and 575/2007 and in Summary Decisions nos. 577/2006 and 43/2008, the full text of all of which is available at www.tribunalconstitucional.pt.
5. As part of the Social Security System – both the so-called “general scheme”, and the specific civil service scheme – the legislative authorities provided that in the event of the death of contributors to the one or beneficiaries of the other, and if certain requirements are met, the so-called “subsistence pension” should be awarded to certain categories of the deceased’s family members (the “qualified heirs”, to use the terminology employed by Executive Law no. 142/73). Article 30(1) of the original version of the latter Law established the general rule that “the subsistence pension (…) shall fall due on the first day of each of the months following that in which the contributor’s death occurred”.
Executive Law no. 191 B/79 changed the text of Articles 40(1)a and 41 of Executive Law no. 142/73. Its preamble said that the purpose of this change was “to adapt the rules governing the subsistence pensions of Public Administration staff and agents, which were laid down in 1973, to the major lines of thought that have provided the overall framework for the Portuguese legal system since 25 April 1974”, and, “in particular, with a view to progressively moving towards a social security scheme that is unified in accordance with the Constitution, (…) to accommodate the general principles that governed the alterations that have been made to the Civil Code in the field of Family Law”, including “accommodating the principle of the importance of de facto unions, which are to some extent comparable with conjugal unions, in accordance with the current version of Article 2020 of the Civil Code. The new text expressly recognised that persons who fulfilled the conditions set out in Article 2020 of the Civil Code possessed the right to a subsistence pension as qualified heirs of deceased contributors. Article 41(2) stated that such persons would only be considered qualified heirs for the purpose of a subsistence pension following a judicial sentence that awarded them the right to the allowance in question, and that the subsistence pension would be due as of the first day of the month following that in which the person applied for it, and for as long as the right continued to exist. At the same time, Article 30(1) of Executive Law no. 142/73 was also changed, and the new version established the rule that “the subsistence pension (…) shall be due from the first day of the month following that in which the contributor died, when applied for during the six months counting from that date, or from the first day of the month following that in which the application was submitted to Montepio, when the application was made at any time after the end of that six-month deadline”.
Where the general social security scheme was concerned, it was Executive Law no. 322/90 of 18 October 1990 which extended the right to the subsistence pension (defined as the monetary payment whose “objective is to compensate the beneficiary’s family members for the loss of working income caused by his death” – Article 4) to the de facto situations provided for by Article 2020 of the Civil Code. Under the heading “De facto situation analogous to that of spouses”, Article 8 of Executive Law no. 322/90 stated that:
“1 – The right to the payments provided for by this legislation and the respective legal rules shall be extended to persons who find themselves in the situation provided for by paragraph (1) of Article 2020 of the Civil Code.
2 – The process of providing evidence of the situations referred to by the said paragraph (1), and the definition of the conditions for the award of the payments, shall be laid down by regulatory decree.”
It was Regulatory Decree no. 1/94 of 18 January 1994 that implemented this legislative command. Its Article 6 reads as follows:
“When applied for during the six months after the sentence has transited in rem judicatam, the subsistence pension shall be awarded from the beginning of the month following that during which the death of the beneficiary occurred; when applied for after that six-month period has ended, it shall be awarded from the beginning of the month following that during which the application is submitted.”
Since that evolution in the legislation, people have asked whether the difference between the two schemes in terms of the moment when the right to a subsistence pension for a person who lived in a de facto union with the deceased beneficiary begins – i.e. between the case of a beneficiary of the general social security scheme and the case of a beneficiary of the specific civil service scheme – is or is not compatible with the constitutional principle of equality before the law enshrined by Article 13(1) of the CRP.
As we can see from the above report, on the various occasions when it was called on to pronounce itself, the Constitutional Court always held unconstitutional the part of the rule set out in Article 41(2) of the Statute governing Subsistence Pensions which says that subsistence pensions are payable from the first day of the month following that during which the pension was applied for. This understanding is also adhered to by the dominant train of thought that formed over time in this respect in the other courts – in particular, see: the Supreme Court of Justice rulings issued on 22 April 2004 (Case no. 3582/03), 1 March 2007 (Case no. 136/07), 25 September 2007 (Case no. 2648/07), 7 February 2008 (Case no. 4789/07), and 8 April 2008 (Case no. 777/08); the Lisbon Court of Appeal rulings issued on 5 May 2005 (Case no. 9951/05), 15 December 2005 (Case no. 10876/05), 20 June 2006 (Case no. 1784/06), 11 October 2007 (Case no. 8213/07), and 8 November 2007 (Case no. 8699/07; the Oporto Court of Appeal ruling issued on 27 March 2008 (Case no. 1513/08); the Coimbra Court of Appeal ruling issued on 24 October 2006 (Case no. 1215/06); the Évora Court of Appeal ruling issued on 21 June 2007 (Case no. 657/07); and the Guimarães Court of Appeal ruling issued on 19 October 2005 (Case no. 1796/05). However, we should also note the opposite interpretation contained in the ruling which the Supreme Court of Justice issued on 22 March 2007 (Case no. 493/07) (the full texts of these rulings are available at www.dgsi.pt, in the sections concerning the jurisprudence of each of the abovementioned courts).
6. The Court considered the constitutional issue that is at stake in the case before us in detail in Ruling no. 522/2006:
“2.2.2. (…) That which is at stake (…) – and here we are always talking about the general framework applicable to de facto unions – is a comparison of the situations of persons who, having acquired the right to receive a subsistence pension due to the death of their de facto spouse, are only differentiated by the circumstance that the said pension arises due to the death of a Public Administration staff member or agent on the one hand (…), or to the death of a beneficiary of the so-called General Social Security Scheme on the other.
In the first of these two cases, once the judicial authorities have defined the right to a pension, under the terms of the rule before us the said pension is due from the first day of the month following that in which it was applied for. In the second case – the one involving the General Scheme – under the terms of Article 6 of Regulatory Decree no. 1/94 of 18 January 1994, if the same pension (i.e. a pension, the right to which is acquired on the basis of substantially identical factual preconditions) is applied for during the six months after the judicial decision which recognises the existence of the right to it, it is payable “[…] from the beginning of the month following that in which the beneficiary’s death occurred […]”. Inasmuch as the moments in time when the payments in each of the two cases begin are different (beneficiaries of a pension that arises under the General Scheme start to receive it sooner), we must ask ourselves whether there is compliance with the constitutional principle of equality in relation to persons who, outside the scope of the said General Scheme, act within the periods of time that lead to the first hypothesis provided for by Article 6 of Regulatory Decree no. 1/94. So, at the end of the day, this is the question of equality that we must elucidate here.
126.96.36.199. In its jurisprudence this Court has firmly and repeatedly characterised the principle of equality derived from Article 13 of the CRP as a prohibition of arbitrariness (see Ruling no. 232/2003, as published in Series I-A of the Diário da República of 17 June 2003, pp. 3514-3531). To quote the Constitutional Court in this respect, “(the combination of) the principle (of equality) and the legislative authorities’ freedom to shape legislation means that those authorities can (and perhaps must) lay down ‘reasonable, rational and objectively justified’ differences in treatment, failing which it is possible that ‘the legislative authorities might themselves be running the risk of being arbitrary, in that they would be excluding solutions that are objectively justified by important constitutional values’ (…). The point is that there must be sufficient material grounds to neutralise the arbitrariness and preclude any unjustified discrimination (…)” (Ruling no. 319/2000, as published in Series II of the Diário da República of 18 October 2000, pp. 16 785-16 786).
In the suggestive words of the German Constitutional Court (quoted by Robert Alexy, Theorie der Grundrechte, Frankfurt, 1986, p. 370), the arbitrary nature of a differentiation in the law is derived from the circumstance that “(…) it is not possible to find (…) a reasonable reason which arises from the very nature of things, or which is in some way concretely understandable (…)”. This means that “(i)f all the reasons that might be taken into account are considered insufficient, there is no sufficient reason that would permit a differentiation (in the law). This is precisely what happens when one is unable to provide grounds that would justify the differentiation (…). The maxim of equality thus implies that there is a burden to provide an argument which justifies any unequal forms of treatment” (Robert Alexy, op. cit., p. 371).
188.8.131.52. In the case before us the circumstance – common to both terms of comparison – that the right to a subsistence pension was acquired as a result of the judicial recognition of a de facto union with the deceased beneficiary or subscriber, constitutes an element of factual equality. While this element does not express a situation of absolute factual equality (inasmuch as it involves a comparison between pensions that are generated as part of the so-called General Scheme on the one hand, and pensions generated as part of the Scheme applicable to Public Administration staff and agents on the other), it does however make it possible to qualify the situation of both as essentially equal, given a considerable preponderance of common elements. The fact is that if we look at the two schemes (the General one and the Public Administration one), we see that in both there is a substantially identical projection of the “legal social security relationship” (see the latter’s characterisation in Ilídio das Neves, Direito da Segurança Social, Coimbra, 1996, pp. 299-309) in the de facto union situation. In both schemes, and based on the same preconditions in both cases, de facto unions are taken to constitute “the binding legal relationship which ensures that the interested parties are legally connected to the system […]» (Ilídio das Neves, op. cit., p. 308).
In this respect we should emphasise that there is no validity in the argument (…) that an alleged (and hypothetical) “much lower amount” (…) for the pensions paid under the General Scheme would justify the differentiation derived from the rule before us. Apart from anything else, because the amount of the subsistence pensions paid under the two schemes varies depending on elements whose multiplicity and coherence within each scheme make it inappropriate to compare (the two schemes) on the basis of the variable “amount of the pension” (on the calculation of the pensions that are at stake here, under the two schemes, see Article 28 of the EPS and Articles 24 and 25 of Executive Law no. 322/90 of 18 October 1990, ex vi the provisions of Article 1 of Regulatory Decree no. 1/94 of 18 January 1994). On the other hand, this element (the “amount of the pension”) does not affect the abovementioned considerable preponderance of common elements. I.e. it does not prevent the two situations from being essentially identical: in both, the right to a pension is acquired on the basis of the same preconditions and via procedures that are substantially the same.
In this situation (which, we must repeat, is one of equality in terms of the essence that is relevant for comparative purposes), because – as we have already said – they refer to elements that are not important to this concrete comparison, any specificities of the so-called General Social Security Scheme compared to the Social Security Scheme for Public Administration staff and agents, lose any meaning and cease to justify a less advantageous treatment (such as the one derived from the final segment of Article 41 of the EPS compared to Article 6 of Regulatory Decree no. 1/94) when it comes to determining the moment as of which the pension is payable. Moreover, where these (possible) specificities of the two Schemes are concerned, we must emphasise that in this domain the “constitutional plan” is based on the idea of the unification of the social security system – “The state shall be charged with organising (…) a unified (…) social security system” (Article 63 of the CRP); and that within that framework, the search for solutions that represent equality takes on a kind of “enhanced value” on the level at which the civil service social protection schemes converge with “the social security system schemes in terms of their material scope, the rules governing the creation of rights, and the award of benefits or payments” (Article 124 of Law no. 32/2002 of 20 December 2002, which laid down the bases of the social security system).
The absence of a relevant justification for the aforementioned differentiation (…) means that there is a violation of the constitutional principle of equality (Article 13 of the CRP) (…).”
The Constitutional Court reiterated this understanding in the subsequent decisions, to which we referred above. In Ruling no. 195/2007, the Court favoured the “preference” for the general social security scheme rule, both because it recognised that the latter incorporated the most recent option adopted by the legislative authorities, and due to the nature of the payment in question itself. The Ombudsman particularly underlined the latter aspect in his Recommendation no. 6/B/2006 (www.provedor-jus.pt/recomendacoes.php), in which he said the following:
“13. There is no doubt that Article 6 of Regulatory Decree no. 1/94 of 18 January 1994 established a much more generous scheme than did the aforementioned precept of the Statute governing Subsistence Pensions, and put an end to the distinction between spouses and persons in a de facto union from the moment at which the latter are recognised as qualified heirs by a judicial sentence that has transited in rem judicatam.
14. We have also already seen that the most recent jurisprudential decisions on this specific matter have not found any binding reasons that would make it possible to justify the (often very significant) difference between the dates on which the pension begins in the Public Administration scheme on the one hand and in the general social security scheme on the other, when it comes to exercising rights that are rigorously identical.
15. Given the nature of subsistence pensions, the purpose of which under both schemes (the civil service social protection scheme, and the social security system scheme) is to compensate the beneficiary’s qualified family members / heirs for the loss of working income caused by his death, I cannot see any other justifications that could be behind the imposition of different dates on which the pensions begin to be payable.
16. As Rita Lobo Xavier rightly says (in an article entitled “Uniões de facto e pensão de sobrevivência. Anotação aos Acórdãos do Tribunal Constitu-cional no.s 195/03 e 88/04”, which was published in Jurisprudência Constitucional no. 3, July-September 2004, p. 16 et seq.), “the award of the subsistence pension is intimately related to the economic implications of the beneficiary’s death: the qualified heirs must prove certain facts which mean that the beneficiary’s death has meant a reduction in their means of subsistence”.
17. In situations in which this proof has already been given before a court and the deceased’s partner has been recognised as a qualified heir – i.e. in which that person’s means of subsistence have been affected by the loss of working income that the de cujus used to earn, one cannot see a reason why the law should not provide the partner with the subsistence pension from the moment at which he/she ceased to be able to count on that income – in other words, from the beginning of the month following that in which the death occurred.
The fact is that it appears to me to be excessively burdensome, unfair and disproportionate to make the partner bear the losses that can arise from the slowness of the administrative details of judicial proceedings, which, in the cases that have been made known to me, took around two years, when the same slowness is irrelevant in the case of the general social security scheme.”
For the reasons set out above, and inasmuch as from the point of view of the purpose of the rights in question (the legal right to a subsistence pension and the constitutional right to social security), the differentiation between schemes via which the legislative authorities created substantially different solutions for situations that are essentially the same is unjustified, we must declare the rule that has been questioned unconstitutional due to a breach of the principle of equality.
III – Decision
As such, the Court hereby decides to declare, with generally binding force, that part of the rule set out in the final section of Article 41(2) of the Statute governing Subsistence Pensions, which was approved by Executive Law no. 142/73 of 31 March 1973 and was amended by Executive Law no. 191-B/79 of 25 June 1979 – the part which says that the subsistence pension to which the person who fulfils the conditions laid down by Article 2020 of the Civil Code at the moment of the contributor’s death is entitled, is only payable from the first day of the month following that during which the pension was applied for – is unconstitutional because it is in breach of the principle of equality.
Lisbon, 11 June 2008.
Mário José de Araújo Torres
Benjamim Silva Rodrigues
Carlos Alberto Fernandes Cadilha
Maria Lúcia Amaral
Maria João Antunes
João Cura Mariano
José Manuel Borges Soeiro
Ana Maria Guerra Martins
Joaquim de Sousa Ribeiro
Carlos Pamplona de Oliveira (With concurring opinion)
Rui Manuel Moura Ramos
I vote in favour of the decision, but disagree with the grounds for it. As I said in the opinion I attached to Ruling no. 522/2006, I believe that, given the nature of the pension in question and quite apart from the problem of equal legislative treatment which arises, the rule essentially imposes a solution that is not appropriate to its intended purpose. This understanding means that the legal solution could not be upheld even if the system established by Regulatory Decree no. 1/94 of 18 January 1994 were to impose other rules for beneficiaries of the Social Security Scheme.
Carlos Pamplona de Oliveira