Case C‑451/16

MB

v

Secretary of State for Work and Pensions

(Request for a preliminary ruling from the Supreme Court of the United Kingdom)

(Reference for a preliminary ruling — Directive 79/7/EEC — Equal treatment for men and women in matters of social security — National State pension scheme — Conditions for recognition of change of gender — National legislation under which such recognition is subject to the annulment of any marriage entered into before that change of gender — Refusal to grant a person who has changed gender a State retirement pension as from the pensionable age for persons of the gender acquired — Direct discrimination on grounds of sex)

Summary — Judgment of the Court (Grand Chamber), 26 June 2018

Social policy — Equal treatment for men and women in matters of social security — Directive 79/7 — National legislation refusing to grant a person who has legally changed gender from male to female a retirement pension under the conditions laid down for women on account of the existence of a marriage entered into before that change of gender — Person in a situation comparable to that of a person who has retained their birth gender and is married — Difference in treatment — Not permissible

(Council Directive 79/7, Arts 3(1)(a), 4(1) and 7(1)(a))

Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, in particular the first indent of Article 4(1), read in conjunction with the third indent of Article 3(1)(a) and Article 7(1)(a) thereof, must be interpreted as precluding national legislation which requires a person who has changed gender not only to fulfil physical, social and psychological criteria but also to satisfy the condition of not being married to a person of the gender that he or she has acquired as a result of that change, in order to be able to claim a State retirement pension as from the statutory pensionable age applicable to persons of his or her acquired gender.

The comparability of situations must be assessed not in a global and abstract manner, but in a specific and concrete manner having regard to all the elements which characterise them, in the light, in particular, of the subject matter and purpose of the national legislation which makes the distinction at issue, as well as, where appropriate, in the light of the principles and objectives pertaining to the field to which that national legislation relates (see, to that effect, judgments of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraphs 25 and 26; of 16 July 2015, CHEZ Razpredelenie Bulgaria, C‑83/14, EU:C:2015:480, paragraphs 89 and 90; and of 9 March 2017, Milkova, C‑406/15, EU:C:2017:198, paragraphs 56 and 57 and the case-law cited).

In the present case, it is clear from the information provided in the order for reference that the subject matter of the national legislation at issue in the main proceedings is the granting of a ‘Category A’ State retirement pension which can be claimed by persons who have reached the statutory pensionable age. Accordingly, it appears that the State statutory retirement pension scheme at issue in the main proceedings protects against the risks of old age by conferring on the person concerned the right to a retirement pension acquired in relation to the contributions paid by that person during his or her working life, irrespective of marital status.

Thus, in the light of the subject matter of the retirement pension and the conditions under which it is granted, as set out in the previous paragraph, the situation of a person who changed gender after marrying and that of a person who has kept his or her birth gender and is married are comparable.

Therefore, it must be held that the national legislation at issue in the main proceedings accords less favourable treatment, directly based on sex, to a person who changed gender after marrying, than that accorded to a person who has kept his or her birth gender and is married, even though those persons are in comparable situations.

(see paras 42-44, 48, 53, operative part)