5.7.2008

Official Journal of the European Union

C 171/15

(Case C-147/08)

(2008/C 171/26)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Jürgen Römer

Defendant: Freie und Hansestadt Hamburg

Questions referred

1.Are supplementary pension payments, governed by the Erstes Ruhegeldgesetz (First law on retirement pensions or ‘First RGG’) of the Freie und Hansestadt Hamburg, to former employees of the Freie und Hansestadt Hamburg and their survivors ‘payments of any kind made by state schemes or similar, including state social security or social protection schemes’ within the meaning of Article 3(3) of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (1), with the consequence that the matters governed by the First RGG fall outside the scope of that directive (‘the Directive’)?

2.If the above question is answered in the negative:

2.1Are the provisions of the First RGG which differentiate, in calculating the amount of pension payable, between married pensioners and all other pensioners, that is, which treat married pensioners more favourably than, specifically, persons who have formed a civil partnership (Lebenspartnerschaft) with a person of the same sex in accordance with the Lebenspartnerschaftsgesetz (Law on civil partnership) of the Federal Republic of Germany, ‘laws on marital status and the benefits dependent thereon’ within the meaning of recital 22 in the preamble to the Directive?

2.2If the above question is answered in the affirmative:

Does it follow that the Directive does not apply to those provision of the First RGG, even though the Directive itself contains no limitation of its scope corresponding to recital 22 in the preamble?

3.If Question 2.1 or Question 2.2 is answered in the negative:

In relation to a person who has a formed a civil partnership with a person of the same sex and who is not permanently separated from the latter, does Paragraph 10(6) of the First RGG, under which the pension entitlements of married, not permanently separated, pensioners are calculated on the basis of the notional application of tax category III/0 (more favourable to a taxable person) but the pension entitlements of all other pensioners are calculated on the basis of the notional application of tax category I (less favourable to a taxable person), constitute an infringement of Article 1 in conjunction with Article 2 and with Article 3(1)(c) of the Directive?

4.If Question 1 or Question 2(2) is answered in the affirmative or Question 3 is answered in the negative:

Does Paragraph 10(6) of the First RGG infringe Article 141 EC or a general principle of Community law by reason of the provision or legal effect described in Question 3?

5.If Question 3 or Question 4 is answered in the affirmative:

Does it follow that — until such time as Paragraph 10(6) of the First RGG is amended to remove the unequal treatment complained of — in relation to the calculation of his pension entitlement a pensioner who has formed a civil partnership and is not permanently separated from his partner is entitled to insist that the defendant treats him in the same manner as it does as a married, not permanently separated, pensioner? If so — if the Directive is applicable and Question 3 is answered in the affirmative — does this entitlement apply even before the expiry of the transposition period prescribed in Article 18(1) of the Directive?

6.If Question 5 is answered in the affirmative:

Is that subject to the qualification — in accordance with the grounds of the Court's judgment in Case C-262/88 Barber — that in the calculation of pension entitlement the principle of equal treatment is to be applied only in respect of that proportion of pension entitlement earned by the pensioner for the period from 17 May 1990?

(1) OJ 2000 L 303, p. 16