«(Article 141 EC – Directive 75/117/EEC – Equal treatment for men and women – Transsexual partner not entitled to a survivor's pension payable solely to a surviving spouse – Discrimination on grounds of sex)»

Social policy – Men and women – Equal pay – National law preventing transsexuals who have undergone surgical gender reassignment from marrying – Not permissible – Right of their partners to nominate them as the beneficiary of a survivor's pension – To be determined by the national court (Art. 141 EC) Article 141 EC, in principle, precludes legislation which, in breach of the European Convention for the Protection of Human Rights and Fundamental Freedoms, prevents a heterosexual couple, where the sexual identity of one of the partners is the result of gender reassignment surgery, from fulfilling the marriage requirement which must be met for one of them to be able to benefit from part of the pay of the other. Since it is for the Member States to determine the conditions under which legal recognition is given to the change of gender of a person who has undergone surgical gender reassignment, it is for the national court to determine whether the partner of such a transsexual can rely on Article 141 EC in order to gain recognition of the right to nominate his or her transsexual partner as the beneficiary of a survivor's pension.see paras 33-36, operative part

JUDGMENT OF THE COURT 7 January 2004 (1)

((Article 141 EC – Directive 75/117/EEC – Equal treatment for men and women – Transsexual partner not entitled to a survivor's pension payable solely to a surviving spouse – Discrimination on grounds of sex))

In Case C-117/01,

REFERENCE to the Court under Article 234 EC by the Court of Appeal (England and Wales) (Civil Division) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Article 141 EC and of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19),

THE COURT,,

composed of: V. Skouris, President, C.W.A. Timmermans, J.N. Cunha Rodrigues (Rapporteur) and A. Rosas (Presidents of Chambers), D.A.O. Edward, J.-P. Puissochet, F. Macken, N. Colneric and S. von Bahr, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of K. B., represented by L. Cox and T. Eicke, of the United Kingdom Government, represented by J.E. Collins and N. Paines QC, and of the Commission, represented by J. Sack and L. Flynn, acting as Agents, at the hearing on 23 April 2002,

after hearing the Opinion of the Advocate General at the sitting on 10 June 2003,

gives the following

Community legislation

National legislation

Observations submitted to the Court

Findings of the Court

On those grounds,

THE COURT,

in answer to the question referred to it by the Court of Appeal (England and Wales) (Civil Division) by order of 14 December 2000, hereby rules:

Skouris

Timmermans

Cunha Rodrigues

Rosas

Edward

Puissochet

Macken

Colneric

von Bahr

Delivered in open court in Luxembourg on 7 January 2004.

R. Grass

V. Skouris

Registrar

President