Gay and lesbian activists today welcomed a ruling by the European Court of Justice (ECJ) in Luxembourg on the rights of same-sex partners to ‘survivor pensions.’

The court ruled that a German gay man is entitled to a payment from the pension of his dead partner.

The insurer had 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.

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 ECJ ruled that the refusal to grant the survivor’s pension to life partners constitutes direct discrimination on grounds of sexual orientation, when the surviving spouses and surviving life partners are in a comparable situation as regards that pension.

The judgement made clear that the criterion for such a comparable situation is whether the partners “live in a union of mutual support and assistance which is formally constituted for life.”

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

“We welcome today’s ruling of the European Court of Justice and its strong wording which unequivocally stated that ‘refusal to grant the survivor’s pension to life partners constitutes direct discrimination on grounds of sexual orientation’ and therefore it cannot be justified in any circumstance.

“ILGA-Europe celebrates this significant achievement which means that it will be applicable in all EU countries which provide formal registration of same-sex unions and require mutual maintenance.”

However, ILGA-Europe said it is concerned that today’s ECJ decision does not have immediate legal consequences for same-sex partners in those EU countries that do not yet recognise same-sex unions.

“This creates a discriminatory two-tier level of protection for lesbian, gay, bisexual and transgender (LGBT) EU nationals who are divided into two categories as their access to survivor pension rights depends on their country of residence,” said Ms Prendiville.

“ILGA-Europe looks forward to seeing how the EU is going to eliminate this discriminatory divide based on nationality and/or place of residence of LGBT people.”

The court delivered its judgement in a landmark case on pension rights for registered same-sex partners (case of Tadao Maruko v. Versorgungswerk der deutschen Bühnen).

Mr. Maruko lived with his partner in a registered partnership. After his partner died the VddB, the pension scheme for German theatres, refused to pay him a survivor’s pension as such pensions were provided only for married partners.

Mr. Maruko sued the VddB, and the Bavarian Administrative Court Munich referred the case to the ECJ for interpretation of the 2000/78/EC Directive which established a general framework for equal treatment in employment and occupation.