Brussels, 20/07/2010 (Agence Europe) - In a opinion delivered on Thursday 15 July in case C-147/08, the advocate general says that the City of Hamburg law governing the retirement pensions of former city employees (the “RGG”) favours married and temporarily separated pensioners over those of the same sex who have formed a civil partnership. The law does not allow people living in same sex couples to receive the same supplementary pensions as those who are married, infringing Directive 200/78/EC on equal treatment in employment and occupation, and national law which treats people living in same sex relationships in the same way as married people in terms of this said pension.
The advocate general was responding to questions put by the judge in the Hamburg Labour Court, to which a former city employee, Jürgen Römer, took his case after forming a civil partnership. Römer asked the City of Hamburg to recalculate his supplementary pension so that he fell within the same tax bracket as married pensioners. His request was turned down. The judge asked if treating married pensioners more favourably than those with same sex partners infringed the directive on equal treatment in employment and occupation or the general principle of equal remuneration enshrined in the EC Treaty.
The advocate general said that, in this particular case, the national judge would have to determine whether a life partner was in a legal and factual situation comparable to that of a married pensioner in receipt of a supplementary retirement pension as provided for under the occupational benefit scheme run by the City of Hamburg. Comparison of the two - marriage and life partnership - should be focused on the rights and obligations of the spouses and the partners, as deriving respectively from the internal provisions that apply to marriage and to a registered partnership which are relevant given the conditions on which payment of the pension on question are dependent. Even if this comparison were to exclude the existence of any direct discrimination on the grounds of sexual orientation, there would be at least indirect discrimination in the sense of Directive 2000/78 if provisions, such as those of the rules at issue were to: - provide for a method of calculating supplementary retirement pension that treats a married, temporarily separated pensioners more favourably; - disadvantage a pensioner who has formed a registered civil partnership; - not objectively respond to a legitimate purpose or not form a means that is both appropriate and necessary to achieve such a purpose, the advocate general said.
The Hamburg Labour Court judge will, then, have to consider these points and ensure that the principle of non-discrimination on the grounds of sexual orientation and equality of treatment contained in EU law is fully applied. (F.G./transl.rt)