Pension Planning

Maruko v Versorgungsanstalt der deutschen Buhnen

The Equal Treatment Directive says that it is discriminatory to treat someone less favourably on the ground of their sexual orientation. In Maruko v Versorgungsanstalt der deutschen Buhnen (2008, IRLR 450) the European Court of Justice (ECJ) said that an occupational pension plan was subject to the non-discrimination articles of the directive

Basic facts

In November 2001 (shortly after Germany passed a law creating registered life partnerships for same-sex couples), Mr Maruko and his same-sex partner registered their partnership.

His partner, a theatrical costume designer, had been a member of the theatrical workers union since 1959, and had maintained his membership despite occasional periods when he was not employed. His partner died on January 12, 2005, and Mr Maruko applied to the German Theatre Pension Institution for a survivor’s pension.

It refused, pointing out that under the collective bargaining agreement which established the pension plan, only a surviving legal spouse was entitled to a pension. Mr Maruko complained to a German court that this was discriminatory under the 1978 Equal Treatment Directive. It, in turn, referred a number of questions to the European Court of Justice about whether the non-discrimination requirements of the directive applied in this case.

Relevant law

Recital 22 in the preamble to the Directive states that “This Directive is without prejudice to national laws on marital status and the benefits dependent thereon”

Article 1 of the Directive states that: “The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of … sexual orientation as regards employment and occupation …”

Article 2(2)(a) of the Directive states, among other things that “direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1 …”

Decision of the ECJ

The ECJ said that it first had to decide whether a survivor's benefit granted under an occupational pension scheme such as the one in this case was the equivalent of “pay” within the meaning of article 141 of the EC Treaty.

As the Court had previously decided that a survivor's pension from an occupational pension scheme, set up under a collective agreement, came within the scope of Article 141 EC, it was irrelevant whether it was paid to the survivor or the survivor’s spouse. What was decisive was the fact that the pension accrues to the worker (and by definition, their survivor) “by reason of the employment relationship between him and his former employer”. That included a life partner.

Crucially, it also decided that the pension plan was subject to the non-discrimination articles of the directive, despite recital 22. It made clear that community law precludes legislation where “the surviving partner does not receive a survivor’s benefit equivalent to that granted to a surviving spouse even though, under national law, life partnership places persons of the same sex in a situation comparable to that of spouses so far as concerns that survivor’s benefit.”

The final decision was up to the referring court, but the ECJ said if it decided that surviving spouses and surviving life partners were in a comparable situation as far as the survivor's benefit was concerned, then the pension scheme rules constituted direct discrimination on ground of sexual orientation, within the meaning of articles 1 and 2(2)(a) of the directive.

Finally, the Court said that the calculation for Mr Maruko’s entitlement did not have to be limited to 1978, when the directive came into force, but could pre-date it.