Dr David L. Parris v Trinity College Dublin and Others [2016] CJEU C‑443/15 (AG's Opinion)

Advocate General Kokott has delivered an opinion that Irish laws are in breach of the Equal Treatment Directive when by denying a lecturer at Trinity College the opportunity to leave his survivor's pension to his same-sex partner because he did not enter into a civil partnership before his 60th birthday - something he could not do because same-sex marriage was not available to him before his 60th birthday:

"It constitutes indirect discrimination based on sexual orientation prohibited under Article 2(1) in conjunction with Article 2(2)(b) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation for an occupational pension scheme to make the right of same-sex partners to a survivor’s pension subject to the condition that the civil partnership was contracted before the 60th birthday of the employee affiliated to that scheme, in circumstances where it was legally impossible for the persons concerned to enter into such a civil partnership or marriage before the employee reached that age limit."

AG Kokott makes some interesting comments about justification under the Directive of both indirect discrimination (permitted on several grounds under Article 2(2)(b)(i)) and direct discrimination (which is permitted more strictly on the age ground under Article 6(1)) and she also considers the situation where an individual is faced with discrimination on two or more grounds:

"139. Even though there are without doubt many such differences of treatment which can be justified under Article 6(1) of the Directive, that provision nonetheless cannot be interpreted so extensively as to render it capable of supporting the pursuit of any legitimate aim. For, otherwise, the content of Article 6(1) of the Directive would be the same as that of Article 2(2)(b)(i) of the Directive, which justifies indirect differences of treatment. This would blur the distinction between direct and indirect age discrimination and make the possible grounds of justification the same for both. That would be inconsistent with the general scheme of the Directive.

"140. In accordance with the scheme of the Directive (as in other areas of EU law too), only an indirect difference of treatment may be justified by reference to any legitimate aim, provided that the principle of proportionality is observed, the justification of a direct difference of treatment, on the other hand, being subject to stricter criteria, with the result that the only aims that may be pursued are those expressly provided for in EU law.

"141. Accordingly, the scope of Article 6(1) of the Directive may not be extended beyond the social policy sphere expressly mentioned in that provision to other legitimate aims of any kind."

The full decision of the CJEU should be out issued in the autumn.
http://curia.europa.eu/juris/document/document.jsf?text=&docid=181063&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=894445 

Important Update

Kevin McVeigh of Elliot Duffy Garrett solicitors in Belfast has reviewed the Irish case at the CJEU of David L Parris v Trinity College Dublin & Others which deals with the entitlement of a survivor to the benefits of a same-sex partner’s pension scheme, an issue being confronted more frequently by employers and courts. This decision recognises a particular limitation of EU law in this area. In this interesting case, the court went against the Advocate General’s opinion and ruled that, in the circumstances of this particular case, the actions of the respondent were not discriminatory. We reviewed the AG's opinion in February 2016.

Read Kevin’s case review here:
https://www.legal-island.com/articles/uk/features/commercial-law/2017/feb/parris-v-trinity-college-dublin-others/