In what could lead to a landmark judgement, an adviser to the European Court of Justice has said that a German gay man is entitled to a payment from the pension of his dead partner.

Tadao Maruko is asking the court to grant him a widower’s allowance from the insurance policy his partner took out with the German Theatre Pension Institution.

The insurer has rejected his claim to the allowance of €6,400 (£4,330) on the grounds they only make such payments to spouses and not registered partners.

A German court had taken the view that spousal and partnership rights are similar, and referred the case to the ECJ in Luxembourg.

Lawyers for Mr Maruko said that the differing policies on partnerships and marriages is discriminatory.

Ruiz-Jarabo Colomer Damaso, an Advocate General of the European Court of Justice, said today that if the German courts regard them as sufficently similar then the insurance company is guilty of indirect discrimination based on sexual orientation.

An Advocate General’s opinion is not binding but is normally accepted by the judges.

The ECJ is the highest court in the EU.

In Germany, gay and lesbian couples can register their partnerships and have health insurance, inheritance and limited adoption rights but not the tax advantages of marriage.

The International Gay and Lesbian Association had made a legal representation to the ECJ.

Patricia Prendiville, Executive Director of ILGA-Europe, said:

“We welcome the opinion of the Advocate General Damaso. Although this is not yet a final decision of the ECJ for which we still have to wait, we hope this opinion will pave the way for more equal and fair treatment of same-sex partners in the European Union.

“One of the main objectives of ILGA-Europe is to ensure that same-sex partners have the same rights and treatment in all European states as opposite sex partners do.

“We hope that today’s opinion of the Advocate General Damaso will pave the way towards full recognition and protections of the rights of same-sex partners in the EU.”