Grant v South-West Trains Ltd (Case C-249/96)

• Jurisdiction: European Union
• Date: 17 February 1998
• Court: European Court of Justice

Court of Justice of the European Communities.

(Rodríguez Iglesias, President; Gulmann, Ragnemalm and Wathelet, Presidents of Chambers; Mancini, Moitinho de Almeida, Kapteyn, Murray, Edward, Puissochet (Rapporteur), Hirsch, Jann and Sevón, Judges; Elmer, Advocate-General)

Grant

and

South-West Trains Ltd1

Human rights — Discrimination — Sex discrimination — Discrimination on ground of sexual preference — Employer refusing to grant travel concessions to same sex cohabitee of applicant — Availability of travel concession for opposite sex cohabitees of employees — Whether employer's pay regulations constituting discrimination based on sex — Whether constituting discrimination based on sexual orientation — Whether contrary to Article 119 of European Community Treaty, 1957 (‘EC Treaty’) — Relevance of Council Directives 76/207/EEC and 75/117/EEC — Whether employer's pay regulations contrary to Equal Pay Act 1970 — Whether same sex relationships having same recognition and protection as opposite sex relationships — Human rights as part of EC law

Treaties — EC Treaty — Interpretation of treaty — Scope of treaty — Article 119 of EC Treaty — Whether pay regulations constituting discrimination based on sex contrary to Article 119 of EC Treaty — Whether Article 119 encompassing discrimination based on sexual orientation — Whether same sex relationships equivalent to opposite sex relationships under Community law — Whether Community law prohibiting discrimination based on sexual orientation

Relationship of international law and municipal law — Treaties — International law as part of EC law — Human rights treaties — National court referring to Court of Justice of European Communities for preliminary ruling under Article 177 of EC Treaty — Industrial tribunal seeking ruling as to whether refusal to issue benefit to applicant's same sex cohabitee constituting discrimination based on sex contrary to Article 119 of EC Treaty — Whether Article 119 of EC Treaty having direct effect — The law of the European Community

Summary: The facts:—The applicant, Ms Grant, instituted proceedings against her employer, South-West Trains Ltd (‘SWT’) in an industrial tribunal in the United Kingdom for refusing to grant travel concessions to her same sex cohabitee. The applicant's contract of employment stated that travel concessions were available to an employee's spouse and dependants and the Staff Travel Facilities Privilege Ticket Regulations (‘the Ticket Regulations’),2 in applying the travel facilities provisions, provided that privilege tickets were available to a cohabitee of the opposite sex spouse to the member of staff.

The applicant asserted that such a refusal diminished her pay and constituted discrimination based on sex contrary to Article 119 of the EC Treaty3 as a male employee in the same circumstances was able to obtain

travel concessions for his female cohabitee. She also claimed a contravention of Directive 76/2074 and the Equal Pay Act 1970. SWT, however, maintained that as the discrimination was based on sexual orientation and not on sex, it was not encompassed by Article 119 of the EC Treaty. The industrial tribunal stayed the proceedings and referred to the Court of Justice5 under Article 177 of the EC Treaty as to whether SWT's refusal to issue the benefit on the ground of Ms Grant's sexual orientation constituted discrimination based on sex contrary to Article 119 of the EC Treaty and Directives on equal treatment of men and women.6

Opinion of the Advocate-General

In his submissions lo the Court of Justice, the Advocate-General argued that the provision in question constituted discrimination on the basis of gender contrary to Article 119 of the EC Treaty.

He considered that, given the ruling in GarlandINTL,7 the questions referred to the Court were to be answered solely on the basis of Article 119 of the EC Treaty. Although the case-law concerning Directives 75/117 and 76/207 was valuable in that it supplemented and developed the basic principle of equal treatment contained in Article 119 of the EC Treaty, the Directives themselves were irrelevant (p. 349).

Article 119 of the EC Treaty was applicable in all cases where, on an objective assessment, there was de jure or de facto discrimination based exclusively or essentially on gender. Travel concessions for a cohabitee of the opposite sex, but not one of the same sex, constituted discrimination based on gender which was encompassed by Article 119 of the EC Treaty (pp. 349–53).

In this case, the gender discrimination, which could not be justified by reference to an employer's notions of morality, was within the scope of Community law as it was not the result of family law legislation in the Member State. He also maintained that, as Article 119 of the EC Treaty was directly applicable, the national court was required to ensure that the disadvantaged group of employees was treated in the same way as the favoured group. The Advocate-General did not consider that there was any reason for laying down any temporal restriction on the effect of the judgment (pp. 353–8).

Held:—The refusal to allow travel concessions to the applicant's same sex cohabitee did not constitute discrimination contrary to Article 119 of the EC Treaty or Directive 75/117.

(1) Garland had already established that travel concessions in respect of employment constituted pay within the meaning of Article 119 of the Treaty (p. 360).

(2) It was common ground that a travel concession granted by an employer, on the basis of an employment contract, to the employee's spouse or the

person of the opposite sex with whom the employee had a stable relationship outside of marriage fell within Article 119 of the Treaty. Such a benefit was therefore not covered by Directive 76/207 (p. 360).

(3) As the condition in the Ticket Regulations applied to a male employee living with a same sex partner in the same way as to a female employee living with a same sex partner, it did not discriminate directly on the basis of sex (p. 362).

(4) An employer was not required by Community law to treat the situation of a person in a stable relationship with a partner of the same sex as equivalent to that of a person married to or in a stable relationship outside marriage with a partner of the opposite sex. The Community had not yet adopted rules which prohibited discrimination based on sexual orientation. Neither was equivalent protection granted to same sex relationships as to opposite sex relationships by the European Commission or the European Court of Human Rights. The fact that other international human rights tribunals might have reached different conclusions could not affect EC law (pp. 362–4).

(5) At present, Community law did not prohibit discrimination based on sexual orientation. The scope of Article 119 of the EC Treaty was to be determined by reference to its wording and purpose, its place in the scheme of the Treaty and its legal context alone. The insertion of Article 6(a) into the EC Treaty would, upon the entry into force of the Treaty of Amsterdam, allow the Council under certain conditions to take appropriate action to eliminate various forms of discrimination, including discrimination based upon sexual orientation (pp. 364–5).

The text of the judgment of the Court of Justice of the European Communities commences at p. 358. The following is the text of the opinion of Advocate-General Elmer8 delivered on 30 September 1997:

1. Does a provision in an employer's pay regulations according to which the employee is to be granted a pay benefit in the form of travel concessions for a cohabitee of the opposite gender to the employee, but is denied such concessions for a cohabitee of the same gender as the employee, constitute gender discrimination in breach of Article 119 of the EC Treaty?

The case before the national court and the questions referred for a preliminary ruling

2. On 4 June 1993 Lisa Grant was engaged as a clerical officer by the British Railways Board. On 31 March 1995 the employment relationship was transferred to South-West Trains, a wholly owned subsidiary, which was privatized on 4 February 1996. Clause 18 of her contract of employment, entitled ‘Travel facilities’, states:

3. Those travel concessions are further regulated in the Staff Travel Facilities Privilege Ticket Regulations (hereinafter ‘the Ticket Regulations’), issued by the British Railways Board and adopted by South-West Trains after privatization. Clause 8 of the Ticket Regulations, entitled ‘Spouses’, provides inter alia:

4. Under Clauses 10 and 11 of the Ticket Regulations, the employee is also entitled to concessions for unmarried children living at home. Under Clause 12 it is further stated that ‘Privilege tickets may be issued … for a relative acting as a bona fide permanent resident housekeeper to and entirely dependent upon the applicant …’ if the employee is either living alone or with an invalid spouse. Under that clause ‘relative’ is defined as a mother, father, brother, sister, daughter or son.

5. Mr Potter, who was Lisa Grant's predecessor in post, had in his time made a statutory declaration that a meaningful relationship had existed between him and his female cohabitee for a period of two years or more, and on that basis had obtained travel concessions for her.

6. On 9 January 1995 Lisa Grant similarly applied for travel concessions for her female cohabitee, Jillian Percey, at the same time making a declaration that she lived together with ‘the individual described as my common law spouse on my application for concessionary travel facilities in a “Common law relationship” and that I have so lived for a continuous period of two years or more …’. Lisa Grant's application was rejected on the ground that, under Clause 8 of the Ticket Regulations, travel concessions were not granted for cohabitees of the same sex.

7. Lisa Grant then brought a case against South-West Trains before the Industrial Tribunal, Southampton, United...