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Survivor's pension is pay
EU law forbids discrimination due to sexual orientation in an employment context. The 2000/78/EC Directive does not cover social security or social protection schemes because these benefits are not pay. However, in this case, the ECJ held that a survivor's pension is pay. The pension accrues to a survivor due to the employment between the employer and the survivor's spouse and the survivor receives a pension because of the spouse's employment.
Paying a survivor's pension to a surviving spouse but not to a surviving life partner amounts to direct sexual orientation discrimination
This is because German law treats life partnership as equivalent to marriage. The decision will have implications for the UK, which has established civil partnerships as "similarly situated" to marriage where pension rights are concerned.
German court to decide eventual outcome
The role of the European Court of Justice is to advise on European law. Therefore, it is the German court which must decide whether, under German law, surviving spouses and surviving life partners are in a comparable position as regards pension rights. However, it seems clear that the failure to treat Mr Maruko in the same way as a surviving spouse does violate the non-discrimination rule of EU law.
Retroactivity of decision not limited
The ECJ decided there was no need to limit its decision to the date on which the Directive came into force or to some other date that would reduce the pension payable to the surviving partner.
In the UK, a surviving civil partner has the same rights as a surviving spouse to a survivor's pension. However, it is the type of scheme which determines the benefits that a surviving civil partner will receive. Surviving civil partners of contracted - out schemes must receive benefits equivalent to a widower's pension. Benefit calculations use members' accrued rights since 1988 (this is the date from which widowers' benefits are calculated) or the date on which the member joined the scheme if later. However, schemes must treat a surviving civil partner of a contracted in arrangement as a surviving spouse only for their partner's accrued rights since 5 December 2005. This is the date on which amendments to the rules on sexual orientation came into force.
This decision casts doubt on the legality of such limitation periods. UK employers may well find that their liability extends to the date of a member's scheme admission. In Mr Maruko's case, this was 1959.
Tadao Maruko v Versorgungsanstalt der deutchen Bühnen 1 April 2008, C-267/06
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