ECJ rules no discrimination where civil partner could not benefit from spouse’s pension due to ‘death-bed marriages’ restriction

The ECJ has ruled that no discrimination arose from a pension scheme ‘death-bed marriages’ rule preventing a same-sex partner from benefitting from a spouse’s pension, deciding not to follow the Advocate General’s opinion we reported on earlier this year.

19 December 2016

A lecturer from Trinity College Dublin, Mr Parris, has lost his case in the European Court of Justice (the “ECJ”) in which he alleged that his employer had discriminated against him on grounds of sexual orientation and age in terms of his pension rights.

The rules of the scheme required Mr Parris to have entered into a civil partnership before his 60th birthday to ensure that his civil partner could access his survivor’s pension in the event of his death. Although he had been in a relationship with his partner for over 30 years, they had only been able to enter into a civil partnership when Mr Parris was 65. This was only later recognised by Irish law. His civil partner was therefore not entitled to a survivor’s pension.

In our 15th July update, we noted the opinion of the ECJ’s Advocate General, an official who provides an unbiased viewpoint on the case to aid the Court in its deliberations. He found that there was both direct age discrimination and indirect sexual orientation discrimination, which were not justified. However, the ECJ did not follow this opinion.

It found that the rule itself was neutrally worded and so applied equally to heterosexual couples, meaning that it was not discriminatory. The age limit of 60 was permissible, as such age limits for retirement benefits are not viewed as discriminatory. Ireland was not required to give retrospective effect to its Civil Partnership Act nor implement transitional provisions for those who had already reached the age of 60 when the Act was in force. EU law did not require Ireland to provide marriage or civil partnership to same sex couples. No indirect discrimination based on the combined factors of age or sexual orientation had arisen.

For UK pension schemes, this case will not result in any requirement to take immediate action. Rather, trustees must keep in mind the principles of equality when creating, operating or amending scheme rules. Legislation will not (at the moment) be retroactively applied in terms of civil partnerships or same-sex marriage – however schemes who have not updated their rules to reflect changes in this area should do so.