A Win For Euro Couples

BY ARTHUR S. LEONARD | The European Court of Justice, which rules on questions arising under European Union law, has held that the surviving partner of a German registered same-sex partnership may be able to claim a pension under the benefits plan maintained by that nation's theatrical industry union.

The ruling has the potential of opening up claims for a broad range of benefits and rights for same-sex couples in legally recognized domestic partnerships in European nations that don't have full marriage equality.

The ruling came on April 1 in the Hague, the Netherlands, where the court sits.

European Court of Justice ruling makes broad partnership gains likely

The pension plan, established by the Nazis, required all theatrical professionals to join an official union, which then entered into a collective agreement with theater owners in 1937 establishing the benefits program. The plan provides pensions, funded in part by union members, to surviving widows and widowers of members.

In 2001, Germany passed a law creating registered life partnerships for same-sex couples. The law does not give registered partners all the rights and responsibilities of marriage, but does provide that “life partners must support and care for one another and commit themselves mutually to a lifetime union. They shall each accept responsibilities with regard to the other. The life partners are each required to contribute adequately to the common needs of the partnership by their work and from their property.”

The law also provided that a life partner “shall be regarded as a member of the family of the other life partner.”

Several years later, Germany amended its social security code to provide surviving life partners with the same state pension entitlements as legal spouses.

Shortly after the 2001 registered partnership law went into effect, Tadao Maruko and his partner registered their union. Maruko's partner, a theatrical costume designer not named in the court's opinion, joined the theatrical workers union in 1959, and maintained his membership voluntarily even during occasional periods when he did not work in the industry.

Maruko's partner died in January 2005, and Maruko applied to the union for a survivor's pension.

The union turned him down, pointing out that under the original 1937 collective bargaining agreement, still in effect, only a surviving legal spouse was entitled to a pension. Maruko's lawsuit relies on a European Council directive that established the principal of sexual orientation non-discrimination in employment, including compensation. The European Union's directive does not address the workings of the social security system in member nations and specifically states that its provisions do not affect a nation's discretion in determining who can marry.

In the Bavarian Court, where Maruko first brought his case, he argued that the theatrical pension plan was not a state social security plan and that his claim did not challenge Germany's marriage polices.

The Bavarian Court agreed with him, but given arguments raised by the union, especially its claim that the state had compelled all theatrical employees to join the union, the court asked the European Court of Justice for a ruling about whether the European Council's non-discrimination requirement is applicable to Maruko's suit. The critical substantive question is whether Germany's same-sex registered partnerships are sufficiently similar to the legal status of marriages to make any sexual orientation discrimination involving the partnerships unlawful.

The European Court of Justice's advocate general last year voiced agreement with the Bavarian Court that the theatrical union pension plan is subject to the non-discrimination requirements. If Maruko's exclusion from the pension plan is found to be sexual orientation discrimination by the Bavarian Court, Maruko must be awarded the benefits.

The Court went beyond the advocate general's recommendation in one critical respect – it held that any registered partnership that is “similarly situated” to a marital relationship regarding pension entitlements is subject to the European Council's non-discrimination provisions. The advocate general had laid out a more demanding standard- that registered partnerships must be “substantially identical” to marital partnerships to qualify for protection. By articulating the “similarly situated” standard, the European Court allows Maruko to raise the recent German law treating registered partners as spouses under the nation's social security system.

The European Court advises member nations on European law. The disposition of Maruko's case is up to the Bavarian courts, but the issue seems to have been pretty well settled. The failure to treat Maruko the same as a surviving spouse will likely be found to violate the non-discrimination obligations of European law.

Unlike its conclusions in many other cases, the European Court saw no need to limit the retroactivity of its decision; Maruko's pension, if awarded, should be calculated based on the full term of his late partner's membership in the union and be payable from the time of his death.

According to Dr. Helmut Graupner, a Viennese lawyer who was part of Maruko's legal team, the decision is particularly important because to date the European Court of Justice had never ruled directly on a discrimination claim in favor of gay people, though it had taken up cases involving transsexuals. Previous gay rights victories in Europe came from the Court of Human Rights, located in Strasbourg, France, which is narrowly charged with interpreting the European Convention on Human Rights.

“We are very glad that the ECJ did send a strong signal against discrimination of same-sex couples all over Europe,” Graupner said in a written press release on behalf of the Austrian gay rights organization, which he heads.

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