ECJ - Equal Treatment of Same-Sex Couples

16 May 2011

Römer v. City of Hamburg

Rechtskomitee LAMBDA: "Groundbreaking case for the whole of Europe"

In its judgment delivered today in the case Jürgen Römer vs. City of Hamburg (C-147/08) (litigated by RKL-President Graupner) the Grand Chamber of the Court of Justice of the European Union ruled that same-sex couples must have access to all the employment benefits for married couples.

Mr. Jürgen Römer is a retired employee of the City of Hamburg. Since 1969, he has been living with his partner, Mr. Alwin Ulrich, in committed loving relationship, so for over 40 years. In 1999 they registered their partnership under the City of Hamburg's registration scheme and immediately after the introduction of federal registered partnership they entered "life partnership" in 2001.

The City of Hamburg pays to Mr. Römer a lower pension then to its pensioners with a married partner. His retirement pension is lower then for married pensioners solely on the basis that he has a (same-sex) registered partner and not a (different-sex) married partner. Germany allows registered partnership only for same-sex couples and civil marriage only for opposite-sex couples. Mr. Römer sued the City of Hamburg and the Hamburg Labour Court referred the case to the ECJ for interpretation of the EU-Antidiscrimination-Directive.

Mr. Römer is represented by Hamburg attorney Birgit Boßert and by ILGA-Europe with ILGA-Europe itself represented by RKL-president Dr. Helmut Graupner.

Direct Discrimination

The Grand Chamber of the Court of Justice of the European Union today ruled that same-sex couples must have access to employment benefits (including pension rights) granted to married couples. Based on the EJC's landmark-judgment in Maruko vs. VddB (01.04.2008), which has also been litigated by RKL-president Dr. Helmut Graupner, and following the line of argument put forward by ILGA-Europe the Advocate General argues that marriage and family law rests in the competence of the member-states and not of the Union. But if a member-state decides to restrict civil marriage to opposite-sex couples, it nevertheless, under Union law, has to guarantee equal treatment and grant homosexual couples (despite not being married) access to all the employment benefits granted to married couples.

If a member-state (like Germany, Austria and the United Kingdom) has a registered partnership putting same-sex couples into a legal position comparable to married couples, exclusion from marriage benefits constitutes direct discrimination (par. 51).

Advocate General Niilo Jääskinen in his opinion, in addition, held that such an exclusion from marriage benefits constitutes indirect discrimination if a member-state (like France and Luxemburg) created a registration scheme for same-sex couples inferior to civil marriage or if a member-state (like Italy, Poland and Slovakia) grants same-sex couples no registration at all. The Court of Justice, as the Römer-case arose from Germany, did not address the situation in such other member-states and left the decision on indirect discrimination to later cases coming from such member-states.

General principle of Union law
Protection of marriage and the family as such, the ECJ says, cannot serve as valid justification for such discrimination. Protection of marriage and the family in a national constitution, as it is the case in Germany, cannot compromise the prohibition of discrimination on the basis of sexual orientation. Union law supersedes also national constitutional law (par. 37, 51).

The ECJ stresses that the prohibition of discrimination on the basis of sexual orientation is a general principle of Union law) (par. 59). Equal treatment (and compensation) can be claimed back to 3rd December 2003, the latest date for the member-states to implement the Anti-Discrimination-Directive (2000/78/EC) (par. 64).

"The Grand Chamber judgment is groundbreaking", says Dr. Helmut Graupner, president of the Austrian lesbian and gay rights organization Rechtskomitee LAMBDA (RKL) and counsel of Jürgen Römer, "Even if a member-states prefers segregation, excludes same-sex couples from marriage and refers them to a separate marriage-like institution, it nevertheless has to grant same-sex couples access to all the employment benefits married couples enjoy; if the law separates it at least has to grant the same rights and obligations".

_{Rechtskomitee LAMBDA (RKL), founded in 1991, on a supra-partisan and denominational level is working for the implementation of human rights for homo- and bisexual men and women. In its honorary board it convenes so prominent members as former Prime Minister Dr. Alfred Gusenbauer, President of Federal Parliament Mag. Barbara Prammer, former Minister of Justice Mag. Karin Gastinger, the Honorary President of the Parliamentary Assembly of the Council of Europe Peter Schieder, Federal Ombudsman Mag. Terezija Stoisits, former member of Vienna state parliament Marco Schreuder, former Director of Public Security Dr. Erik Buxbaum, the former President of National Judges Association Dr. Barbara Helige, the Chairwoman of the National Judges Association's Working Party on Fundamental Rights Dr. Mia Wittmann-Tiwald, the Vice-President of the Vienna Bar-Association Dr. Elisabeth Rech, the former President of D.A.S.-legal expenses insurance company Dr. Franz Kronsteiner, the President of Weisser Ring Dr. Udo Jesionek, the Secretary General of Amnesty International Austria Mag. Heinz Patzelt, the Vice-Chairperson of the Executive Board of the European Union Agency for Fundamental Rights Univ.-Prof. Dr. Hannes Tretter, and the well-known human-rights experts Dr. Lilian Hofmeister and Univ.-Prof. Dr. Manfred Nowak, the constitutional law professors Univ.-Prof. Dr. Christian Brünner, Univ-Prof. Dr. Bernd-Christian Funk, Univ.-Prof. Dr. Heinz Mayer and Univ.-Prof. Dr. Ewald Wiederin, famous child- and adolescent psychiatrist Univ.-Prof. Dr. Max Friedrich and the Vienna Child- and Youth-Ombudspersons DSA Monika Pinterits and Dr. Anton Schmid, sexologists Univ.-Prof. Dr. Josef Christian Aigner, Univ.-Prof. Dr. Rotraud Perner and Univ.-Lekt. Mag. Johannes Wahala, Life-Ball-Organisor Gery Keszler and many more. October 2nd, 2006, RKL's 15 years anniversary has been celebrated in historic Ceremonial Act "Against Sexual Apartheid" in the lower chamber of Austrian federal parliament. This first honouring of an lgbt organisation in the plenary session hall of a national parliament worldwide took place in attendance of over 500 guests including highest representatives from the judiciary, administration and politics (http://www.rklambda.at/festakt/index.htm). Since 2010 RKL is a member of the Fundamental Rights Platform of the European Union Agency for Fundamental Rights (www.fra.europa.eu).}

See the judgment of the Grand Chamber of the ECJ and the opinion of the Advocate General at:

http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&Submit=Rechercher&alldocs=alldocs&docj=docj&docop=docop&docor=docor&docjo=docjo&numaff=C-147/08&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100

More information: Rechtskomitee LAMBDA, (+43/1/876 30 61), office@RKLambda.at; www.RKLambda.at