More majority voting on EU social policy? Assessing the Commission proposal

Ane Aranguiz, PhD Candidate, University of Antwerp

On 16 April 2019 the Commission launched the discussion on how to render decision-making process at EU level more efficient in the social field by activating the passerelle clauses and moving from unanimity to qualified majority voting (QMV) and from special to ordinary legislative procedure without undergoing an unwieldly process of Treaty reforms – although a unanimous vote of Member States is still necessary to approve this change.

The passerelle clauses are part of a number of ‘flexibility mechanisms’ introduced by the Lisbon Treaty that allow to simplify the decision-making process thereby enabling a more efficient exercise of EU competences where special legislative procedure and unanimity are maintained. The Lisbon Treaty provides for a general passerelle clause enshrined in Article 48(7) TEU that is applicable to all policy areas -with the exception of military or defence-related decisions-, as well as specific passerelle clauses that apply only in certain policy areas, namely, Article 32(3) TEU on Common Foreign and Security Policy, Article 82(3) TFEU on judicial cooperation in civil matters, Article 153(2) TFEU on social policy,  Article 192(2) TFEU on environmental policy and Article 312(2) TFEU on the Multiannual Financial Framework.

Background

This Communication is the last of a series of four aiming at reviewing the passerelle clauses provided for the EU Treaties as envisioned by President Juncker in his 2018 State of the Union address. In September 2018, the Commission presented the first proposal on common foreign and security policy, followed by a communication in January 2019 on taxation. In April 2019, the Commission presented the last two proposals first on energy and climate and later on social policy. (None of these proposals has been followed up by the Member States yet).

In social policy, most areas where the EU has competence to act are already subject to QMV and ordinary legislative procedure, which has allowed for an expansion of the social acquis at the EU level over the years. Yet, a reduced but significant number of areas of social policy still require unanimity among EU Member States and a special legislative procedure. These areas include measures relating to the protection against dismissal, social representation and defence of workers’ and employer’s interests, conditions of employment for third-country legal residents, non-discrimination (based on gender, racial or ethnic origin, religion or belief, disability, age, and sexual orientation) and social security and social protection for workers outside cross-border situations.

The specific passerelle clause under Article 153(2) would allow for the transition of the first three areas, whereas the general passerelle could further be applied to the latter two. Differences remain between the general and specific passerelle clauses regarding the procedural requirements for their activation. In order to activate the general clause, the European Council has to take the initiative and indicate the precise envisaged change in the decision-making procedure and notify national parliaments, which have up to six months to object to the proposal. After that, the European Council may, by unanimity and once consent by the European Parliament has been obtained, adopt the decision authorising the Council to act by QMV or enabling the adoption of the corresponding measures by ordinary legislative procedure. This procedure allows also for the half-way activation of the clause where they move from unanimity to QMV while maintaining the special legislative procedure. The activation of the specific passerelle clause, differently, is ‘only’ subject to unanimous agreement in the Council on the basis of a proposal by the Commission and after consultation with the Parliament.

According to the Commission, other than the fact that these policy areas might have major implications on the financial equilibrium of the national welfare systems, a limitation specifically provided for in Article 153(4)TFEU, there is seemingly no logical reasons that explain why these fields remain subject to unanimity and special legislative procedure. Consequently, in December 2018 the Commission presented its roadmap for the proposal for more efficient law-making in social policy and opened the feedback period that collected 27 opinions from different stakeholders.

The Communication

The Communication opens the debate on the enhanced use of QMV and ordinary legislative procedure with the aim of rendering the decision-making process more timely, flexible and efficient.

The Communication emphasizes that while the activation of the passerelle clause would change the decision-making method, it would not alter the overall EU legal framework and earmarked that EU measures are still subject to the principles of subsidiarity and proportionality, the limitations under the social policy title Article 153 TFEU regarding, inter alia, defining fundamental principles of social security or the specifically excluded areas of the right to association, the right to strike and the right to impose lockouts.

Further in the Communication, the Commission discusses the possibility of activating the passerelle clause in the five areas where unanimity and special legislative procedure is still required. Yet, the Commission concludes that only in two out of the five areas the activation of the would passerelle clause have an added value. Firstly, the Commission argues in favour of the use of the passerelle clause in the field of non-discrimination to facilitate equal protection against discrimination that guarantees an effective redress mechanism for all. Particularly, the Commission states that while there is certain level of protection for gender and racial discrimination in employment, equal treatment on the grounds of belief, disability, age and sexual orientation remains protected only in employment and occupation. The Commission considers necessary to address the inconsistent and incoherent EU legal framework where some individuals are better protected than others. (Note that a Commission proposal in this field from 2008 has not yet been agreed).

The Commission also sees suitable to activate the general passerelle clause with regard to social security and social protection of workers for the adoption of recommendations in the near future. The Commission here recalls the recently politically agreed recommendation on access to social protection for workers and the self-employed which is still pending for final adoption, and considers that a more effective decision-making process is desired to support the process of modernisation and convergence of national social protection systems.

Nevertheless, as for the other three fields where unanimity and special legislative procedure is required, namely, protection against dismissals, employment conditions of third-country nationals and the representation and collective defence of the interests of workers and employers, the Commission does not see fit to activate the passerelle clause due to either the limitations envisioned in the Treaty, the sufficiency of the existing legislation or the strong links and diversity between national social protection systems.

Commentary

The proposal put forward by the Commission should be given a cautious welcome. From a positive standpoint, the fact that most of social policy fields where the EU has competence require QMV and unanimity is required only in few domains leads to an uneven a fragmented development of the social acquis. Moving from unanimity to QMV in those limited areas allows for a swiftly and effective policy response in all areas of EU law and prevents one single Member State from vetoing social initiatives while still requiring a high degree of consensus. Secondly, transitioning to an ordinary legislative procedure allows for highlighting the role of the European Parliaments as a co-decision making. While the special legislative procedure relegates the role of the European Parliament to the subordinated position of a mere consultant, in ordinary legislative procedures the European Parliament becomes an equal to the Council and allows for a more democratic decision-making process where the direct beneficiaries are being represented. The activation of passerelle clauses in the social field would therefore not only avoid blockage by a single Member State, but also give the European Parliament a real co-legislator role. Considering the obstacles faced in the adoption of social policy legal instruments due to the lack of consensus in the Council, an active involvement of the usually more socially progressive European Parliament, is likely to free the decision-making process in social matters to a certain extent.

Yet, there are a number of points of concern. To begin with, the activation of the passerelle clause is only envisioned for two out of the five social policy areas that still require unanimity and the special legislative procedure. Moreover, these are the exact same two that cannot rely on the special passerelle clause under Article 153(2) but must be based on the general provision under Article 48(7) which, in turn, requires a much stricter procedural formula. On top of this, one of the two fields, namely social security and social protection of workers, is only contemplated with regard to the adoption of recommendations, thus disregarding the possibility to adopt binding instruments. This is particularly striking when considering the challenges faced recently by the Commission in the formulation of a measure for access to social protection of workers and self-employed, where the Commission inclined for a proposal for a recommendation due to the lack of political support to adopt a binding instrument by Member States.

The activation of the passerelle clause is clearly a positive development, yet, the fact that this is such a limited activation is highly regrettable. Continued fragmentation on social policy may moreover lead to the use of enhanced cooperation, where Member States might separately agree on social policy instruments for higher protection of their citizens. Yet, this will unquestionably result in a two-speed Europe between those Members within and out the enhanced cooperation framework.

The dynamism of the Commission in the context of the European Pillar of Social Rights provides the perfect platform to keep adapting, updating and adopting new social legislation at the EU level thus aligning EU law with the social priorities identified by Juncker’s Commission. If, and this is a big if, the discussion opened by the Commission leads to activating the passerelle clause (even if only limitedly), it will in all likelihood lead to new proposals by the Commission tackling non-discrimination in a more comprehensive manner that could be adopted in a more efficient manner. However, this will fundamentally depend on whether or not the next Commission resumes the enthusiastic social activism of the Juncker delegation.

Yet, if the Pillar is indeed the last chance for social Europe that many have claimed, this initiative represents a missed opportunity to render effectiveness in the decision-making process in social policy by closing the door to facilitating measures tackling clear gaps on the current EU legislation, most clearly with regard to protection against dismissals. It is equally regrettable the choice to limit the use of the passerelle clause to adopt a binding unified response to the inadequacies of our current social protection systems. In times of increased Euroscepticism and rising non-standard forms of employment, providing a response to concrete needs of citizens remains an imperative for future-proving the EU, therefore, it is in the best interest of the same to remove any obstructions of the use of Union competences that allow to move closer to an actual social market economy. At the very least, this initiative embodies the intention to partially unclog the ‘way’ when there is certain degree of ‘will’.

Barnard & Peers: chapter 20

Photo credit: The Independent

Dialogue or disobedience between the European Court of Justice and the Danish Constitutional Court? The Danish Supreme Court challenges the Mangold-principle

Sune Klinge, PhD Fellow, Centre for Comparative and European Consitutional Studies, Faculty of Law, University of Copenhagen

Following the Court of Justice’s judgment in Case C-441/14 in the Ajos-case earlier this year, the Supreme Court of Denmark has handed down its judgment in the main proceedings. Despite the fact that the preliminary ruling left the Supreme Court with only two options; (1) apply national law in a manner that is consistent with the directive or (2) disapply any provision of national law that is contrary to EU law the Danish Supreme Court did neither. The Danish Supreme Court found that an interpretation consistent with EU law was not possible nor could the Supreme Court set aside national law since the Danish EU Accession Act did not confer sovereignty to the extent required for the unwritten EU principle prohibiting discrimination on the grounds of age to take precedence over national law. If the courts were to set aside national law they would be acting outside their constitutional limits to their competences as judicial power. Thereby the Supreme Court chose a third option and set aside the judgement from the CJEU.

This case from the Danish Supreme Court no. 15/2014 deals with the scope of Directive 2000/78 (the EU employment equality Directive) and the general principle of non-discrimination on grounds of age, adding another case to the ECJ’s Mangold and Kücükdeveci case law (on the requirement for national courts to suspend national law which breaches the principle of age discrimination) under Danish law.

The CJEU’s ruling in the Ajos-case has previously been discussed here. Consequently, only the main conclusions needed to fully understand the judgment in the main proceedings under Danish law will be revisited.

The Danish Supreme Court referred the following questions to the CJEU: The first question was related to the compliance of the national rules implementing the Directive and the application of the principle of non-discrimination on grounds of age. The second question formulated by the Danish Supreme Court referred to the balancing of rights and principles, and will be cited in full, since it contributes to the understanding of the judgment from the Danish Supreme Court last week:

“Is it consistent with EU law for a Danish court hearing an action in which an employee seeks from a private-sector employer payment of a severance allowance which, under the Danish law described in question 1, the employer is not bound to pay, even though that is contrary to the general EU principle prohibiting discrimination on grounds of age, to weigh that principle and the issue of its direct effect against the principle of legal certainty and the related principle of the protection of legitimate expectations and to conclude on that basis that the principle of legal certainty must take precedence over the principle prohibiting discrimination on grounds of age, such that the employer is, in accordance with national law, relieved of its obligation to pay the severance allowance and, in order to determine whether such a balancing exercise may be carried out, is it necessary to take into consideration the fact that the employee may, in appropriate cases, claim compensation from the Danish State on account of the incompatibility of Danish law with EU law?” (my underlining)

The CJEU openly rejected the solution offered by the Supreme Court, leaving it for the national courts to balance the EU principles against each other, and gave clear guidance on how the Supreme Court were to settle the case:

“EU law is to be interpreted as meaning that a national court adjudicating in a dispute between private persons falling within the scope of Directive 2000/78 is required, when applying provisions of national law, to interpret those provisions in such a way that they may be applied in a manner that is consistent with the directive or, if such an interpretation is not possible, to disapply, where necessary, any provision of national law that is contrary to the general principle prohibiting discrimination on grounds of age. Neither the principles of legal certainty and the protection of legitimate expectations nor the fact that it is possible for the private person who considers that he has been wronged by the application of a provision of national law that is at odds with EU law to bring proceedings to establish the liability of the Member State concerned for breach of EU law can alter that obligation” (my underlining)

On this basis the hearing before the Supreme Court took place 11 and 14 November 2016, and bearing the CJEU’s guidance in mind, the Supreme Court had to decide whether the private employer could rely on the Danish rules and not pay severance allowance to the employee.

As emphasized above in the quotation, the preliminary ruling left the Supreme Court with only two options; (1) applying national law in a manner that was consistent with the Directive or (2) disapplying any provision of national law that was contrary to EU law. The Danish Supreme Court did neither. The Supreme Court came to the conclusion that the national constitutional reservation had to take precedence over EU law according to the EU Accession Act.

Before entering into the extensive argumentation leading to this controversial conclusion, it is worth considering the circumstances and the dilemma of the Supreme Court leading to the decision to make a preliminary reference to the CJEU.

In the Danish case Ole Andersen from 12 October 2012 the CJEU found, that the Directive precluded national rules (same national rules as in the Ajos-case) regarding payment of severance allowance. Paragraph 2a(3) of the Danish Law on salaried employees held that:

No severance allowance shall be payable, if the employee will – on termination of the employment relationship – receive an old age pension from the employer and the employee has joined the pension scheme in question before attaining the age of 50 years.

The CJEU found that the Directive must be interpreted as precluding national legislation pursuant to which workers who are eligible for an old-age pension from their employer under a pension scheme which they have joined before attaining the age of 50 years cannot, on that ground alone, claim a severance allowance aimed at assisting workers with more than 12 years of service in the undertaking in finding new employment, and thereby overruling the national rule. 

In the national proceedings the Western High Court (the case was not tried at the Supreme Court) ruled in favor of the employee against a public authority as the employer – a vertical EU law relationship.

The question before the Supreme Court in the Ajos-case was if the same approach could be applied in a horizontal EU law relationship between two private individuals.

By referring the case to the CJEU, the Supreme Court highlighted a discussion carried out by the Advocates-General of the CJEU about the doctrinal basis of horizontal application of general EU principles.

Advocate General Kokott had in her opinion to the Ole Andersen-case questioned that the CJEU had relied directly on the general legal principle of the prohibition of age discrimination, stating that it was for the national court to set aside any provision of national law, which may conflict with that prohibition. She found in paragraph 22 that it appeared:

“to be a makeshift arrangement  for the purposes of resolving issues of discrimination in legal relationships between individuals, in which Directive 2000/78 is not as such directly applicable and cannot therefore replace national civil or employment law.”

The Advocate General also emphasized that the idea of an in-depth reappraisal and examination of the doctrinal basis of the controversial horizontal direct effect of general legal principles or fundamental rights between individuals were certainly appealing, but not necessary to resolve the case at hand.

Also Advocate General Trstenjak had in her opinion in the Dominguez-case reservations regarding legal certainty for private individuals and the risk of mixing sources of law as regard to directives as secondary law and general principles as primary EU law.

About the absence of legal certainty for private individuals she emphasized in paragraph 164, that

“the principle of legal certainty requires that rules involving negative consequences for individuals should be clear and precise and their application predictable for those subject to them. However, as it will never be possible for a private individual to be certain when an unwritten general principle given specific expression by a directive will gain acceptance over written national law there would, from his point of view, be uncertainty as to the application of national law similar to that experienced where a directive is directly applied in a relationship between private individuals”

The Danish Supreme Court raised the same concerns and by referring the Ajos-case to the CJEU aimed to find a solution by balancing the conflicting principles. By rejecting the solution by the Danish Supreme Court the CJEU offered no way out for the Danish Supreme Court, but to turn on a plate and apply EU law as told by the CJEU if compliance were to be secured.

The Danish Supreme Court did not act as expected; instead, they found their own way of solving the problem and securing legal certainty under Danish law.

The reasoning of The Supreme Court

Interpretation consistent with EU law

The Supreme Court held – in line with the formulation of its question to the CJEU in 2014 – that the legal position under Danish law was clear, and that it would not be possible to arrive at an interpretation of the national law that was consistent with the Directive as interpreted by the judgment of the CJEU in the Ole Andersen-case by using the methods of interpretation recognized under Danish law.

Reflecting on the application of the contra legem assessment made by the Supreme Court it is worth relating it to the harshly formulated paragraph 34 of the CJEU’s Ajos-judgment, where the CJEU stipulated, that:

“the national court [the Danish Supreme Court] cannot validly claim that it is impossible for it to interpret the national provision at issue in a manner that is consistent with EU law by mere reason of the fact that it has consistently interpreted that provision in a manner that is incompatible with EU law.”

This seems to reflect a different understanding by the CJEU of the concept of “contra legem”, and therefore the reasoning on that matter is given a strong voice in the Danish Supreme Court’s judgement. The Supreme Court explains in details that the legal position under Danish law was clear and was not only relying on the interpretation made by the Supreme Court itself. The position had been reaffirmed over the years since the Danish Parliament introduced the rule in 1971 and the Parliament kept the same wording of the provision in the later amendment in 1996. Consequently, the Supreme Court found that it could not change the legal position as the CJEU suggested by using the methods of interpretation recognized under Danish law.

Therefore, the Supreme Court found that it would be “contra legem” to interpret the national law in conformity with the Directive since the national legal position was clear. In this reasoning the Supreme Court and the nine judges acted unanimously.

The general principle of non-discrimination on grounds of age

In the second part of the judgement’s reasoning the majority of eight out of the nine judges came to the conclusion that the Supreme Court could not set aside national law since the Danish EU Accession Act did not confer sovereignty to the extent required for the unwritten EU principle prohibiting discrimination on the grounds of age to take precedence over national law.

The reasoning focuses on the lack of legal basis in the Danish EU Accession Act which is the Act that sets the limits of the conferred sovereignty to the EU in line with paragraph 20 of the Danish Constitution.

The Supreme Court went on to perform an in-depth analysis of the preparatory works of the Accession Act (travaux préparatoire) leading to Denmark joining the EU in 1972 and the subsequent amendments to the Accession Act.

The Supreme Court found that the Danish Parliament did not explicitly refer to the Mangold and Kücükdeveci case law in the preparatory works to the Lisbon Accession Act amendment. On this basis the Supreme Court arrived at the conclusion, that the CJEU did not have the competence or legal basis to give precedence to the unwritten principle prohibiting discrimination on grounds of age in a case where this was contrary to national law.

Reflecting further on the Mangold case of 2005, the Supreme Court also noted that the CJEU in the Mangold case law did not balance the legal certainty and the protection of legitimate expectations against the prohibition of discrimination on grounds of age. It is not clear if the Supreme Court finds that the result in the Mangold case would have been different if the CJEU had reflected on this balancing. By revisiting the finding in the CJEU’s Ajos case one could make the argument, that it would not have changed the result. 

The facts of the case – the dismissal of the employee - were before the Lisbon treaty entered into force the 1 December 2009. Consequently, the Supreme Court stressed that the application of any Charter provision since it was not legally binding and thereby disregarded the argument that the employee could rely on the Charter provisions.

After concluding that the Danish Accession Act does not provide legal basis in a horizontal relationship to give precedence to an unwritten EU law principle the Supreme Court adds:  

“If the Supreme Court in a situation like this were to set aside national law the Court would be acting outside their limits to their competences as judicial power.” (Translation made by the author)

And thereby, not only referring to the Accession Act and sovereignty but also to the separation of power in the Danish Constitution section 3 as it would require an act of parliament to amend the national rules and reassure compliance with EU law.

In the end it should be noted that one judge found that the EU law should take precedence over national law, and that there was no conflict with the Danish EU Accession Act following the Supreme Courts judgments in the Maastricht and Lisbon cases on sovereignty. The minority judge voted to follow the directions made by the CJEU.

Reflection and follow-up litigation

Last week’s judgement from The Danish Supreme Court can definitely be seen as disobedience as the CJEU’s guidance in the Ajos-case was very precise and gave the Supreme Court only two options, but the Supreme Court choose a third. Or it can be seen as contributing to the debate about the dialogue between the courts; it depends on the eyes of the beholder.

It surely adds a chapter to discussion on where the contra legem test is best performed; in the national law regimes or by the CJEU and it sets out the limits of the Danish Supreme Courts constitutional mandate in order to reassure compliance with EU law.

The likely aftermath of the case is also fascinating since the employee has brought an action against the Danish state claiming that the state is liable for the loss of severance pay. The liability case has been suspended on the decision from the Supreme Court.

Another possible outcome could be follow-up litigation from the EU Commission by launching infringement proceedings against Denmark as a Member State on the lack of effective legal protection under article 19 TEU or the duty of sincere cooperation under article 4 (3) TEU. In any case the Ajos-case will be revisited and have a major impact on the relationship between the EU and Denmark.

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Please feel free to contact me if you want more information about the case or the related issues from a national Danish perspective. I am doing a PhD project about the horizontal effect of EU law and member state liability from a national Danish perspective. Before I joined Academia I was practicing lawyer at one of the leading law firms in Denmark working extensively with EU law.

Photo credit: wikipedia

Barnard & Peers: chapter 6; chapter 8; chapter 9; chapter 20

Another failed opportunity for the effective protection of LGB rights under EU law: Dr David. L. Parris v. Trinity College Dublin and Others

Dr Alina Tryfonidou, Associate Professor in EU Law, University of Reading

Introduction

The recent judgment in the Parris case is another failed opportunity for the ECJ to offer effective protection to LGB persons and same-sex couples under EU law. Despite some signs in recent cases (Asociaţia Accept and Hay) that the EU Court has been taking its role as protector of the rights of LGB persons under EU law more seriously, in its judgment in Parris, like in its decision in Léger (discussed here) which was the last case involving LGB persons that was decided prior to Parris, the Court seems to be treading cautiously around matters that are delicate from the point of view of the Member States. In particular, in this case, the Court seems wary of the danger of being accused of imposing its own views with regards to a matter for which there is – still – great diversity of opinion among the Member States, namely, the recognition of same-sex relationships. The judgment, also, demonstrates the ECJ’s failure to accept the reality of multiple discrimination, as it was ruled that if a measure does not give rise to discrimination on any of the grounds prohibited by Directive 2000/78 – when these grounds are taken in isolation – then it cannot be considered to produce discrimination on the basis of the combination of those two factors.

Legal and Factual Background

The request for a preliminary ruling in the Parris case was referred by the Labour Court (Ireland) hearing an appeal from a decision of the Equality Tribunal (Ireland) in proceedings brought by Dr David L. Parris – a retired academic – against Trinity College Dublin (his former employer), the Higher Education Authority (Ireland), the Department of Public Expenditure and Reform (Ireland) and the Department of Education and Skills (Ireland), arguing that he had been discriminated against by the defendants by reason of his age and sexual orientation. The proceedings concerned the refusal by Trinity College Dublin to accept Dr Parris’s request that on his death, the survivor’s pension provided for by the occupational benefit scheme of which he was a member, should be granted to his civil partner. The refusal was based on the fact that Dr Parris entered into a civil partnership with his male partner only after he had turned 60 and the said occupational scheme provides that survivor’s pension is payable only if the claiming member married or entered into a civil partnership before reaching the age of 60. (Note that the civil partnership was entered into in the UK in 2009, once Dr Parris was over 60, but was only recognised in Ireland from 2011 onwards, when the Irish legislation regarding civil partnerships came into force).

In Ireland, civil partnerships can only be entered into since January 2011, whilst marriage between persons of the same sex has been made available only since November 2015. In addition, the statute which gave same-sex couples the right to enter into a civil partnership, excluded the retrospective recognition of civil partnerships registered in another country, which meant that civil partnerships entered into abroad could be recognised in Ireland only prospectively, from January 2011. Thus, as Dr Parris was born in 1946, he could only enter into a civil partnership or marry his same-sex partner in Ireland after reaching the age of 60; and, similarly, any civil partnership he had entered into in another country, could only be recognised in Ireland after he had reached the age of 60.

This meant that under no circumstances would a person who had Dr Parris’s sexual orientation and age be able to claim a survivor’s benefit for his (same-sex) civil partner or spouse under the contested pension scheme. Or, to put the issue more broadly, LGB persons born before 1 January 1951 are excluded in all instances from claiming a survivor’s benefit for their same-sex civil partner or spouse under the contested pension scheme.

The main question of the referring court was whether the application of a rule in an occupational benefit scheme specifying an age by which its members must marry or enter into a civil partnership for their spouse or civil partner to be entitled to a survivor’s pension, amounts to discrimination on grounds of age and/or sexual orientation, contrary to Directive 2000/78.

The AG Opinion

In her Opinion, Advocate General Kokott firstly noted that the contested rule does not amount to direct discrimination on the ground of sexual orientation, as ‘[t]he mere fact that an employee has not married or entered into a civil partnership before his 60th birthday – whether on account of legal barriers or by choice – is not directly linked to his sexual orientation … Had Dr Parris married a woman after his 60th birthday, for example, she would have been excluded from eligibility for the survivor’s pension in exactly the same way as his current partner under the terms applicable to that pension’. The Advocate General then pointed out that the rule does, however, amount to indirect discrimination on the ground of sexual orientation since ‘the 60-year age limit affects a large number of homosexual employees in Ireland more severely and more deleteriously than their heterosexual colleagues … all homosexual employees in Ireland who were born before 1951 were universally barred from entering into a civil partnership in good time before their 60th birthday because the institution of civil partnership did not exist in that Member State until 2011 and the best option previously available to same-sex couples was to live together as “common-law” partners. It was therefore impossible for legal reasons for that group of people to secure a survivor’s pension for their respective partners under the occupational pension scheme at issue and thus to provide the latter with a form of social protection that their heterosexual colleagues and their spouses were able to take for granted’. The Advocate General also found that there was (unjustified) direct discrimination on the ground of age as ‘employees who do not enter into a marriage or civil partnership until after they have reached their 60th birthday are treated less favourably than employees who do so at a younger age’.

Despite the fact that the Advocate General found that the contested rule can amount to discrimination on the grounds of sexual orientation and age taken separately, her preferred approach was to consider that the rule is discriminatory on the combined grounds of sexual orientation and age: ‘In the present case, particular attention will have to be given to the fact that any discrimination perpetrated against the person concerned is attributable to a combination of two factors, age and sexual orientation. The Court’s judgment will reflect real life only if it duly analyses the combination of those two factors, rather than considering each of the factors of age and sexual orientation in isolation.’ The Advocate General explained that ‘employees such as Dr Parris would, in accordance with Article 2(2)(b) of Directive 2000/78, have to be regarded as being at a particular disadvantage by reason of a combination of their sexual orientation and their age because the terms of the pension scheme have the effect of systematically depriving their surviving partners in particular of a survivor’s pension. It is true that, for all employees, the surviving partner’s eligibility for a survivor’s pension is subject to the (apparently neutral) condition that the couple must have entered into a marriage or civil partnership before the employee’s 60th birthday. In truth, however, this systematically excludes homosexual employees born before 1951 in particular – unlike all other categories of employee – from a survivor’s pension of this kind because those employees would never have been able to satisfy the aforementioned condition even if they had wanted to’.

The Judgment

The Court in its judgment was of the view that the contested rule does not give rise to direct discrimination on the ground of sexual orientation because it does not refer directly to the worker’s sexual orientation. Unlike the Advocate General, however, the Court also found that the contested rule did not give rise to indirect discrimination on this ground either.

The Court began by considering the reason behind Dr Parris’s failure to satisfy the contested rule:

‘on the date on which Mr Parris retired, 31 December 2010, he did not satisfy the conditions laid down by the applicable national rule for his civil partner to be entitled to the survivor’s benefit at issue in the main proceedings, since the civil partnership he had entered into in the United Kingdom was not yet recognised in Ireland, and in any event, even if it had been recognised, it could not have given an entitlement to such a benefit, as it had been entered into after the member’s 60th birthday.’

‘the fact that Mr Parris is unable to satisfy that condition is a consequence, first, of the state of the law existing in Ireland at the time of his 60th birthday, in particular the absence at that time of a law recognising any form of civil partnership of a same-sex couple, and, secondly, of the absence, in the rules governing the survivor’s benefit at issue in the main proceedings, of transitional provisions for homosexual members born before 1951’.

The Court then – referring to Recital 22 of Directive 2000/78 – proceeded to highlight the deference it shows towards Member State laws regarding the regulation of marital status in their territory and, in particular, the legal recognition of same-sex relationships: these are matters with respect to which Member States have maintained their full competence, and, thus, they can regulate them in whichever way they choose, provided that when doing so they comply with their obligations under EU law. The Court then explained that the ‘Member States are thus free to provide or not provide for marriage for persons of the same sex, or an alternative form of legal recognition of their relationship, and, if they do so provide, to lay down the date from which such a marriage or alternative form is to have effect’. From this, the Court concluded that ‘EU law, in particular Directive 2000/78, did not require Ireland to provide before 1 January 2011 for marriage or a form of civil partnership for same-sex couples, nor to give retrospective effect to the Civil Partnership Act and the provisions adopted pursuant to that act, nor, as regards the survivor’s benefit at issue in the main proceedings, to lay down transitional measures for same-sex couples in which the member of the scheme had already reached the age of 60 on the date of entry into force of the act’. Accordingly, in the ECJ’s view, the contested rule did not produce indirect discrimination on grounds of sexual orientation.

The Court, however, found that the contested measure did establish a difference in treatment that was directly based on the criterion of age: ‘such a rule thus treats members who marry or enter into a civil partnership after their 60th birthday less favourably than those who marry or enter into a civil partnership before reaching the age of 60’. This difference in treatment, nonetheless, falls – according to the Court – within the scope of Article 6(2) of the Directive, as it ‘fixes an age for entitlement to an old age benefit’ and, hence, it does not constitute discrimination on grounds of age.

The final issue that the Court had to consider was that of multiple discrimination, i.e. whether the contested rule was capable of creating discrimination as a result of the combined effect of sexual orientation and age, where that rule does not constitute discrimination either on the ground of sexual orientation or on the ground of age taken in isolation. The Court noted:

‘while discrimination may indeed be based on several of the grounds set out in Article 1 of Directive 2000/78, there is, however, no new category of discrimination resulting from the combination of more than one of those grounds, such as sexual orientation and age, that may be found to exist where discrimination on the basis of those grounds taken in isolation has not been established.’

‘Consequently, where a national rule creates neither discrimination on the ground of sexual orientation nor discrimination on the ground of age, that rule cannot produce discrimination on the basis of the combination of those two factors’.

Analysis

The judgment in the Parris case confirms and further highlights two trends that had already been prevalent in previous case-law: a) that the Court is reluctant to intervene in situations which touch on matters that fall to be regulated exclusively at Member State level, especially when such matters involve morality judgements for which there is great diversity of views among the Member States and b) that the Court ignores the reality of multiple discrimination.

a) Sensitive Matters that Fall within Exclusive Member State Competence

As seen earlier, Recital 22 of Directive 2000/78 played an important role in the Court’s conclusion in the case that the contested rule did not amount to (indirect) discrimination on the ground of sexual orientation. The Recital provides that ‘[t]his Directive is without prejudice to national laws on marital status and the benefits dependent thereon’. In relation to this, the Court in its judgment explained that the Member States are free to decide whether to open marriage or registered partnerships to persons of the same sex and if they do so to lay down the date from which such a marriage or alternative form is to have effect. From this it concluded that the refusal of the survivor’s benefit was – simply – a consequence of the application of Irish law concerning same-sex partnerships (and, in particular, the lack of a civil status for such partnerships at the relevant time), and, hence, respecting the competence of the Member States with regards to these matters, EU law (and, in particular, Directive 2000/78) could not apply in order to require Ireland to ‘to provide before 1 January 2011 for marriage or a form of civil partnership for same-sex couples’.

This line of reasoning appears – with respect – to be erroneous. In areas like this (i.e. legal recognition for same-sex relationships) which fall to be regulated by Member States exclusively, the ECJ can still intervene in order to require the said legislation to be applied in a manner which is compliant with EU law. Hence, the application of Directive 2000/78 in this instance would require the removal of discrimination on the (combined) grounds of sexual orientation and age – which, in my view, is the discrimination that was suffered on the facts of the case – which could be achieved by an amendment of the rule (most likely, the requirement would be to permit LGB persons born before 1951 to claim survivor’s benefit for their same-sex partner even if they entered into a civil partnership or marriage after they turned 60), but it wouldn’t require Ireland to recognise such relationships retrospectively, by changing the date from which they have effect (which is a matter that falls to be regulated exclusively by Ireland). In other words, Ireland would remain free to determine how to regulate same-sex relationships – as required by Recital 22 of Directive 2000/78 – but would have to require pension schemes etc which apply to such relationships to make provision for the different legal situation of persons that have such relationships and to take that into account, by providing for an exception to the rule in situations where it is (legally) impossible to satisfy the age condition due to the law in Ireland (as opposed to the personal choice of the couple), which only allowed the legal recognition of same-sex relationships after a certain date.

As noted by Advocate General Kokott in response to the argument of the defendants, the UK Government, and the Commission, that a finding of discrimination based on sexual orientation in this case could have the consequence of conferring de facto retroactive effect on the institution of civil partnership (which would go against Recital 22 of Directive 2000/78), such a finding ‘does not in any way compel the Irish State to change the marital status of an employee such as Dr Parris retroactively’ as ‘Dr Parris and his partner are today recognised by the Irish State as living together as a couple, and they are today claiming – prospective – occupational pension scheme benefits corresponding to their marital status as it stands today. They are not in any way claiming a benefit to which their marital status does not entitle them. They are certainly not claiming such a benefit retroactively. Nor are they seeking a retroactive change to their marital status. Rather, they are simply defending themselves against a term contained in the occupational pension scheme at issue – the 60-year age limit – which was laid down in the past but discriminates against them today.’

Accordingly, by hiding behind Recital 22, the Court seems to be avoiding to intervene in this case, in this way allowing Member States not merely to regulate same-sex relationships and the consequences ensuing from entering them (which is, indeed, a matter that is wholly to be regulated at Member State level), but also to discriminate against LGB persons who – by virtue of a legal disability (i.e. their inability to enter into a marriage or registered partnership in a certain Member State until a certain date) – are differently situated from heterosexual persons who had the (legal) option of entering into a marriage or registered partnership by the required age, but chose not to do so. This approach seems to be in line with the approach followed by the Court with regards to issues involving fundamental societal choices. In particular, in relation to matters which involve deeply held national societal mores or values, the Court and the EU legislature have been very reserved in their approach and have focused on respecting the sovereignty of the Member States, even to the extent of avoiding applying EU law rigorously (e.g. Henn and Darby) or at all (e.g. Grogan). This nonetheless comes at a cost, this being that the rights that individuals derive from EU law are sacrificed at the altar of Member State sovereignty. Should there not be a requirement that the EU, which is a polity that values, inter alia, fundamental human rights and equality, act as an external arbiter of the choices of the Member States with regards to these issues when these choices come into conflict with the rights that individuals derive from the Treaty and secondary legislation? In other words, should the EU not come to the rescue of individuals that derive rights from EU law and require the Member States to ‘think federal’ with regards to these matters, as long as the EU does not impose its own views in relation to them? It is not suggested here that morality and value judgements should now be made at the EU level; as Weiler has noted, there should be ‘fundamental boundaries’ which are ‘designed to guarantee that in certain areas communities […] should be free to make their own social choices without interference from above’.[1] However, Member States should be aware that when regulating these matters they must take into account and cater for the rights that individuals enjoy under EU law, and if they do not, then the ECJ or (in most instances) the national courts as enforcers of EU law, should intervene in order to ensure that Member States comply with their obligations under EU law. 

b) Multiple Discrimination

The other notable feature of the judgment in Parris is the Court’s express rejection of the possibility that multiple discrimination can be prohibited by Directive 2000/78. The Court had, already, been faced with a situation involving discrimination on the combined grounds of sex and sexual orientation in the Léger case, which was decided in 2015. Despite the fact that the Advocate General in that case found that the contested measure did amount to such (multiple) discrimination, the Court in that case simply brushed aside the matter, by focusing on the question of whether the said measure amounted (simply) to discrimination on the ground of sexual orientation.

In this case, however, it was more difficult for the Court to avoid the matter as the possibility of multiple discrimination – in this instance on the combined grounds of sexual orientation and age – was specifically mentioned by the referring court and the third question referred was, exactly, focused on this issue. However, as noted earlier, the Court explicitly pointed out that ‘where a national rule creates neither discrimination on the ground of sexual orientation nor discrimination on the ground of age, that rule cannot produce discrimination on the basis of the combination of those two factors’, thus rejecting the possibility of a finding of multiple discrimination under Directive 2000/78.

It is, indeed, true that multiple discrimination presents challenges that are not faced when an assessment of a single ground of discrimination is made.

One such difficulty is that a multiple discrimination assessment contradicts the classic single-ground model of discrimination law analysis which requires the identification of a single hypothetical comparator who must only have a single characteristic – the one that it is claimed that the discrimination complained of is based – that is different from the person that is treated worse. Yet, at the same time, an analysis which is – artificially – pushed to fit this model by insisting on an examination of the difference in treatment by using a single ground, may be incapable of accurately reflecting the situation that pertains in a certain case. For instance, on the facts in Parris, it would be inaccurate to compare all LGB persons with all heterosexual persons; or all LGB persons who have entered into a marriage or registered partnership with all heterosexual persons who have done so too; or all persons born before 1951 with all persons born after 1951. It was only LGB persons who were born before 1951 that were treated worse than everyone else (i.e. LGB persons born after 1951 and heterosexual persons in general). Accordingly, the difference in treatment complained of was based on the combined grounds of sexual orientation and age and, thus, the failure of the Court to find this misrepresents the reality of discrimination that was suffered on the facts of the case and – at a broader level – contributes to the continued invisibility of the phenomenon of multiple discrimination.

Another difficulty with multiple discrimination and its prohibition under EU law is that there is a hierarchy in the protection from discrimination on various grounds (with race and ethnic origin coming at the top, followed by sex, and then by the Directive 2000/78 grounds) which means that it is difficult to apply a single analysis in a situation where discrimination is suffered on more than one ground simultaneously. This, in fact, is the reason why legal advisors handling cases involving multiple discrimination usually make a strategic decision as to which single ground to choose, taking into account the protection afforded in relation to that ground as well as what is possible and attainable on the facts of the case.

Yet, and despite the above difficulties, it is important that where there is multiple discrimination, that this is reflected in the Court’s analysis. This is because, as noted by the Advocate General in Parris, a finding of multiple discrimination requires that a different approach to justifications is taken, as ‘[t]he combination of two or more of the grounds for a difference of treatment referred to in Article 1 of Directive 2000/78 may also mean that, in the context of the reconciliation of conflicting interests for the purposes of the proportionality test, the interests of the disadvantaged employees carry greater weight, which increases the likelihood of undue prejudice to the persons concerned, thus infringing the requirements of proportionality sensu stricto’.

Despite the fact that the EU legislature and the ECJ seem to ignore the reality of multiple discrimination, there have already been calls by the EU institutions to take this form of discrimination more seriously and to take action in order to increase both the capacity to recognise and identify occurrences of multiple discrimination and awareness of the need to combat them as such. It is important for the institutions, bodies and courts, that apply anti-discrimination law to become aware and able to identify the unique ways in which individuals experience multiple discrimination (see, for instance, Report commissioned by the European Commission ‘Tackling Multiple Discrimination: Practices, policies and laws’ (2007) available at http://ec.europa.eu/social/main.jsp?catId=738&pubId=51). Accordingly, the ECJ should take the opportunity – when it arises again – to rule that EU anti-discrimination law prohibits not merely single-ground but also multiple discrimination and to provide guidance as to how to deal with cases of such discrimination. After all – as stressed by the Advocate General in Parris – ‘it is apparent at several points in the Directive [i.e. Directive 2000/78] that its authors were acutely aware of this issue [i.e. multiple discrimination] and assumed that it could be adequately resolved by recourse to the instruments provided by the Directive’.

Further Reading

N. Bamforth, M. Malik and C. O’Cinneide, Discrimination Law: Theory and Context (Sweet & Maxwell, 2008), Chapter 9

K. Lenaerts, ‘Federalism and the Rule of Law: Perspectives from the European Court of Justice’ (2011) 33 Fordham International Law Journal 1338

A. Tryfonidou, ‘The Federal Implications of the Transformation of the Market Freedoms into Sources of Rights for the Union Citizen’ in D. Kochenov (ed.), Citizenship and Federalism in Europe (Cambridge, CUP, 2016, forthcoming)

A. Tryfonidou, ‘Discrimination on the Grounds of Sexual Orientation and Gender Identity’ in S. Vogenauer and S. Weatherill (eds), General Principles of Law: European and Comparative Perspectives (Oxford, Hart, 2017, forthcoming)

Report: ‘Tackling Multiple Discrimination: Practices, policies and laws’ (2007) available at http://ec.europa.eu/social/main.jsp?catId=738&pubId=51

Report by S. Fredman, ‘Intersectional discrimination in EU gender equality and non-discrimination law’ (May 2016), available at http://ohrh.law.ox.ac.uk/new-report-intersectional-discrimination-in-eu-gender-equality-and-non-discrimination-by-professor-fredman/

Barnard & Peers: chapter 20

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[1] J. H. H. Weiler, ‘Fundamental Rights and Fundamental Boundaries: On the Conflict of Standards and Values in the Protection of Human Rights in the European Legal Space’, in J. H. H. Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ And Other Essays on European Integration (Cambridge: Cambridge University Press, 2005), pp. 103–104. 

More on the horizontal direct effect of the principle of nondiscrimination on the ground of age: Dansk Industries (DI)

Giovanni Zaccaroni, Ph.D (University of Bologna), Junior lawyer FratiniVergano 

In the recent DI case, the Court of Justice has added another chapter to the saga of the difference between the extents of the application of the rights arising from Directive 2000/78/EC on non-discrimination and the general principle of non-discrimination on the ground of age in employment (the Directive also prohibits discrimination in employment on grounds of religion, disability and sexual orientation).

The previous chapters were the notorious cases Mangold and Kucukdeveci, in which the Court dealt with the question of the application of the duty not to discriminate against a person on the ground of his age, which was denied by the national legislation in those cases. The Court faced the issue of the application of the obligation of non-discrimination arising from EU secondary legislation to cases involving two private parties. As it is widely known, there is a case law of the Court of Justice (the Marshall and Dominguez case law) pointing out that directives are not applicable to private parties’ litigation (the horizontal direct effect), as these legal acts cannot establish obligations on individuals, but only on States. In general, the Court has always solved the issue (as in Mangold and Kucukdeveci) declaring the applicability to horizontal litigation of the principle of non-discrimination. In other cases, the Court (as perhaps in Deckmyn) the Court has ordered the national Court to interpret the national legislation in a way which is not contrary to EU law, assuring “the uniform interpretation of EU law”.

This however stays at odd with the fact that general principles should have, according to the doctrine of international law, only an interpretative value, and should not be able to convey rights. How this can be possible, considering that the directive itself is not applicable, and the ratio is precisely to leave to Member states a certain margin of discretion in the application of EU law? And how it is possible to draw a clear distinction between the uniform interpretation of EU law, the application of directives, and the application of the principle of non-discrimination? The answer to the question leads to two different reflections.

The uniform interpretation of the obligation of non-discrimination

The first pertains to the uniform interpretation of the obligations of non-discrimination established in the Treaties and of the effet utile of those provisions. The uniform interpretation and the effet utile of the obligations of non-discrimination have the scope of avoiding that Member States invoke in an instrumental way the limits to the application of European Union law in order to avoid the implementation of its obligations. This was the case in Dansk Industry, where the legislation of the Member state did not provide to the applicant the indemnity for early termination of the working relationship. The worker was at the same time eligible, at the moment of the termination of the contract, for the retirement pension (having reached the age of 60).

In that case, the national judge argued that it was not possible (and this was the reason for the question for preliminary ruling) to apply the directive to the private party litigation. First, because this was contrary to the legitimate expectation of the employer, who, when refusing the indemnity for early termination, was relying on the national legislation in force. Secondly because, as that judge maintained, there is always the possibility to raise an action for damages in the appropriate court in order to obtain the proper compensation from the Member State. Accordingly, the judge wanted to know if it was appropriate to invoke the principle of non-discrimination and not apply the national legislation, given that the principle can be retained as having the same scope of application (if not wider) of the directive.

The Court, as well as the Advocate General, answered that the national judge was right in considering the Directive as such was not applicable, given that the case involved litigation between private parties. However, the Court also maintained that the national judge has always the duty to interpret national law in a way that it is consistent with the directive. In this case, clearly, this was not possible, as there was legislation in force that explicitly excluded the right to indemnity for those workers already entitled to retirement pension. The Court said that while it is not possible to apply the national legislation according to EU law, then the national judge should rely, without asking the Court of Justice permission, on the obligation arising from the principle of non-discrimination on the ground of age in order to disapply the national provision which is discriminatory.

It is most likely the first time in which the Court state in such a clear way the difference between the application of uniform interpretation and the application of the general principles. In cases as Mangold and Kucukdeveci, the Court referred to the general principle, giving the impression that the Directive and the general principle were very similar in scope and binding force, leaving an open inconsistency between the solution provided and its Marshall and Dominguez case law.

In this DI judgment, however, the Court makes a step further. The Court holds that the principle of non-discrimination is applicable as long as the directive is not applicable, providing it with a subsidiary direct effect. Many scholars were already theorizing the existence of such a subsidiary direct effect (and the President of the CJEU, Lenaerts, clarified that in his article: The principle of equal treatment and the European Court of Justice, Il Diritto dell’Unione Europea, 461–482) but this theoretical construction was not substantiated by the legal reasoning of the Court. Now it is clear that, even if the directive establishing the obligation of non-discrimination is not applicable, then the principle can be applied.

The singular importance of the principle of non-discrimination

The reason for this application is to be found in the second point discussed by the Court, which is what makes this case particularly important. The principle of non-discrimination (on the ground of age) has been explicitly declared by the Court as an example of a justiciable rule in AMS. On the other hand, in the same case the Court ruled that the principle of collective action contained in Article 27 of the Charter of Fundamental Rights of the European Union did not create free-standing rights in a similar way.

But why is the non-discrimination principle to be considered so important that it can be triggered when other principles do not enjoy the same privilege? Moreover, why this is done in a way which gives to the Court of Justice a formidable weapon to require national courts to disapply the national provision even in cases in which the EU legal act (the Directive) has been conceived to leave to Member States a wide margin of discretion?

The reason is the importance of the principle of non-discrimination, which takes inspiration from the equality principles embodied in the various national constitutions. This principle is even more important for the history of the process of the European Union integration, up to the point that it is not simply a general principle (which is, by the way, an extremely important legal instrument) but that it is a structural and fundamental principle, which informs the whole European Union action. Under this perspective it is easy to imagine how many of the international agreements the EU has already negotiated or it is about to negotiate (as TTIP or the EU-Turkey Joint Statement on migration) can be challenged in front of the Court. It is, for instance, quite easy to predict what will be the fate of provisions who allow for the mutual recognition or the presumption of compliance of EU-US standards in the free movement of services or of workers, or of provisions which favor a specific category of migrants against all the others.

In all these cases it is not just the Court of Justice which has the power to disapply the EU provision which discriminates against the specific category of people, but every single EU national court as regards national provisions. This conclusion, which can sound obvious to many of the EU law geeks, it is not easily understood at national level, as many courts (understandably) don’t feel  confident in exercising what in practice is a “diffuse control of constitutionality” (i.e. the compliance of national and EU legislation with a parameter which lies at the top of the hierarchy of the sources of law).

Conclusion

The Court of Justice, with its interpretation of the notion of general principles, has provided the national courts with an extremely effective weapon that confers on each single national judge the power to be the guardian of the unwritten EU constitution. However, there are still many open questions arising in the mind of a lawyer forged in the tradition of codification: should we imply that the same importance is to be accorded to all the different grounds of discrimination included in the Charter (more than 14) or listed in the Treaty (Article 19 TFEU)? This is not an easy question and, for the supporter of consistency as a fundamental legal argument in the reasoning of the Court, should bring to the conclusion that at the present date there is a “differentiation” in the application of the equality principle in the EU.

Barnard & Peers: chapter 9, chapter 20

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