Statute governing Survivors' Pensions, 1973
General social security scheme
Specific civil service scheme
RULING Nº 313/08
11 of June of 2008
The question posed is the compatibility with the constitutional principle of equality before the law of the difference in the rules governing determination of the date of commencement of entitlement to a survivors' pension, granted to the person who cohabited with a deceased beneficiary, depending on whether the beneficiary was affiliated to the general social security scheme or the specific civil service scheme. The fact that in both situations entitlement to a survivors' pension is acquired as a result of legal recognition of a de facto union with a deceased beneficiary or affiliate is an element that tends to confirm that the two situations are the same. Although it does not reflect a situation in which the circumstances are absolutely identical, since a comparison is being drawn between pensions payable under the general scheme and pensions payable under the scheme applicable to civil servants and public officials, this element nonetheless makes it possible to consider the situations as fundamentally the same in view of the very many common factors. Indeed, under both schemes the analysis of the "legal social security relationship", based on the same criteria, is substantially the same.
The lack of a relevant ground for this difference in treatment infringes the constitutional principle of equality.
The Public Prosecution Service's representative to the Constitutional Court had petitioned the Court for an abstract review finding of unconstitutionality of the rule of the Estatuto das Pensoes de Sobrevivência (Survivors' Pensions Code, 1973) providing that a survivors' pension was due from the first day of the month following that in which it was claimed. The application was lodged after the Constitutional Court had, in the context of a concrete review of its constitutionality, found this rule unconstitutional for breach of the principle of equality (on account of the difference in treatment apparent from a comparison of this rule with that applicable to beneficiaries of the social security scheme, under which the pension was due from the beginning of the month following the former beneficiary's death where it was claimed within six months of the judgment recognising entitlement).
In the context of cohabiting couples, persons granted entitlement to a survivors' pension in the event of the death of their de facto spouse were treated differently depending on whether the pension was awarded following the death of a civil servant (or a public official) or of a beneficiary affiliated to the general social security scheme.
In the first case, entitlement to a pension was determined by a judicial decision and, according to the rule under consideration here, the pension was due from the first day of the month following that in which it was claimed. In the second, if claimed within six months of the judicial decision recognising entitlement, the pension awarded under the general scheme was due "from the beginning of the month following the beneficiary's death". Since the dates of first payment differed in these two cases (beneficiaries of a pension payable under the general scheme received it earlier) the question arose of respect for the constitutional principle of equality in the case of persons not covered by the general scheme who had acted within the above time-limit.
This position had often been adopted in the Constitutional Court's decisions and, consequently, since the legal conditions were met, the Court declared the challenged rule unconstitutional with absolute binding effect.
One judge filed a written opinion, since he considered that, despite having voted in favour of the decision taken in the judgment, he had done so in disagreement with its grounds, given that, in his contention, regardless of the problem of equal treatment under the law, in view of the nature of the pension in question, the legal solution could never be enforced since it was unfit for purpose.