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)
Barnard & Peers: chapter 20
Photo credit: cbc.ca
