Opinion of the Advocate-General
1 D, an official of the Council of the European Union, and the Kingdom of Sweden have appealed against the judgment of the Court of First Instance of the European Communities (Second Chamber) of 28 January 1999 in Case T-264/97 D v Council [1999] ECR-SC I-A-1 and II-1 (`the contested judgment').
I - Facts and procedure
2 D, who is of Swedish nationality, has been in a registered partnership with another Swedish national since 23 June 1995. By notes of 16 and 24 September 1996, he requested that the Council should treat his status as a registered partner as equivalent to marriage in order for him to be entitled to the household allowance.
3 The Council's appointing authority refused his request by a note of 29 November 1996 on the ground that the relevant provision of the Staff Regulations did not allow a registered partnership to be treated as equivalent to marriage.
4 A complaint against that decision was also rejected on 30 June 1997.
5 On 2 October 1997, therefore, the official applied to the Court of First Instance for annulment of the refusal of his request and for him to be granted all of the advantages to which his legal status as a registered partner entitled him under the Staff Regulations. The application for annulment was supported by the Swedish Government.
6 In the contested judgment the Court of First Instance dismissed D's application. Both D and the Kingdom of Sweden appealed against the judgment, on 13 and 14 April 1999 respectively.
7 The appeals, registered under numbers C-122/99 P and C-125/99 P, were joined for the purposes of the written and oral procedure and the judgment.
II - Legal background
A - The Staff Regulations of Officials of the European Communities
8 Article 1(2) of Annex VII to the Staff Regulations of Officials of the European Communities (`the Staff Regulations') provides:
`2. The household allowance shall be granted to:
(a) a married official;
(b) an official who is widowed, divorced, legally separated or unmarried and has one or more dependent children within the meaning of Article 2(2) and (3) below;
(c) by special reasoned decision of the appointing authority based on supporting documents, an official who, while not fulfilling the conditions laid down in (a) and (b), nevertheless actually assumes family responsibilities.'
B - The Swedish law on registered partnerships
9 Article 1 of Chapter 1 of the Lagen om registrerat partnerskap (Law on registered partnership) of 23 June 1994 (1994:1117), which came into force on 1 January 1995, provides:
`Two persons of the same sex may apply for registration of their partnership'.
10 Article 1 of Chapter 3 of the same law provides:
`A registered partnership shall have the same legal effects as a marriage, subject to the exceptions provided for in Articles 2 to 4.
The legislative provisions relating to marriage and spouses shall apply correspondingly to registered partnerships and to registered partners, unless otherwise provided for in the rules relating to the exceptions laid down in Articles 2 to 4.'
III - The appeal
A - Introduction
11 In their appeals, D and the Kingdom of Sweden, supported by the Kingdom of Denmark and the Kingdom of the Netherlands, challenge the dismissal by the Court of First Instance, in the contested judgment, of their pleas directed essentially at having D recognised as a `married official' for the purposes of Article 1(2)(a) of Annex VII to the Staff Regulations.
12 In the written pleadings, D relies on five pleas in support of his appeal:
- failure to provide an adequate statement of grounds in the contested judgment;
- breach of the principle of conferred powers;
- breach of the `principle of the integrity of the personal status of Community nationals';
- breach of the principle of freedom of movement for workers, and the principles of equal treatment and non-discrimination, a plea divided into two parts, the first alleging discrimination based on sexual orientation and the second discrimination based on nationality and restriction of freedom of movement for workers;
- infringement of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (`the Convention').
13 The Kingdom of Sweden considers that the Court of First Instance misinterpreted Annex VII to the Staff Regulations in holding that officials in registered partnerships should not be treated as married officials for the purposes of allocation of the household allowance. The Kingdom of Denmark and the Kingdom of the Netherlands take essentially the same position.
14 Conversely, the Council considers that the Court interpreted Annex VII to the Staff Regulations correctly and denies the existence of the failure and breaches alleged by D.
15 I will examine the various pleas in the appeal in the order in which they were put forward by D. The arguments of the Kingdom of Sweden, the Kingdom of Denmark and the Kingdom of the Netherlands may relate to one or other of D's pleas. As a preliminary matter, and in response to a remark made by D, something should be said, however, on the subject-matter of the proceedings.
B - The subject-matter of the proceedings
16 D claims that the Court of First Instance defined the subject-matter of the dispute incorrectly.
17 He alleges that the Court considered that the subject-matter of the pre-litigation procedure was confined to the grant of the household allowance and that therefore the action could seek only the annulment of the refusal to grant the request for that.
18 According to D, his application sought to obtain recognition of his civil status as a registered partner with a view to establishing his rights under the Staff Regulations in general. Consequently, the Court erred in law in limiting the scope of the claim to the household allowance.
19 The Council has replied that the correspondence exchanged shows unequivocally that the assimilation of the appellant's status to marriage was requested for the sole purpose of obtaining the household allowance.
20 We must therefore examine the notes exchanged between D and the Council at the stage of his request.
21 In his first, handwritten, note of 16 September 1996, addressed to the Council's appointing authority, D wrote: `Here are the supporting documents requested with a view to my civil status as a registered partner being accepted as marriage.' That note was immediately followed by a second handwritten note, dated 24 September 1996 and worded, in so far as the body of the text was concerned, as follows: `Here is the documentary evidence of my marriage. Thank you in advance for dealing with my application favourably.'
22 In his complaint, signed by his lawyer, D described the two notes as seeking the household allowance. Paragraph 3 of the complaint reads as follows: `By notes of 16 and 24 September 1996, he applied for a grant of the household allowance' (underlined in the text of the complaint).
23 It is true that in another note, dated 16 October 1996, he wrote: `My spouse intends to join me in Brussels at the beginning of November and as such is therefore entitled to the benefit of the provisions set out in the Protocol on Privileges and Immunities.' But the subject of that note was described as being an `application for the household allowance'.
24 Even if the notes exchanged were somewhat ambiguous, probably due to the fact that D was not yet fully familiar with the Staff Regulations, it may be concluded none the less that the Court did not err in law in describing the subject-matter of the proceedings as the grant of the household allowance.
25 In addition, that controversy is to a large extent artificial in my view, since the issue between the parties swiftly came down to the definition of the term `married official' in Article 1(2)(a) of Annex VII to the Staff Regulations. It was the Council's Director of Personnel himself who, in a note of 29 November 1996, that is to say prior to the complaint, was the first to state that the request for the grant of a household allowance could be satisfied only if it was possible to consider D as a married official within the meaning of that provision.
26 The Court, too, stated in paragraph 26 of the contested judgment that the problem should be considered in the light of that provision and it went on to consider in substance whether the status of a registered partnership could, or could not, be treated as equivalent to marriage.
27 If the Court had concluded that it could, the applicant would have been entitled automatically, not only to the household allowance, but to all of the benefits which the Staff Regulations attach to marriage.
28 His claim was therefore considered in the same way as if the subject-matter of the proceedings had been obtaining the status of `married official' in full.
C - The statement of grounds in the judgment
29 In his first plea, D argues that in paragraph 36 of the contested judgment the dismissal of his plea relating to breach of the principle of the integrity of a person's status is not sufficiently reasoned. The Court held that `That plea, assuming that it is different from the [plea relating to breach of the principles of equal treatment and non-discrimination], is in any event irrelevant, since the decision refusing his request was restricted to considering that D was unmarried within the meaning of the Staff Regulations, for the sole purpose of determining his entitlement to the allowance reserved for married officials'.
30 According to D, the Court has not replied separately to the pleas submitted by him at first instance and relating, respectively, to breach of the principle of equal treatment and failure to respect the integrity of the civil status of persons within the Community. Furthermore, the Court did not consider the latter plea.
31 In my opinion, paragraph 36 of the contested judgment indicates that the Court in fact responded separately to D's plea relating to breach of the principle of the integrity of civil status. In particular, the Court declared, with reasons (`since ...'), that the second plea was irrelevant.
32 There is therefore a statement of grounds, which, in fact, appears to me to be sufficient. The fact that, as the Court found, `the decision refusing his request was restricted to considering that D was unmarried within the meaning of the Staff Regulations', is not the same as failing to have regard to the civil status of D under Swedish law, which is that of a registered partner. By contrast, if the principle of the integrity of civil status means that D must be considered to be, under the Staff Regulations, in the same situation as a married person, the Court correctly considered that the plea relating to breach of the integrity of civil status was no different in fact from the plea relating to breach of equal treatment.
33 I am therefore of the opinion that D's first plea is unfounded.
D - The application of the principle of conferred powers
34 D's second plea relates to breach of the principle of conferred powers (Article 4 of the EC Treaty, now Article 7 EC) which the Court committed in considering that it was for the Council to give an independent interpretation of the term marriage within the meaning of the Staff Regulations.
35 In a strict sense, the plea raises only the problem of the method of interpreting Article 1(2) of Annex VII to the Staff Regulations. None the less, as the Kingdom of Sweden alleges that the Court misinterpreted that provision of the Staff Regulations, I believe it useful to consider, not only the method of interpretation to be used, but also the result reached by the required method.
36 In the contested judgment, the Court reviewed its case-law, in particular the judgment in Arauxo-Dumay v Commission (1) according to which the term `marriage' in the Staff Regulations must be understood to mean a relationship based on civil marriage in the traditional sense of the term. The Court held, referring to the judgment in Díaz García v Parliament, (2) that there is no need to refer to the law of the Member States where the relevant provisions of the Staff Regulations allow of independent interpretation.
37 By contrast, according to D, supported by the Kingdom of Sweden and by the interveners, the Council is bound, in determining whether a registered partnership under Swedish law is to be considered as a marriage within the meaning of the Staff Regulations, by the provisions of Swedish law.
38 According to the Kingdom of Sweden, in not having taken account of Swedish law which treats registered partners as equivalent to married persons, the Court misinterpreted Article 1(2) of Annex VII to the Staff Regulations in considering that officials in a registered partnership did not have to be treated as equivalent to married officials for the purposes of the grant of the household allowance.
39 The Council, relying in particular on the case of Reed, (3) claims that the contested judgment is in accordance with the principle of independent interpretation of Community law in the absence of express reference to national law. The Council considers that the Court correctly interpreted the provision of the Staff Regulations at issue.
40 I am of the opinion that the Court should, as suggested by the Council, rely on the judgment in Reed. Even if it is true, as stated by the appellants, that as regards the facts the judgment relates not to a registered partnership but to a stable relationship, in that case between two persons of opposite sex, it is my view that the difference is irrelevant.
41 The essential point of the judgment is not that it gives us a fixed definition of the term `spouse' in a well-defined context. A careful reading shows, on the contrary, that the judgment has a more general scope in providing us with a method of interpretation which enables us to define the term `spouse' or analogous terms, outside the specific context of the case in which it occurred. The only condition for applying that method, which is satisfied in the present case, is that the term should be envisaged by a regulation, the reasoning of the Court of Justice being based on the specific characteristics of regulations.
42 What the Court of Justice held in Reed was that it follows from the specific characteristics of regulations (binding in their entirety and directly applicable in all Member States) that the interpretation given by the Court to a provision of a regulation has effects in all of the Member States and `that any interpretation of a legal term on the basis of social developments must take into account the situation in the whole Community, not merely in one Member State'. (4) The Court concluded that `[i]n the absence of any indication of a general social development which would justify a broad construction, and in the absence of any indication to the contrary in the regulation', the term `spouse' in the regulation in question referred to a marital relationship only. (5)
43 It is my opinion that it is clear from that judgment that where the term `spouse', or analogous terms such as `marriage' or `married person', are used in a regulation, they should be given an independent interpretation, that is to say an interpretation which takes into account the situation in the whole Community, and not merely in one Member State.
44 That approach is in fact consistent with the Court's case-law according to which the need for a uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the Community. (6)
45 The judgment in Hoekstra (née Unger), (7) debated by the parties, appears to me to confirm the same view. The Court held that `the concept of "workers" in ... [Articles 48 to 51 of the EC Treaty] does not therefore relate to national law, but to Community law'. (8)
46 I am therefore of the opinion that the Court of First Instance did not breach the principle of conferred powers in judging that it was for the Council to interpret the term `married official' independently.
47 Similarly, I do not share the view of the Kingdom of Sweden that the Court of First Instance misinterpreted Article 1(2) of Annex VII to the Staff Regulations.
48 If one considers the situation in the whole Community, as laid down in Reed, it appears difficult to find otherwise than that in the context of the present case the definition of `marriage' includes only `traditional' marriage between two people of opposite sex. At the time of the events in question, there existed in only three of the fifteen Member States the legal category of registered partnership assimilating, to a greater or lesser degree, the communal life of two persons of the same sex to that of two married persons in the traditional meaning of the term.
49 Therefore, just as at the time of Reed there was no evidence of a general social development which would have justified a broad construction of the term `spouse', in order to include a partner in a stable relationship, there is no indication in the present case of a general social development allowing a registered partnership between two people of the same sex to be included within the term `marriage'.
50 In my opinion the Court of First Instance has not misinterpreted Article 1(2)(a) of Annex VII to the Staff Regulations in holding that the term `married official' does not include officials, such as D, in a registered partnership with a person of the same sex.
51 To the extent that it is required, one could also add that the finding is supported by the intention of the legislature itself.
52 At the time of adoption of Council Regulation (EC, ECSC, Euratom) No 781/98 of 7 April 1998 amending the Staff Regulations of Officials and [the] Conditions of Employment of Other Servants of the European Communities in respect of equal treatment, (9) the Council, as legislature, preferred not to follow the Swedish application to add to the Staff Regulations an assimilation of registered partnership with marriage. It did, however, call on the Commission to carry out the necessary studies in relation to the recognition of registered partnerships and to submit to the Council, on the basis of the studies in question, any appropriate proposal in those areas. (10)
53 It follows that, in the eyes of the legislature, an official having a registered partner of the same sex is not a `married official'.
54 Finally, it should be added that the final recital of Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission, (11) to which the Kingdom of the Netherlands refers and according to which the `Staff Regulations [must] ... secure for the Communities the services of officials ... of the highest standard of independence, ability, efficiency and integrity, recruited on the broadest possible geographical basis', in my opinion does not justify a conclusion as to the term `marriage' contrary to that which I have mentioned (paragraph 50) stemming from the settled case-law of the Court of Justice.
55 In the light of the preceding arguments, it is my opinion that D's second plea, and the argument of the Kingdom of Sweden that the Court of First Instance misinterpreted Article 1(2) of Annex VII to the Staff Regulations, are unfounded.
E - The application of the `principle of the integrity of the personal status of Community nationals'
56 D's third plea relates to breach of the `principle of the integrity of the personal status of Community nationals' which the Court of First Instance committed in giving an independent interpretation, different from that of Swedish law, to D's registered partnership. According to D, the absence of any provision of Community law governing that status requires that reference be made to Swedish law.
57 The Council considers that that principle, arising from the Opinion of Advocate General La Pergola in the Dafeki case (12) which D refers to, does not apply to the present case. The Council considers that the Court of First Instance acted correctly in giving an independent interpretation to the term `marriage' in the provision of the Staff Regulations in question.
58 It is apparent from reading the Opinion of Advocate General La Pergola that the `principle of the integrity of the personal status of Community nationals' referred to relates to the question to what extent Community nationals must be able to rely on documentation concerning their civil status which is issued to them by the competent authorities of their country of origin. In the context of that case, the issue was recognition by a Member State of an amended birth certificate of a Community national, issued by another Member State and including an amended date of birth.
59 In the present case, however, it should be noted that recognition of D's documentation relating to his civil status is not in question at all. The Council has challenged neither the civil status of D under Swedish law, which is that of a registered partner, nor the documentation relating to it produced by the Swedish authorities.
60 We are therefore not in the same situation as that in which Advocate General La Pergola developed his argument relating to the `principle of the integrity of the personal status of Community nationals'. Consequently, one cannot infer from that reasoning that such a principle has been breached in the present case.
61 In contrast, the question is whether the civil status of registered partner, which has not been challenged at all, must be treated as equivalent to that of a married person in the context of the application of Article 1(2)(a) of Annex VII to the Staff Regulations. So stated, the question relates to the principle of equal treatment, and not the `principle of the integrity of the personal status of Community nationals'.
62 In any event, whatever the effect of that principle, I do not see how it could require the other Member States, and the Community legal system through assimilation, to recognise the holders of a certificate of a Swedish registered partnership as legally married.
63 I am therefore of the opinion that D's third plea is unfounded.
F - Application of the principle of equal treatment
64 In the first part of his fourth plea, D submits that the interpretation given by the Court of First Instance to the provision of the Staff Regulations in question discriminates against him on the basis of his sexual orientation.
65 The Court of First Instance, in the context of the first plea at first instance, began by noting that Regulation No 781/98 came into force only after the adoption of the decision of refusal.
66 Relying on the case-law of the European Court of Human Rights and the Court of Justice, in particular on the case of Grant, (13) the Court of First Instance held that the Council, as an employer, was not required to regard as equivalent to marriage, within the meaning of the provisions of the Staff Regulations, the situation of a person who has a stable relationship with a partner of the same sex, even if it has been the subject of official registration by the national administration.
67 In the context of the fourth plea at first instance, which related more specifically to the principle of equal pay for men and women referred to in Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC), the Court of First Instance observed that the provisions of the Staff Regulations in question applied in the same way to female and male officials so that there was no discrimination prohibited by Article 119 of the EC Treaty.
68 The appellants and the interveners challenge the interpretation of the Court of First Instance. Essentially, they are all in agreement that the references in the contested judgment of the Court of First Instance to the case-law of the European Court of Human Rights on the definition of marriage are inopportune, as are those which refer to the judgment in Grant, that judgment dealing with the case of a relationship which was not formally recognised, and not a relationship which has been legally recognised having the same legal effects as marriage.
69 D also considers that, being in an identical situation, in law and in fact, to that of his married colleagues, he must be entitled to the same rights as to pay. The household allowance, which is justified by the fact that the official has to provide for dependants, (14) is one of those rights. The only reason for the discrimination against him in relation to this lies in the fact that his partner is of the same sex.
70 According to D, that difference in treatment constitutes discrimination solely on the basis of sexual orientation. He considers that there has been a breach of Article 119 of the Treaty, a provision which the Court interpreted in a non-formalistic way in P v S. (15)
71 In the same way, the Kingdom of Denmark refers to the logic and purpose of the provision of the Staff Regulations in question, which concerns the reimbursement of costs linked to establishing the spouse in the place of the official's employment with a view to attracting competent employees to the Community institutions. Those costs are the same whether the person is a spouse or a partner.
72 The Council, relying on the real differences under Swedish law between marriage and a registered partnership, considers that one cannot treat one of the two legal categories as equivalent to the other. Relying on Reed and Grant, the Council further submits that only the legislature can decide whether to sanction the suggestion that those two different categories be treated in the same way.
73 The Council also notes that an assimilation of registered partnerships with marriage was requested by the Kingdom of Sweden at the time of adoption of Regulation No 781/98. When the Council, as legislator, inserted in the Staff Regulations an Article 1a to the effect that `officials shall be entitled to equal treatment under these Staff Regulations without reference ... to sexual orientation', it did so expressly `without prejudice to the relevant provisions requiring a specific marital status'.
74 What is to be made of those arguments?
75 In my opinion, in the absence of a provision of the Staff Regulations applicable at the time of the events in question (see paragraph 65 above), those arguments must be examined in the light of the general definition of the principle of equal treatment. According to settled case-law, discrimination occurs where identical or comparable situations are treated in an unequal way and the discrimination is not objectively justified. (16)
76 Even assuming that the Council's appointing authority was entitled to refer to the situation in only one Member State, which is not possible in the light of the categorical terms of Reed, it is clear that, even under Swedish law, marriage and registered partnerships constitute two distinct legal categories. Not only do these two categories not have the same name, but there are in the legal provisions governing them a number of differences which have been widely debated amongst the parties.
77 Thus the Swedish legislature did not wish to give two persons of the same sex unqualified access to the legal category of marriage, but preferred to create a distinct legal category, partially governed by other rules. Some of those rules, such as the prohibition on registered partners adopting children or exercising joint custody of children, are exactly the opposite of those in relation to marriage. In addition, registered partnerships are possible only where one of the partners is Swedish and resides in Sweden, which is not required in relation to marriage.
78 It follows that, even considering only Swedish law, the situation of a person living with a partner of the same sex under a registered partnership is not the same in law as that of a married person.
79 It is from the point of view of Community law, however, that the question whether the situation of persons living with a partner of the same sex in a partnership must be considered as identical or comparable to that of married persons falls to be considered.
80 On that point, I consider, unlike D and the three governments, that the Grant case is of fundamental importance. In that judgment, the Court of Justice found it necessary to respond to the question of whether `persons who have a stable relationship with a partner of the same sex are in the same situation (17) as those who are married or have a stable relationship outside marriage with a partner of the opposite sex'. (18)
81 The Court of Justice responded to that question in the negative. After a thorough analysis, in particular of the case-law of the European Court of Human Rights, the Court found that `in the present state of the law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent (19) to marriages or stable relationships outside marriage between persons of opposite sex'. (20)
82 The Court added, in the following paragraph, that `in those circumstances, it is for the legislature alone to adopt, if appropriate, measures which may affect that position.'
83 In my opinion, the Court of First Instance was right to have applied the reasoning of the Court of Justice in Grant to the present case.
84 I note first of all that the judgment was given in 1998, while D made his application in 1995.
85 I also note that, contrary to what was argued by the Kingdom of Denmark, the reasoning of the Court of Justice in Grant is sufficiently general to apply also to the Council as an `employer', and not only to employers in the private sector.
86 A reading of paragraph 35 of that judgment, in particular the sentence already cited from that paragraph (see paragraph 81 above), shows that the Court of Justice reached a conclusion which applies as regards Community law in general, and not only a specified area of Community law.
87 Finally and above all, unlike the appellants and the interveners, it is my opinion that the fact that Grant relates to a stable relationship, and not a registered partnership, is not a reason to distinguish that judgment. In that judgment, civil status (marriage or a stable relationship) was not a factor in the Court's reasoning. It is significant, for the purpose of the outcome of the present case, that the Court found that a stable relationship with a person of the same sex was different from a stable relationship between two persons of opposite sex. In the context of that comparison, the only different factor which was taken into account was not therefore the civil status of the persons in question, but the nature of their relationship, heterosexual or homosexual.
88 Since it considered that a stable relationship between two persons of the same sex is in the present state of the law within the Community different from a stable relationship between two persons of opposite sex, one may therefore rely on the judgment in Grant in maintaining that a registered partnership is also different from marriage.
89 Consequently, since a person, in the present case an official, who has entered into a registered partnership is not, according to the case-law of the Court of Justice, in a situation comparable to that of a married official, the general principle of equal treatment does not require that the first be treated in the same way as the second.
90 It should be added that the fact that an official having a registered partner must provide for his partner or that he must meet the costs of establishing his partner in the place where he is employed is not sufficient, in my opinion, to justify the conclusion that the official must be treated as a married official within the meaning of Article 1(2)(a) of Annex VII to the Staff Regulations.
91 That provision requires not only the existence of an obligation to maintain but, in addition, that the obligation arises within a specific context, namely that of marriage. In any event, it follows from Reed, analysed above (see paragraphs 42 and 43), that the definition of marriage must be given an independent interpretation taking into account the situation in the Community as a whole.
92 It is therefore not possible, without ignoring the condition laid down by the Staff Regulations and its interpretation in the case-law, to consider on the basis of the similar obligations applicable under Swedish law for married persons and registered partners, that registered partners must be entitled to the benefit of a provision of the Staff Regulations applicable expressly to married officials.
93 As for the argument which D seeks to make relating to an infringement of Article 119 of the Treaty, the Council objects that the provision covers only discrimination based on a person's sex and not that based on their sexual orientation, their civil status or their financial obligations.
94 On that point, I concur, as does the Council, with the finding of the Court of First Instance that the provision of the Staff Regulations in question applies to female and male officials alike and thus does not involve discrimination prohibited by Article 119 of the Treaty. The Court of First Instance refers in that context to Grant, in which the Court of Justice held clearly, also in taking account also of the case P v S to which the appellant now refers, that a difference in treatment based on sexual orientation does not fall within the scope of application of Article 119 of the EC Treaty. (21)
95 Finally, the fact that the European Court of Human Rights recently ruled that in an individual case a distinction dictated by considerations relating to the sexual orientation of a person may constitute a violation of Article 8 in conjunction with Article 14 of the Convention (22) does not cause me to change my view in the present case.
96 That recent judgment does not appear to alter the finding that, at the time of the events relating to the present case, the state of the law within the Community indicated that a person living with a registered partner of the same sex was not in the same position as a married person and therefore the former was not entitled to demand the same treatment as that accorded to the latter.
97 Article 9 of the Charter of Fundamental Rights of the European Union promulgated in Nice in December 2000 provides that `The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.' In the explanations drawn up under the aegis of the presidium of the convention, which do not have any legal value but which are simply designed to clarify the provisions of the Charter in the light of the discussions which took place within the convention, there is the remark that Article 9 `neither prohibits nor requires the grant of the status of marriage to relationships between persons of the same sex.' In my opinion, that confirms the difference between marriage and a relationship between two people of the same sex.
98 For all of the preceding reasons, I am of the opinion that the first part of D's fourth plea is unfounded.
G - Discrimination based on nationality and the obstacle to the freedom of movement of workers
99 In the second part of his fourth plea, D considers that in denying partners registered under legislative provisions of three Member States (the Kingdom of Denmark, the Kingdom of Sweden, the Kingdom of the Netherlands) their entitlement to the rights attached to their status the contested decision constitutes discrimination on the basis of nationality and has a dissuasive effect on the exercise of freedom of movement.
100 It should be noted that a plea relating to discrimination on the basis of nationality and/or an obstacle to freedom of movement was not relied on by D during the proceedings at first instance. The Court's jurisdiction being confined to review of the findings of law on the pleas argued before the Court of First Instance, (23) I am of the opinion that the second part of D's fourth plea is inadmissible.
101 Furthermore, if one were to consider, as D suggests in his reply, that the plea relating to discrimination on the basis of nationality is only a development of the plea of breach of the principle of non-discrimination already put forward at first instance, without amounting to a new one, the plea would still be unfounded.
102 Under Swedish law, a registered partner does not necessarily have to have Swedish nationality. Only one of the two partners has to have this.
103 The other partner, whatever his nationality, will likewise not, if he is an official, be considered to be a `married official'.
104 It follows that there is no difference in treatment on the basis of nationality and, consequently, there is no discrimination in that context.
105 None the less, as far as the plea relating to the obstacle to freedom of movement is concerned, it should be stated that freedom of movement does not require that a worker be entitled, in the new social security system to which he belongs, to benefits identical to those to which he was entitled in the social security system to which he was affiliated previously. In that sense, there is no obstacle to freedom of movement in the present case.
106 By contrast, if the plea relating to freedom of movement seeks to obtain, in the context of the new social security system, the benefits accorded to others within that system, in the present case married officials, the plea is in fact identical to that relating to equal treatment. As far as the final plea is concerned, that shows that it is unfounded.
107 The second part of D's fourth plea is therefore, in the alternative, unfounded.
H - Respect for private and family life, guaranteed by Article 8 of the Convention
108 D's fifth plea relates to respect for private and family life, guaranteed by Article 8 of the Convention. According to D, the protection of private life entails recognition of the existence and effects of a lawfully acquired civil status and prohibits the interference constituted by the communication of incorrect information to third parties. The present case concerns information forwarded by the Council to the Belgian authorities to the effect that D was single. D submits that the situation contemplated in Grant, which the Court of First Instance was wrong to have referred to, is not analogous to the present case.
109 Like the Council, I do not share that view. In Grant, the reasoning in which should be applied to the present case for the reasons already mentioned (see paragraphs 83 to 88 above), the Court referred to decisions of the European Commission of Human Rights according to which, despite the modern evolution of attitudes towards homosexuality, stable homosexual relationships do not fall within the scope of the right to respect for family life under Article 8 of the Convention. (24)
110 Contrary to what D maintains, those decisions of the European Commission of Human Rights were not all prior to the introduction of registered partnerships. The decision in Kerkhoven and Hinke v The Netherlands, to which the Court refers, dates from 1992, while the introduction of registered partnerships in Denmark, for example, dates from 1989.
111 Furthermore, as mentioned by the Council, the communication of incorrect information to third parties complained of by D has no connection with the present dispute.
112 I am therefore of the opinion that D's fifth plea is unfounded.
I - The plea relating to breach of Article 1(2)(c) of Annex VII to the Staff Regulations
113 During the hearing D, through his legal adviser, submitted that the Council should have granted him the household allowance under Article 1(2)(c) of Annex VII to the Staff Regulations.
114 It should be noted, however, that he did not refer to that provision in his application, his complaint or his action before the Court of First Instance. The Court of Justice's jurisdiction is confined to review of the findings of law on the pleas argued before the Court of First Instance. (25)
115 It follows that, in my opinion, the plea relating to breach of Article 1(2)(c) of Annex VII to the Staff Regulations is inadmissible.
J - Final considerations
116 In short, I therefore consider that the appeals brought by D and by the Kingdom of Sweden are unfounded. At the time of the events in question, neither Article 1(2)(a) of Annex VII to the Staff Regulations, nor the principles relied on by D, enabled him to be treated, as a registered partner, as equivalent to a `married official'. As pointed out by the Court of First Instance, only the Community legislature would be competent to decide on such an assimilation.
117 In relation to costs, it should be held that, under Article 122 of the Rules of Procedure, Article 70 of the Rules of Procedure does not apply to the present case. Therefore, Article 69(2) of the Rules of Procedure should apply, under which `where there are several unsuccessful parties the Court shall decide how the costs are to be shared' and from which, in my opinion, there is no need to derogate using the discretionary power provided for by Article 122 of the Rules of Procedure. Taking into account the number of pleas relied on by D, and by the Kingdom of Sweden, it appears to me to be fair to order D to pay two thirds of the Council's costs and the Kingdom of Sweden to pay one third.
118 As regards the interveners, they are to pay their own costs under Article 69(4) of the Rules of Procedure.
IV - Conclusion
119 By way of conclusion, I propose that the Court should:
- dismiss the appeal;
- order D to pay his own costs and two thirds of those of the Council of the European Union;
- order the Kingdom of Sweden to pay its own costs and one third of those of the Council of the European Union;
- declare that the Kingdom of Denmark and the Kingdom of the Netherlands are to pay their own costs.
(1) - Case T-65/92 [1993] ECR II-597, paragraph 28.
(2) - Case T-43/90 [1992] ECR II-2619, paragraph 36.
(3) - Case 59/85 [1986] ECR 1283.
(4) - Reed, paragraphs 12 and 13.
(5) - Reed, paragraph 15.
(6) - See, for example, Case 327/82 Ekro [1984] ECR 107, paragraph 11, and Case C-287/98 Linster [2000] ECR I-6917, paragraph 43.
(7) - Case 75/63 [1964] ECR 177.
(8) - Hoekstra (née Unger), p. 363.
(9) - OJ 1998 L 113, p. 4.
(10) - Note, paragraph A, from the committee of permanent representatives of 27 March 1998 to the Council (doc. 6883/98) - Annex 2 to the Council's reply.
(11) - OJ, English Special Edition 1968 (I), p. 30.
(12) - Case C-336/94 [1997] ECR I-6761.
(13) - C-249/96 [1998] ECR I-621, paragraphs 34 and 35.
(14) - On that point, D referred in his pleadings to Case T-147/95 Pavan v Parliament [1996] ECR-SC I-A-291 and II-861, paragraph 42), and during the hearing to Case 248/87 Mouriki v Commission [1988] ECR 1721.
(15) - Case C-13/94 [1996] ECR I-2143.
(16) - See, in particular, Case C-389/98 P Gevaert v Commission [2001] ECR I-65, paragraph 54, and Case C-459/98 P Martínez del Peral Cagigal v Commission [2001] ECR I-135, paragraph 50.
(17) - The author's italics.
(18) - Grant, paragraph 29.
(19) - The author's italics.
(20) - Grant, paragraph 35.
(21) - Grant, paragraph 47.
(22) - Salgueiro da Silva Mouta judgment of 21 December 1999 (no 33290/96).
(23) - Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 59.
(24) - Grant, paragraph 33.
(25) - Commission v Brazzelli, cited above.
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