CJEU rules TCD pension scheme does not discriminate against same-sex couple

The Court of Justice of the European Union (the CJEU) has ruled that a Trinity College Dublin pension scheme does not constitute discrimination contrary to the EU Equal Treatment Directive on the grounds of sexual orientation and/or age. A rule under the pension scheme meant that a former lecturer’s same-sex partner of over 30 years would have no access to his pension in the event of his death.

By way of background, the rules of Trinity College’s pension scheme stated that for a spouse or civil partner to be entitled to a so-called ‘survivor’s pension’, the couple must have been married or have entered into a civil partnership before the member turned 60. The plaintiff, Dr. David Parris, and his partner had entered into a civil partnership in the UK in 2009 but it was only recognised in Irish law in 2011 – by which time Dr. Parris had already turned 60.

Dr. Parris’s Equality Tribunal case was dismissed, and this decision was appealed to the Labour Court. The Labour Court went on to invoke the preliminary reference procedure, to refer a question of EU law to the CJEU. The key question for the Luxembourg court was whether the application of the rule in the pension scheme specifying an age for qualification for a survivor’s pension amounted to discrimination contrary to Directive 2000/78.

The CJEU held that there was neither direct nor indirect discrimination on the ground of sexual orientation, as the rule that marriages or civil partnerships must be entered into before the age of 60 applied equally to employees of all sexual orientation. It further held that there was no indirect discrimination as EU law did not require legal recognition of same-sex marriages or civil partnerships in 2011, and the Civil Partnership Act 2011 did not retrospectively recognise same-sex civil partnerships –a matter within the exclusive competence of EU Member States.

In respect of the age discrimination issue, the CJEU ruled that there had been some difference in treatment under the scheme but that Directive 2000/78 allowed for old age benefits to have a fixed age of entitlement, therefore no discrimination contrary to EU law was found.

On the issue of the combined effect of discrimination on multiple grounds, Advocate General Kokott had given her opinion that the rule was discriminatory as the rule placed homosexual employees, particularly those born before 1951, at a particular and systemic disadvantage. However, while the Luxembourg court acknowledged that discrimination can occur on several grounds, it ruled that this cannot constitute a cause of action where discrimination on one ground prohibited under EU law cannot be established in isolation. As no discrimination on the basis of age or sexual orientation had been found here, the Court could make no finding on the basis of “multiple discrimination”.

Click here for a previous Bulletin article on the case.

 

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