Case Comment: Hay (C-267/12)

Michèle Finck, University of Oxford

2013 has been described as ‘the greatest year in gay rights history’. While this statement might be somewhat exaggerated, at least in the EU, important progress has been achieved. Also across the Atlantic, in the U.S., a number of States have legalized gay marriage, the Supreme Court has handed down a historic gay marriage ruling, and the federal legislature might, finally, pass legislation that prohibits discrimination on the basis of sexual orientation after the Senate’s approval.

Also in Europe, society and legal orders mirror an increased acceptance of homosexuality. Recently, a new government took office in Luxembourg, headed by an openly gay Prime Minister and an openly gay Deputy Prime Minister, making it only the third country in the world that was ever headed by a person not representing themselves as heterosexual (after Belgium and Iceland). Same-sex couples will be able to marry in England and Wales from March 2014.  Also, in 2013 France legalized gay marriage and adoption. A few weeks ago, the CJEU handed down an important judgment regarding homosexual asylum seekers. Over the past year, same-sex marriage bills were introduced in the United Kingdom, Finland, and Luxembourg. Ireland held a constitutional convention on the issue of gay marriage and will organize a referendum on the matter in 2015.

While these developments should not obscure the continued challenges of gay people around the world and in Europe, they constitute significant progress in achieving equal rights for homosexuals.

As the year 2013 comes to an end, the CJEU handed down another important gay rights ruling in Hay. At the time of the facts of the dispute, France had not yet opened the institution of marriage to partners of the same sex. M. Hay was employed by a bank whose collective agreement foresaw that employees receive certain benefits, such as salary bonuses and days of special leave at the occasion of their marriage. When M. Hay entered into a civil partnership (a so-called ‘PACS’) with his partner he applied for these benefits. The bank refused to grant them. The subsequently arising litigation ended up in front of the Cour de Cassation, which asked the CJEU whether such a difference in treatment amounts to discrimination based on sexual orientation, which is prohibited under EU law by a 2000 Directive.

No Advocate General opinion had been issued in this case.  The CJEU first established that married persons and those that enter into civil partnership in the impossibility of marriage are in a comparable position for the purposes of this dispute. Consequently, the disparate treatment between marriages and civil unions was qualified as direct discrimination based on sexual orientation of homosexual employees that cannot be justified by any overriding reasons in the public interest, a ground of justification foreseen by the Directive.

The CJEU found that:

 ‘The difference in treatment based on the employees’ marital status and not expressly on their sexual orientation is still direct discrimination because only persons of different sexes may marry and homosexual employees are therefore unable to meet the condition required for obtaining the benefit claimed.’

The CJEU’s ruling that the collective agreement breaches EU law will not have much direct consequences for France, as it legalized gay marriage in 2013. Nonetheless, it will have significant practical consequences for those Member States that allow gay couples to enter into civil partnerships but not marriage, such as for instance Germany, Finland, Austria, Ireland and Hungary.

As a consequence of Hay, progress regarding gay rights will continue beyond 2013. The judgment establishes that where marriage is not open to partners of the same sex, civil unions must be given an equal status to marriages in labor relations, turning them into de facto marriage for the purposes of the workplace. Ultimately this might accelerate the current trend, exemplified by France, according to which States that have for a while offered civil unions to partners of the same sex gradually allow them to marry.

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