James McConville
Partner
Same-Sex Civil Partnerships
The recent judgment of the European Court of Justice (ECJ) in the case of Jürgen Römer v Freie und Hansestadt Hamburg(C-147/08)may have implications for the treatment of members of pension schemes in Ireland who enter into same-sex civil partnerships.
Jürgen Römer was a long-standing employee of Hamburg City Council (the Council); working there for four decades before retiring on the grounds of ill-health in 1990. In 2001, he entered into a civil partnership with his partner of 32 years.
On foot of the civil partnership, he sought an increase in his pension from the Council on the grounds that, as a party to a civil partnership, he was entitled to the more favourable tax treatment afforded by the Council to the parties to a marriage. The Council refused, stating that the advantageous tax treatment was exclusive to married pensioners and did not apply to same-sex civil partners.
Following the Council’s refusal to increase his pension, Herr Römer brought a case before the Arbeitsgericht Hamburg (Hamburg’s local labour court) citing discrimination on the grounds of sexual orientation under Directive 2000/78 EC (the Directive). The court then referred a number of questions to the ECJ, concerning equal treatment on the sexual orientation ground.
In its response, delivered on 10th May 2011, the ECJ held that:
- supplementary pensions fall within Directive 2000/78/EC,
- there is no significant difference under German law between the status of civil partnership and marriage, other than the gender of the parties,
- on the facts of the case, Herr Römer would have been entitled to a pension had he been married, as he paid the same level of contributions as a married member and his benefit was not dependent upon the existence of children or his level of remuneration, and
- the right to equal treatment under EU law is not dependent upon implementation by the National Legislature, although it can only be claimed on this basis once the time limit for transposing the Directive (3rd December 2003) had passed.
From an Irish pensions perspective, the Pensions Act was amended by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, to grant equal status between same-sex civil partnerships and civil marriages.
However, in relation to death benefits, section 72(3) of the Pensions Act, has a saving which states that:
“It shall not constitute a breach of the principle of equal pension treatment on the civil status or sexual orientation ground to provide more favourable occupational benefits to a deceased member's widow or widower provided that it does not result in a breach of the said principle on the gender ground.”
Therefore, it is still currently possible under Irish law for a scheme to grant different death benefits to a surviving spouse and a surviving civil partner. Given the facts of the Römer judgment, however, it is possible that this section could be held to be contrary to the Directive. Were that to be the case the compulsory levelling-up principles under section 81 of the Pensions Act may come into play and pension scheme trust documentation may need to be amended to compensate.
Contact: James McConville, Partner
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Tel: +353 1 828 0600
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