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A new step forward in the fight against discrimination based on sexual orientation

Araceli Turmo , 19 mai 2011

Case Römer v Freie und Hansestadt Hamburg (C-147/08) provides a new, more detailed explanation of the criteria applicable to the identification of direct discrimination based on sexual orientation, within the meaning of the principle of equal treatment in employment and occupation, as set out in Directive 2000/78. The dispute in the main proceedings arose from a supplementary retirement pension scheme, which is more favourable to married and not permanently separated pensioners than to persons who have entered into registered life partnerships. This regime is only accessible to partners of the same gender, who are not permitted to enter into marriage under German law. The claimant had entered into such a partnership, and sought to benefit from a national provision granting higher retirement pensions to married persons. After his former employer’s refusal, he argued that this pension scheme was discriminatory, and that his right to equal treatment with married pensioners resulted from Directive 2000/78, which should apply directly in the proceedings since it had not been transposed into national law within the prescribed period.

The national court referred several questions to the Court of Justice, concerning the applicability of the directive to such a scheme, the existence of a discrimination precluded by the directive, by Article 141 of the EC Treaty (now 157 of the FEU Treaty), or by a general principle of European Union law, the ratione temporis effects of the potential right to equal treatment and of the ruling, and the possibility of justifying such a scheme on the basis of a constitutional provision requiring the protection of marriage and family. The Grand Chamber of the Court easily reached the conclusion that the directive is applicable, since a pension scheme such as that at issue had been identified as ‘pay’ within the meaning of Article 157 of the FEU Treaty. The fact that the marital status of the beneficiaries is taken into account does not make the provision fall under recital 22 of the preamble to the directive, as had already been ruled in Case Maruko (C-267/06).

The main question at issue was that of the interpretation of the criteria of comparability between two situations, which is necessary for the application of the equal treatment principle. The Court clearly states that the situations need not be identical but comparable, and that this assessment must be carried out in a specific manner, ‘in the light of the benefit concerned’, thus clarifying the ruling in Maruko. According to the Court of Justice, the national court should compare the situations of spouses and registered life partners, focusing on their mutual rights and obligations which are ‘relevant taking account of the purpose and the conditions for granting the benefit at issue’. The Court then referred to the referring court’s observations, and put forward the gradual harmonisation between the regimes of marriage and registered partnership in German law. The main remaining difference appears to be the requirement that the partners be of different or of the same gender. Should the national court decide that the situations are indeed comparable, the Court of Justice stated that there appears to be a direct discrimination: the different regime (and therefore the claimant’s sexual orientation) is the only reason for the lower pension, whereas the contributions payable are not based on one’s marital status. Although ‘it is for the referring court to assess the comparability’, the Court’s reply seems to leave little room for the national court to choose a different assessment of the facts.

The Court of Justice went on to rule that, as regards the temporal limits of the right to equal treatment, should the national provision constitute discrimination within the meaning of the directive, that right could be claimed at the earliest after the expiry of the period for transposing the Directive. It thus rejected the possibility of bringing the situation within the scope of European Union law on the basis of Article 13 EC itself, because such a situation did not fall within the framework of the measures adopted on the basis of that article before Directive 2000/78. Lastly, the Court did not find any basis on which it should limit the ratione temporis effects of the judgment.

The Court did not find it necessary to answer the question concerning Article 157 of the FEU Treaty and the general principles of the European Union, since it found that such a pension scheme could constitute direct discrimination precluded by the directive. As a result, it has not yet recognized the existence of a general principle prohibiting discrimination on grounds of sexual orientation, as the Advocate General had suggested, on the basis of the rulings concerning age discrimination. Another striking aspect of this case is the importance, within the Court’s reasoning, of the reason why registered partnerships have been created in German law, and the fact that this regime was reserved for persons of the same gender. One might wonder whether the ruling would have been the same, had the registered partnership been available to everyone, as in French law: in that case, the existence of two parallel regimes, based solely on the need to provide a separate solution for homosexual couples, would not be as clear.

Reproduction autorisée avec l’indication: Turmo Araceli, "A new step forward in the fight against discrimination based on sexual orientation", www.ceje.ch, actualité du 19/05/2011