Reduction of pension for young spouse allowable

In an action¹ concerning a private German pension scheme, Advocate General Shepston has given an Opinion on a clause that denied a pension to a widow who was 21 years younger than her deceased spouse.

The case was referred to the European Court of Justice by a German court seeking clarification of a number of points relating to the EU’s Equal Treatment Framework Directive (Directive 2000/78/EC).

Under the rules of the pension scheme of Frau Bartsch’s husband, no spouse’s pension was payable if the surviving spouse was more than 15 years younger than the deceased member. Her husband died in 2004, before the age discrimination provisions of the Equal Treatment Framework Directive were transposed into German law. She met all the conditions for entitlement to a spouse’s pension apart from the age gap between her and her deceased husband.

The basis of her claim was that the age-gap clause breached the EU’s principle of equal treatment and was therefore in valid. Her appeal for a pension was dismissed by the lower German courts.

Advocate general’s opinion

In the advocate general’s Opinion, the situation did not fall within EC law in this case because Germany had not transposed the age discrimination provisions into national law at the time of the death of Frau Bartsch’s husband. Therefore, there was no specific antidiscrimination provision in force at the relevant time that could be breached.

That answer effectively dealt with this case. However, the advocate general went on to consider whether young-spouse reduction clauses were in fact discriminatory. She said that, even though the clause referred to relative ages rather than absolute ages (that is, it compared the age of the spouse with that of the member), it still contravened age discrimination legislation. She was prepared to accept that allowing schemes to have some kind of age-gap clause may, in principle, serve a legitimate aim within the objective justification provisions of the Directive. However, a clause such as the one under review that excluded the surviving spouse from any payment at all would fail the proportionality test.

While the advocate general’s Opinion may influence the European Court of Justice’s decision on the matter, the full court is not bound to follow it.

1. Bartsch v Bosch und Siemens Hausgeräte Altersfursorge GmbH, Case C-427/06, (on the ECJ website).