An interesting post at EU Law Blog about last week’s ECJ judgment in this case, about survivors’ pension and sexuality discrimination. It’s amazing, I always think, how fundamental EC discrimination law – human rights law, you might call it – is laid down in cases about funny little niches like survivors’ pensions (like KB). So don’t let anyone tell you pension is a dull area!

In this German case, the surviving “life partner” (the German equivalent of a UK civil partner) wanted a survivors pension from an occupational scheme but was refused because only surviving spouses were covered – and old story, that. The legal issue was whether this was sexual orientation discrimination as regards pay, and so outlawed by the “Employment Directive”, 2000/78.

Now, a survivor’s pension rights are clearly pay in EC law terms; that’s long been established, and the ECJ had no difficulty in reaching that conclusion, unsurprisingly. More difficult are the questions whether the refusal of benefit here amounted to discrimination, and whether rules favouring marriage are outside the scope of the Directive altogether – and these are the two points I want to comment on.

First: to what extent is this sexual orientation discrimination? Well, the court has ruled (see paras. 65-73 of the judgment) that a rule giving a pension to a surviving spouse but not to a surviving life partner is direct sexual orientation discrimination because German law essentially treats life partnership as equivalent to marriage. It follows that life partners are in a comparable situation to spouses; and to favour the “straight hitched” over the “gay hitched” is therefore directly discriminatory. This principle must, it seems to me, apply to British civil partners, who are treated the same as married people (with an interesting exception regarding retrospective pension rights, an exception I think must be vulnerable following this case).

Fair enough, although it’s interesting that the court chose to adopt this approach, rather than, say, KB-style reasoning. In that case, denying pensions rights available to spouses in respect of a transsexual partner was sex discrimination because the transsexual partner could not marry under national law: the fact that only spouses could get pension benefits was therefore indirectly discriminatory. If you applied that kind of reasoning in Maruko, then any legal system denying to gay partners benefits traditionally given to spouses – for instance by refusing to introduce any system of civil partnership – would discriminate unlawfully. But the alternative approach taken here means that it’s only liberal countries like Germany and Britain, which have set up civil partnership systems broadly equating to marriage, which can be found guilty of Maruko discrimination. Less liberal countries need fear nothing.

The second interesting aspect is the way the ECJ has dealt with the effect of recital (22) to the Directive, which says

This Directive is without prejudice to national laws on marital status and the benefits dependent thereon.

At the time the Directive was negotiated, many lawyers thought this recital might have the effect of protecting all kinds of rules favouring marriage from the effects of the Directive; surely it must have been intended that way by those national negotiators who must have argued for the recital. On the other hand, the recital is highly ambiguous – does it simply mean that benefits dependent on national laws are protected, or all those dependent on marital status? Does the protection mean marriage rules are lawful, or simply that the principle of non-discrimination might require their extension to the non-married, rather than their abolition? And the recital is not reflected in any substantive provision of the Directive, and it’s well established that recitals do not, in principle, have substantive effects in themselves. So, what to make of it?

Well, the ECJ has more or less ruled that the recital is of no effect. It addresses the issue at paras. 58 and 59 of the judgment. It says civil status is a matter of national competence, but in exercising it member states must comply with Community law and the principle of non-discrimination, referring by analogy to the free movement cases Case C‑372/04 Watts and C‑444/05 Stamatelaki.

This is totally bogus reasoning, typical of the ECJ at its very worst. It’s circular: the very question at issue is whether the EU principle of non-discrimination on sexual orientation grounds applies to national rules favouring marriage, so it’s obviously wrong to answer it by reference to the application of the EU law non-discrimination principle. This element of the reasoning amounts to no more than a ruling that the Directive’s substantive provisions (which do not contain a proviso such as is set out the recital) take precedence over the recital. It’d have been better to have cast the reasoning in more direct terms such as that. And it’s also because the question was about the possible existence of an exception to non-discrimination that the references to free movement cases are utterly bogus, too. I don’t object to the result – I think member states who wanted to protect marriage rules probably were advised that they needed more than a recital if they were to achieve that – but disingenuous and confusing judicial reasoning like this is a bit of a disgrace I think.