Jürgen Römer v Freie und Hansestadt Hamburg.
Date: 2011-05-10
32. In that respect, it is sufficient to point out that the Court has held that the scope of Directive 2000/78 must be understood, in the light of Article 3(1)(c) and Article 3(3) read in conjunction with recital 13 in the preamble to the Directive, as excluding social security or social protection schemes, the benefits of which are not equivalent to ‘pay’ within the meaning given to that term for the application of Article 157 TFEU, and payments of any kind made by the State with the aim of providing access to employment or maintaining employment (Case C‑267/06 Maruko  [2008] ECR I‑1757, paragraph 41).
33. Accordingly, Article 3(3) of Directive 2000/78 cannot be interpreted as meaning that a supplementary retirement pension paid by a public scheme and constituting pay within the meaning of Article 157 TFEU falls outside the scope of the Directive.
34. As regards, next, recital 22 in the preamble to Directive 2000/78, under which ‘[the] Directive is without prejudice to national laws on marital status and the benefits dependent thereon’, it need only be recalled that the Court has already ruled on the scope of that recital, at paragraphs 58 to 60 of its judgment in Maruko.
35. According to that judgment, since a supplementary retirement pension such as that at issue in the main proceedings has been identified as ‘pay’, within the meaning of Article 157 TFEU, and it falls within the scope of Directive 2000/78, recital 22 cannot affect the application of the Directive (see, to that effect, Maruko , paragraph 60).
38. As a preliminary point, it should be observed that, as European Union law stands at present, legislation on the marital status of persons falls within the competence of the Member States. However, in accordance with Article 1 thereof, the purpose of Directive 2000/78 is to combat, as regards employment and occupation, certain types of discrimination, including discrimination on the ground of sexual orientation, with a view to putting into effect in the Member States the principle of equal treatment.
41. Accordingly, the existence of direct discrimination, within the meaning of the Directive, presupposes, first, that the situations being weighed up are comparable.
42. In that regard, it should be pointed out that, as is apparent from the judgment in Maruko  (paragraphs 67 to 73), first, it is required not that the situations be identical, but only that they be comparable and, second, the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner in the light of the benefit concerned. In that judgment, concerning the refusal to grant a survivor’s pension to the life partner of a deceased member of an occupational pension scheme, the Court did not carry out an overall comparison between marriage and registered life partnership under German law, but, on the basis of the analysis of German law carried out by the court which made the reference for a preliminary ruling, according to which there was a gradual harmonisation in German law of the regime put in place for registered life partnerships with that applicable to marriage, it made it clear that registered life partnership is to be treated as equivalent to marriage as regards the widow’s or widower’s pension.
43. Thus, the comparison of the situations must be based on an analysis focusing on the rights and obligations of the spouses and registered life partners as they result from the applicable domestic provisions, which are relevant taking account of the purpose and the conditions for granting the benefit at issue in the main proceedings, and must not consist in examining whether national law generally and comprehensively treats registered life partnership as legally equivalent to marriage.
52. Accordingly, the answer to Questions 3 and 7 is that 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 the First RGG, 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 LPartG, 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, which are relevant taking account of the purpose of and the conditions for the grant of the benefit in question.
Question 5
54. In accordance with settled case-law, a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of European Union law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means (Case C‑314/08 Filipiak [2009] ECR I‑11049, paragraph 81 and the case-law cited).
55. In addition, where the necessary conditions for the provisions of a directive to be relied on by individuals before the national courts against the State are satisfied, they may do so regardless of the capacity in which the State is acting, whether as employer or as public authority (Joined Cases C‑250/09 and C‑268/09 Georgiev [2010] ECR I‑0000, paragraph 70).
56. Accordingly, if a provision such as Paragraph 10(6) of the First RGG constituted discrimination within the meaning of Article 2 of Directive 2000/78, the right to equal treatment could be claimed by an individual against a local authority, and it would not be necessary to wait for that provision to be made consistent with European Union law by the national legislature, taking account of the primacy of that law (see, to that effect, Case C‑341/08 Petersen [2010] ECR I‑0000, paragraph 81, and Georgiev , paragraph 73).
58. As regards that period, although, as stated in particular in Case C‑144/04 Mangold  [2005] ECR I‑9981, paragraph 13, the Federal Republic of Germany requested, under the second paragraph of Article 18 of Directive 2000/78, an additional period of three years from 2 December 2003 in order to transpose the Directive, that possibility, as is clear from that provision, concerned only age and disability discrimination. Accordingly, the period prescribed for the transposition of the provisions of Directive 2000/78 concerning discrimination on the ground of sexual orientation expired, for the Federal Republic of Germany as for the other Member States, on 2 December 2003.
59. Lastly, as regards the period between the registration of the life partnership of the applicant in the main proceedings, on 15 October 2001, and the expiry of the period for transposition of Directive 2000/78, it should be recalled that the Council of the European Union adopted Directive 2000/78 on the basis of Article 13 EC, and the Court has held that the Directive does not itself lay down the principle of equal treatment in the field of employment and occupation, which derives from various international instruments and from the constitutional traditions common to the Member States, but has the sole purpose of laying down, in that field, a general framework for combating discrimination on various grounds (see Mangold , paragraph 74, and Case C‑555/07 Kücükdeveci  [2010] ECR I‑0000, paragraph 20), including sexual orientation.
60. Nonetheless, for the principle of non-discrimination on the ground of sexual orientation to apply in a case such as that at issue in the main proceedings, that case must fall within the scope of European Union law (see Kücükdeveci , paragraph 23).
61. However, neither Article 13 EC nor Directive 2000/78 enables a situation such as that at issue in the main proceedings to be brought within the scope of European Union law in respect of the period prior to the time-limit for transposing that directive (see, by analogy, Case C‑427/06 Bartsch  [2008] ECR I‑7245, paragraphs 16 and 18, and Kücükdeveci , paragraph 25).
62. Article 13 EC, which permitted the Council, within the limits of the powers conferred upon it by the EC Treaty, to take appropriate action to combat discrimination based on sexual orientation, could not, as such, bring within the scope of European Union law, for the purposes of prohibiting any discrimination of that nature, situations which, as in the main proceedings, did not fall within the framework of the measures adopted on the basis of that article, specifically, as regards Directive 2000/78, before the time-limit prescribed therein for its transposition (see, by analogy, Bartsch , paragraph 18).
63. Moreover, Paragraph 10(6) of the First RGG is not a measure implementing Directive 2000/78 or other provisions of European Union law, with the result that it is only from the expiry of the period for transposition of the Directive that it had the effect of bringing within the scope of European Union law the national legislation at issue in the main proceedings, which concerns a matter governed by that directive, namely the conditions of pay within the meaning of Article 157 TFEU (see, by analogy, Bartsch , paragraphs 17, 24 and 25).