The European Union still looks like a patchwork quilt in terms of sexual minorities’ rights across its 28 member states. Currently, seven EU countries provide marriage rights to same-sex couples and nine offer varying forms of legal recognition, with debate underway on the recognition of same-sex partnerships in three of the twelve hold-outs (Malta, Greece, Croatia).
While legislation of marital status lies within the authority of member states, rather than the EU, the prohibition of discrimination in employment relations on the basis of, inter alia, sexual orientation has been established as an EU-wide standard by the Employment Equality Framework Directive of 2000.
In light of that, a recent ruling by the Court of Justice of the European Union (CJEU) has the potential to harmonize the provision of employment benefits to same-sex couples in EU countries where some form of same-sex partnerships offering protections short of marriage are legally recognized.
In Frédéric Hay v Crédit Agricole Mutuel de Charente-Maritime et des Deux- Sèvres, rendered on December 12, 2013, the CJEU threw light on whether a collective agreement that provided certain employment benefits only on the occasion of marriage but not of a legal partnership between same-sex couples was in compliance with the Employment Equality Framework Directive.
Crédit Agricole’s collective agreement in question in this case provided for a monetary marriage bonus and a special leave of ten working days to any permanent employee on the occasion of their marriage, as well as three working days when a child and one working day when a sibling of the employee got married.
In a sharp contrast, however, neither a bonus, nor a special leave was granted to Frédéric Hay, an employee of nine years at the Crédit agricole, when in 2007 he entered into a civil solidarity pacts or PACS—the only legal partnership scheme accessible to same-sex couples at the time.
Hay’s ensuing claim that he had been discriminated against on the basis of his sexual orientation was dismissed at two levels domestically. The French courts asserted the PACS arrangement was not comparable to marriage and that the difference in treatment was a result of Hay’s marital status and not his sexual orientation—a formalistic argument widely relied on to stave off efforts to expand the rights of same-sex couples.
On the applicant’s further appeal, the Cour de cassation sought to determine if this type of distinction—which it defined as indirect discrimination in its preliminary referral to the CJEU—was in compliance with the Employment Equality Framework Directive.
The CJEU started its assessment by determining whether spouses and registered life partners were in a comparable situation for the purpose of the provision of the benefits concerned.
It referred to its already established jurisprudence according to which the basis for comparison is not whether the two groups are treated as equivalent under national law but whether their rights and obligations as stipulated by the domestic legislation place them into a comparable situation considering the purpose and conditions for granting the given benefits (para. 34).
The court observed that the PACS, similarly to marriage, was a form of civil union that partners concluded to organize their lives together, and within the framework of which, they committed to provide material aid and assistance to each other. It further noted that at the time of the complaint, the PACS was also the only legal scheme open to same–sex couples (para. 36). Therefore, the court concluded that in terms of benefits of pay and working conditions, such as those in questions, registered life partners were in a comparable situation to legally married spouses (para. 37).
More importantly, the CJEU squarely rejected the argument that the denial of certain benefits open exclusively to married couples might be indirect discrimination against people in a PACS, as originally formulated in the Cour de cassation’s preliminary referral.
The CJEU held that in light of its case-law, the restriction of benefits in terms of conditions of pay and working conditions to married spouses, when marriage was exclusively accessible to different-sex couples, constituted direct discrimination on the basis of sexual orientation against homosexual employees in a PACS (para. 41).
The fact that the PACS scheme was also open to different-sex couples did not change the nature of discrimination against same-sex couples who could not legally marry at the material time (para. 43).
The CJEU elucidated that “[t]he difference in treatment based on the employees’ marital status and not expressly on their sexual orientation is still direct discrimination because only persons of different sexes may marry and homosexual employees are therefore unable to meet the condition required for obtaining the benefit claimed” (para. 44).
As a result, the CJEU found that the impugned provision of Crédit Agricole’s collective agreement, which in 2008 was in fact amended to extend the benefits in question to employees who entered into a PACS, was in violation of the Employment Equality Framework Directive (para. 47).
It is notable that the present judgment marks the third sexual orientation-related decision rendered by the CJEU in 2013—following Asociaţia Accept v. Consiliul Naţional pentru Combaterea Discriminării (similarly on employment discrimination) and X, Y, Z v. Minister voor Immigratie en Asiel (regarding the adjudication of asylum claims on the basis of a well-founded fear of persecution due to a sexual minority status), proving the Luxembourg-based court an increasingly receptive forum for such claims.