In the European case of Bartsch (G-427/06) the Advocate-General has given an opinion on a young spouse provision of a German pension scheme which prevented a widow from receiving a pension because she was more than 15 years younger than the deceased member:
- Because the period for implementing the equal treatment framework directive had not expired, there was in fact no discrimination here which was contrary to EU law.
- However, such a provision would now be in breach of EU age discrimination laws, although it focused on the relative ages of the member and spouse rather than absolute ages.
- It might be possible to objectively justify such discrimination, i.e. the member state might be able to show that it was an appropriate and necessary means of achieving a legitimate aim; but because this young spouse clause prevented any payment to the widow, it went beyond what was “appropriate and necessary”; a sliding scale might instead be acceptable, or payments starting only when survivors reached a certain age.
The provision in question prevented any pension being paid to the spouse at all. The UK Age Regulations allow for actuarial reduction in pension if a spouse is more than a specified number of years younger than the member. However, any scheme with a rule which could potentially allow for a reduction to zero might have to review its rules if the ECJ follows the Advocate-General’s opinion; it is not obliged to do so but frequently does.