Europe of Human Rights

The law on the marital status is a competence of the Member States. The EU law prohibits, however, discrimination in employment based on sexual orientation.

Recently the CJEU ruled that same sex couples who enter into registered partnerships deserve the same benefits at the workplace as the married employees, the reason being that their legal situation is comparable to the situation of spouses. Depriving a person who registered a partnership of a leave or a bonus granted to staff on the occasion of a marriage would constitute discrimination based on sexual orientation.

The Court of Justice of the European Union ruled in the case of Mr Hay, a French citizen, who in 2007 concluded a civil solidarity pact (PACS) with his partner. He applied for benefits normally granted to married couples. He was, however, denied the special bonus and a leave. The employer justified their decision by recalling that, according to the collective agreement, the benefits are granted to married employees and not those who enter into PACS. The CJEU decided that such a treatment violates the principle of equal treatment.

At the time when Mr Hay entered into a registered partnership, same-sex couples could not marry according to the French law. Same sex marriage has been legal in France since 18 May 2013.

In its ruling, CJEU assessed whether the situations of registered partners and spouses are comparable.

CJEU pointed out that partners conclude a PACS in order to organize their life together by committing to providing material aid and assistance to each other. Moreover, PACS places the couple within a specific legal framework that govern rights and obligations in respect of each other and vis-à-vis third parties.

Although the formalities that govern the celebration of PACS are different than in the case of a marriage, and PACS may be ended in a different way than a marriage, the CJEU decided that the situations of the registered partners and spouses are comparable. CJEU found that some differences under property law, succession law and law relating to parenthood are irrelevant to an assessment in the context of employment.

CJEU decided that the difference in treatment based on the employees’ marital status and not on their sexual orientation was a direct discrimination. This is because only persons of different sexes could marry. While the Court noted that the PACS could be concluded by persons of different sexes, in 2007 it was the only possibility under French law for same-sex couples to obtain a certain and effective legal status for their relationship. Homosexual employees were, in fact, unable to meet the condition required for obtaining the benefit that Mr Hay applied for. This violated the EU law that prohibits discrimination in employment based on sexual orientation.

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