The European Court of Justice has given judgment in the Bartsch case.
Mr B was a member of the Bosch occupational pension scheme which provided for no spouse's pension to be payable where the spouse was more than 15 years younger than the member. Mr B died in 2004 leaving a widow who was more than 15 years younger than him. Mrs B brought a claim for age discrimination. Germany adopted its domestic age discrimination legislation in December 2006.
The court held that the claim could not succeed as the treatment of Mrs B had "no link" with community law. The claim was brought in relation to a private sector scheme and to a period before the time limit for transposition of the age discrimination requirements of the Equal Treatment Directive had expired.
As Mrs B lost on the first point, the ECJ did not go on to consider the interesting issue as to whether such a provision might be justified. In his opinion in June 2008, the Advocate-General had suggested it might be possible to objectively justify such discrimination on the basis that it was an appropriate and necessary means of achieving a legitimate aim; but because this younger 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 UK Age Discrimination Regulations include an exemption allowing "the actuarial reduction of any pension payable from a scheme in consequence of a member's death to any dependant of the member where that dependant is more than a specified number of years younger than the member". It seems likely that this exemption will remain unless and until the ECJ rules otherwise.