By Maëva Kokodoko
Translation by Amy Jolley
“Direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation.
Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons…”
Article 2 from the Directive 2000-78/CE of the Council from 27th November 2000 establishing a general framework for the equal treatment in employment and occupation
The law relating to homosexual unions differs between Member States. The marriage of homosexual couples is authorised in the Netherlands, Belgium, Sweden, Portugal and Spain. In France and Germany, for example, institutions which allow for the union of homosexual couples have been created – the PACS (contract of civil union) in France and the Lebenspartnerschaft (registered partnership) in Germany. If on one hand the PACS legally unites homosexual and heterosexual couples, the German Lebenspartnerschaft only applies to homosexual couples. In both cases, the legislature intended to give homosexual couples the possibility to legalise their union. However, the legislature had not intended for the institution of marriage and partnerships to be identical, but at the most, comparable or equivalent. Therefore, this has had consequences for homosexual couples, who often see themselves considered as second-class individuals, as having the same duties as all citizens but not the same rights.
The workplace is just one of the many areas in which the Member States still have a long way to go before ensuring equal treatment. (see link).
The ECJ, with its ruling on Römer versus Freie and Hansestadt Hamburg on 10th May 2011, continues to forge ahead in the same vein which, since the Maruko case law, has helped to raise the issue of discrimination on the grounds of sexual orientation.
Case law of the European Court of Justice (ECJ)
The Maruko Case delivered by the ECJ  from 1st April 2008
Mr. Maruko has entered into a registered partnership with a German affiliated with the VddB, a special pension fund reserved for persons working within the theatre industry. Upon the death of his partner, Mr. Maruko made an application to the VddB in order to access a surviving spouse's pension. The agency refused to comply with Mr. Maruko's request, indicating that the statutes do not provide for the payment of this pension to the registered partners. Only spouses (united by marriage) are eligible to benefit from this allowance. Mr. Maruko considered that this was discrimination as a result of his sexual orientation. The ECJ, on hearing the preliminary ruling , was to firstly consider whether the issue of the surviving spouse's pension fell well within the scope of the Directive 2000/78, establishing a general framework for equal treatment in employment and occupation. After having positively responded to this first question, the Court answered the question which interests us, that is to know whether there was discrimination against persons who have entered into a registered partnership which would put them in a less favourable position than that which would benefit the persons united by marriage.
The Court recalled that the Directive 2000/78 intended to fight against discriminations related to employment, by making the argument for equal treatment. Discrimination based on sexual orientation forms part of the discriminations retained by the Directive. In addition, the Court noted that, since 2004, according to German legislation life partnership is comparable to marriage with regards to the widow or widower's pension.
The Court argued that if the German court (to which the case will be refered back) decides that the surviving spouses and life partners are in a comparable situation as regards this provision of survival, the German regulations must be considered as constitutive of direct discrimination based on sexual orientation, according to Articles 1 and 2, paragraph 2, under a), of Directive 2000/78.
“The combined provisions of Articles 1 and 2 of the Directive 2000/78 preclude legislation such as that at issue whereby, after the death of his life partner, the surviving partner does not receive a survival allowance equivalent to that granted to a surviving spouse, whereas in national law, the life partnership would place persons of the same sex in a situation comparable to that of spouses so far as concerns the aforementioned survival allowance. It rests with the court to determine whether the surviving life partner is in a situation comparable to that of a beneficiary spouse of the survival allowance provided for by the professional pension scheme managed by the Versorgungsanstalt der deutschen Bühnen.”
According to the ECJ, the situations were comparable. There was therefore a direct discrimination for which no justification could be accepted . This decision constituted significant headway over the precedent cases. In Grant, from 17th February 1998 (prior to the enforcement of the Directive 2000/78), discrimination on the grounds of sexual orientation had not been accepted.
Römer case, 11th May 2011
A former employee of the city of Hamburg, having entered into a registered partnership, sought to benefit from the same pension calculation system to which the married employees are entitled.
However, the statutes of Hamburg province include a subdivision of tax classes into which supplementary business pension plans are less favourable to unmarried persons. Civil Partnership, in this case, is not comparable to marriage, which implies that a person bound by a partnership falls within the same scope of unmarried persons and does not enjoy the level of supplementary pension rights to which married persons are entitled.
The issue was once again to understand whether there was discrimination on the grounds of sexual orientation since regulations which are unfavourable to unmarried couples are also unfavourable to couples (homosexual) having entered into a partnership.
In this case, the ECJ has followed the reasoning of a 'comparable situation' from the Maruko case law. It states that in order to be entitled to the same pension, the situation must be comparable (not identical!) in fact and in law to that of a married person. The ECJ has in addition stated that the comparison must take into account the rights and obligations with regard to this pension and not the general perception of German law on the comparability or not of marriage and registered partnership.
Once again, the ECJ held that this is direct discrimination.
“For us, this is a big step forward; it (the decision of the ECJ) gives clarity on this issue of employment. Unfortunately the decision does not concern factors such as the tax on revenue, an area which is very important to us”, declared Renate Rampf, spokesperson of the Lesbian and Gay Federation in Germany.
Martin K.I. Christensen, co-president of the Executive Council of ILGA-Europe declared, “We commend the European Court of Justice for the reaffirmation of equal treatment for married couples of the same sex and registered partners of the same sex within the scope of the Directive. We also commend the Court for clarifying that, from the moment married couples or couples in a registered partnership of the same sex are legally obliged to provide for one another, they should be treated equally, regardless of differences existing between the institution of marriage and registered partnership.”
For more information:
 Court of Justice of the European Communities. Former name of the ECJ before the enforcement of the Treaty of Lisbon.
 Preliminary judgement is the procedure that allows a national court to ask the ECJ about the interpretation of validity of community law in the proceedings of this court is. The preliminary judgement also offers a way to guarantee legal certainty by the uniform application of Community law throughout the European Union. (Definition europa.eu)
 Notwithstanding Article 2, paragraphs 1 and 2, the Member States may make provision for a difference of treatment based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination, where, as a result of the nature of an occupation or conditions of its exercise, the characteristic involved constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and that the requirement is proportionate. Art. 4.1 Directive 2000/78/CE
An indirect discrimination can be justified. It will prove that discrimination exists for a legitimate reason and that the regulation in question is using proportionate and necessary means to achieve its objectives.