No retrospection for pensions of civil partnership
ECJ (Judgment) Reference for a preliminary ruling – Equal treatment in employment and occupation – Directive 2000/78/EC – Article 2 – Prohibition of discrimination on grounds of sexual orientation and age – National pension scheme – Payment of a survivor’s benefit to the civil partner – Condition – Partnership contracted before the 60th birthday of the member of the scheme – Civil partnership – Not possible in the Member State concerned before 2010 – Existing stable relationship – Article 6(2) – Justification of differences of treatment on grounds of age
Kokott AG said: ‘it is settled case law that a new rule of law applies from the entry into force of the act introducing it, and, while it does not apply to legal situations that have arisen and become definitive under the old law, it does apply to their future effects, and to new legal situations. It is otherwise, subject to the principle of the non-retroactivity of legal acts, only if the new rule is accompanied by special provisions which specifically lay down its conditions of temporal application.
Those principles also apply to the temporal application of Directive 2000/78. A restriction of the temporal scope of that Directive, in derogation from the aforementioned general principles, would have required an express stipulation to that effect by the EU legislature. No such special provision has been made, however.
Consequently, the Court has already declared Directive 2000/78 to be applicable to cases concerning occupational and survivor’s pension schemes the entitlements under which had arisen – much as they did here – long before the entry into force of that Directive and any contributions or reference periods in respect of which also predated the entry into force of that Directive. Unlike in Barber, for example, concerning article 119 of the EEC Treaty (now article 157 TFEU), the Court expressly did not apply a temporal restriction to the effects of its case law relating to occupational pension schemes under Directive 2000/78. I would add that there was, moreover, no longer any need for such a temporal restriction, since it had become sufficiently apparent to all the interested parties since the judgment in Barber that occupational pensions fall within the EU-law concept of pay and are subject to any prohibitions on discrimination.
It is true that the Court has held that the prohibition on discrimination contained in Directive 2000/78 cannot give rise to claims for payments in respect of periods in the past that predate the time limit for transposing that Directive. However, the recognition of the right to a future survivor’s pension, at issue in the present case, is unaffected by that principle because such recognition is concerned only with future pension scheme payments, even though the calculation of those payments is based on periods of service completed or contributions made in the past.’
Kokott AG
ECLI:EU:C:2016:897, [2016] EUECJ C-443/15, [2016] WLR(D) 622
Bailii, WLRD
Directive 2000/78/EC
European
Cited by:
Cited – Walker v Innospec Ltd and Others SC 12-Jul-2017
The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was . .
Lists of cited by and citing cases may be incomplete.
Discrimination
Updated: 09 November 2021; Ref: scu.571881