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Pension rights for gay couples in civil partnerships should match those for married straight couples, EU court rules


Couples in civil partnerships should have the same pension rights as married couples according to the European Court of Justice, backing the approach already taken in the UK.

Europe's top court has ruled that better pension entitlements for married people than for those in civil partnerships in Germany break EU laws on discrimination.

Gay men in a civil partnership are entitled to receive supplementary retirement pension benefits equal to those that married pensioners would receive, ECJ said, bringing EU law into line with that in the UK.

The UK law already puts employees in a civil partnership on an equal footing as married employees, Ben Doherty, employment law expert with Pinsent Masons, the law firm behind OUT-LAW, said.

“The Equality Act 2010 which contains the UK discrimination laws already takes into account the special status of civil partners and provides that it is unlawful to withhold a benefit from people that are not married which an employer provides to married employees," said Doherty. "This puts employees who are in a civil partnership on the same footing as married employees and there is no need for the UK courts to have to consider the issue of whether a civil partnership is comparable to a marriage as there was in this case."

The ECJ ruled that laws in Hamburg that say a pensioner is entitled to a higher supplementary retirement pension if they are married than if they are in a 'registered life partnership' contradict what the EU's Employment Framework Directive says about employment discrimination on the grounds of sexual orientation.

"[Sections of the Employment Framework Directive] preclude a provision of national law ... under which a pensioner who has entered into a registered life partnership receives a supplementary retirement pension lower than that granted to a married, not permanently separated, pensioner if ... marriage is reserved to persons of different gender and exists alongside a registered life partnership such as that provided for by [Hamburg laws] on registered life partnerships ... which is reserved to persons of the same gender, and there is direct discrimination on the ground of sexual orientation because, under national law, that life partner is in a legal and factual situation comparable to that of a married person as regards that pension," the ECJ ruling said.

The Employment Framework Directive prohibits employment discrimination on the grounds of religion, beliefs, disability, age or sexual orientation.

The ECJ said it was for the Labour Court of Hamburg to determine whether Júrgen Rómer's relationship to Mr U was "comparable" to marriage.

"It is for the referring court to assess the comparability, focusing on the respective rights and obligations of spouses and persons in a registered life partnership, as governed within the corresponding institutions, which are relevant taking account of the purpose of and the conditions for the grant of the benefit in question," the ECJ said.

The ECJ said that if the Labour Court of Hamburg ruled in favour of Rómer, he could claim the right to equal treatment on his pension benefits dating back to 3 December 2003 when Germany was supposed to have implemented the EU's Employment Framework Directive into national law by, even though it did so later than that deadline.

The ruling was made after the Labour Court of Hamburg referred a number of legal questions about a dispute that had arisen about pension entitlements.

Júrgen Rómer worked as an administrative employee for the City of Hamburg from 1950 until 31 May 1990 when he became incapacitated for work.

Rómer entered into a 'registered life partnership' with his long term male companion Mr U in October 2001. This was in accordance with new German laws governing civil partnerships. Rómer told his former employers about the change in his relationship and requested an increase in his supplementary retirement pension according to what a married pensioner received.

The City of Hamburg said it would not recalculate Rómer's pension payments as his marriage status did not fulfil the criteria stipulated in the Law of the Land of Hamburg, the ECJ ruling said.

"The notional net income to be taken into account for the purposes of calculating the pension shall be determined by deducting from the income included in the calculation of the pension the amount of income tax which would have had had to be paid ... in the case of a married pensioner not permanently separated at the date on which the retirement pension is first paid, or a pensioner who, on that day, is entitled to claim child benefit or the equivalent," the Law of the Land of Hamburg says.

Rómer calculated he would have been €302.11 better off each month under the enhanced terms and brought a case against his former employers to the Labour Court of Hamburg saying that the City of Hamburg had discriminated against his employment rights on the grounds of sexual orientation.

The Labour Court referred questions to the ECJ concerning the interpretation of the EU's Employment Framework on discrimination on grounds of sexual orientation in employment and occupation.

The City of Hamburg had argued that marriage and the family were under special protection of the State and said that tax breaks given to families were legitimate.
"The advantage granted to persons who have created a family, or who could have done so, is designed to compensate for the extra financial burden involved," the City of Hamburg had argued in the ruling.

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