EU Law Blog

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

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.

Official Languages, No Translation, No Enforceability: Case C-161/06

Now here is a curious case ! In its judgment in Case C-161/06 Skoma-Lux the Court of Justice held that the obligations contained in EC legislation which has not been published in the Official Journal in the language of the member State in which enforcement is sought cannot be enforced in that State.

Well, actually, the case concerns enforcement in the Czech Republic and the lack of translation into Czech and Article 58 of the Act of Accession.

What happened ? Skorma-Lux, a Czech importer of wine, was fined by the Czech customs authorities for submitting the wrong customs classification for wine. The Czech authorities claimed Skorma-Lux had breached Regulation 2454/93 implementing the EC customs code. Skorma-Lux, on the other hand, defended itself by submitting that at the relevant time, Regulation 2454/93 had not been translated and published in the Czech language. The Czech court seised of the matter referred questions to the Court of Justice on whether Article 58 of the Act of Accession required proper publication in Czech in the Official language before Regulation 2454/93 could be enforced and whether the matter of its enforceability was a question of interpretation or of validity of EC law.

The Court of Justice held that Article 58 of the Act of Accession requires that EC legislation be properly translated and published in the official language of the member State in which enforcement was sought. It stated that it had already held that an act adopted by a EC institution, such as the regulation at issue in the main proceedings, cannot be enforced against natural and legal persons in a member State before they have the opportunity to make themselves acquainted with it by its proper publication in the Official Journal of the European Union (Case C-98/78 Racke). It had also held that the principle of legal certainty requires that EC legislation must allow those concerned to acquaint themselves with the precise extent of the obligations it imposes upon them, which may be guaranteed only by the proper publication of that legislation in the official language of those to whom it applies (see also, to that effect, Case C-370/96 Covita, paragraph 27, Case C-228/99 Silos, paragraph 15, and Case C-108/01 Consorzio del Prosciutto di Parma and Salumificio S. Rita, paragraph 95).

The court held that it would be contrary to the principle of equal treatment to apply obligations imposed by EC legislation in the same way in the old member States, where individuals have the opportunity to acquaint themselves with those obligations in the Official Journal of the European Union in the languages of those States, and in the new member States, where it was impossible to learn of those obligations because of late publication. It added for good measure that to allow an act which has not been properly published to be enforceable in the name of the principle of effectiveness would result in individuals in the member State concerned bearing the adverse effects of a failure by the EC administration to comply with its obligation to make available to those individuals, on the date of accession, the entire acquis communautaire in all the official languages of the Union.

The Court distinguished Case 160/84 Oryzomyli Kavallas and Others because in that case the Court did no more than assess the impossibility for a Greek company of acquainting itself with EC legislation at the time of the accession of the Hellenic Republic to the EC. The issue of the proper publication of that legislation did not arise as such.

As to the second question, the Court answered that the enforceability of the measure was an issue of its interpretation and not of its validity. The fact that the measure could not be enforced did not mean that it was invalid.

Sex discrimination and legal obligations post preliminary ruling: Joined Cases C-231/06 to C-233/06

Reviewing some of the judgments handed down recently, this judgment came up as making clear what a member State should do if a judgment of the Court of Justice handed down in a preliminary ruling procedure declares that national legislation is incompatible with EC law.

Most of the judgment in Joined Cases C-231/06 to C-233/06 Office national des pensions v. Emilienne Jonkman concerns sex discrimination and statutory pension funds. That is a fairly well-trodden path and we don't propose to go down it here.

What we'll concentrate on now is the obligation of a member State as a consequence of a preliminary ruling.

It is obvious that the referring court must apply the ruling of the Court of Justice to the case of which it is seised. But what of the obligations of the member State more generally if its legislation is held incompatible with EC law ? The judgment does give a timely reminder that a member State must adapt its legislation following a judgment given by the Court on an order for reference from which it is apparent that national legislation is incompatible with EC law.

The Court recalls first that under the principle of cooperation in good faith laid down in Article 10 EC, member States are required to nullify the unlawful consequences of a breach of EC law (Case C-201/02 Wells, at paragraph 64).

The Court makes clear that following a judgment given by the Court on an order for reference from which it is apparent that national legislation is incompatible with EC law, it is for the authorities of the member State concerned to take the general or particular measures necessary to ensure that Community law is complied within that state (see, to that effect, Wells again, paragraphs 64 and 65, and Case C-495/00 Azienda Agricola Giorgio, Giovanni e Luciano Visentin and Others, at paragraph 39). While member States are free to choose the measures to be taken, they must in particular ensure that national law is changed so as to comply with EC law as soon as possible and that the rights which individuals derive from EC law are given full effect.

Finally the Court held that in situations of discrimination contrary to EC law, for as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favored category. In such a situation, a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and apply to members of the disadvantaged group the same arrangements as those enjoyed by the persons in the other category (Case C‑408/92 Avdel Systems, at paragraphs 16 and 17; Case C‑442/00 Rodríguez Caballero, paragraphs 42 and 43, and Case C‑81/05 Cordero Alonso, at paragraphs 45 and 46).

Transsexuals and retirement age : Case C-423/04

It's a wonder sometimes just how progressive the European Court of Justice can be.

In Case C-423/04 Richards v. Secretary of State for Work and Pensions the Court held that a national law (as in force prior to the adoption in the United Kingdom of the Gender Recognition Act 2004 which has solved the problem) that precluded a person who had undergone a sex change operation to become a woman from retiring at the of 60, the statutory age for women in Britain, unfairly discriminated against that person.

In particular, the Court held that a national rule that precluded a woman from retiring at 60 in those circumstances was contrary to Article 4 (1) of Council Directive 79/7/EEC of December 19th, 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security.