The ECJ ruled that the refusal to grant the survivor’s pension to life partners constitutes direct discrimination on grounds of sexual orientation, when the surviving spouses and surviving life partners are in a comparable situation as regards that pension. And the ECJ made clear that the criterion for such a comparable situation is whether the partners “live in a union of mutual support and assistance which is formally constituted for life” (par. 67). A criterion which is fulfilled by the German legislation (par. 62, 67-69).
Dr Helmut Graupner represented ILGA-Europe in this case before the ECJ.
Patricia Prendiville, Executive Director of ILGA-Europe, said:
“We welcome today’s ruling of the European Court of Justice and its strong wording which unequivocally stated that ‘refusal to grant the survivor’s pension to life partners constitutes direct discrimination on grounds of sexual orientation’ and therefore it cannot be justified in any circumstance.
ILGA-Europe celebrates this significant achievement which means that it will be applicable in all EU countries which provide formal registration of same-sex unions and require mutual maintenance.
At the same time ILGA-Europe is concerned that this decision does not have immediate legal consequences for same-sex partners in those EU countries that do not yet recognise same-sex unions. This creates a discriminatory two-tier level of protection for lesbian, gay, bisexual and transgender (LGBT) EU nationals who are divided into two categories as their access to survivor pension rights depends on their country of residence. ILGA-Europe looks forward to seeing how the EU is going to eliminate this discriminatory divide based on nationality and/or place of residence of LGBT people.”
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