JUDGMENT OF THE COURT
17 February 1998
(Equal treatment of men and women Refusal of travel concessions tocohabitees of the same sex)
In Case C-249/96,
REFERENCE to the Court under Article 177 of the EC Treaty by the IndustrialTribunal, Southampton, for a preliminary ruling in the proceedings pending beforethat tribunal between
Lisa Jacqueline Grant
South-West Trains Ltd
on the interpretation of Article 119 of the EC Treaty, Council Directive75/117/EEC of 10 February 1975 on the approximation of the laws of the MemberStates relating to the application of the principle of equal pay for men and women(OJ 1975 L 45, p. 19), and Council Directive 76/207/EEC of 9 February 1976 onthe implementation of the principle of equal treatment for men and women asregards access to employment, vocational training and promotion, and workingconditions (OJ 1976 L 39, p. 40),
composed of: G.C. Rodríguez Iglesias, President, C. Gulmann, H. Ragnemalm,M. Wathelet (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida,P.J.G. Kapteyn, J.L. Murray, D.A.O. Edward, J.-P. Puissochet (Rapporteur),G. Hirsch, P. Jann and L. Sevón, Judges,
Advocate General: M.B. Elmer,
Registrar: L. Hewlett, Administrator,
after considering the written observations submitted on behalf of:
Ms Grant, by Cherie Booth QC, and by Peter Duffy and Marie Demetriou,Barristers,
South-West Trains Ltd, by Nicholas Underhill QC and Murray Shanks,Barrister,
the United Kingdom Government, by John E. Collins, of the TreasurySolicitor's Department, acting as Agent, and Stephen Richards and DavidAnderson, Barristers,
the French Government, by Catherine de Salins, Deputy Director in theLegal Affairs Department of the Ministry of Foreign Affairs, and Anne deBourgoing, Chargé de Mission in that department, acting as Agents,
the Commission of the European Communities, by Christopher Docksey,Marie Wolfcarius and Carmel O'Reilly, of its Legal Service, acting asAgents,
having regard to the Report for the Hearing,
after hearing the oral observations of Ms Grant, represented by Cherie Booth QC,Peter Duffy QC and Marie Demetriou; South-West Trains Ltd, represented byNicholas Underhill QC and Murray Shanks; the United Kingdom Government,represented by John E. Collins, David Anderson and Patrick Elias QC; and theCommission, represented by Carmel O'Reilly and Marie Wolfcarius, at the hearingon 9 July 1997,
after hearing the Opinion of the Advocate General at the sitting on 30 September1997,
gives the following
- By decision of 19 July 1996, received at the Court on 22 July 1996, the IndustrialTribunal, Southampton, referred to the Court for a preliminary ruling under Article177 of the EC Treaty six questions on the interpretation of Article 119 of thatTreaty, Council Directive 75/117/EEC of 10 February 1975 on the approximationof the laws of the Member States relating to the application of the principle ofequal pay for men and women (OJ 1975 L 45, p. 19), and Council Directive76/207/EEC of 9 February 1976 on the implementation of the principle of equaltreatment for men and women as regards access to employment, vocational trainingand promotion, and working conditions (OJ 1976 L 39, p. 40).
- Those questions were raised in proceedings between Ms Grant and her employerSouth-West Trains Ltd (hereinafter 'SWT) concerning the refusal by SWT oftravel concessions for Ms Grant's female partner.
- Ms Grant is employed by SWT, a company which operates railways in theSouthampton region.
- Clause 18 of her contract of employment, entitled 'Travel facilities, states:
'You will be granted such free and reduced rate travel concessions as areapplicable to a member of your grade. Your spouse and depend[a]nts will also begranted travel concessions. Travel concessions are granted at the discretion of [theemployer] and will be withdrawn in the event of their misuse.
- At the material time, the regulations adopted by the employer for the applicationof those provisions, the Staff Travel Facilities Privilege Ticket Regulations, providedin Clause 8 ('Spouses) that:
'Privilege tickets are granted to a married member of staff ... for one legal spousebut not for a spouse legally separated from the employee ...
Privilege tickets are granted for one common law opposite sex spouse of staff ...subject to a statutory declaration being made that a meaningful relationship hasexisted for a period of two years or more ....
- The regulations also defined the conditions under which travel concessions couldbe granted to current employees (Clauses 1 to 4), employees having provisionallyor definitively ceased working (Clauses 5 to 7), surviving spouses of employees(Clause 9), children of employees (Clauses 10 and 11) and dependent members ofemployees' families (Clause 12).
- On the basis of those provisions Ms Grant applied on 9 January 1995 for travelconcessions for her female partner, with whom she declared she had had a'meaningful relationship for over two years.
- SWT refused to allow the benefit sought, on the ground that for unmarried personstravel concessions could be granted only for a partner of the opposite sex.
- Ms Grant thereupon made an application against SWT to the Industrial Tribunal,Southampton, arguing that that refusal constituted discrimination based on sex,contrary to the Equal Pay Act 1970, Article 119 of the Treaty and/or Directive76/207. She submitted in particular that her predecessor in the post, a man whohad declared that he had had a meaningful relationship with a woman for over twoyears, had enjoyed the benefit which had been refused her.
- The Industrial Tribunal considered that the problem facing it was whether refusalof the benefit at issue on the ground of the employee's sexual orientation was'discrimination based on sex within the meaning of Article 119 of the Treaty andthe directives on equal treatment of men and women. It observed that while someUnited Kingdom courts had held that that was not the case, the judgment of theCourt of Justice in Case C-13/94 P v S and Cornwall County Council  ECRI-2143 was, on the other hand, 'persuasive authority for the proposition thatdiscrimination on the ground of sexual orientation [was] unlawful.
- For those reasons the Industrial Tribunal referred the following questions to theCourt for a preliminary ruling:
'1. Is it (subject to (6) below) contrary to the principle of equal pay for menand women established by Article 119 of the Treaty establishing theEuropean Community and by Article 1 of Council Directive 75/117 for anemployee to be refused travel concessions for an unmarried cohabitingsame-sex partner where such concessions are available for spouses orunmarried opposite-sex cohabiting partners of such an employee?
2. For the purposes of Article 119 does discrimination based on sex includediscrimination based on the employee's sexual orientation?
3. For the purposes of Article 119, does discrimination based on sex includediscrimination based on the sex of that employee's partner?
4. If the answer to Question (1) is yes, does an employee, to whom suchconcessions are refused, enjoy a directly enforceable Community rightagainst his employer?
5. Is such a refusal contrary to the provisions of Council Directive 76/207?
6. Is it open to an employer to justify such refusal if he can show (a) that thepurpose of the concessions in question is to confer benefits on marriedpartners or partners in an equivalent position to married partners and (b)that relationships between same-sex cohabiting partners have nottraditionally been, and are not generally, regarded by society as equivalentto marriage; rather than on the basis of an economic or organisationalreason relating to the employment in question?
- In view of the close links between the questions, they should be consideredtogether.
- As a preliminary point, it should be observed that the Court has already held thattravel concessions granted by an employer to former employees, their spouses ordependants, in respect of their employment are pay within the meaning of Article119 of the Treaty (see to that effect Case 12/81 Garland v British Rail Engineering ECR 359, paragraph 9).
- In the present case it is common ground that a travel concession granted by anemployer, on the basis of the contract of employment, to the employee's spouse orthe person of the opposite sex with whom the employee has a stable relationshipoutside marriage falls within Article 119 of the Treaty. Such a benefit is thereforenot covered by Directive 76/207, referred to in the national tribunal's Question 5(see Case C-342/93 Gillespie and Others v Northern Health and Social Services Boardand Others  ECR I-475, paragraph 24).
- In view of the wording of the other questions and the grounds of the decisionmaking the reference, the essential point raised by the national tribunal is whetheran employer's refusal to grant travel concessions to the person of the same sex withwhom an employee has a stable relationship constitutes discrimination prohibitedby Article 119 of the Treaty and Directive 75/117, where such concessions aregranted to an employee's spouse or the person of the opposite sex with whom anemployee has a stable relationship outside marriage.
- Ms Grant submits, first, that such a refusal constitutes discrimination directly basedon sex. She submits that her employer's decision would have been different if thebenefits in issue in the main proceedings had been claimed by a man living with awoman, and not by a woman living with a woman.
- Ms Grant argues that the mere fact that the male worker who previously occupiedher post had obtained travel concessions for his female partner, without beingmarried to her, is enough to identify direct discrimination based on sex. In hersubmission, if a female worker does not receive the same benefits as a maleworker, all other things being equal, she is the victim of discrimination based on sex(the 'but for test).
- Ms Grant contends, next, that such a refusal constitutes discrimination based onsexual orientation, which is included in the concept of 'discrimination based onsex in Article 119 of the Treaty. In her opinion, differences in treatment based onsexual orientation originate in prejudices regarding the sexual and emotionalbehaviour of persons of a particular sex, and are in fact based on those persons'sex. She submits that such an interpretation follows from the judgment in P v S andcorresponds both to the resolutions and recommendations adopted by theCommunity institutions and to the development of international human rightsstandards and national rules on equal treatment.
- Ms Grant claims, finally, that the refusal to allow her the benefit is not objectivelyjustified.
- SWT and the United Kingdom and French Governments consider that the refusalof a benefit such as that in issue in the main proceedings is not contrary to Article119 of the Treaty. They submit, first, that the judgment in P v S, which is limitedto cases of gender reassignment, does no more than treat discrimination based ona person's change of sex as equivalent to discrimination based on a person'sbelonging to a particular sex.
- They submit, next, that the difference in treatment of which Ms Grant complainsis based not on her sexual orientation or preference but on the fact that she doesnot satisfy the conditions laid down in the undertaking's regulations.
- Finally, in their opinion, discrimination based on sexual orientation is not'discrimination based on sex within the meaning of Article 119 of the Treaty orDirective 75/117. They refer on this point in particular to the wording andobjectives of Article 119, the lack of consensus among Member States as towhether stable relationships between persons of the same sex may be regarded asequivalent to stable relationships between persons of opposite sex, the fact thatthose relationships are not protected by Articles 8 or 12 of the Convention for theProtection of Human Rights and Fundamental Freedoms of 4 November 1950(hereinafter 'the Convention), and the consequent absence of discriminationwithin the meaning of Article 14 of the Convention.
- The Commission likewise considers that the refusal of the benefits to Ms Grant isnot contrary to Article 119 of the Treaty or Directive 75/117. In its opinion,discrimination based on the sexual orientation of workers may be regarded as'discrimination based on sex for the purposes of Article 119. It submits, however,that the discrimination of which Ms Grant complains is based not on her sexualorientation but on the fact that she is not living as a 'couple or with a 'spouse,as those terms are understood in the laws of most of the Member States, inCommunity law and in the law of the Convention. It considers that in thosecircumstances the difference of treatment applied by the regulations in force in theundertaking in which Ms Grant works is not contrary to Article 119.
- In the light of all the material in the case, the first question to answer is whethera condition in the regulations of an undertaking such as that in issue in the mainproceedings constitutes discrimination based directly on the sex of the worker. Ifit does not, the next point to examine will be whether Community law requires thatstable relationships between two persons of the same sex should be regarded by allemployers as equivalent to marriages or stable relationships outside marriagebetween two persons of opposite sex. Finally, it will have to be considered whetherdiscrimination based on sexual orientation constitutes discrimination based on thesex of the worker.
- First, it should be observed that the regulations of the undertaking in which MsGrant works provide for travel concessions for the worker, for the worker's'spouse, that is, the person to whom he or she is married and from whom he orshe is not legally separated, or the person of the opposite sex with whom he or shehas had a 'meaningful relationship for at least two years, and for the children,dependent members of the family, and surviving spouse of the worker.
- The refusal to allow Ms Grant the concessions is based on the fact that she doesnot satisfy the conditions prescribed in those regulations, more particularly on thefact that she does not live with a 'spouse or a person of the opposite sex withwhom she has had a 'meaningful relationship for at least two years.
- That condition, the effect of which is that the worker must live in a stablerelationship with a person of the opposite sex in order to benefit from the travelconcessions, is, like the other alternative conditions prescribed in the undertaking'sregulations, applied regardless of the sex of the worker concerned. Thus travelconcessions are refused to a male worker if he is living with a person of the samesex, just as they are to a female worker if she is living with a person of the samesex.
- Since the condition imposed by the undertaking's regulations applies in the sameway to female and male workers, it cannot be regarded as constitutingdiscrimination directly based on sex.
- Second, the Court must consider whether, with respect to the application of acondition such as that in issue in the main proceedings, persons who have a stablerelationship with a partner of the same sex are in the same situation as those whoare married or have a stable relationship outside marriage with a partner of theopposite sex.
- Ms Grant submits in particular that the laws of the Member States, as well as thoseof the Community and other international organisations, increasingly treat the twosituations as equivalent.
- While the European Parliament, as Ms Grant observes, has indeed declared thatit deplores all forms of discrimination based on an individual's sexual orientation,it is nevertheless the case that the Community has not as yet adopted rulesproviding for such equivalence.
- As for the laws of the Member States, while in some of them cohabitation by twopersons of the same sex is treated as equivalent to marriage, although notcompletely, in most of them it is treated as equivalent to a stable heterosexualrelationship outside marriage only with respect to a limited number of rights, orelse is not recognised in any particular way.
- The European Commission of Human Rights for its part considers that despite themodern evolution of attitudes towards homosexuality, stable homosexualrelationships do not fall within the scope of the right to respect for family life underArticle 8 of the Convention (see in particular the decisions in application No9369/81, X. and Y. v the United Kingdom, 3 May 1983, Decisions and Reports 32, p.220; application No 11716/85, S. v the United Kingdom, 14 May 1986, D.R. 47, p.274, paragraph 2; and application No 15666/89, Kerkhoven and Hinke v theNetherlands, 19 May 1992, unpublished, paragraph 1), and that national provisionswhich, for the purpose of protecting the family, accord more favourable treatmentto married persons and persons of opposite sex living together as man and wifethan to persons of the same sex in a stable relationship are not contrary to Article14 of the Convention, which prohibits inter alia discrimination on the ground of sex(see the decisions in S. v the United Kingdom, paragraph 7; application No14753/89, C. and L.M. v the United Kingdom, 9 October 1989, unpublished,paragraph 2; and application No 16106/90, B. v the United Kingdom, 10 February1990, D.R. 64, p. 278, paragraph 2).
- In another context, the European Court of Human Rights has interpreted Article12 of the Convention as applying only to the traditional marriage between twopersons of opposite biological sex (see the Rees judgment of 17 October 1986,Series A no. 106, p. 19, § 49, and the Cossey judgment of 27 September 1990,Series A no. 184, p. 17, § 43).
- It follows that, in the present state of the law within the Community, stablerelationships between two persons of the same sex are not regarded as equivalentto marriages or stable relationships outside marriage between persons of oppositesex. Consequently, an employer is not required by Community law to treat thesituation of a person who has a stable relationship with a partner of the same sexas equivalent to that of a person who is married to or has a stable relationshipoutside marriage with a partner of the opposite sex.
- In those circumstances, it is for the legislature alone to adopt, if appropriate,measures which may affect that position.
- Finally, Ms Grant submits that it follows from P v S that differences of treatmentbased on sexual orientation are included in the 'discrimination based on sexprohibited by Article 119 of the Treaty.
- In P v S the Court was asked whether a dismissal based on the change of sex of theworker concerned was to be regarded as 'discrimination on grounds of sex withinthe meaning of Directive 76/207.
- The national court was uncertain whether the scope of that directive was widerthan that of the Sex Discrimination Act 1975, which it had to apply and which inits view applied only to discrimination based on the worker's belonging to one orother of the sexes.
- In their observations to the Court the United Kingdom Government and theCommission submitted that the directive prohibited only discrimination based onthe fact that the worker concerned belonged to one sex or the other, notdiscrimination based on the worker's gender reassignment.
- In reply to that argument, the Court stated that the provisions of the directiveprohibiting discrimination between men and women were simply the expression, intheir limited field of application, of the principle of equality, which is one of thefundamental principles of Community law. It considered that that circumstanceargued against a restrictive interpretation of the scope of those provisions and infavour of applying them to discrimination based on the worker's genderreassignment.
- The Court considered that such discrimination was in fact based, essentially if notexclusively, on the sex of the person concerned. That reasoning, which leads to theconclusion that such discrimination is to be prohibited just as is discriminationbased on the fact that a person belongs to a particular sex, is limited to the caseof a worker's gender reassignment and does not therefore apply to differences oftreatment based on a person's sexual orientation.
- Ms Grant submits, however, that, like certain provisions of national law or ofinternational conventions, the Community provisions on equal treatment of menand women should be interpreted as covering discrimination based on sexualorientation. She refers in particular to the International Covenant on Civil andPolitical Rights of 19 December 1966 (United Nations Treaty Series, Vol. 999, p.171), in which, in the view of the Human Rights Committee established underArticle 28 of the Covenant, the term 'sex is to be taken as including sexualorientation (communication No 488/1992, Toonen v Australia, views adopted on 31March 1994, 50th session, point 8.7).
- The Covenant is one of the international instruments relating to the protection ofhuman rights of which the Court takes account in applying the fundamental
principles of Community law (see, for example, Case 374/87 Orkem v Commission ECR 3283, paragraph 31, and Joined Cases C-297/88 and C-197/89 Dzodziv Belgian State  ECR I-3763, paragraph 68).
- However, although respect for the fundamental rights which form an integral partof those general principles of law is a condition of the legality of Community acts,those rights cannot in themselves have the effect of extending the scope of theTreaty provisions beyond the competences of the Community (see, inter alia, on thescope of Article 235 of the EC Treaty as regards respect for human rights, Opinion2/94  ECR I-1759, paragraphs 34 and 35).
- Furthermore, in the communication referred to by Ms Grant, the Human RightsCommittee, which is not a judicial institution and whose findings have no bindingforce in law, confined itself, as it stated itself without giving specific reasons, to'noting ... that in its view the reference to sex in Articles 2, paragraph 1, and 26is to be taken as including sexual orientation.
- Such an observation, which does not in any event appear to reflect theinterpretation so far generally accepted of the concept of discrimination based onsex which appears in various international instruments concerning the protectionof fundamental rights, cannot in any case constitute a basis for the Court to extendthe scope of Article 119 of the Treaty. That being so, the scope of that article, asof any provision of Community law, is to be determined only by having regard toits wording and purpose, its place in the scheme of the Treaty and its legal context.It follows from the considerations set out above that Community law as it standsat present does not cover discrimination based on sexual orientation, such as thatin issue in the main proceedings.
- It should be observed, however, that the Treaty of Amsterdam amending theTreaty on European Union, the Treaties establishing the European Communitiesand certain related acts, signed on 2 October 1997, provides for the insertion in theEC Treaty of an Article 6a which, once the Treaty of Amsterdam has entered intoforce, will allow the Council under certain conditions (a unanimous vote on aproposal from the Commission after consulting the European Parliament) to takeappropriate action to eliminate various forms of discrimination, includingdiscrimination based on sexual orientation.
- Finally, in the light of the foregoing, there is no need to consider Ms Grant'sargument that a refusal such as that which she encountered is not objectivelyjustified.
- Accordingly, the answer to the national tribunal must be that the refusal by anemployer to allow travel concessions to the person of the same sex with whom aworker has a stable relationship, where such concessions are allowed to a worker'sspouse or to the person of the opposite sex with whom a worker has a stable
relationship outside marriage, does not constitute discrimination prohibited byArticle 119 of the Treaty or Directive 75/117.
- The costs incurred by the United Kingdom and French Governments and by theCommission of the European Communities, which have submitted observations tothe Court, are not recoverable. Since these proceedings are, for the parties to themain proceedings, a step in the action pending before the national tribunal, thedecision on costs is a matter for that tribunal.
On those grounds,
in answer to the questions referred to it by the Industrial Tribunal, Southampton,by decision of 19 July 1996, hereby rules:
The refusal by an employer to allow travel concessions to the person of the samesex with whom a worker has a stable relationship, where such concessions areallowed to a worker's spouse or to the person of the opposite sex with whom aworker has a stable relationship outside marriage, does not constitutediscrimination prohibited by Article 119 of the EC Treaty or Council Directive75/117/EEC of 10 February 1975 on the approximation of the laws of the MemberStates relating to the application of the principle of equal pay for men and women.
Moitinho de Almeida
Delivered in open court in Luxembourg on 17 February 1998.
G.C. Rodríguez Iglesias