CJEU rules on employment rights of same-sex couples

In Frédéric Hay v Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres [2013] EUECJ C-267/12 the Court of Justice of the European Union ruled that in relation to Article 2(2)(a) of Directive 2000/78/EC on establishing a general framework for equal treatment in employment and occupation, same-sex couples who enter into registered partnerships are entitled to the same benefits at the workplace as married employees because their legal situation is comparable to the situation of opposite-sex spouses.

Background

M Hay, a French citizen, concluded a civil solidarity pact (PACS) with his partner in 2007 and subsequently applied to his employer, Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres (‘Crédit agricole’), to award him days of special leave and a bonus, as granted to staff who marry under Crédit agricole’s national collective agreement.  However, this was not granted and on 17 March 2008, M Hay brought an action before the Conseil de prud’hommes de Saintes (Labour Tribunal, Saintes), which was dismissed on the ground that the bonus granted in the event of marriage was not linked to employment but to marital status, and that the Civil Code differentiated between marriage and PACS. The EUCJ noted that the collective agreement had been amended on 10 July 2008 to cover couples with a PACS arrangement but that that extension could not be given retroactive effect.

The ruling of the Labour Tribunal was upheld on 30 March 2010 by the Cour d’appel de Poitiers (Court of Appeal, Poitiers), and M Hay appealed against this judgment before the Cour de Cassation claiming that Crédit agricole’s national collective agreement was discriminatory, contrary to Article L.122-45 of the Labour Code, Articles 1 to 3 of Directive 2000/78 and Article 14 ECHR (discrimination). The Cour de cassation decided to stay proceedings and refer the matter to the EUCJ for a preliminary ruling.

CJEU considerations

The court noted [para. 22] that although, as indicated in recital 22 in the preamble to Directive, legislation on the marital status of persons falls within the competence of the Member States, the purpose of Directive 2000/78 as stated in Article 1 is to combat certain types of discrimination relating to employment and occupation, including discrimination on the ground of sexual orientation, with a view to putting into effect in the Member States the principle of equal treatment: see Case C‑147/08 Römer [2011] ECR I‑3591, para. 38. Where the provisions of a collective agreement such as the one at issue adopt measures which fall within the scope of the Directive, management and labour must respect that Directive, [para.27].

Under Article 2 of the Directive, the ‘principle of equal treatment’ was held to mean that there is to be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1, and direct discrimination is to be taken to occur when a person is treated in a less favourable manner than another person in a comparable situation including sexual orientation, [para. 30 and 31]. Whilst under the case law cited in para. 33, married couples and couples in a PACS arrangement were not in a comparable situation for the purposes of a survivor’s pension, the court held that this does not rule out the comparability of the situation in relation to the grant of days of leave and bonuses at the time of marriage, [para.38]. It also noted:

“Similarly, the differences between marriage and the PACS, noted by the Cour d’appel de Poitiers … in respect of the formalities governing its celebration, the possibility that it may be entered into by two individuals of different sexes or of the same sex, the manner in which it may be broken, and in respect of the reciprocal obligations under property law, succession law and law relating to parenthood, are irrelevant to the assessment of an employee’s right to benefits in terms of pay or working conditions”, [para,39].

The judgment

The CJEU concluded that:

“Article 2(2)(a) of Council Directive 2000/78/EC … must be interpreted as precluding a provision in a collective agreement, such as the one at issue in the main proceedings, under which an employee who concludes a civil solidarity pact with a person of the same sex is not allowed to obtain the same benefits … as those granted to employees on the occasion of their marriage, where the national rules of the Member State concerned do not allow persons of the same sex to marry, in so far as, in the light of the objective of and the conditions relating to the grant of those benefits, that employee is in a comparable situation to an employee who marries.”

Comment

In relation to the legal status of marriage and civil partnership, the situation in Frédéric Hay is equivalent to that in England and Wales before the Marriage (Same Sex Couples) Act 2013 came into force: under Article 144 of the French Civil Code, only persons of different sexes may marry, whereas, under Article 515-1 of the Civil Code, persons of the same sex only have the possibility of concluding a PACS. However, the CJEU’s conclusion underlines the principle already established by its earlier case-law that to exclude same-sex partners in civil partnerships and similar legal arrangements from employment-related benefits granted to married partners is direct discrimination on grounds of sexual orientation. Moreover, this applies even where the same-sex partnership legislation of the member state in question cannot be regarded as comprehensively equivalent to marriage, as was the case in France at the material time.

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