Procedural Posture

Judgment of the Court of Justice of the European Union on a request for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union from the French Cour De Cassation.

Facts

Crédit Agricole Mutuel de Charente-Maritime et des Deux-Sèvres (‘Crédit Agricole’), Frédéric Hay’s employer, refused to grant him benefits awarded to married staff notwithstanding the fact that he had concluded a PACS (Civil Solidarity Pact) with a person of the same sex.

Issue

Does the refusal to grant benefits awarded to married employees under a national collective labour agreement to an employee in a same-sex civil partnership constitute discrimination based on sexual orientation when persons of the same sex cannot marry one another?

Law

• French law: Civil Code, Art 144, defining marriage between a male and a female, Art 515 – 1 defining a Civil Solidarity Pact and Art 515 – 4 delineating rights and obligations of the civil Solidarity Pact. Labour Code, L.122-45 prohibiting discrimination based on sexual orientation, L.226-1 dealing with leave benefits for family occasions.
• EU law: Directive 2000/78/EC establishing a general framework for combatting certain types of discrimination, including discrimination on the ground of sexual orientation, as regards employment and occupation; Court of Justice of the European Union, Jürgen Römer v Freie und Hansestadt Hamburg, Case C‑147/08, judgment of 10 May 2011; Court of Justice of the European Union, Maruko v Versorgungsanstalt der deutschen Bühnen, Case C-267/06, judgment of 1st April 2008

Reasoning of the Court

Applicability of Directive 2000/78

Confirming its previous case law holding that where management and labour adopt measures that fall within the scope of Directive 2000/78 they must respect that directive, the Court held that the Directive is applicable to the provisions of a collective labour agreement such as the one at issue in the domestic proceedings.

Analysis of discrimination

The Court mentioned that the dicta from Jürgen Römer v Freie und Hansestadt Hamburg established that the existence of direct discrimination presupposes the existence of comparable situations. Further, the Court held that the PACS provisions made it clear that they aim to enable persons of the same sex to organize their lives together by committing to providing material aid and assistance to each other. A PACS constituted a form of civil union under French law, placing the couple contracting it within a specific legal framework entailing rights and obligations in respect of each other and third parties. Moreover, the Court pointed out that a PACS was the only possibility under French law for same sex couples to procure a legal status for their relationship. Thus, the Court found that in the specific context of benefits such as days of special paid leave or marriage bonus, persons who cannot marry but only enter into a PACS with one another are in a comparable situation to those who can marry. The Court held that the various differences between marriage and PACS were irrelevant to the assessment of an employee’s right to occupational benefits. Moreover, the Court found that the fact that heterosexual couples could also enter into a PACS did not affect its analysis, since a PACS remained the only option for same sex couples. Thus, the Court stated that rules in a Member State restricting such benefits to married employees when marriage was only possible between person of different sexes would give rise to direct discrimination within the scope of the dicta in Römer and Maruko.

Nature of the discrimination under the Directive

Although based on “marital status”, the discrimination is still of a direct nature, as marriage was only open to heterosexual couples at the time of the facts. No legitimate grounds for direct discrimination, based on maintenance of public order, prevention of crime, protection of health and protection of rights and freedoms were relied upon.

Accordingly, the Court held that under EU law it is prohibited, pursuant to a collective labour agreement, not to grant an employee in a same-sex partnership benefits awarded to a married employees, such as days of special leave and a salary bonus, where persons of the same sex cannot marry one another, given that, in the light of the objectives and conditions related to the benefits, that employee is in a comparable situation as an employee who is married.

Frédéric Hay v Crédit agricole mutuel de Charente – CJEU – 12 December 2013