EU & Human Rights

K. B. (Social policy)

[2004] EUECJ C11701Court of Justice of the European Union (including the General Court)2004

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(Article 141 EC - Directive 75/117/EEC - Equal treatment for men and women - Transsexual partner not entitled to a survivor's pension payable solely to a surviving spouse - Discrimination on grounds of sex)

REFERENCE to the Court under Article 234 EC by the Court of Appeal of England and Wales (Civil Division) for a preliminary ruling in the proceedings pending before that court between K.B.

on the interpretation of Article 141 EC and of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19), THE COURT,

composed of: V. Skouris, President, C.W.A. Timmermans, J.N. Cunha Rodrigues (Rapporteur) and A. Rosas (Presidents of Chambers), D.A.O. Edward, J.-P. Puissochet, F. Macken, N. Colneric and S. von Bahr, Judges, Advocate General: D. Ruiz-Jarabo Colomer, Registrar: L. Hewlett, Principal Administrator,

after considering the written observations submitted on behalf of: - K.B., by C. Hockney and L. Cox QC, and by T. Eicke, Barrister, - the United Kingdom Government, by J.E. Collins, acting as Agent, and N. Paines QC, - the Commission of the European Communities, by N. Yerrel, acting as Agent, having regard to the Report for the Hearing,

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BAILII · Verbatim mirror

In the alternative, K.B. submits that the marriage requirement amounts to indirect discrimination against transsexuals since, unlike a heterosexual couple neither of the partners to which is a transsexual, in the case of a heterosexual couple one of whose members has undergone gender reassignment surgery, the marriage requirement can never be met.

Findings of the Court

Costs

37. The costs incurred

On those grounds,

THE COURT,

in answer to the question

Article 141 EC, in principle,

SkourisTimmermans Cunha Rodrigues

Rosas

Edward Puissochet

Macken

Colneric von Bahr

Delivered in open court

R. Grass V. Skouris

Registrar President

[1998] ECR I-621, or is because he has a transsexual partner, as in the present case, or is some other reason.

The United Kingdom Government also submits that the judgment in Joined Cases C-122/99 P and C-125/99 P D. and Sweden v Council [2001] ECR I-4319 is applicable to the present case, since in that case the contested provision of the Staff Regulations of Officials of the European Communities contained, as in this case, a requirement of marriage and not merely of a stable relationship of a certain character for the purpose of the grant of the household allowance.

The Commission submits that the decisive factor in the case of P. v S. was the fact that the unfavourable treatment suffered by P. was directly caused by, and flowed from, her gender reassignment, since P. would not have been dismissed had it not been for the gender reassignment.

However, in the present case, the unfavourable treatment complained of is one step removed from R.'s gender reassignment and arises instead from the fact that it is impossible for the couple to marry. In those circumstances, the Commission submits that P. v S. is not applicable to the present case.

The Commission also contends that K.B. cannot rely on Community law on the basis that the indirect relationship between R.'s gender reassignment and the refusal to pay him a survivor's pension is sufficient to bring that refusal within the definition of sex discrimination. First, the judgment in Grant implicitly recognised that the definition of marriage was a matter of family law, which remains within the competence of the Member States. Second, the European Court of Human Rights has held that the barrier to marriage arising from the fact that English law does not allow a transsexual who has undergone gender reassignment to amend his or her birth certificate does not constitute an infringement of Articles 8, 12 or 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (the ECHR).

Benefits granted under a pension scheme which essentially relates to the employment of the person concerned form part of the pay received by that person and come within the scope of Article 141 EC (see, in particular, Case C-262/88 Barber [1990] ECR I-1889, paragraph 28, and Case C-351/00 Niemi [2002] ECR I-7007, paragraph 40).

The Court has also recognised that a survivor's pension provided for by such a scheme falls within the scope of Article 141 EC. It has stated in that regard that the fact that such a pension, by definition, is not paid to the employee but to the employee's survivor does not affect that interpretation because, such a benefit being an advantage deriving from the survivor's spouse's membership of the scheme, the pension is vested in the survivor by reason of the employment relationship between the employer and the survivor's spouse and is paid to the survivor by reason of the spouse's employment (Case C-109/91 Ten Oever [1993] ECR I-4879, paragraphs 12 and 13, and Case C-379/99 Menauer [2001] ECR I-7275, paragraph 18).

So a survivor's pension paid under an occupational pension scheme such as the NHS Pension Scheme constitutes pay within the meaning of Article 141 EC and Directive 75/117.

The decision to restrict certain benefits to married couples while excluding all persons who live together without being married is either a matter for the legislature to decide or a matter for the national courts as to the interpretation of domestic legal rules, and individuals cannot claim that there is discrimination on grounds of sex, prohibited by Community law (see, as regards the powers of the Community legislature, D. v Council, paragraphs 37 and 38).

In this instance, such a requirement cannot be regarded per se as discriminatory on grounds of sex and, accordingly, as contrary to Article 141 EC or Directive 75/117, since for the purposes of awarding the survivor's pension it is irrelevant whether the claimant is a man or a woman.

However, in a situation such as that before the national court, there is inequality of treatment which, although it does not directly undermine enjoyment of a right protected by Community law, affects one of the conditions for the grant of that right. As the Advocate General noted in point 74 of his Opinion, the inequality of treatment does not relate to the award of a widower's pension but to a necessary precondition for the grant of such a pension: namely, the capacity to marry.

In the United Kingdom, by comparison with a heterosexual couple where neither partner's identity is the result of gender reassignment surgery and the couple are therefore able to marry and, as the case may be, have the benefit of a survivor's pension which forms part of the pay of one of them, a couple such as K.B. and R. are quite unable to satisfy the marriage requirement, as laid down by the NHS Pension Scheme for the purpose of the award of a survivor's pension.

The fact that it is impossible for them to marry is due to the fact, first, that the Matrimonial Causes Act 1973 deems a marriage void if the parties are not respectively male and female; second, that a person's sex is deemed to be that appearing on his or her birth certificate; and, third, that the Births and Deaths Registration Act does not allow for any alteration of the register of births, except in the case of clerical error or an error of fact.

The European Court of Human Rights has held that the fact that it is impossible for a transsexual to marry a person of the sex to which he or she belonged prior to gender reassignment surgery, which arises because, for the purposes of the registers of civil status, they belong to the same sex (United Kingdom legislation not admitting of legal recognition of transsexuals' new identity), was a breach of their right to marry under Article 12 of the ECHR (see Eur. Court H.R. judgments of 11 July 2002 in Goodwin v United Kingdom and I. v United Kingdom, not yet published in the Reports of Judgments and Decisions, �� 97 to 104 and �� 77 to 84 respectively.

Legislation, such as that at issue in the main proceedings, which, in breach of the ECHR, prevents a couple such as K.B. and R. from fulfilling the marriage requirement which must be met for one of them to be able to benefit from part of the pay of the other must be regarded as being, in principle, incompatible with the requirements of Article 141 EC.

Since it is for the Member States to determine the conditions under which legal recognition is given to the change of gender of a person in R.'s situation - as the European Court of Human Rights has accepted (Goodwin v United Kingdom, � 103) - it is for the national court to determine whether in a case such as that in the main proceedings a person in K.B.'s situation can rely on Article 141 EC in order to gain recognition of her right to nominate her partner as the beneficiary of a survivor's pension.

It follows from the foregoing that Article 141 EC, in principle, precludes legislation, such as that at issue before the national court, which, in breach of the ECHR, prevents a couple such as K.B. and R. from fulfilling the marriage requirement which must be met for one of them to be able to benefit from part of the pay of the other. It is for the national court to determine whether in a case such as that in the main proceedings a person in K.B.'s situation can rely on Article 141 EC in order to gain recognition of her right to nominate her partner as the beneficiary of a survivor's pension.

by the United Kingdom Government and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

referred to it by the Court of Appeal of England and Wales (Civil Division) by order of 14 December 2000, hereby rules:

precludes legislation, such as that at issue before the national court, which, in breach of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, prevents a couple such as K.B. and R. from fulfilling the marriage requirement which must be met for one of them to be able to benefit from part of the pay of the other. It is for the national court to determine whether in a case such as that in the main proceedings a person in K.B.'s situation can rely on Article 141 EC in order to gain recognition of her right to nominate her partner as the beneficiary of a survivor's pension.

in Luxembourg on 7 January 2004.

Language of the case: English. absolute inset-x-0 bottom-0 h-32 bg-gradient-to-t from-surface/95 via-surface/60 to-transparent">

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