Tadao Maruko v Versorgungsanstalt der deutschen Bühnen.
Date: 2008-04-01
41. The scope of Directive 2000/78 must be understood – in the light of those provisions read in conjunction with Recital 13 of 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 141 EC, or to payments of any kind made by the State with the aim of providing access to employment or maintaining employment.
42. It must therefore be determined whether a survivor’s benefit granted under an occupational pension scheme such as that managed by the VddB can be treated as equivalent to ‘pay’ within the meaning of Article 141 EC.
44. As the Court has already ruled (see Case C‑109/91 Ten Oever  [1993] ECR I‑4879, paragraph 8, and Case C‑7/93 Beune  [1994] ECR I‑4471, paragraph 21), the fact that certain benefits are paid after the termination of the employment relationship does not prevent them from being ‘pay’ within the meaning of Article 141 EC.
45. The Court has thereby recognised that a survivor’s pension provided for under an occupational pension scheme, set up under a collective agreement, falls within the scope of Article 141 EC. 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 Ten Oever , paragraphs 12 and 13; Coloroll Pension Trustees , paragraph 18; Case C‑147/95 Evrenopoulos  [1997] ECR I‑2057, paragraph 22; and Case C‑379/99 Menauer  [2001] ECR I‑7275, paragraph 18).
46. Moreover, for the purposes of assessing whether a retirement pension – by reference to which, should the case arise, as in the present case, the survivor’s pension is calculated – falls within the scope of Article 141 EC, 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, the one criterion which may prove decisive is 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 (see, to that effect, Beune , paragraph 43; Evrenopoulos , paragraph 19; Case C‑366/99 Griesmar  [2001] ECR I‑9383, paragraph 28; Case C‑351/00 Niemi  [2002] ECR I‑7007, paragraphs 44 and 45; and Joined Cases C‑4/02 and C‑5/02 Schönheit and Becker  [2003] ECR I‑12575, paragraph 56).
47. Admittedly, that criterion 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 ( Beune , paragraph 44; Evrenopoulos , paragraph 20; Griesmar , paragraph 29; Niemi , paragraph 46; and Schönheit and Becker , paragraph 57).
48. However, 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 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 the last salary ( Beune , paragraph 45; Evrenopoulos , paragraph 21; Griesmar , paragraph 30; Niemi,  paragraph 47; and Schönheit and Becker , paragraph 58).
55. Nor is the amount of that retirement pension fixed by statute; rather, pursuant to Paragraph 30(5) of the VddB Regulations, it is calculated by reference to the total amount of the contributions paid throughout the worker’s membership, to which an indexing factor is applied.
57. That conclusion is not affected by the fact that the VddB is a public body (see, to that effect, Evrenopoulos , paragraphs 16 and 23) or by the fact that membership in the scheme giving entitlement to the survivor’s benefits at issue in the main proceedings is compulsory (see, to that effect, Case C‑50/99 Podesta  [2000] ECR I‑4039, paragraph 32).
58. As regards the significance of Recital 22 of the preamble to Directive 2000/78, that recital states that the Directive is without prejudice to national laws on marital status and the benefits dependent thereon.
59. Admittedly, civil status and the benefits flowing therefrom are matters which fall within the competence of the Member States and Community law does not detract from that competence. However, it must be recalled that in the exercise of that competence the Member States must comply with Community law and, in particular, with the provisions relating to the principle of non-discrimination (see, by analogy, Case C‑372/04 Watts  [2006] ECR I‑4325, paragraph 92, and Case C‑444/05 Stamatelaki  [2007] ECR I‑3185, paragraph 23).
60. Since survivor’s benefit such as that at issue in the main proceedings has been identified as ‘pay’ within the meaning of Article 141 EC and falls within the scope of Directive 2000/78, for the reasons set out in paragraphs 49 to 57 of this judgment, Recital 22 of the preamble to Directive 2000/78 cannot affect the application of the Directive.
67. It is clear from the information provided in the order of reference that, from 2001 – the year when the LPartG, in its initial version, entered into force – the Federal Republic of Germany altered its legal system to allow persons of the same sex to live in a union of mutual support and assistance which is formally constituted for life. Having chosen not to permit those persons to enter into marriage, which remains reserved solely to persons of different sex, that Member State created for persons of the same sex a separate regime, the life partnership, the conditions of which have been gradually made equivalent to those applicable to marriage.
68. The referring court observes that the Law of 15 December 2004 contributed to the gradual harmonisation of the regime put in place for the life partnership with that applicable to marriage. By that law, the German legislature introduced amendments to Book VI of the Social Security Code – statutory old age pension scheme, by adding inter alia a fourth paragraph to Paragraph 46 of that Book, from which it is clear that life partnership is to be treated as equivalent to marriage as regards the widow’s or widower’s pension referred to in that provision. Analogous amendments were made to other provisions of Book VI.
69. The referring court considers that, in view of the harmonisation between marriage and life partnership, which it regards as a gradual movement towards recognising equivalence, as a consequence of the rules introduced by the LPartG and, in particular, of the amendments made by the Law of 15 December 2004, a life partnership, while not identical to marriage, places persons of the same sex in a situation comparable to that of spouses so far as concerns the survivor’s benefit at issue in the main proceedings.
70. However, the referring court finds that entitlement to that survivor’s benefit is restricted, under the provisions of the VddB Regulations, to surviving spouses and is denied to surviving life partners.
71. That being the case, those life partners are treated less favourably than surviving spouses as regards entitlement to that survivor’s benefit.
72. If the referring court decides that surviving spouses and surviving life partners are in a comparable situation so far as concerns that survivor’s benefit, legislation such as that at issue in the main proceedings must, as a consequence, be considered to constitute direct discrimination on grounds of sexual orientation, within the meaning of Articles 1 and 2(2)(a) of Directive 2000/78.
73. It follows from the foregoing that the answer to the third question must be that the combined provisions of Articles 1 and 2 of Directive 2000/78 preclude legislation such as that at issue in the main proceedings under which, after the death of his life partner, the surviving partner does not 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. It is for the referring court to determine whether a surviving life partner is in a situation comparable to that of a spouse who is entitled to the survivor’s benefit provided for under the occupational pension scheme managed by the VddB.
The fifth question
77. It is clear from the case-law that the Court may, exceptionally, taking account of the serious difficulties which its judgment may create as regards events in the past, be moved to restrict the possibility for all persons concerned of relying on the interpretation which the Court gives to a provision in response to a reference for a preliminary ruling,. A restriction of that kind may be permitted only by the Court, in the actual judgment ruling upon the interpretation sought (see inter alia Barber , paragraph 41, and Case C‑292/04 Meilicke and Others  [2007] ECR I‑000, paragraph 36).