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Home / Resources / News / Non-discrimination based on sexual orientation

Non-discrimination based on sexual orientation


Interview by Maeva Kokodoko
Translation by Dierdre Brophy

It has now been one month since the decision of the Court of Justice of the European Union (CJEU) of May 11th 2011, and several questions come to the fore concerning the impact of the Maruko/Römer cases (See case summaries) and of Directive 2000/78/EC which sets out a general framework for equal treatment in employment and work.

In both cases, the national legislation in question gave less favourable treatment to registered partners in comparison with married couples. Both decisions of the Court of Justice confirmed that the situation of married couples and registered partnerships is comparable.

The Court held that provisions which disadvantage couples in registered partnerships, in the cases in question, constitute direct discrimination[1].
We invited Professor Jean-Philippe Lhernould, lecturer in private law and a member of the Institute of social and health law at the University of Poitiers, expert at the European Commission, and author of numerous publications including « Social Law and Same-sex Couples » to answer some questions on the subject.

Maëva : The CJEU leaves a wide margin of appreciation to the national judge to determine whether situations are comparable. Isn’t the Court's position unacceptable and hypocritical?


Jean-Philippe Lhernould : That would certainly appear to be the case when we take into consideration that comparison is the key element of the process of evaluation of the existence of discrimination.

Having said that, the reference for a preliminary ruling is based on cooperation between the Court of Justice and the national judge, which implies that  a certain margin of appreciation is maintained at national level.

M : Do you believe that the Court of Justice is currently fulfilling its  obligation to protect the right to nondiscrimination based on sexual orientation.

JP L : Well that is a very general question. To put it another way, one might say that the Court aims for the solution that it judges to be most correct from a legal point of view. The fact that the Court decided that the cases of Römer and Maruko constituted “direct discrimination” can however be objectively viewed as protectionist.

M: Should the Court provide further detail on the concept of comparable situations?

JP L : Future cases, based on different fact situations, might provide the Court with such an opportunity. However, don't forget that the role of the judge is not to legislate, but to decide the case in hand. 
M : On the other hand, in view of the declaration by the Court of Justice that the cases of Maruko and Römer involved direct discrimination, perhaps it has taken a more protectionist stance than that taken by the German court, which judged the discrimination to be indirect, thus leaving open the possibility for justification of the discrimination.

JL P : Exactly. The German judge would however have had to apply the qualification set down by the Court of Justice.

M : Would you agree that same-sex couples in a registered partnership have the same duties, but not the same social rights as oppositesex married couples?

JP L : That depends on the legislation in each country. In France, the legal status of both is almost identical, except concerning adoption. As a lawyer, I do not wish to comment on that restriction, which is based on a delicate issue.

M : Do you think that there is a tendency in national legislation to invoke traditional idea of marriage when the issue of rights or advantages for samesex couples arises, but to avoid it when it comes to duties or payments?

JP L: That’s an interesting question. However, the system of marriage is based essentially on rights. A regime based on contributions (based on the payment of allowances) brings the institutions of marriage and civil partnership even closer as the allowance is based on what has been contributed.
M : In the Römer case the Court notes that the life-partner must be “
in a legal and factual situation comparable to that of a married person as regards that pension”. Does the “factual” element mean that the national judge will have to treat the issue on a case by case basis?

JP L : That is one of the issues raised in my written commentary on the Römer case. It is difficult to determine the intention of the Court of Justice regarding that phrase, or even if a particular meaning was intended at all. In the cases on male/female equality, the comparison is based on the advantage sought, rather than the factual situation.
M : Where a person comes within the remit of Directive 2000/78, is it better to base the case on the directive or the European Convention of Human Rights (ECHR) ? 


JP L : Interesting question. In principle, the directive cannot be invoked before the national judge as it does not have horizontal direct effect, and must therefore be interpreted in accordance with national law. The ECHR can be relied upon directly, but the judge would have to be convinced to apply Article 14 of the Convention, which may be difficult in the absence of a decision by the European Court of Human Rights on discrimination based on sexual orientation. Besides, there are different rules for justification of the discrimination set out in the ECHR.
M : Could the Court expand the notion of “comparable situations” in the future to grant greater rights to same sex couples in a registered partnership ?

JP L : HALDE (The High Authority for the Fight against Discrimination and Equality) has already used the idea in this way. Comparability is key in any case on discrimination, and is therefore the starting point for the rights of samesex couples. The issue is not to “give more rights” to samesex couples but to re-establish equality of treatment.
Further information: 

Krzysztof Smiszer, Sexual orientation discrimination and the Maruko and Römer  ECJ cases  (Slides) 

Decision of the CJEU Römer of May 11th 2011


Directive 2000/78/EC of the Council of November 7th 2000 establishing a general framework for equal treatment in employment and occupation


[1] The German court to which the Maruko case was referred, determined that the discrimination was indirect.