European Court Affirms Gay Rights

The long, slow slog towards equality for same-sex couples continues — with a victory, this time, in the European Court of Justice regarding status for employment benefits. The city-state of Hamburg declined to give a retired former employee supplementary retirement payments at the same tax rate as that due a married person. The plaintiff appealed the decision to the Labour Court of Hamburg, which referred a complex set of legal questions to the Court of Justice.

The Court [Jürgen Römer v Freie und Hansestadt Hamburg (URL imprecise) Case C‑147/08] made the following observation:

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As a preliminary point, it should be observed that, as European Union law stands at present, legislation on the marital status of persons falls within the competence of the Member States. However, in accordance with Article 1 thereof, the purpose of Directive 2000/78 is to combat, as regards employment and occupation, certain types of discrimination, including discrimination on the ground of sexual orientation, with a view to putting into effect in the Member States the principle of equal treatment.

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Under Article 2 of the Directive, the ‘principle of equal treatment’ is to mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1 of that directive.

The Court noted that the plaintiff, a man, was in a “registered life partnership,” obliging him legally to provide for his partner in the same manner that a married person is obliged to provide for a spouse. As a consequence, if on the facts of the particular case as ultimately determined by the lower court, the differential treatment had no justification other than that of marital status, it was capable of amounting to impermissible discrimination.

Slaw readers might prefer to learn more about the case from the Reuters news story than from the judgment itself.

On that score let me say that even though I had to read a judgment here hampered by translation from German into English, plain language in judgments has not found its way within many kilometres of the Court of Justice. This is perhaps the furthest thing imaginable from a stirring declaration of equality, and is, instead, bureaucratic clockwork masquerading as prose. Anyone who ever feels hard done by for having to read Canadian judgments should have a crack at this text and learn what good fortune is.