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Same Sex Partnerships, Survivor's Pension and Discrimination: Case C-267/07

By Bartolus

The Court of Justice handed down a judgment in Case C-267/06 Tadao Maruko v. Verorgungsanstalt des deutschen Bühnen that is a step, a small step, toward the recognition of gay marriage in EC law.

Mr. Maruko lived in Germany with his male partner, a designer of theatrical costumes. In 2001 they registered their relationship under the German law on registered life partnership of February 16th 2001 (BGBl. 2001 I, p. 266). Mr Maruko's partner had been a member of the VddB, the pension fund for theatrical professionals, since 1959. Mr. Maruko's life partner died in January 2005. Mr. Maruko then applied to the VddB for a widower's pension but his application was rejected because the VddB rules made no provision for such an entitlement in the case of surviving life partners. He challenged that decision before the referring German court.

The referring German court held that as a matter of German law it was clear that heterosexual couples could enter into marriage and be entitled to survivor's benefits in the event of the death of one of the spouses. The insured person and Mr Maruko could not validly marry each other in German law because of their sexual orientation. Consequently, it referred a series of questions to the Cort of Justice on whether refusal to grant a survivor?s pension to a life partner constitutes discrimination prohibited by Directive 2000/78/EC of November 27th 2000 establishing a general framework for equal treatment in employment and occupation. The aim of that directive is to combat, inter alia, discrimination on grounds of sexual orientation.

The Court of Justice held that, in principle, such a difference in treatment was a form of discrimination prohibited by Directive 2000/78 if surviving spouses and surviving life partners are in a comparable situation in German law as regards their pension rights.

But first the Court of Justice had to determine whether Directive 2000/78 applied at all because it does not cover social security and social protection schemes the benefits of which are not equivalent to pay. The Court held it did apply as the benefit was equivalent to pay. It found that the occupational pension scheme managed by the VddB has its origin in a collective agreement on employment and is funded exclusively by the workers and their employers, without any financial involvement on the part of the State.

On the issue of discrimination, the Court held that according to the order for a preliminary reference from the German court that Germany, while reserving marriage solely to persons of different sex, has established the life partnership, the conditions of which have gradually been made equivalent to those applicable to marriage. The provisions of the VddB restrict entitlement to survivor?s pensions to surviving spouses with the consequence that life partners are thus treated less favorably than surviving spouses.

The Court added that the referring court must determine whether, as a matter of German law, surviving spouses and surviving life partners are in a comparable position as regards pension rights.

So, the Court of Justice does not go as far as stating that EC law itself must recognize gay marriage but it must draw out the consequences should national law confer a status equivalent to marriage to same sex partnerships.

Full post as published by EU Law Blog on April 01, 2008 (boomark / email).