Advocate General Michael B. Elmer recommended that the Court should hold that a provision in an employer's pay regulations under which an employee was granted pay benefit in the form of travel concessions for a cohabitee of the opposite gender to the employee, but refused such concessions for a cohabitee of the same gender as the employee, constituted discrimination on the basis of gender which is contrary to Article 119 of the EC Treaty.
Lisa Grant was an employee of South-West Trains whose contract of employment included entitlement to certain free and reduced rate travel concessions. Those concessions were also available to spouses and dependents of employees. The relevant regulation provides "Privilege tickets are granted for one common-law opposite sex spouse of staff" provided that a meaningful relationship has existed for a period of two years or more.
Mr Potter, who was Lisa Grant's predecessor in post, had in his time made a statutuory declaration that a meaningful relationship had existed between him and his female cohabitee for a period of two years or more, and had on that basis obtained travel concession for her.
Lisa Grant made a similar application for travel concessions for her female cohabitee, Jillian Percey, with whom she had lived for more than two years, but her application was rejected on the ground that, under the ticket regulations, travel concessions were not granted for cohabitees of the same sex.
Lisa Grant then brought a case against South-West Trains before the Industrial Tribunal, Southampton claiming that the refusal to grant those travel concessions for her female cohabitee amounted to sex discrimination when a male employee in the same circumstances would obtain travel concessions for his female cohabitee. The Industrial Tribunal stayed the proceedings and referred several questions to the Court of Justice on the interpretation of Article 119 of the EC Treaty and of the equal pay and equal treatment directives.
The Advocate General, acting with complete independence and impartiality, assists the Court by analysing the circumstances and the legal issues arising in the case and makes a recommendation to the Court on the answers which, in his view, it should give to the questions submitted by the Industrial Tribunal. His recommendation is not binding on the Court.
The Advocate General first concluded that the questions referred to the Court should be answered on the basis of Article 119 of the EC Treaty and referred to the Court's judgment in case C-13/94 P v S and Cornwall County Council [April 1996] concerning an employee who had been dismissed after informing his employer that he intended to undergo gender re-assignment. In the Advocate General's view the Court had, in that judgment, taken a decisive step away from an interpretation of the principle of equal treatment based on the traditional comparison between a female and a male employee.
The Court's judgement in P v S technically concerned the equal treatment directive but, because of its general character, it has corresponding significance for Article 119 of the EC Treaty which sets out the basic principle prohibiting discrimination based on sex. In order to give effect to that principle the Advocate General stated that it was appropriate to interpret Article 119 of the Treaty as precluding forms of discrimination against employees based exclusively, or essentially, on gender. He therefore concluded that Article 119 of the Treaty covered all cases where, on an objective assessment, there was discrimination based exclusively or essentially on gender.
He then examined the question of whether or not there was gender discrimination in the present case and pointed out that the ticket regulations made no mention of sexual orientation of the employee or cohabitee, and that the question of sexual orientation, under the objective content of that clause, is thus irrelevant as far as entitlement to the concessions is concerned.
However, the regulations made the concessions conditional on the cohabitees being of the "opposite sex" to the employee. The discrimination is therefore, under the objective content of the provision, exclusively gender based. Gender was simply the only decisive criterion in the provision. Thus the grant of the pay benefit in question depended upon the gender of the employee, (inasmuch as employees must be of the opposite sex to their cohabitees), and upon the gender of the cohabitee (inasmuch as cohabitees mut be of the opposite sex to the employee).
The Advocate General rejected the argument that that discrimination was a consequence of the definition of "a common law spouse" and was thus a family law issue which did not fall under the EC Treaty, since neither in statute nor common law did that expression have any legal significance in England. If the expression 'common law spouses' referred exclusively to persons of different sexes, there would be no reason to refer to a 'common law opposite sex spouse'. It was South-West Trains itself which introduced that restriction, leading to gender discrimination. Accordingly, in this case, gender discrimination was not the result of family law legislation in the Member State in question and for that reason outside the scope of Community law.
He also found that the private conceptions of morality held by the employer in question were irrelevant in this context, whether or not they corresponded to those prevailing in the United Kingdom. South-West Train's justification amounted, in reality, to nothing more than saying that on the basis of its own private conceptions of morality that employer wished to set aside a fundamental principle of Community law in relation to some people because it did not care for their life style.
Under the Treaty it is the rule of law in the Community that the Court must safeguard; it is not its task to watch over questions of morality either in the individual Member States or in the Community, nor does it have any practical possibility of or mandate for doing so.
The Advocate General emphasized that there is nothing in either the EU Treaty or the EC Treaty to indicate that the rights and duties which result from the EC Treaty, including the right not to be discriminated against on the basis of gender, should not apply to homosexuals, to the handicapped, to persons of a particular ethnic origin or to persons holding particular religious views. Equality before the law is a fundamental principle in every community governed by the rule of law and accordingly in the Community as well. The rights and duties which result from Community law apply to all without discrimination and therefore also to the approximately 35 million citizens of the Community, depending on the method of calculation used, who are homosexual.
Finally he re-affirmed that Article 119 of the EC Treaty could be relied upon by individuals in national courts and that it was therefore for national courts to ensure that the disadvantaged group of employees was treated in the same way as the favoured group.
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