Same sex couple survivors’ benefits – CJEU decision

Written on 8 Dec 2016

The Court of Justice of the European Union (CJEU) has given its decision in Dr Parris v Trinity College Dublin & ors, a case concerning the pension rights of the survivor of a same sex relationship. This is currently a controversial area and is being contested in the UK Supreme Court in Walker v Innospec, with a hearing expected early in 2017. The outcome of Dr Parris may influence the decision in Walker v Innospec, which we discuss further below.

CJEU decision

The CJEU has held that the rules of the Trinity College Pension Scheme (the Scheme), which provided a survivor’s pension to a member’s spouse or civil partner where the member married or entered a civil partnership before their 60th birthday, were not discriminatory on the basis of sexual orientation or age.  This was in the context of the fact that it was not possible for Dr Parris to enter into a civil partnership with his same sex partner before his 60th birthday, because Irish law allowing same sex civil partnerships did not come into force until after his 60th birthday.

Discrimination on the basis of sexual orientation

The CJEU found that the rules of the Scheme did not constitute direct or indirect discrimination on the basis of sexual orientation.

In relation to indirect discrimination, the CJEU noted that member states are free to provide or not provide for same sex marriage or civil partnership, and if they do provide for it, to lay down the date from which it will have effect.  It held that Ireland was therefore not required to provide for same sex civil partnership before 1 January 2011 (which is when same sex civil partnership legislation came into force in Ireland). Further Ireland was not required to give retrospective effect to the provisions of that legislation, or to lay down transitional measures for same sex couples in relation to pension survivor’s benefits.

This contrasts with the opinion of the Advocate General (AG), which found no direct discrimination on grounds of sexual orientation, but found that there was indirect discrimination that could not be justified.

Age discrimination

In relation to age discrimination, the CJEU held that the Scheme did treat members who marry or enter into a civil partnership after their 60th birthday less favourably than those who do so before that age. However, the relevant age discrimination legislation has various exemptions in relation to pension benefits, and the CJEU held that this requirement fell into one of those exemptions, which allows schemes to fix an age for entitlement to an old age benefit.  Therefore it held that the requirement did not constitute age discrimination under the legislation.

This also contrasts with the AG’s opinion, which held that the age 60 restriction in the Scheme rules was direct age discrimination that could not be directly justified.


This decision from the CJEU is significantly different to the AG’s opinion. It does not support and develop previous European caselaw on the retrospective application of legislation in similar circumstances in the way that the AG’s opinion did.

This may well influence the Supreme Court’s approach in Walker v Innospec when it hears that case in early 2017.  It makes a Supreme Court decision upholding the decisions of the lower courts more likely; they all found that Mr Walker’s same sex partner should not be entitled to the higher pension that an opposite sex spouse would have received. This outcome would maintain the status quo, allowing schemes that restrict the benefits for survivors of civil partnerships or same sex marriages to the benefits accrued by the member on or after 5 December 2005 (the date the Civil Partnerships Act 2004 came into force) to continue to do so. We will report on the outcome of Walker v Innospec and its implications when the judgment is given.