In the recent case of David Parris v. Trinity College Dublin, the CJEU found that the ineligibility for a survivor’s pension of an employee’s same-sex partner, in circumstances where the 2011 recognition of their civil partnership by Irish law had come after that employee’s 60th birthday and therefore too late to trigger the pension entitlement, gave rise to neither direct nor indirect sexual orientation discrimination.
The UK Government had made written submissions in Parris, hoping for reasoning that would support its defence of an exception in the Equality Act 2010 permitting unequal survivor’s pensions for same-sex civil partners and spouses. The compatibility of the UK’s exception with EU law and the ECHR will be tested in John Walker v. Innospec Ltd, an appeal to heard by the UK Supreme Court (UKSC) on 8-9 March 2017. For a detailed analysis of the Court of Appeal’s judgment, see R. Wintemute, March 2016, 45(1) Industrial Law Journal 90-100.
Although it is suggested that the CJEU erred in finding no sexual orientation discrimination in Parris, it focussed on a rule of the Irish pension scheme that does not exist in Walker, namely that the employee’s marriage or civil partnership must take place before their 60th birthday. It is therefore suggested that Parris will not help the UK Government in Walker.
Advocate General Kokott’s view
The CJEU’s judgment came as a surprise after a very strong Opinion in favour of Mr. Parris given by Advocate General Kokott on 30 June 2016. The Advocate General found indirect sexual orientation discrimination, as well as direct age discrimination and, if necessary, indirect discrimination based on the combination of age and sexual orientation. In particular she observed at paragraph 105 that:
“[t]he situation here is … no different from that in Maruko and Römer, where … certain benefits were claimed only in respect of the period after the State had recognised same-sex civil partnerships, even though the origins of those benefits (contributions or relevant periods of service) lay in the distant past, that is to say before the institution of civil partnership was created”.
Direct discrimination based on sexual orientation?
It is suggested that both the Advocate General and the CJEU in Parris ought to have found direct discrimination based on sexual orientation. The pension scheme’s “marriage or civil partnership before 60” rule was not neutral for lesbian and gay employees born before 1951, who turned 60 before they could have a same-sex civil partnership recognised by Irish law (from 2011). Heterosexual employees born before 1951 were legally able to marry their different-sex partners before turning 60. If they were caught by the rule, it was because they had chosen not to marry, or had failed to dissolve a prior marriage in time. Direct discrimination may be confined to those in a particular age group, eg, 60-64, as in James v. Eastleigh Borough Council,  UKHL 6, or 65 and over, as in Parris.
Further, it is suggested that the judgment of the First Chamber in Parris contradicts the 2013 judgment of the Fifth Chamber in Frédéric Hay, which the First Chamber did not cite.
“43. The fact that the [French] PACS [civil solidarity pact], unlike the [German] registered life partnership at issue in … Maruko and Römer, is not restricted only to homosexual couples is irrelevant and … does not change the nature of the discrimination against homosexual couples who, unlike heterosexual couples, could not [in 2007] … legally enter into marriage. 44. The difference in treatment based on the employees’ marital status and not expressly on their sexual orientation is still direct discrimination because only persons of different sexes may marry and homosexual employees are therefore unable to meet the condition required for obtaining the benefit claimed [emphasis added].”
The view of the European Commission
It is argued that a key factor in Parris, unlike in Maruko and Römer, was that the European Commission decided to support the pension scheme rather than the gay employee. The Commission argued that a decision in favour of Mr. Parris would mean that Directive 2000/78/EC required Ireland to recognise Mr. Parris’s same-sex civil partnership retrospectively (from 2006 rather than 2011). The CJEU accepted this argument at paragraph 60:
“EU law, in particular Directive 2000/78, did not require Ireland to provide before 1 January 2011 for marriage or a form of civil partnership for same-sex couples, nor to give retrospective effect to the Civil Partnership Act …, nor, as regards the survivor’s benefit at issue …, to lay down transitional measures for same-sex couples in which the member of the scheme had already reached the age of 60 on the date of entry into force of the act.”
‘til death do [survivor’s pension scheme participants] part
Both the Commission and the CJEU were mistaken in their understanding of Mr. Parris’s claim. He was not seeking recognition of his civil partnership (now converted to a marriage) at any date prior to 2011. He was seeking recognition of his marriage on the date of his death, which will happen in the future. The Commission and the CJEU treated turning 60 as identical to death: because Mr. Parris turned 60 without being in a civil partnership, his partner could never qualify for a survivor’s pension, even if Irish law changed five years later, and no matter how long he lived.
The only fact that would justifiably have precluded applying Directive 2000/78/EC to Mr. Parris’s case would have been his death prior to 2011. In that hypothetical situation, the CJEU could have concluded, like the European Court of Human Rights in Aldeguer Tomás v. Spain (14 June 2016), that Mr. Parris was never in a civil partnership recognised by Irish law, and that recognition cannot be required retrospectively for the purpose of a survivor’s pension. But Mr. Parris has been in a civil partnership recognised by Irish law since 2011, which he has now converted to a marriage. It is argued that his partner’s exclusion from a survivor’s pension is because of a discriminatory rule in an Irish pension scheme, to which Directive 2000/78/EC could be applied in 2016 without requiring any retrospective recognition of the relationship by Irish law.
The better decision
It is the view of the writer that the CJEU should have held that, to avoid sexual orientation discrimination, the pension scheme must exempt from its “marriage or civil partnership before 60” rule same-sex couples in which the employee was born before 1951 and who entered a civil partnership within a reasonable time after the change to Irish law in 2011. Such an exemption was particularly warranted in Parris, because the rule is aimed at “gold-diggers” or “bounty-hunters” who might seek to marry a retired employee in poor health, shortly before their death.
Mr. Parris and his partner have been together for over 35 years, and would have entered a civil partnership in 2006 or well before had it been legally possible. The European Court of Human Rights required such an exemption from a marriage requirement (in connection with a family-member residence permit) in Taddeucci & McCall v. Italy (30 June 2016), as did in effect the CJEU with regard to the transgender partner of an employee in K.B. v. National Health Service Pensions Agency (2004).
The error of the CJEU’s First Chamber in Parris should not affect Mr. Walker (see his BBC2 interview), when his case is heard by the UKSC. His pension scheme does not contain the unusual “marriage or civil partnership before 60” rule. If he dies before his husband, his husband will receive a nominal pension of £500 per year. If he divorces his husband and marries a woman on his deathbed, she will receive a full survivor’s pension of at least £41,000 per year.
The UKSC will decide in the course of this year whether EU law and the HRA permit the exception in the Equality Act 2010 which, it is argued, authorises clear, direct discrimination based on sexual orientation.
Robert Wintemute is Professor of Human Rights Law at King’s College London.