David L. Parris v Trinity College Dublin and Others.
Date: 2016-11-24
32


It is apparent from Article 3(1)(c) of Directive 2000/78 that the directive applies, within the limits of the areas of competence conferred on the EU, ‘to all persons, as regards both the public and private sectors, including public bodies’, in relation inter alia to ‘employment and working conditions, including dismissals and pay’ (judgment of 26 September 2013, Dansk Jurist- og Økonomforbund, C‑546/11, EU:C:2013:603, paragraph 24).
33


The Court has previously recognised that a survivor’s pension provided for under an occupational pension scheme falls within the scope of Article 157 TFEU. The Court has stated that the fact that such a pension, by definition, is paid not to the worker but to his survivor cannot affect that interpretation, since, such a pension being a benefit deriving from the survivor’s spouse’s membership of the scheme, the pension accrues to the survivor by reason of the employment relationship between the employer and the survivor’s spouse and is paid to the survivor by reason of the spouse’s employment (see judgment of 1 April 2008, Maruko, C‑267/06, EU:C:2008:179, paragraph 45 and the case-law cited).
34


Moreover, for the purposes of assessing whether a retirement pension, by reference to which the survivor’s pension, should the case arise, is calculated, as in the main proceedings, falls within the scope of Article 157 TFEU, the Court has stated that, of the criteria for identifying a pension scheme which it has adopted on the basis of the situations brought before it, only the criterion of whether the retirement pension is paid to the worker by reason of the employment relationship between him and his former employer, that is to say, the criterion of employment, based on the wording of that article, may prove decisive (judgment of 1 April 2008, Maruko, C‑267/06, EU:C:2008:179, paragraph 46 and the case-law cited).
35


In this context, the Court added that, while that criterion admittedly cannot be regarded as exclusive, inasmuch as pensions paid under statutory social security schemes may reflect, wholly or in part, pay in respect of work, considerations of social policy, of State organisation, of ethics, or even the budgetary concerns which influenced or may have influenced the establishment by the national legislature of a scheme cannot, however, prevail if the pension concerns only a particular category of workers, if it is directly related to the period of service completed and if its amount is calculated by reference to final salary (see judgment of 1 April 2008, Maruko, C‑267/06, EU:C:2008:179, paragraphs 47 and 48 and the case-law cited).
41


That conclusion is not called in question by the fact that the Trinity College Dublin pension fund has in the meantime been transferred to a national authority and the benefits are now funded by the State, since, as the Advocate General observes in point 35 of her Opinion, the Court has stated on several occasions that, for determining whether a pension scheme falls within the concept of ‘pay’, the arrangements for its funding and managment are not conclusive (see, to that effect, judgments of 28 September 1994, Beune, C‑7/93, EU:C:1994:350, paragraph 38; of 29 November 2001, Griesmar, C‑366/99, EU:C:2001:648, paragraph 37; of 12 November 2002, Niemi, C‑351/00, EU:C:2002:480, paragraph 43; and of 26 March 2009, Commission v Greece, C‑559/07, EU:C:2009:198, paragraph 46).
46


As regards, in particular, the receipt of the survivor’s benefit, it follows from the Court’s case-law that legislation of a Member State under which the surviving civil partner is not entitled to receive a survivor’s benefit equivalent to that granted to a surviving spouse, even though under national law life partnership places persons of the same sex in a situation comparable to that of spouses so far as concerns that survivor’s benefit, must be regarded as constituting direct discrimination on grounds of sexual orientation, within the meaning of Articles 1 and 2(2)(a) of Directive 2000/78 (see, to that effect, judgment of 1 April 2008, Maruko, C‑267/06, EU:C:2008:179, paragraphs 72 and 73).
58


In this context, the Court has held that marital status and the benefits flowing therefrom are matters which fall within the competence of the Member States and that EU law does not detract from that competence. However, in the exercise of that competence the Member States must comply with EU law, in particular the provisions relating to the principle of non-discrimination (see judgment of 1 April 2008, Maruko, C‑267/06, EU:C:2008:179, paragraph 59).
71


In this connection, the Court has held that Article 6(2) of Directive 2000/78 applies only to occupational social security schemes that cover the risks of old age and invalidity, and that not all aspects of an occupational social security scheme covering such risks come within the scope of that provision, but only those that are expressly referred to therein (see judgment of 16 June 2016, Lesar, C‑159/15, EU:C:2016:451, paragraph 25 and the case-law cited).