Tadao Maruko v Versorgungsanstalt der deutschen Bühnen.

• Jurisdiction: European Union
• Celex Number: 62006CJ0267
• ECLI: ECLI:EU:C:2008:179
• Docket Number: C-267/06
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 01 April 2008

Case C-267/06

Tadao Maruko

v

Versorgungsanstalt der deutschen Bühnen

(Reference for a preliminary ruling from the Bayerisches Verwaltungsgericht München)

(Equal treatment in employment and occupation – Directive 2000/78/EC – Survivors’ benefits under a compulsory occupational pensions scheme – Concept of ‘pay’ – Refusal because the persons concerned were not married – Same-sex partners – Discrimination based on sexual orientation )

Summary of the Judgment

1. Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Scope

(Art. 141 EC; Council Directive 2000/78)

2. Social policy – Equal treatment in employment and occupation – Directive 2000/78

(Council Directive 2000/78, Arts 1 and 2)

1. A survivor’s benefit falls within the scope of Council Directive 2000/78 establishing a general framework for equal treatment in employment and occupation where that benefit is paid under an occupational pension scheme managed by a pension fund for a particular category of workers, where that scheme originates in a collective agreement which is designed to supplement the social security benefits payable under national legislation of general scope, where that scheme is financed exclusively by the workers and employers of the sector concerned, without any financial involvement by the State, and is aimed, according to that agreement, at that category of workers, and where the amount of the benefit concerned is determined by reference to the period of membership of the worker who was the partner of the entitled recipient and to the total amount of the contributions paid by that worker.

Such a benefit must therefore be classified as pay within the meaning of Article 141 EC and that conclusion is not affected by the fact that the pension fund is a public body or by the fact that membership in the scheme giving entitlement to the survivor’s benefit is compulsory.

(see paras 49-51, 53-57, 61, operative part 1)

2. The combined provisions of Articles 1 and 2 of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation preclude legislation under which, after the death of his life partner, 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. It is for the referring court to determine whether a surviving life partner is in a situation comparable to that of a spouse who is entitled to the survivor’s benefit provided for under the occupational pension scheme managed by the pension fund concerned.

(see paras 69, 73, operative part 2)

JUDGMENT OF THE COURT (Grand Chamber)

1 April 2008 (*)

(Equal treatment in employment and occupation – Directive 2000/78/EC – Survivors’ benefits under a compulsory occupational pensions scheme – Concept of ‘pay’ – Refusal because the persons concerned were not married – Same-sex partners – Discrimination based on sexual orientation)

In Case C‑267/06,

REFERENCE for a preliminary ruling under Article 234 EC, by the Bayerisches Verwaltungsgericht München (Germany), made by decision of 1 June 2006, received at the Court on 20 June 2006, in the proceedings

Tadao Maruko

v

Versorgungsanstalt der deutschen Bühnen,

THE COURT (Grand Chamber),

composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, K. Lenaerts and L. Bay Larsen, Presidents of Chambers, K. Schiemann, J. Makarczyk, P. Kūris, J. Klučka (Rapporteur), A. Ó Caoimh, P. Lindh and J.-C. Bonichot, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: J. Swedenborg, Administrator,

having regard to the written procedure and further to the hearing on 19 June 2007,

after considering the observations submitted on behalf of:

– Mr Maruko, by H. Graupner, R. Wintemute and M. Bruns, Rechtsanwälte,

– the Versorgungsanstalt der deutschen Bühnen, by C. Draws and P. Rammert, acting as Agents, assisted by A. Bartosch and T. Grupp, Rechtsanwälte,

– the Netherlands Government, by C. Wissels, acting as Agent,

– the United Kingdom Government, by V. Jackson, acting as Agent, and by T. Ward, barrister,

– the Commission of the European Communities, by J. Enegren and I. Kaufmann-Bühler, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 6 September 2007,

gives the following

Judgment

1 The reference for a preliminary ruling concerns the interpretation of Article 1, Article 2(2)(a) and (b)(i), and Article 3(1)(c) and (3) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16; ‘Directive 2000/78’ or ‘the Directive’).

2 The reference was made in proceedings between Mr Maruko and the Versorgungsanstalt der deutschen Bühnen (the German Theatre Pension Institution, the ‘VddB’) relating to the refusal by the latter to recognise Mr Maruko’s entitlement to a widower’s pension as part of the survivor’s benefits provided for under the compulsory occupational pension scheme of which his deceased life partner had been a member.

Legal context

Community law

3 Recitals 13 and 22 of the preamble to Directive 2000/78 state:

‘(13) This Directive does not apply to social security and social protection schemes whose benefits are not treated as income within the meaning given to that term for the purpose of applying Article 141 of the EC Treaty, nor to any kind of payment by the State aimed at providing access to employment or maintaining employment.

…

(22) This Directive is without prejudice to national laws on marital status and the benefits dependent thereon.’

4 Article 1 of Directive 2000/78 provides:

‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’

5 Under Article 2 of the Directive:

‘1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

2. For the purposes of paragraph 1:

(a) 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;

(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:

(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, …

…’

6 Article 3 of the Directive is worded as follows:

‘1. Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:

…

(c) employment and working conditions, including dismissals and pay;

…

3. This Directive does not apply to payments of any kind made by state schemes or similar, including state social security or social protection schemes.

…’

7 Under the first paragraph of Article 18 of Directive 2000/78, Member States were to adopt the laws, regulations and administrative provisions necessary to comply with the directive by 2 December 2003 at the latest or, so far as provisions concerning collective agreements were concerned, they could entrust implementation of the Directive to the social partners. However, in that event, Member States were to ensure that, no later than 2 December 2003, the social partners had introduced the necessary measures by agreement, the Member States concerned being required to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by the Directive. In addition, they were forthwith to inform the Commission of the European Communities of those measures.

National law

The Law on registered life partnerships

8 Paragraph 1 of the Law on registered life partnerships (Gesetz über die Eingetragene Lebenspartnerschaft) of 16 February 2001 (BGBl. 2001 I, p. 266), as amended by the Law of 15 December 2004 (BGBl. 2004 I, p. 3396, the ‘LPartG’), provides:

‘(1) Two persons of the same sex establish a partnership when they each declare, in person and in the presence of the other, that they wish to live together in partnership for life (as life partners). The declarations cannot be made conditionally or for a fixed period. Declarations are effective when they are made before the competent authority.

(2) A partnership cannot be validly established:

1. with a person who is a minor or who is married or who already lives in partnership with a third person;

2. between relatives in the ascending and descending lines;

3. between brothers or sisters with the same mother and father, the same mother or the same father;

4. when, at the time of establishment of the partnership, the partners refuse to accept the duties under Paragraph 2.

…’

9 Paragraph 2 of the LPartG provides:

‘The life partners must support and care for one another and commit themselves mutually to a lifetime union. They shall each accept responsibilities with regard to the other.’

10 Under Paragraph 5 of that Law:

‘The life partners are each required to contribute adequately to the common needs of the partnership by their work and from their property. The second sentence of Paragraph 1360, Paragraph 1360a and Paragraph 1360b of the...