European Court of Justice Rules for Equal Rights of Same-Sex Partners in Germany

The European Court of Justice (Grand Chamber) ruled today that the city of Hamburg was likely violating European Law by providing a pension scheme under which retired married city pensioners receive higher pensions than retired city pensioners who are in a same-sex registered partnership.  The May 10 ruling in the case of Römer v. Freie und Hansestadt Hamburg, Case C-147/08, is unanimous.  The role of the court in this case is to advise the German courts on a question of European Law pending before them, so the next step is for the plaintiff to take this case back to the German courts for appropriate factfinding and an eventual decision consistent with Germany's obligations under European Law.

According to the Judgment published today on the court's website, Mr. Römer worked as an administrative municipal employee in Hamburg from 1950 until his disability retirement effective May 31, 1990.  Since 1969, he lived continuously with Mr. U, his same-sex partner, which whom he entered into a registered life-partnership on October 15, 2001.  He then notified his former employer of the partnership and requested that the amount of his supplementary retirement pension be recalculated to reflect his new status, but his request was denied on the ground that only married pensioners were entitled to the higher amount he was seeking under applicable German law.  By Mr. Römer's calculation, this would more than double his monthly pension payment.

When he brought his claim to the Labor Court in Hamburg, asserting that under European Law he was entitled to equal treatment with married pensioners, that court decided to stay the proceedings and refer several questions to the European Court of Justice, including whether the equality Directive that bans sexual orientation discrimination applies to this benefit (as certain social welfare and benefit systems are not subject to the Directive), whether the differential treatment based on marital status violates the Directive, and if there is liability, how far back it would go in time.

Having found that the pension scheme in this case is "pay" subject to the Directive, the ECJ went to the merits, finding that Germany has established registered partnerships for same-sex couples, who are denied the right to marry, and has gradually expanded the rights associated with registered partnership to be comparable to marriage (albeit not strictly equal).  The court pointed out that during his working life, Mr. Römer made payroll contributions into the pension scheme that were equal to those of his married colleagues, and that were he married to a different-sex partner rather than registered with a same-sex partner, he would be entitled to the higher benefit under local law, suggesting that his entitlement hinges directly on his sexual orientation. 

"Accordingly," wrote the court, the answer to the question posed on discrimination is that the relevant provisions of European law "preclude a provision of national law ... under which a pensioner who has entered into a registered life partnership receives a supplementary retirement pension lower than that granted to a married, not permanently separated, pensioner, if in the Member State concerned, marriage is reserved to persons of different gender and exists alongside a registered life partnership as that provided for by the [German law], which is reserved to persons of the same gender, and there is direct discrimination on the ground of sexual orientation because, under national law, that life partner is in a legal and factual situation comparable to that of a married person as regards that pension."

It is now up to the German court to "assess the comparability, focusing on the respective rights and obligations of spouses and persons in a registered life partnership, as they are governed within the correspondening institutions, which are relevant taking account of the purpose of and the conditions for the grant of the benefit in question."

In other words, European Law imposes the non-discrimination requirement, and it is up to national courts within Europe to do the necessary fact-finding to determine whether the two statuses (marriage and registered partnership) are sufficiently comparable to mandate the result Mr. Römer is seeking. 

The actual ruling of the court is in three parts: first, holding that supplementary retirement pensions paid to former municipal employees are subject to Council Directive 2000/78/EC, which establishes the general framework for equal treatment in employment; second, holding that European Law would preclude having a scheme under which different-sex marriage and same-sex registered partnership are directly comparable in legal rights but a married pensioner is entitled to more than a pensioner in a registered partnership; and third, holding that the equality obligation dates back to December 3, 2003, which was the deadline for Member States to conform their laws to requirements of Council Directive 2000/78. 

Describing the remaining task for the German courts in this case, the ECJ said: "It is for the referring court to assess the comparability, focusing on the respective rights and obligations of spouses and persons in a registered life partnership, as governed within the corresponding institutions, which are relevant taking account of the purpose of and the conditions for the grant of the benefit in question."

Dr. Helmut Graupner, President of the Austrian national gay rights organization RKL, presented arguments on Mr. Römer's behalf as representative of ILGA-Europe. Römer is directly represented by Hamburg attorney Birgit Bossert.  Dr. Graupner hailed the decision as a "groundbreaking case for the whole of Europe," noting its potentially wider application as follows:  "If a member-state (like Germany, Austria, and the United Kingdom) has a registered partnership putting same-sex couples into a legal position comparable to married couples, exclusion from marriage benefits constitutes direct discrimination."  Graupner pointed out that the court, in limiting its ruling to the situation before it, did not pronounce on indirect discrimination claims that might arise in countries that had a registration scheme for same-sex couples that was distinctly inferior in its legal status to marriage.