JUDGMENT OF THE COURT
7 January 2004 (1)
(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)
In Case C-117/01,
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
National Health Service Pensions Agency,
Secretary of State for Health,
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),
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,
after hearing the oral observations of K. B., represented by L. Cox and T. Eicke, of the United Kingdom Government, represented by J.E. Collins and N. Paines QC, and of the Commission, represented by J. Sack and L. Flynn, acting as Agents, at the hearing on 23 April 2002,
after hearing the Opinion of the Advocate General at the sitting on 10 June 2003,
gives the following
1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
2. For the purpose of this Article, pay means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.
The principle of equal pay for men and women outlined in Article 119 of the Treaty, hereinafter called principle of equal pay, means, for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration.
Member States shall abolish all discrimination between men and women arising from laws, regulations or administrative provisions which is contrary to the principle of equal pay.
The dispute before the national court and the question referred for a preliminary ruling
Does the exclusion of the female-to-male transsexual partner of a female member of the National Health Service Pension Scheme, which limits the material dependant's benefit to her widower, constitute sex discrimination in contravention of Article 141 EC and Directive 75/117?
The question referred for a preliminary ruling
Observations submitted to the Court
Findings of the Court
37. The costs incurred 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.
On those grounds,
in answer to the question referred to it by the Court of Appeal of England and Wales (Civil Division) by order of 14 December 2000, hereby rules:
Article 141 EC, in principle, 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.
Delivered in open court in Luxembourg on 7 January 2004.
R. Grass V. Skouris
1: Language of the case: English.