EN Official Journal of the European Union C 194/2

Judgment of the Court (Grand Chamber) of 10 May 2011 (reference for a preliminary ruling from the Arbeitsgericht Hamburg — Germany) — Jürgen Römer v Freie und Hansestadt Hamburg

(Case C-147/08) (1)

(Equal treatment in employment and occupation - General principles of European Union law - Article 157 TFEU - Directive 2000/78/EC - Scope - Concept of ‘pay’ - Exclusions - Occupational pension scheme in the form of a supplementary retirement pension for former employees of a local authority and their survivors - Method of calculating that pension favouring married recipients over those living in a registered life partnership - Discrimination based on sexual orientation)

2011/C 194/02

Language of the case: German

Referring court

Arbeitsgericht Hamburg

Parties to the main proceedings

Applicant: Jürgen Römer

Defendant: Freie und Hansestadt Hamburg

Re:

Reference for a preliminary ruling — Arbeitsgericht Hamburg — Interpretation of the principle of equal treatment, Article 141 EC, and Articles 1, 2, 3(1)(c) and (3) of and recital 22 in the preamble to 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) — Scope of the directive — Exclusion of payments of any kind made by state schemes or similar, including state social security or social protection schemes — Exclusion of national laws on marital status and the benefits dependent thereon — Occupational pension scheme in the form of a supplementary old-age pension for former employees of a local authority and their survivors — Method of calculation of the pension more favourable to married beneficiaries than to those living in a registered civil partnership

Operative part of the judgment

1. Council Directive 2000/78/EC of 27 November 2000 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 to former employees of the Freie und Hansestadt Hamburg and their survivors on the basis of the Law of the Land of Hamburg on supplementary retirement and survivors’ pensions for employees of the Freie und Hansestadt Hamburg (Erstes Ruhegeldgesetz der Freien und Hansestadt Hamburg), as amended on 30 May 1995, which constitute pay within the meaning of Article 157 TFEU, do not fall outside the material scope of the Directive either on account of Article 3(3) thereof or on account of recital 22 in the preamble thereto;

2. Article 1 in conjunction with Articles 2 and 3(1)(c) of Directive 2000/78 preclude a provision of national law such as Paragraph 10(6) of that Law of the Land of Hamburg, 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 such as that provided for by the Law on registered life partnerships (Gesetz über die Eingetragene Lebenspartnerschaft) of 16 February 2001, 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 governed within the corresponding institutions, which are relevant taking account of the purpose of and the conditions for the grant of the benefit in question

3. Should Paragraph 10(6) of the Law of the Land of Hamburg on supplementary retirement and survivors’ pensions for employees of the Freie und Hansestadt Hamburg, as amended on 30 May 1995, constitute discrimination within the meaning of Article 2 of Directive 2000/78, the right to equal treatment could be claimed by an individual such as the applicant in the main proceedings at the earliest after the expiry of the period for transposing the Directive, namely from 3 December 2003, and it would not be necessary to wait for that provision to be made consistent with European Union law by the national legislature.

(1) OJ C 171, 5.7.2008.