Survivor’s pension: discrimination

The purpose of this short piece is not to repeat what is already available on Staff Matters under Survivor’s pension but to make you aware of the outcome of a recently decided case (T-374/20 – KM v Commission: available in German and French) that might be of interest to you or your loved ones.

Currently if you are an official, temporary agent or contract staff member in active service, or a former official, temporary or contract staff member, and you are married when you die, your spouse might be entitled to a survivor’s pension.

If you are divorced when you die, your ex-spouse might qualify for a survivor’s pension if that person receives maintenance awarded either by a court or as part of a duly registered and executed personal agreement, and if that person has not remarried.

The survivor’s pension is equal to 60% of the pension entitlement acquired by the staff member at the time of death.

Whether you are married or divorced at the time of death, an important condition has to be satisfied for your spouse (or ex-spouse) to become eligible for a survivor’s pension.

Under the current rules (Article 79 of, and Annex VIII to, the Staff Regulations), your marriage must have lasted:

  • at least 1 year (if you get married before leaving the service, see Article 18 of Annex VIII), or
  • at least 5 years (if you get married after leaving the service, see Article 20 of Annex VIII).

Case-law

In the recently decided case, the Court held that this 5-year-minimum rule infringes the general principles of equal treatment and non-discrimination on the grounds of age, and therefore annulled the Commission’s decision rejecting KM’s application for a survivor’s pension.

KM and her spouse (an official of the European Commission) lived together from 1984, concluded a notarial partnership agreement in Germany in 2004, had it certified in Belgium in 2009 and then married in October 2017. KM’s spouse retired in March 2016 and died in September 2019.

Following the death of her husband, KM applied for a survivor’s pension under Chapter 4 of Annex VIII to the Staff Regulations and in October 2019, the Head of the Pensions Unit of the Office for Administration and Payment of Individual Entitlements (PMO) of the Commission rejected the application for a survivor’s pension.

The PMO considered, in essence, that KM did not satisfy the conditions relating to the duration of the marriage to be entitled to a survivor’s pension, since the marriage had been concluded after the spouse left the service and had not lasted for the set minimum of 5 years.

KM lodged an appeal against the decision in November 2019, in March 2020 the Appointing Authority of the Commission rejected KM’s complaint. In June 2020 KM brought an action under Article 270 TFEU to annul the PMO’s decision rejecting the application for a survivor’s pension and in March 2021 the General Court delivered its judgment.

The Court pointed out that the principle of equal treatment is a general principle of EU law contained in Article 20 of the Charter of Fundamental Rights of the European Union and specifically expressed in the prohibition of discrimination in Article 21 (1). That principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.

The Court examined whether the 1-year and 5-year minimum-marriage-duration situations are comparable, and whether the condition relating to a minimum period of 5 years is contrary to the general principles of equal treatment and non-discrimination on the grounds of age.

After reaching the conclusion that the 5-year minimum does indeed infringe the general principle of equal treatment and the principle of non-discrimination on the grounds of age, the Court annulled the PMO decision that rejected KM’s application for a survivor’s pension.

Consequences

This judgment does not mean that all PMO decisions rejecting applications for a survivor’s pension based on the 5-year minimum are automatically annulled.

However, if you believe that you find yourself in a situation similar to the one described there, you may wish to consider challenging a negative PMO decision in your particular case.

As always, if you have questions, please feel free to contact us.

Leave a Reply