Friday, 4 April 2008

Malta Independent: European Court of Justice ruling could indirectly help gay couples in Malta
4 th April 2008
by Fr
ancesca Vella

A landmark ruling handed down by the European Court of Justice on Tuesday would “indirectly help gay couples in countries where there is no equivalent to marriage,” lawyer Helmut Graupner told the BBC website shortly after details of the case were announced.

It was the first time that the ECJ ruled in favour of same-sex couples. The case, essentially about pension rights for same-sex registered couples, was triggered by German national Tadao Maruko in 2005, after his partner died and he was refused a widower’s pension.

A Maltese man – who preferred not to be mentioned by name – was slightly more cautious than Dr Graupner, saying: “I don’t think experts, even, can predict what this ruling would mean for gay couples in countries where there is no legal recognition whatsoever of gay relationships.

“This is legal territory that is yet to be discovered, since the first cases of gay discrimination under the Employment Directive have only just started reaching the ECJ.”

The Luxembourg-based court ruled that a person is entitled to his or her dead partner’s pension in EU states that treat homosexual partnerships similarly to marriages.

The German pension fund refused to grant Mr Maruko a widower’s pension, claiming that only people who have been married are entitled to such a pension.

However, the ECJ ruled that this was a violation of EU law, and it established a general framework for equal treatment in employment and occupation.

In practice, a person should – after the death of their life partner – receive a survivor’s benefit equivalent to that granted to a surviving spouse, but this is only applicable if national law treats same-sex partnerships in a comparable way to marriages as far as the survivor’s benefit is concerned.

The court, therefore, underlined that it is up to national courts to determine whether a surviving life partner is in a situation comparable to that of a spouse entitled to the survivor’s benefit, provided for under the occupational pension scheme.

A European Commission spokesman welcomed the judgement, saying: “It strengthens the principle of non-discrimination on grounds of sexual orientation, and further specifies the right of registered homosexual partners in the area of employment and occupation.”

At the same time, the spokesman stressed that family law was exclusively in the hands of member states and they were free to decide whether homosexual partnerships should enjoy the same treatment as marriages.

“The right to a survivor’s pension exists only if the two institutions (marriage and same-sex partnership) are analogous,” said the spokesman.

However, giving comments to the BBC, Dr Graupner suggested that the ruling could eventually affect the entire 27-nation EU, including countries that do not recognize same-sex partnerships at all.

“The next case may be one of indirect discrimination, from a country that excludes same-sex partners from the rights and obligations of marriage,” he said, adding, “The way out for such a country would mean they would have to provide the same benefits as other countries”.

To date, only Belgium, Spain and Holland recognise full same-sex marriages. Denmark, Germany, Hungary, Slovenia, Sweden, the Czech Republic and the UK allow for legal partnerships, while France and Luxembourg have established civil contracts.

Sources told The Malta Independent that as a result of this ECJ ruling, future court cases could have two opposing outcomes in countries where there is no form of legal recognition of same-sex relationships.

Since the benefits in these cases are dependent on the nature and legal status of the relationship in question and since gay couples in these countries are considered as single people, the court could rule that there would not have been any form of discrimination, because cohabiting straight couples do not receive the benefit either.

Going a step further, however, the court could find that in such countries, since gay couples cannot get married (as opposed to cohabiting straight couples who could get married if they wanted to), failing to provide them with a widower’s pension could account for indirect discrimination.

This is one of the issues brought up in Recital 22 of the Employment Directive, which states that the directive does not affect rights dependent to marriage (even though recitals are not binding).

In Tuesday’s ruling, the ECJ did not take Recital 22 into account; had it considered this “unbinding” recital, it could have held that there is a difference between marriage and registered partnerships, and therefore could have decided to dismiss the claim.

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