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Death Bed Marriage Rule in Pension Scheme Discriminatory


An Advocate General (AG) of the Court of Justice of the European Union (CJEU) has given her opinion that a former university lecturer, as a pension scheme member, was indirectly discriminated against based on his sexual orientation.

The plaintiff sought to establish that his same sex civil partner would be entitled to receive a survivor’s pension on his death. The university’s scheme rules prescribed that a survivor’s pension would not be available where a member had married or entered into a civil partnership after reaching the age of 60 or after having retired. The lecturer retired in 2010. Civil partnership was not recognised in Ireland until 2011. It was legally impossible for him (or any other homosexual scheme members who turned 60 before 2011) to satisfy this requirement until 2011. The AG found this to be indirect discrimination based on sexual orientation. The restriction was viewed as an extremely drastic measure that could not be justified.

Submissions were made concerning the retroactive effect on the institution of civil partnership but were rejected. This is contrary to previous EU & UK case law on the “no retroactivity” and “future effects” principles of EU law.

An objection was also raised that the plaintiff’s pension entitlements were based mostly on periods of service prior to the entry into force of the Framework Equality Directive (2000/78). The AG found no issue with this, stating that a new rule of law applies from the entry into force of the act introducing it.

The AG also briefly discussed age discrimination and the idea of the combined effect of discrimination.  

Although an opinion of the AG is not binding on the CJEU, it is frequently followed. The AG’s refusal to apply a temporal limit to the future affects of any determination could merit authoritative consideration by the CJEU. Employers with schemes applying similar restrictions should assess them in light of this opinion.

For more information generally on age discrimination see our Age Report.

Contributed by Jane Barrett & Ciara McLoughlin

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