Case Comment: CD v ST and Z v A Government Department & Ors (C-167/12 and C-363/12)

Michèle Finck, University of Oxford

Human procreation is not longer what it used to be. While medical research has created a number of mechanisms that allow people to engage in sexual intimacy without a resulting pregnancy, it also allows those wishing to procreate but who are unable to do so biologically to have children. IVF and surrogacy in many ways challenge our conception of human procreation. Naturally, the law needs to adapt to these changes.  Surrogacy in particular however raises a number of value-laden questions, which complicates the law’s response to these medical avenues. It is thus not surprising that no homogenous position exists between Member States on this issue.

In the CD and Z cases, the CJEU had to pronounce itself on how to reconcile surrogacy with an existing legal framework on maternity leave that did not account for motherhood resulting from that mechanism. More precisely, it was faced with the question of whether a mother who did not give birth to her own child, born via a surrogate, has a right to maternity leave under EU law. Family law is not a EU competence. Maternity leave is, however, regulated by the Pregnant Workers Directive (PWD) and some aspects arising out of motherhood and employment are addressed by the Sex Discrimination Directive. In Mayr, the CJEU had already clarified that the Sex Discrimination Directive is applicable to workers undergoing IVF that have not yet been successful.

In CD and Z, the Grand Chamber established that, as a matter of EU law, only women who themselves give birth to the child can benefit from maternity leave. Two Advocates General, Wahl and Kokott, issued opinions and came to opposed conclusions. The Court followed Advocate General Wahl in its judgment. Applying Mayr, it found that the PWD only applies to women who are in fact pregnant. The Sex Discrimination Directive was found not to be applicable either as the commissioning mother of a surrogacy agreement would be in the same position as a commissioning father. Having found that the question fell outside of the ambit of EU law, the CJEU also found the Charter of Fundamental Rights to be inapplicable. In the Z judgment, the CJEU further clarified that the Framework Equality Directive and its provisions on disabilities do not apply to women unable to become or carry out a pregnancy as the directive only targets disabilities that render a worker’s involvement in professional life more burdensome, which is not the case for medical conditions that prevent women from getting pregnant or carrying out a pregnancy. Continue reading

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. Continue reading

Case Comment: Giersch and Others (C-20/12)

Michèle Finck, University of Oxford

In February, Eutopialaw featured an analysis of Advocate General Mengozzi’s opinion in the Elodie Giersch case. Giersch concerns the question of whether a Luxembourg law that makes funding for higher education conditional upon residence in the Grand Duchy constitutes discrimination on the basis of nationality.

The effect of the national law was to exclude from its benefit the children of frontier workers from Belgium, Germany and France that currently make up around 44% of Luxembourg’s workforce. The Advocate General recognized that the measure indirectly discriminates between domestic and foreign workers. Still, he argued that such discrimination could be justified as it was aimed at increasing the number of Luxembourgers with a higher education degree in order to transform the Luxembourg economy into a knowledge-based economy.  This approach not only contrasted with earlier case law, such as Gravier or Commission v Austria but further raised the fundamental question of how concerns for a national economy (Luxembourg’s future economy) can justify derogations from the European Union’s internal market imperatives.  In my analysis of Advocate General Mengozzi’s opinion, I have argued that the concern for a single economy of a Member State can be placed into the current tendency to allocate increased respect to national peculiarities even if this entails the fragmentation of EU law.

Last week, the CJEU took a different approach to the issue. In its judgment issued on 20 June, the Luxembourg measure was declared incompatible with EU law. While the CJEU recognized that the Luxembourg legislation pursues a legitimate objective, namely the increase of Luxembourg residents with higher education degrees, it held that the current system extends beyond what is necessary to attain that objective. The Court qualified the financial aid measure as a social advantage that must be granted to migrant workers under the same condition as those applying to national workers. Equal treatment must be extended to those migrant workers whose residence remains in a different Member States, such as Luxembourg’s frontier workers. According to the CJEU’s judgment, the residence condition constitutes indirect discrimination on grounds of nationality as it operates mainly to the detriment of nationals of other Member States while benefitting Luxembourgers. Continue reading

Case Comment: Las v PSA Antwerp NV (C-202/11)

Michèle Finck, University of Oxford

On 16 April 2013, the Grand Chamber of the Court of Justice of the European Union (hereafter referred to as ‘the Court’ or ‘the CJEU’) delivered its judgment in Anton Las. At issue in this case was a decree of Flanders, a federated entity of the Belgian State, which required all cross-border employment contracts to be drafted in Dutch, one of Belgium’s three official languages. The CJEU had to decide whether such a measure was compatible with the free movement of workers, enshrined in Article 45 TFEU.

The Court held that, while the measure at issue could have been justified by the objectives invoked by Belgium; namely the protection of a national language, the protection of employees and the effective supervision by the national authorities, the obligation was disproportionate and thus contrary to EU law. While this case raises many interesting questions, this blog post focuses on merely one of them, namely on the CJEU’s stance towards the right of a sub-national authority of a Member State to protect and encourage the use of an official language. Aspects specific to Article 45 TFEU will not be dealt with. Continue reading

Case Comment: AG’s Opinion in Giersch & Others (C-20/12)

Michèle Finck, University of Oxford

The reference for a preliminary ruling brought by the Administrative Court of Luxembourg in the Elodie Giersch matter essentially concerns the question of whether a recent Luxembourg law that makes funding of higher education studies conditional upon residence in Luxembourg is compatible with European Union law, more specifically the requirement of non-discrimination on the basis of nationality. The aid can be received for studies undertaken within Luxembourg but also anywhere else.

The law is particularly controversial as it excludes from its benefit the children of frontier workers who travel every day from Belgium, Germany and France to the Grand Duchy to work. Currently, around 44% of those employed in Luxembourg are frontier workers. Over 600 applicants had brought proceedings before the national court after they had been refused financial aid. They argued that the fact that they were treated differently from the children of workers residing in Luxembourg constitutes an infringement of the principle of free movement of persons. Continue reading