## Facts

- Jürgen Römer worked for the City-State of Hamburg from 1950 until retiring in 1990 and received a supplementary occupational retirement pension under Hamburg law.
- The pension amount was calculated partly by “family status,” using a more favorable formula for married pensioners who were not permanently separated than for unmarried pensioners.
- At the relevant time, same-sex couples in Germany could not marry but could enter a registered life partnership under national law.
- In 2001, Römer entered a registered same-sex life partnership and requested recalculation of his supplementary pension using the married-person formula, including retroactive adjustment.
- Hamburg refused and continued calculating his pension as for an unmarried person.
- Römer challenged the calculation in the Hamburg Labour Court, which referred questions to the Court of Justice of the European Union for interpretation of EU anti-discrimination law.

## Issues

1. Whether a supplementary retirement pension paid by a public employer to former employees qualifies as “pay” and falls within the material scope of Directive 2000/78, notwithstanding exclusions for state social security and references to national marital-status laws.
2. Whether paying a lower supplementary pension to a person in a registered life partnership than to a married person constitutes prohibited discrimination on grounds of sexual orientation under Directive 2000/78.
3. Whether, for the purpose of the pension benefit, registered life partners and married spouses are in a comparable situation, and who determines comparability.

## Decision

- The CJEU held that the Hamburg supplementary retirement pension constituted “pay” linked to the employment relationship and therefore fell within the scope of Directive 2000/78.
- The Court ruled that Directive 2000/78 precludes national provisions that grant a lower supplementary pension to a person in a registered life partnership than to a married person, where the situations are comparable for that benefit.
- The Court characterized such unequal treatment, when comparability exists, as direct discrimination based on sexual orientation.
- The Court held that neither the Directive’s exclusion for state schemes nor its recital on marital status removes occupational pension benefits from the Directive’s reach.
- The Court left to the national court the factual assessment of whether registered life partners and married spouses were comparable under national law for purposes of the pension calculation.

## Legal Principles

- A supplementary occupational pension paid by an employer (including a public employer) to former employees and survivors may constitute “pay” and fall within EU employment equality rules.
- Directive 2000/78’s exclusion for state social security or social protection schemes does not cover employer-based supplementary pension schemes tied to the employment relationship, even if created by statute.
- A recital preserving Member State competence over marital status does not permit employment-related pay rules to treat workers differently on a prohibited ground.
- If a Member State creates a registered partnership status that places same-sex partners in a legal situation comparable to spouses for the benefit at issue, denying equivalent occupational pension treatment constitutes direct discrimination on grounds of sexual orientation.
- Direct discrimination based on sexual orientation is permissible only within the Directive’s limited exceptions, which do not include general reliance on budgetary concerns or generalized protection of marriage as such in employment-related pay.

## Conclusion

The CJEU held that Hamburg’s supplementary pension scheme was subject to EU employment equality law and that paying registered same-sex life partners less than married pensioners violates Directive 2000/78 where the partnerships are comparable to marriage for the pension benefit, with comparability to be determined by the national court.


Römer v. Freie und Hansestadt Hamburg (Case C-147/08), 2011 E.C.R. I-3591 (C.J.E.U. 2011)