Article 21 - Non-discrimination
Article 23 - Equality between women and men
Key facts of the case:
This case involved a reference to the ECJ for an interpretation of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. The question was whether the refusal to award a pension to the survivor of a same-sex partnership between individuals who had not married because, under national law, marriage is restricted to heterosexual unions amounted to discrimination on the basis of sexual orientation.
Results (sanctions) and key consequences of the case:
The AG advised that “[t]he refusal to grant … a pension because the partners had not married, where marriage is restricted to persons of the opposite sex, even though the partners had entered into a same-sex union the effects of which are substantially the same as those of marriage, amounts to indirect discrimination based on sexual orientation contrary to Directive 2000/78, and it is for the national court to determine whether the legal situation of spouses is similar to that of persons in a registered civil partnership.”
Interpretation of article(s) and implications for the resolution of the case:
FRC - Articles 21 and 23: "... the principle of non-discrimination on grounds of sexual orientation is included in Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (80) and is specifically laid down in Article 21 of the Charter of Fundamental Rights of the European Union. The fact that it is fundamental in nature means that respect for the right is guaranteed in the European Union, pursuant to Article 6 EU." The AG made the point that this was “part of the long process of accepting homosexuality, which is a vital step towards achieving equality and respect for all human beings.” (para 2) The AG noted that “Moral prejudices and the social exclusion of groups with certain sexual identities have been overcome [with the identification of equal treatment as a general principle of EU law]. Although the struggle began in order to combat discrimination against women, subsequent efforts have been directed towards discrimination affecting homosexuals – including the first step towards decriminalising same-sex relationships – or transsexuals, as well as discrimination against bisexuals.” (para 84) The refusal to pay a pension for a same-sex union where a heterosexual union would benefit amounted to indirect discrimination.
2, 84
