By Dr. Alina Tryfonidou, Associate Professor in EU Law, University of Reading
Introduction
The recent ruling in the Parris case represents a missed chance for the European Court of Justice (ECJ) to provide meaningful protection to LGB individuals and same-sex couples under EU law. While recent cases like Asociaţia Accept and Hay suggested a shift towards stronger protection of LGB rights, the ECJ’s judgment in Parris, similar to the Léger case preceding it, reveals a hesitancy to address matters considered sensitive by Member States. Specifically, the court seems hesitant to be seen as forcing its interpretation on matters with diverse opinions among Member States, like same-sex relationship recognition. Furthermore, the judgment shows the ECJ’s reluctance to recognize the complexities of multiple discrimination, concluding that if a measure doesn’t constitute discrimination under Directive 2000/78 when individual grounds are considered, it cannot be discriminatory when those grounds intersect.
Legal and Factual Background
The Parris case, originating from the Labour Court of Ireland, involved Dr. David L. Parris, a retired academic, who alleged discrimination based on age and sexual orientation by 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). The issue stemmed from Trinity College Dublin’s refusal to grant Dr. Parris’s request to provide survivor’s pension benefits to his civil partner under the occupational benefit scheme. This refusal was due to a clause stipulating that such benefits are only payable if the marriage or civil partnership began before the member turned 60. Dr. Parris entered into a civil partnership with his partner after turning 60. While the partnership was formalized in the UK in 2009, it was only recognized in Ireland after 2011 when relevant legislation came into effect.
In Ireland, civil partnerships have only been legal since January 2011, while same-sex marriage became legal in November 2015. Importantly, the law recognizing civil partnerships excluded retroactive recognition of those registered in other countries, meaning foreign civil partnerships were only acknowledged starting in January 2011. Given that Dr. Parris was born in 1946, he could only have entered into a recognized civil partnership or marriage in Ireland after turning 60.
This situation effectively prevented anyone with Dr. Parris’s sexual orientation and age from claiming survivor benefits for their same-sex partner under the contested scheme. In essence, LGB individuals born before January 1, 1951, were systematically barred from accessing these benefits for their partners.
The core question posed to the ECJ was whether the application of an age-based rule for spousal survivor’s pension eligibility in an occupational benefit scheme constitutes discrimination based on age and/or sexual orientation under Directive 2000/78.
The AG Opinion
Advocate General Kokott, in her opinion, highlighted that the contested rule doesn’t directly discriminate based on sexual orientation, as not being married or in a civil partnership by age 60 isn’t directly linked to one’s sexual orientation. She argued that even a heterosexual person marrying after 60 would face the same exclusion. However, the Advocate General recognized indirect discrimination based on sexual orientation, as the age limit disproportionately impacted a significant number of gay employees in Ireland. This was because the unavailability of civil partnerships before 2011 in Ireland prevented them from meeting the requirement, unlike their heterosexual counterparts. She also identified direct age discrimination, as those entering marriage or civil partnership after 60 were treated less favorably than those doing so earlier.
While acknowledging potential discrimination based on sexual orientation and age independently, Advocate General Kokott recommended considering the combined effect of both grounds. She emphasized that focusing solely on individual grounds wouldn’t accurately reflect the situation and that the combined impact of sexual orientation and age was the root cause of the disadvantage faced by employees like Dr. Parris.
The Judgment
The ECJ, in its judgment, held that the rule doesn’t directly discriminate based on sexual orientation because it lacks direct reference to a worker’s sexual orientation. However, unlike the Advocate General, the court didn’t find indirect discrimination based on this ground either.
The court highlighted that Dr. Parris’s inability to meet the requirement stemmed from the legal landscape in Ireland at the time of his 60th birthday. Specifically, the lack of legal recognition for same-sex partnerships and the absence of transitional provisions for individuals like him in the benefit scheme’s rules were cited as reasons.
Referencing Recital 22 of Directive 2000/78, the court underscored Member States’ authority in regulating marital status and same-sex relationship recognition within their jurisdictions. It concluded that EU law, particularly Directive 2000/78, didn’t obligate Ireland to legalize same-sex marriage or civil partnerships before January 1, 2011, nor to apply the Civil Partnership Act retrospectively. Therefore, the contested rule wasn’t deemed indirectly discriminatory based on sexual orientation.
The ECJ, however, acknowledged that the rule did differentiate based on age, treating those marrying or entering civil partnerships after 60 less favorably. Yet, this difference was considered justifiable under Article 6(2) of the Directive, as it pertained to setting an age limit for an old-age benefit and wasn’t considered discriminatory based on age.
Regarding the concept of multiple discrimination, the court dismissed it, stating that while discrimination can occur based on various grounds listed in Article 1 of Directive 2000/78, a combination of these grounds doesn’t create a new category of discrimination. The ECJ concluded that if a national rule isn’t discriminatory based on individual grounds like sexual orientation or age, it cannot be discriminatory when those factors intersect.
Analysis
The Parris judgment reinforces two patterns observed in prior case law: a) a reluctance to interfere in areas considered the exclusive domain of Member States, particularly those involving moral judgments with differing views among member states, and b) a disregard for the complexities of multiple discrimination.
a) Sensitive Matters Under Exclusive Member State Competence
Recital 22 of Directive 2000/78 significantly influenced the ECJ’s finding that the contested rule didn’t constitute indirect discrimination based on sexual orientation. The court emphasized the freedom given to Member States in deciding whether and when to legalize same-sex marriage or partnerships. It deduced that the denial of survivor benefits resulted directly from the application of Irish law on same-sex partnerships at that time, thereby respecting Member State competence in such matters.
This reasoning seems flawed. Even in areas like this, where Member States have primary regulatory power, the ECJ can still intervene to ensure that national laws align with EU law. Applying Directive 2000/78 in this case would necessitate eliminating discrimination based on the combined grounds of sexual orientation and age. This could be achieved, for instance, by amending the rule to allow LGB individuals born before 1951 to claim survivor benefits for their partners even if their civil partnership or marriage began after they turned 60. This wouldn’t force Ireland to retroactively recognize such relationships, which remains under its exclusive jurisdiction. In essence, Ireland would retain the power to regulate same-sex relationships as per Recital 22 of Directive 2000/78 but would need to ensure that related policies like pension schemes accommodate the unique circumstances of individuals in these relationships by making exceptions to rules when legal obstacles (as opposed to personal choice) prevented them from meeting certain criteria.
Advocate General Kokott, addressing concerns that a finding of discrimination based on sexual orientation could be interpreted as imposing retroactive recognition of civil partnerships, clarified that such a finding wouldn’t compel Ireland to change anyone’s marital status retroactively. Dr. Parris and his partner, she argued, were seeking benefits under their current marital status, not retroactively, and were contesting a rule that placed them at a disadvantage.
By invoking Recital 22, the court seems to shy away from intervening, effectively allowing Member States not only to regulate same-sex relationships (which falls under their purview) but also to potentially disadvantage LGB individuals who, due to past legal restrictions, couldn’t have met certain requirements in the same way as heterosexual individuals. This approach aligns with the court’s history of restraint in matters involving sensitive societal values, prioritizing Member State sovereignty even at the cost of individual rights protected under EU law. The question arises whether the EU, as an entity that values fundamental rights and equality, shouldn’t intervene when Member State choices clash with these values. While this doesn’t mean transferring moral judgments to the EU level, it suggests a responsibility to ensure that Member States, while exercising their authority in such matters, uphold the rights guaranteed by EU law, with the ECJ and national courts acting as guarantors.
b) Multiple Discrimination
Another significant aspect of the Parris judgment is the ECJ’s explicit rejection of the concept of multiple discrimination under Directive 2000/78. This issue arose in the Léger case, where despite the Advocate General’s findings of discrimination based on combined sex and sexual orientation, the court focused solely on potential discrimination based on sexual orientation.
Addressing the possibility of multiple discrimination, in this case, proved unavoidable, as it was raised directly by the referring court. Yet, the ECJ explicitly stated that a rule not discriminatory on grounds of sexual orientation or age individually cannot be discriminatory when these factors intersect, effectively dismissing the concept.
Admittedly, multiple discrimination presents complexities not present in single-ground discrimination cases. It challenges the traditional model of comparing against a hypothetical comparator differing in only one characteristic. Attempting to fit multiple discrimination into this model by isolating individual grounds might not reflect the reality of the situation. In the Parris case, for instance, a comparison requiring the consideration of sexual orientation and age as intertwined factors would be more accurate. The ECJ’s failure to acknowledge this misrepresents the nature of the discrimination and contributes to the lack of visibility for multiple discrimination.
The existing hierarchy of protection against different grounds of discrimination in EU law adds another layer of complexity. This often leads to strategic decisions by legal professionals to focus on a single ground offering the strongest legal basis.
However, despite these challenges, it is vital for the ECJ to recognize and address multiple discrimination. As highlighted by the Advocate General in Parris, recognizing the combined effect of discriminatory grounds could lead to different considerations during the justification phase, potentially affording more weight to the interests of those facing such discrimination.
Despite the apparent disregard for multiple discrimination by EU legislature and the ECJ, calls for recognizing and addressing this form of discrimination are increasing. Raising awareness of how individuals experience multiple discrimination and equipping relevant bodies with the tools to identify and understand it are crucial steps. The ECJ should utilize future opportunities to establish that EU anti-discrimination law prohibits multiple discrimination and provide guidance on handling such cases. It’s important to remember, as Advocate General Kokott noted, that the drafters of Directive 2000/78 were aware of the issue of multiple discrimination and likely believed it could be addressed within the existing framework of 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
Photo credit: cbc.ca
[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.