8 Colum. J. Eur. L. 92 (2002)
Iris Canor. Adjunct Lecturer Haifa University and Tel-Aviv University, Israel. P. v. S. and Comawall, Case C-13/94, 1996 E.C.R. 1-2143.
Joined Cases C-122/99 P & C-125/99 P, D. and Sweden v. Council, 31 May 2001 (not yet reported).
This case is a link in a chain of decisions concerning gender reassignment and sexual orientation. It is an appeal on the decision of the Court of First Instance, concerning a Community official of Swedish nationality. The appellant, Mr. D, claimed from his employer, the Council, a household allowance for married Community officials provided for by the Staff Regulations. Appellant’s partnership with a person of the same-sex was registered and recognized according to a Swedish law stating: “[a] registered partnership shall have the same legal effects as a marriage….” Appellant, therefore, requested that the Council do the same and assimilate his partnership to marriage.
The appeal was joined by the Swedish Government and supported by Denmark and the Netherlands; the Swedish Government argued that the definition of marriage in the Community Regulation should emanate from the domestic law of Member States. Since the applicant is regarded as married under Swedish law, the Council should treat him accordingly.
- The Advocate General’s Opinion
Advocate General Mischo,4 delivered an opinion to the effect that the appeal should be dismissedf5 In doing so, he represented a break with the trend of previous cases where Advocate Generals leaned in favor of the individuals involved and advocated “quantum leaps” in support of sexual minorities. Advocate General Mischo suggested a more conservative stance, abandoning the creative function often characterizing such opinions. He followed former Court’s precedents and was indeed vindicated by the present Court, but it is apt to suggest that a more liberal approach to individual rights might have served as an additional pressure on the Court to overrule its former precedent concerning homosexuals. Given the important role played by Advocate Generals in developing and advancing Community jurisprudence, such a formalistic opinion based on strict interpretation6 is arguably regrettable.
- Judgment of the Court of Justice
The Court of Justice dismissed the appeal. It ruled that though an increasing number of Member States have introduced statutory arrangements granting legal recognition to various forms of union between same-sex partners, assimilating them in some ways to marriage, these arrangements have so far been regarded in such Member States as distinct from marriage. Moreover, the intention of the Community legislator was to grant entitlement to household allowance under the Staff Regulation only to married couples. It is only for the Community legislature to adopt measures to alter that situation.
In his second plea the appellant argued that the right of a national of a Member State to have his civil status legally respected throughout the Community had been infringed. The Court ruled that there was no infringement of the “principle of the integrity of a person’s status” since denying the appellant an allowance does not affect his civil status.
In his third contention the appellant argued that there was infringement of the principle of equal treatment and non-discrimination on grounds of sex. The Court ruled that it is irrelevant for the purpose of granting the household allowance whether the official is a man or a woman. The decision cannot be regarded as being discriminatory solely on grounds of the sex of the person concerned. The Court added that it is not the sex of the partner that determined whether the household allowance should be granted, but the legal nature of the ties between the official and the partner.
Appellant also contended that by depriving registered partners of the rights associated with their status under national law, the Court’s ruling constitutes both discrimination on grounds of nationality and an infringement of the freedom of movement of workers. The Court refused to confront this argument, relying on the procedural rule against introduction of fresh pleas on appeal.
Finally, the Court rejected appellant’s argument that the contested decision violated Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which protects private and family life, as the decision did not in itself give rise to the transmission of any personal information to persons outside the Community administration.
This is another example of the self-restraint exercised by the Court in recent years. The Court took a minimal approach according to which if, as in this case, the Court of First Instance’s ruling did not reveal a manifest error of appraisal or discretion, there was no ground for the Court’s interference. The Court adhered to a black-letter formalistic reading of the legislative intent of the Staff Regulation. It chose to follow what it perceived as existing social norms, rather than initiate change of norms. It ruled that it is for the legislature to acknowledge the legal rights of the gay and lesbian community. It also refused to expand the terrain of the appeal and address the important arguments concerning the right of free movement. I will now turn to examine more closely the normative arguments put forward by the Court.