Diversity and the European Union: Grant v. SWT, the Treaty of Amsterdam, and the free movement of persons.

• Jurisdiction: United States
• Date: 22 September 1999
• Author: Hunt, Heather

1. INTRODUCTION

   In the huge diversity of peoples who make up the human race, there are a number of universal constants which have always been part of the human condition. One is that people who are different inspire fear which often leads to prejudice; another is that a proportion of the human race is homosexual.(1)

   This reality has lead to another phenomenon best summed up by George Orwell: "All animals are equal, but some animals are more equal than others."(2) This short and straight-forward characterization best describes the situation facing the lesbian and gay community with respect to a number of issues within the European Union ("EU"). One such issue is the free movement of persons. The EU has confronted this issue because of the recent focus on European economic unity and the rise of the gay rights movement during the last several years. This issue has an impact on economic unity because discrimination in the workplace that significantly affects one sector of the population (i.e. the homosexual population), directly inhibits the formation of the economic community the EU is attempting to build.

   In the European Union, the European Social Charter promises that "[e]veryone shall have the opportunity to earn his living in an occupation fully entered upon."(3) Unfortunately, this promise does not universally apply. Theoretically, Community Law guarantees to all EU citizens the right to enter and to seek or take up work in any Member State.(4) This right, however, is limited by the ability of national authorities to impose restrictions on the right to work in their countries. EU Member States may base these restrictions on public policy, public security, and public health concerns.(5) These limitations, however, must apply equally to the nationals of the Member State, as they apply to citizens of other Member States.(6) Thus, in the sexual preference context, when a Member State discriminates against its own nationals, based on their sexual orientation, so long as the discrimination applies to nationals of other Member States the same as it applies to nationals of that Member State, Community law allows such discrimination. Most Member States, while not per se discriminating against homosexuals, do not prohibit discrimination based on sexual orientation. In fact, at the time of publication, only France, Ireland, and the Netherlands have laws that give legal protection against employment discrimination based on sexual orientation.(7) Consequently, only French, Irish and Dutch nationals, and nationals of other Member States working in France, Ireland or the Netherlands have formal protection against employment discrimination.

   In the EU, a case before the European Court of Justice ("ECJ") brought the issue of discrimination based on sexual orientation to international attention.(8) In Grant v. South West Trains, Ltd. ("Grant v. SWT"), the ECJ addressed the issue of a corporation's obligation to provide same-sex partners of employees the same benefits as those offered to heterosexual partners of employees.(9) The Court held that:

   [t]he refusal by an employer to allow travel concessions to the person of the same-sex with whom a worker has a stable relationship, where such concessions are allowed to a worker's spouse or to the person of the opposite sex with whom a worker has a stable relationship outside marriage, does not constitute discrimination prohibited by Article 119 of the EC Treaty or Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women.(10) Due to the broad scope of ECJ decision-making power, this decision has more far-reaching implications than does a decision by a national court of an EU Member State.(11) One of the concerns raised by this decision is the possibility that allowing corporations within EU Member States to make discriminatory policies based on an employee's sexual orientation could infringe on that employee's right of free movement.(12) For example, if a national of one Member State that does not discriminate against homosexuals receives a job offer in another Member State, only to discover later that the foreign Member State allows corporations to discriminate against homosexuals, the national would be inhibited from moving to the foreign Member State, thereby defeating one main purpose of economic unity. Additionally, a significant problem arises in the EU because the right of free movement of persons is fundamental to the European Union and its underlying purposes.(13) As a result, for the past several years, the European Parliament has made numerous attempts to discourage the type of discrimination sanctioned by South West Trains.

   In June 1997, in an attempt to inter alia avoid future problems in the area of discrimination based on sexual orientation, the European Council passed the Treaty of Amsterdam ("Amsterdam Treaty"). The Amsterdam Treaty amended the Treaty on European Union, the treaties establishing the European Communities and Certain Related Acts.(14) The Amsterdam Treaty prohibits, among other things, discrimination based on sexual orientation.(15) In light of this new treaty, the Grant v. SWT decision may not have the far reaching consequences first anticipated. However, as discussed more fully below, there are still a number of hurdles the gay and lesbian community must overcome before the prohibition on discrimination based on sexual orientation becomes a reality.

   This paper addresses and focuses on the impact the Amsterdam Treaty will have on EU Member States, concentrating particularly on the provisions relating to discrimination based on sexual orientation, and its affect on the free movement of persons. This paper also analyzes how the Amsterdam Treaty affects the Grant v. SWT decision because Grant v. SWT will continue as the controlling Community Law until the European Council -- utilizing the provisions of the Amsterdam Treaty - changes the law relating to discrimination based on sexual orientation.

   Part II of this paper discusses the various laws of EU Member States regarding same-sex partnerships. Part III analyzes the Grant v. SWT opinion and its impact on European Community Law. Part IV of this paper examines the provisions of the Amsterdam Treaty and the potential affect this Treaty will have on discrimination based on sexual orientation and the free movement of people.

2. MEMBER STATE LAWS REGARDING RECOGNITION OF SAME SEX RELATIONSHIPS

   Attempts at fighting discrimination based on sexual orientation gained momentum as early as the late 1800's in Germany, and the early 1900's in England and America.(16) Unfortunately, the movement in Europe has only recently, as late as 1989, made definitive strides toward recognizing same-sex relationships and prohibiting discrimination based on sexual orientation. Consequently, due to the different social, political and economic views of the various EU countries, the laws of EU countries regarding recognition of same-sex relationships vary widely. For example, a number of Member States recognize same-sex partnerships and afford people in those relationships many of the same rights afforded heterosexual couples.(17) While some Member States recognize same-sex marriages, others do not recognize same-sex partnerships at all, let alone marriages.(18) In the future, however, individual Member States' recognition of same-sex relationships may be irrelevant in light of the passage of the Amsterdam Treaty.(19) Nevertheless, until that time, the laws of the Member States in which they live confine homosexual citizens in the EU, and their rights.

   The following is a representation, by country, of the various provisions relating to same-sex relationships.

   Denmark: Denmark was the first country to legally recognize same-sex partnerships.(20) On October 1, 1989, the Danish Parliament passed a law allowing "registered partnership for two persons of the same-sex."(21) Public registration allows registered same-sex couples to enjoy the same legal rights enjoyed by married couples,(22) with the exception of adopting children, in vitro fertilization, artificial insemination, and church weddings.(23) On limitation is that at least one of the registrants must be a Danish citizen and live in Denmark.(24) In 1997, the State Lutheran Church approved same-sex marriage in the church, but the ceremony must be different from heterosexual marriage.(25)

   Norway: In 1993, Norway passed partnership legislation modeled on the Danish example.(26) The Norwegian legislation offers same-sex couples national insurance benefits, pensions, inheritance rights, and mandates that same-sex couples must be mutually responsible to support each other financially.(27)

   Sweden: Sweden decriminalized homosexuality in 1994.(28) On January 1, 1995, the Swedish Registered Partnership Law became effective.(29) This law granted same-sex couples virtually the same rights afforded to heterosexual married couples.(30) However, as other Registered Partnership Acts, this law denies same-sex couples access to adoption, artificial insemination, in vitro fertilization, and church weddings.(31) Sweden also has a domestic partner law for those couples who choose not to register.(32) The domestic partner law provides many of the same rights as the Registered Partner Act, but a domestic partner does not automatically inherit a deceased partner's assets, whereas a registered partner does.(33)

   European Union: In 1994, the European Parliament passed a resolution calling for Member States to pass legislation giving homosexual couples access to marriage, or a similar institution.(34) The resolution also encouraged Member States to allow homosexual partners to adopt and/or foster children.(35)

   France: In France, the civil status of homosexuals will come closer to married status under the proposed Civil Solidarity Pact law.(36) This law allows unmarried...