Keywords
Summary

Keywords

1 Social policy - Men and women - Equal pay - Article 119 of the Treaty - Directive 75/117 - Scope - Discrimination on the ground of sexual orientation - Excluded

(EC Treaty, Art. 119; Council Directive 75/117)

2 Community law - Principles - Fundamental rights - Basis of review of lawfulness of Community acts - Effect of fundamental rights on the scope of Treaty provisions - None

Summary

3 The 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 Treaty or Directive 75/117 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women.

First, the condition for the grant of those concessions cannot be regarded as constituting discrimination directly based on sex, since it applies in the same way to female and male workers, as the concessions are refused to a male worker if he is living with a person of the same sex, just as they are to a female worker if she is living with a person of the same sex. Second, in the present state of the law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent to marriages or stable relationships outside marriage between persons of opposite sex, and an employer is not therefore required by Community law to treat the situation of a person who has a stable relationship with a partner of the same sex as equivalent to that of a person who is married to or has a stable relationship outside marriage with a partner of the opposite sex. It is for the legislature alone to adopt, if appropriate, measures which may affect that position.

4 Although respect for the fundamental rights which form an integral part of the general principles of Community law is a condition of the legality of Community acts, those rights cannot in themselves have the effect of extending the scope of the Treaty provisions beyond the competences of the Community.

With regard to the International Covenant on Civil and Political Rights, which is one of the international instruments relating to the protection of human rights of which the Court takes account in applying the fundamental principles of Community law, an observation, with no binding force in law and for which no specific reasons were given, of the Human Rights Committee established under Article 28 of the Covenant, noting that the reference to `sex' in Articles 2(1) and 26 is to be taken as including sexual orientation, cannot in any case constitute a basis for the Court to extend the scope of Article 119 of the Treaty. The scope of that article, as of any provision of Community law, is to be determined only by having regard to its wording and purpose, its place in the scheme of the Treaty and its legal context.