O’Brien v Ministry of Justice; Walker v Innospec (Court of Appeal) – 6 October 2015

As the outcome of both O’Brien v Ministry of Justice and Walker v Innospec turned on the same principles of EU law, the Court of Appeal (CA) delivered a joint judgment.

The CA dismissed both appeals, finding that it is not possible to claim rights retrospectively when there is subsequent change in legislation.

This will no doubt come as a relief to those occupational pension schemes which take advantage of the ability to restrict survivors’ benefits for same sex couples (see our Alert for details).  For now, at least, they may continue to do so.

Facts: O’Brien

Mr O’Brien was appointed as a part-time Recorder on 1 March 1978. He held that office until 31 March 2005.

The Part Time Workers Directive had to be implemented in UK law by 7 April 2000. From this date, Mr O’Brien became entitled to a pension.

The question to be determined by this appeal was whether his pension entitlement should be calculated by reference to all of his service as a Recorder, or only that which took place from 7 April 2000.

Facts: Walker

The UK was required to transpose the Equal Treatment Framework Directive (which established a general framework for combating discrimination on a number of grounds, including sexual orientation), by 2 December 2003. This was done.  However, it did not become possible for same sex couples to enter into civil partnerships in the UK until 5 December 2005.

Mr Walker joined the Innospec Pension Scheme on 2 January 1980 and was a member until his retirement in 2003. He and his partner have been together since September 1993 and registered a civil partnership on 23 January 2006 (they have since married).

On 1 August 2006, the Innospec Scheme was amended to take account of civil partnerships, to the extent required by UK law.

The question to be determined on this appeal was whether Mr Walker is entitled to require the scheme to pay a surviving spouse’s pension to his husband, in the event his husband outlives him.


EU legislation does not have retroactive effect unless, exceptionally, it is clear from its terms or general scheme that:

  • the legislator intended such an effect
  • the purpose to be achieved so requires and
  • the legitimate expectations of those concerned are duly respected.

This is known as the “no retroactivity” principle.

The “future effects” principle is that amending legislation applies, unless otherwise specifically provided, immediately to the future effects of a situation which arose under the law as it stood before the amendment.

Applying these two EU principles, the CA found that:

  • Mr O’Brien did not acquire pension rights during his pre-7 April 2000 service
  • Mr Walker’s pension entitlement must be judged by reference to the laws in force at the time it accrued.

Therefore, neither were entitled to claim pension rights retrospectively as a result of changes in EU law.

Further, in Mr Walker’s case there is specific UK legislation which allows occupational pension schemes to restrict survivors’ benefits for same sex partners. The CA was satisfied that this UK legislation is not incompatible with the EU Framework Directive (if UK legislation is incompatible it should be interpreted so as to conform) and that therefore Mr Walker’s claim “must fail”.

The CA considered whether it should make a reference to the CJEU but was satisfied this was not needed as the court was sure enough of its own interpretation to take the responsibility for resolving a point of law without the assistance of the CJEU.

Both appeals were dismissed.


In the CA’s opinion, “it is clearly a question of policy whether survivor’s [sic] pensions should be extended to same-sex couples, whether in civil partnerships or marriages”. Unless or until this decision is appealed, the ball is back in the Government’s court.