Case C‑267/12

Frédéric Hay

v

Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres

(Request for a preliminary ruling from the Cour de cassation (France))

(Directive 2000/78/EC — Equal treatment — Collective agreement which restricts a benefit in respect of pay and working conditions to employees who marry — Exclusion of partners entering into a civil solidarity pact — Discrimination based on sexual orientation)

Summary — Judgment of the Court (Fifth Chamber), 12 December 2013

1.        Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of the relevant points of EU law

(Art. 267 TFEU)

2.        Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination based on sexual orientation — National rules allowing only persons of different sexes to marry — Collective agreement which restricts a benefit in respect of pay and working conditions to employees who marry whilst excluding partners of the same sex entering into a civil solidarity pact — Not permissible

(Council Directive 2000/78, Art. 2(2)(a))

1.        See the text of the decision.

(see para. 23)

2.        Article 2(2)(a) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding a provision in a collective agreement under which an employee who concludes a civil solidarity pact with a person of the same sex is not allowed to obtain the same benefits, such as days of special leave and a salary bonus, as those granted to employees on the occasion of their marriage, where the national rules of the Member State concerned do not allow persons of the same sex to marry, in so far as, in the light of the objective of and the conditions relating to the grant of those benefits, that employee is in a comparable situation to an employee who marries.

The difference in treatment based on the employees’ marital status and not expressly on their sexual orientation is still direct discrimination because only persons of different sexes may marry and homosexual employees are therefore unable to meet the condition required for obtaining the benefit claimed. Moreover, as the discrimination is direct, it may be upheld, not on the basis of a ‘legitimate aim’ within the meaning of Article 2(2)(b) of Directive 2000/78, as that provision covers only indirect discrimination, but only on one of the grounds referred to in Article 2(5) of that directive, namely public security, the maintenance of public order and the prevention of criminal offences, the protection of health and the protection of the rights and freedoms of others. Since the latter provision establishes an exception to the principle of the prohibition of discrimination, it must be interpreted strictly

(see paras 44-47, operative part)