Opinion of the Advocate General — ECLI:EU:C:2016:493
Date: 2016-06-30
Language of the case: English
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Ireland

Summary — Judgment of the Court (First Chamber), 24 November 2016 1. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Scope — National pension scheme providing for the payment of a survivor’s pension to the member’s spouse or civil partner — Included — Conditions (Art. 157 TFEU; Council Directive 2000/78) 2. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of sexual orientation — Survivor’s benefit granted as part of an occupational benefit scheme — National rule under which the right of surviving civil partners of members to receive such a benefit is conditional on the partnership being entered into before the member reaches the age of 60 — National law not allowing the member to enter into a civil partnership before reaching that age — No discrimination (Council Directive 2000/78, Art. 2) 3. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — Survivor’s benefit granted as part of an occupational benefit scheme — National rule under which the right of surviving civil partners of members to receive such a benefit is conditional on the partnership being entered into before the member reaches the age of 60 — National law not allowing the member to enter into a civil partnership before reaching that age — No discrimination — Possibility for Member States to fix, for occupational social security schemes, ages for admission or entitlement to retirement or invalidity benefits (Council Directive 2000/78, Arts 2 and 6(2)) 4. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination as a result of the combined effect of sexual orientation and age — Survivor’s benefit granted as part of an occupational benefit scheme — National rule under which the right of surviving civil partners of members to receive such a benefit is conditional on the partnership being entered into before the member reaches the age of 60 — National law not allowing the member to enter into a civil partnership before reaching that age — No discrimination (Council Directive 2000/78, Arts 1, 2 and 6(2)) 1. See the text of the decision. (see paras 33-40) 2. Article 2 of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that a national rule which, in connection with an occupational benefit scheme, makes the right of surviving civil partners of members to receive a survivor’s benefit subject to the condition that the civil partnership was entered into before the member reached the age of 60, where national law did not allow the member to enter into a civil partnership before reaching that age, does not constitute discrimination on grounds of sexual orientation. The Member States are free to provide or not provide for marriage for persons of the same sex, or an alternative form of legal recognition of their relationship, and, if they do so provide, to lay down the date from which such a marriage or alternative form is to have effect. Consequently, EU law, in particular Directive 2000/78, does not require the Member State concerned to provide, before the date of entry into force of the law on civil partnerships, for marriage or a form of civil partnership for same-sex couples, nor to give retrospective effect to the law on civil partnerships and the provisions adopted pursuant to that law, nor, as regards the survivor’s benefit, to lay down transitional measures for same-sex couples in which the member of the scheme had already reached the age of 60 on the date of entry into force of that law. (see paras 59, 60, 62, operative part 1) 3. Articles 2 and 6(2) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that a national rule which, in connection with an occupational benefit scheme, makes the right of surviving civil partners of members to receive a survivor’s benefit subject to the condition that the civil partnership was entered into before the member reached the age of 60, where national law did not allow the member to enter into a civil partnership before reaching that age, does not constitute discrimination on grounds of age. Such a rule treats members who marry or enter into a civil partnership after their 60th birthday less favourably than those who marry or enter into a civil partnership before reaching the age of 60, and consequently establishes a difference in treatment based directly on the criterion of age. However, that rule fixes an age for entitlement to an old age benefit and, consequently, is covered by Article 6(2) of Directive 2000/78. By making the acquisition of the right to receive a survivor’s benefit subject to the condition that the member marries or enters into a civil partnership before the age of 60, that rule merely lays down an age limit for entitlement to that benefit. In other words, the national rule fixes an age for access to the survivor’s benefit under the pension scheme concerned. (see paras 67, 68, 74, 75, 78, operative part 2) 4. Articles 2 and 6(2) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that a national rule which, in connection with an occupational benefit scheme, makes the right of surviving civil partners of members to receive a survivor’s benefit subject to the condition that the civil partnership was entered into before the member reached the age of 60, where national law did not allow the member to enter into a civil partnership before reaching that age, is not capable of creating discrimination as a result of the combined effect of sexual orientation and age, where that rule does not constitute discrimination either on the ground of sexual orientation or on the ground of age taken in isolation. While discrimination may indeed be based on several of the grounds set out in Article 1 of Directive 2000/78, there is no new category of discrimination resulting from the combination of more than one of those grounds, such as sexual orientation and age, that may be found to exist where discrimination on the basis of those grounds taken in isolation has not been established. (see paras 80, 82, operative part 3)