Luxembourg, 06/09/2007 (Agence Europe) - In its conclusions made on Thursday 6 September, the Advocate General Dámaso Ruiz-Jarabo Colomer underlined that the “survivor” of a homosexual couple had to benefit from the same pension rights as a widow or widower in a marriage, on the condition that the legal status of the couple is comparable to marriage (case C-267/06). Directive 2000/78/EC of the Council on equal opportunities at work therefore clearly applies to this case but some levels of discrimination at a national level, nevertheless, escape from its scope.
On 28 February 2005, Tadao Maruko was refused his pension request as a widow made to the insurance company to which his partner had paid into since 1959 until his death on 12 January 2005. Although their partnership was “registered” by the German state, the insurance statutes “Versorgungsanstalt der deutschen Bühnen (VddB, compulsory insurance for theatre sector employees in Germany) do not recognise Mr Maruko as the “widow” of his partner, given that they were not married. Mr Maruko went to the administrative court in Munich (Bayerisches Verwaltungsgericht München) to appeal against VddB's rejection of his request. The court ruled that the refusal was legitimate because of German rules on notions contained in the definition of “widow” and those in the German constitution. On the other hand the court recognised the pertinence of the Community rules on the matter and posed certain preliminary questions on this subject to the European Court of Justice.
Marking out the first stage of the proceedings, the Advocate General advised the Court to answer accordingly: a survivor's pension such as the one requested depends on a job and therefore is part of the field of application for directive 2000/78/EC on equal treatment at work. This being the case, these pensions cannot, according to this directive, allow for discrimination to occur between married couples and those in the equivalent registered partnerships. If the Court follows these conclusions (which it is not obliged to do), it will ask the Bavarian court to find in Mr Maruko's favour.
Dr Helmut Graupner, Mr Maruko's legal representative and president of the Austrian association for the rights of lesbians and homosexuals, “Rechtskomite Lambda”, welcomed the result but said that it was too early to celebrate. In the two previous cases involving the rights of homosexual couples, the Court did not follow the outline of the Advocate General and found in favour of the institutions accused of discrimination (Grant versus South West Trains Ltd C-249/96 and “D” versus the European Council C-122/99 P). The case in point is different, however, from the previous ones, which gives Dr Graupner a ray of hope; he explained that, “the directive was not in force at the time of the Grant case”. Before 2001, if a male homosexual couple suffered the same discrimination as a lesbian couple, there was no breach of Community law if treatment of the two genders was equitable - an argument that caused Ms Grant to lose at court. Directive 200/78/EC bans not only sexual but also discrimination over sexual orientation. “It is therefore necessary to verify that equal treatment can now be compared with a hypothetical heterosexual in the same circumstances”.
This augurs well for Mr Makuro, but repercussions on homosexual couples in the other member states could be limited. Such a decision would in fact confirm the illegal nature of discrimination between married couples and homosexual couples when the partnership is entered in the registers, but would not compel member states to make such a partnership possible for homosexuals. The directive does not make this an obligation either, its 22nd whereas explicitly ruling out laws on civil status from its scope. The result is that equality for homosexuals as set out in the directive is limited to the professional context. Dr Graupner complains of this restriction, saying: “we must extend equality for homosexuals beyond the workplace”. At the current time, in fields such as social security and tax status, only discrimination due to race and ethnic origin are expressly banned by Community law.
According to Ms Jean Lambert, British parliamentarian of the Greens Group and a member of the Intergroup on Gay and Lesbian Rights, the Commission's initiatives on coordination of social security and on access to financial services could fill the gap in homosexual couples' rights. “We acknowledge that there is a problem”, Ms Lambert explained. She takes the view that, if it is confirmed that a homosexual couple has the right to demand the same treatment in different member states, than “all countries should come into line on the same norms”. This, however, remains a medium-term goal. (cd)