Dr Alina Tryfonidou, Associate Professor in EU Law, University of Reading
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 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’.
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’. 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’.
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
Photo credit: cbc.ca
 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.