Opinion of the Advocate General — ECLI:EU:C:2010:425
Date: 2010-07-15
Language of the case: German
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Anti-discrimination
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Scope (Art. 157 TFEU; Council Directive 2000/78, recital 22 in the preamble and Art. 3(3)) 2. Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination based on sexual orientation (Council Directive 2000/78, Arts 1, 2 and 3(1)(c)) 3. Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination based on sexual orientation (Art. 13 EC; Council Directive 2000/78, Art. 2) 1. Directive 2000/78 establishing a general framework for equal treatment in employment and occupation is to be interpreted as meaning that supplementary retirement pensions, such as those paid by a public employer to former employees and their survivors on the basis of national law, which constitute pay within the meaning of Article 157 TFEU do not fall outside the material scope of the Directive on account either of Article 3(3) thereof or of recital 22 in the preamble thereto. (see para. 36, operative part 1) 2. Article 1 in conjunction with Articles 2 and 3(1)(c) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation 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: – in the Member State concerned, marriage is reserved to persons of different gender and exists alongside a registered life partnership 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. 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 they are governed within the corresponding institutions, that are relevant taking account of the purpose of and the conditions for the grant of the benefit in question. (see para. 52, operative part 2) 3. However, neither Article 13 EC nor Directive 2000/78 establishing a general framework for equal treatment in employment and occupation enables a situation to be brought within the scope of Union law in respect of the period before the expiry of the period allowed for transposing that directive, during which, under a national provision on supplementary retirement and survivors’ pension for employees of a public employer, 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. Should a national provision constitute discrimination within the meaning of Article 2 of Directive 2000/78, the right to equal treatment could be claimed by an individual at the earliest after the expiry of the period for transposing the Directive, and it would not be necessary to wait for that provision to be made consistent with Union law by the national legislature. (see paras 61, 64, operative part 3)