C-122/99

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I I — Legal background in (a) and (b), nevertheless actually assumes family responsibilities.'

A — The Staff Regulations of Officials of the European Communities B — The Swedish law on registered part- nerships

8. Article 1(2) of Annex VII to the Staff Regulations of Officials of the European Communities ('the Staff Regulations') pro- 9. Article 1 of Chapter 1 of the Lagen om vides: registrerat partnerskap (Law on registered partnership) of 23 June 1994 (1994:1117), which came into force on 1 January 1995, provides:

'2. The household allowance shall be granted to: 'Two persons of the same sex may apply for registration of their partnership'.

— breach of the principle of freedom of III — The appeal movement for workers, and the princi- ples of equal treatment and non-discri- mination, a plea divided into two parts, the first alleging discrimination based on sexual orientation and the second discrimination based on nationality A — Introduction and restriction of freedom of move- ment for workers;

11. In their appeals, D and the Kingdom of Sweden, supported by the Kingdom of Denmark and the Kingdom of the Nether- lands, challenge the dismissal by the Court — infringement of Article 8 of the Eur¬ of First Instance, in the contested judgment, opean Convention for the Protection of of their pleas directed essentially at having Human Rights and Fundamental Free- D recognised as a 'married official' for the doms ('the Convention'). purposes of Article l(2)(a) of Annex VII to the Staff Regulations.

13. The Kingdom of Sweden considers that 12. In the written pleadings, D relies on the Court of First Instance misinterpreted five pleas in support of his appeal: Annex VII to the Staff Regulations in holding that officials in registered partner- ships should not be treated as married officials for the purposes of allocation of the household allowance. The Kingdom of Denmark and the Kingdom of the Nether- — failure to provide an adequate state- lands take essentially the same position. ment of grounds in the contested judgment;

14. Conversely, the Council considers that — breach of the principle of conferred the Court interpreted Annex VII to the powers; Staff Regulations correctly and denies the

B — The subject-matter of the proceedings 21. In his first, handwritten, note of 16 September 1996, addressed to the Council's appointing authority, D wrote: 16. D claims that the Court of First 'Here are the supporting documents Instance defined the subject-matter of the requested with a view to my civil status as dispute incorrectly. a registered partner being accepted as marriage.' That note was immediately followed by a second handwritten note, dated 24 September 1996 and worded, in so far as the body of the text was con- 17. He alleges that the Court considered cerned, as follows: 'Here is the documen- that the subject-matter of the pre-litigation tary evidence of my marriage. Thank you in procedure was confined to the grant of the advance for dealing with my application household allowance and that therefore the favourably'. action could seek only the annulment of the refusal to grant the request for that.

22. In his complaint, signed by his lawyer, D described the two notes as seeking the 18. According to D, his application sought household allowance. Paragraph 3 of the to obtain recognition of his civil status as a complaint reads as follows: 'By notes of 16 registered partner with a view to establish- and 24 September 1996, he applied for a ing his rights under the Staff Regulations in grant of the household allowance'' (under- general. Consequently, the Court erred in lined in the text of the complaint).

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23. It is true that in another note, dated should be considered in the light of that 16 October 1996, he wrote: 'My spouse provision and it went on to consider in intends to join me in Brussels at the substance whether the status of a registered beginning of November and as such is partnership could, or could not, be treated therefore entitled to the benefit of the as equivalent to marriage. provisions set out in the Protocol on Privileges and Immunities.' But the subject of that note was described as being an 'application for the household allowance'.

25. In addition, that controversy is to a large extent artificial in my view, since the issue between the parties swiftly came down to the definition of the term 'married official' in Article 1(1)(a) of Annex VII to C — The statement of grounds in the the Staff Regulations. It was the Council's judgment Director of Personnel himself who, in a note of 29 November 1996, that is to say prior to the complaint, was the first to state that the request for the grant of a house- 29. In his first plea, D argues that in hold allowance could be satisfied only if it paragraph 36 of the contested judgment was possible to consider D as a married the dismissal of his plea relating to breach official within the meaning of that provi- of the principle of the integrity of a person's sion. status is not sufficiently reasoned. The Court held that 'That plea, assuming that it is different from the [plea relating to breach of the principles of equal treatment and non-discrimination], is in any event irrelevant, since the decision refusing his 26. The Court, too, stated in paragraph 26 request was restricted to considering that D of the contested judgment that the problem was unmarried within the meaning of the

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Staff Regulations, for the sole purpose of 33. I am therefore of the opinion that D's determining his entitlement to the allow- first plea is unfounded. ance reserved for married officials'.

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riage' in the Staff Regulations must be reference to national law. The Council understood to mean a relationship based on considers that the Court correctly inter- civil marriage in the traditional sense of the preted the provision of the Staff Regula- term. The Court held, referring to the tions at issue. judgment in Diaz García v Parliament, 3 that there is no need to refer to the law of the Member States where the relevant provisions of the Staff Regulations allow of independent interpretation. 40. I am of the opinion that the Court should, as suggested by the Council, rely on the judgment in Reed. Even if it is true, as stated by the appellants, that as regards the 37. By contrast, according to D, supported facts the judgment relates not to a regis- by the Kingdom of Sweden and by the tered partnership but to a stable relation- interveners, the Council is bound, in deter- ship, in that case between two persons of mining whether a registered partnership opposite sex, it is my view that the under Swedish law is to be considered as a difference is irrelevant. marriage within the meaning of the Staff Regulations, by the provisions of Swedish law.

given by the Court to a provision of a independent and uniform interpretation regulation has effects in all of the Member throughout the Community. 7 States and 'that any interpretation of a legal term on the basis of social developments must take into account the situation in the whole Community, not merely in one Member State'. 5The Court concluded that '[i]n the absence of any indication of a 45. The judgment in Hoekstra (née general social development which would Unger), 8debated by the parties, appears justify a broad construction, and in the to me to confirm the same view. The Court absence of any indication to the contrary in held that 'the concept of "workers" in... the regulation', the term 'spouse' in the [Articles 48 to 51 of the EC Treaty] does regulation in question referred to a marital not therefore relate to national law, but to relationship only. 6 Community law'. 9

46. I am therefore of the opinion that the 43. It is my opinion that it is clear from Court of First Instance did not breach the that judgment that where the term 'spouse', principle of conferred powers in judging or analogous terms such as 'marriage' or that it was for the Council to interpret the 'married person', are used in a regulation, term 'married official' independently. they should be given an independent inter- pretation, that is to say an interpretation which takes into account the situation in the whole Community, and not merely in one Member State. 47. Similarly, I do not share the view of the Kingdom of Sweden that the Court of First Instance misinterpreted Article 1(2) of Annex VII to the Staff Regulations.

definition of 'marriage' includes only 'tra- No 781/98 of 7 April 1998 amending the ditional' marriage between two people of Staff Regulations of Officials and [the] opposite sex. At the time of the events in Conditions of Employment of Other Ser- question, there existed in only three of the vants of the European Communities in fifteen Member States the legal category of respect of equal treatment, 10 the Council, registered partnership assimilating, to a as legislature, preferred not to follow the greater or lesser degree, the communal life Swedish application to add to the Staff of two persons of the same sex to that of Regulations an assimilation of registered two married persons in the traditional partnership with marriage. It did, however, meaning of the term. call on the Commission to carry out the necessary studies in relation to the recogni- tion of registered partnerships and to submit to the Council, on the basis of the studies in question, any appropriate propo- 49. Therefore, just as at the time of Reed sal in those areas. n there was no evidence of a general social development which would have justified a broad construction of the term 'spouse', in order to include a partner in a stable relationship, there is no indication in the present case of a general social develop- ment allowing a registered partnership between two people of the same sex to be included within the term 'marriage'. 53. It follows that, in the eyes of the legislature, an official having a registered partner of the same sex is not a 'married official'. 50. In my opinion the Court of First Instance has not misinterpreted Arti- cle 1(2) (a) of Annex VII to the Staff Reg- ulations in holding that the term 'married official' does not include officials, such as D, in a registered partnership with a person of the same sex.

sures temporarily applicable to officials of partnership. According to D, the absence of the Commission, 12 to which the Kingdom any provision of Community law governing of the Netherlands refers and according to that status requires that reference be made which the 'Staff Regulations [must]... to Swedish law. secure for the Communities the services of officials... of the highest standard of inde- pendence, ability, efficiency and integrity, recruited on the broadest possible geogra- phical basis', in my opinion does not justify a conclusion as to the term 'marriage' 57. The Council considers that that princi- contrary to that which I have mentioned ple, arising from the Opinion of Advocate (paragraph 50) stemming from the settled General La Pergola in the Dafelzi case 13 case-law of the Court of Justice. which D refers to, does not apply to the present case. The Council considers that the Court of First Instance acted correctly in giving an independent interpretation to the term 'marriage' in the provision of the Staff Regulations in question. 55. In the light of the preceding arguments, it is my opinion that D's second plea, and the argument of the Kingdom of Sweden that the Court of First Instance misinter- preted Article 1(2) of Annex VII to the 58. It is apparent from reading the Opinion Staff Regulations, are unfounded. of Advocate General La Pergola that the 'principle of the integrity of the personal status of Community nationals' referred to relates to the question to what extent Community nationals must be able to rely on documentation concerning their civil status which is issued to them by the competent authorities of their country of E — The application of the 'principie of origin. In the context of that case, the issue the integrity of the personal status of was recognition by a Member State of an Community nationals' amended birth certificate of a Community national, issued by another Member State and including an amended date of birth.

61. In contrast, the question is whether the 65. The Court of First Instance, in the civil status of registered partner, which has context of the first plea at first instance, not been challenged at all, must be treated began by noting that Regulation as equivalent to that of a married person in No 781/98 came into force only after the the context of the application of Arti- adoption of the decision of refusal. cle 1(2) (a) of Annex VII to the Staff Reg- ulations. So stated, the question relates to the principle of equal treatment, and not the 'principle of the integrity of the perso- nal status of Community nationals'. 66. Relying on the case-law of the Eur- opean Court of Human Rights and the Court of Justice, in particular on the case of Grant, 14 the Court of First Instance held that the Council, as an employer, was not required to regard as equivalent to mar- 62. In any event, whatever the effect of that riage, within the meaning of the provisions principle, I do not see how it could require of the Staff Regulations, the situation of a the other Member States, and the Commu- person who has a stable relationship with a nity legal system through assimilation, to partner of the same sex, even if it has been recognise the holders of a certificate of a Swedish registered partnership as legally married. 14 — C-249/96 [1998] ECR 1-621, paragraphs 34 and 35.

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the subject of official registration by the the fact that the official has to provide for national administration. dependants, 1 5is one of those rights. The only reason for the discrimination against him in relation to this lies in the fact that his partner is of the same sex.

71. In the same way, the Kingdom of Denmark refers to the logic and purpose 68. The appellants and the interveners of the provision of the Staff Regulations in challenge the interpretation of the Court question, which concerns the reimburse- of First Instance. Essentially, they are all in ment of costs linked to establishing the agreement that the references in the con- spouse in the place of the official's employ- tested judgment of the Court of First ment with a view to attracting competent Instance to the case-law of the European employees to the Community institutions. Court of Human Rights on the definition of Those costs are the same whether the marriage are inopportune, as are those person is a spouse or a partner. which refer to the judgment in Grant, that judgment dealing with the case of a rela- tionship which was not formally recog- nised, and not a relationship which has been legally recognised having the same legal effects as marriage. 72. The Council, relying on the real differ- ences under Swedish law between marriage and a registered partnership, considers that one cannot treat one of the two legal categories as equivalent to the other. Rely- ing on Reed and Grant, the Council further 69. D also considers that, being in an identical situation, in law and in fact, to 15 — On that point, D referred inhis pleadings to Case T-147/95 that of his married colleagues, he must be Pavan v Parliament [1996] ECR-SC I-A-291 and II-861, paragraph 42), and during the hearing to Case 248/87 entitled to the same rights as to pay. The Mouriki v Commission (19881 ECR 1721. household allowance, which is justified by 16 — Case C-13/94 [1996] ECR I-2143.

submits that only the legislature can decide 76. Even assuming that the Council's whether to sanction the suggestion that appointing authority was entitled to refei- those two different categories be treated in to the situation in only one Member State, the same way. which is not possible in the light of the categorical terms of Reed, it is clear that, even under Swedish law, marriage and registered partnerships constitute two dis- tinct legal categories. Not only do these two categories not have the same name, but 73. The Council also notes that an assim- there are in the legal provisions governing ilation of registered partnerships with mar- them a number of differences which have riage was requested by the Kingdom of been widely debated amongst the parties. Sweden at the time of adoption of Regula- tion No 781/98. When the Council, as legislator, inserted in the Staff Regulations an Article la to the effect that Officials shall be entitled to equal treatment under these Staff Regulations without reference... to sexual orientation', it did so expressly 'without prejudice to the relevant provi- sions requiring a specific marital status'. 77. Thus the Swedish legislature did not wish to give two persons of the same sex unqualified access to the legal category of marriage, but preferred to create a distinct legal category, partially governed by other 74. What is to be made of those argu- rules. Some of those rules, such as the ments? prohibition on registered partners adopting children or exercising joint custody of children, are exactly the opposite of those in relation to marriage. In addition, regis- tered partnerships are possible only where one of the partners is Swedish and resides 75. In my opinion, in the absence of a in Sweden, which is not required in relation provision of the Staff Regulations applic- to marriage. able at the time of the events in question (see paragraph 65 above), those arguments must be examined in the light of the general definition of the principle of equal treat- ment. According to settled case-law, discri- mination occurs where identical or com- parable situations are treated in an unequal way and the discrimination is not objec- tively justified. 17 78. It follows that, even considering only Swedish law, the situation of a person living 17 — See, in particular, Case C-389/98 P Gevaert v Commission with a partner of the same sex under a [2001] ECR I-65, paragraph 54, and Case C-459/98 P Martinez del Feral Cagigal v Commission [2001] registered partnership is not the same in ECR I-135, paragraph 50. law as that of a married person. I - 4334

85. I also note that, contrary to what was argued by the Kingdom of Denmark, the reasoning of the Court of Justice in Grant is 81. The Court of Justice responded to that sufficiently general to apply also to the question in the negative. After a thorough Council as an 'employer', and not only to analysis, in particular of the case-law of the employers in the private sector. European Court of Human Rights, the Court found that 'in the present state of the law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent 20 to marriages or stable relationships outside 86. A reading of paragraph 35 of that marriage between persons of opposite judgment, in particular the sentence sex'. 21 already cited from that paragraph (see paragraph 81 above), shows that the Court of Justice reached a conclusion which 18 — The author's italics. applies as regards Community law in 19 — Grant, paragraph 29. 20 — The author's italics. general, and not only a specified area of 21 — Grant, paragraph 35. Community law.

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92. It is therefore not possible, without ignoring the condition laid down by the Staff Regulations and its interpretation in 89. Consequently, since a person, in the the case-law, to consider on the basis of the present case an official, who has entered similar obligations applicable under Swed- into a registered partnership is not, accord- ish law for married persons and registered ing to the case-law of the Court of Justice, partners, that registered partners must be in a situation comparable to that of a entitled to the benefit of a provision of the married official, the general principle of Staff Regulations applicable expressly to equal treatment does not require that the married officials.

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93. As for the argument which D seeks to 96. That recent judgment does not appear make relating to an infringement of Arti- to alter the finding that, at the time of the cle 119 of the Treaty, the Council objects events relating to the present case, the state that the provision covers only discrimina- of the law within the Community indicated tion based on a person's sex and not that that a person living with a registered based on their sexual orientation, their civil partner of the same sex was not in the status or their financial obligations. same position as a married person and therefore the former was not entitled to demand the same treatment as that accor- ded to the latter.

98. For all of the preceding reasons, I am of 22 — Grant, paragraph 47. the opinion that the first part of D's fourth 23 — Salgueiro da Silva Mouta judgment of 21 December 1999 (no 33290/96). plea is unfounded.

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G — Discrimination based on nationality instance, without amounting to a new one, and the obstacle to the freedom of move- the plea would still be unfounded. ment of workers

102. Under Swedish law, a registered part- 99. In the second part of his fourth plea, D ner does not necessarily have to have considers that in denying partners regis- Swedish nationality. Only one of the two tered under legislative provisions of three partners has to have this. Member States (the Kingdom of Denmark, the Kingdom of Sweden, the Kingdom of the Netherlands) their entitlement to the rights attached to their status the contested decision constitutes discrimination on the basis of nationality and has a dissuasive 103. The other partner, whatever his effect on the exercise of freedom of move- nationality, will likewise not, if he is an ment. official, be considered to be a 'married official'.

107. The second part of D's fourth plea is therefore, in the alternative, unfounded.

110. Contrary to what D maintains, those decisions of the European Commission of Human Rights were not all prior to the introduction of registered partnerships. The decision in Kerkhoven and Hinke v The H — Respect for private and family life, Netherlands, to which the Court refers, guaranteed by Article 8 of the Convention dates from 1992, while the introduction of registered partnerships in Denmark, for example, dates from 1989.

108. D's fifth plea relates to respect for private and family life, guaranteed by Article 8 of the Convention. According to D, the protection of private life entails recognition of the existence and effects of a lawfully acquired civil status and prohibits the interference constituted by the commu- 111. Furthermore, as mentioned by the nication of incorrect information to third Council, the communication of incorrect parties. The present case concerns informa- information to third parties complained of tion forwarded by the Council to the by D has no connection with the present Belgian authorities to the effect that D dispute. was single. D submits that the situation contemplated in Grant, which the Court of First Instance was wrong to have referred to, is not analogous to the present case.

112. I am therefore of the opinion that D's fifth plea is unfounded. 109. Like the Council, I do not share that view. In Grant, the reasoning in which should be applied to the present case for the 25 — Grant paragraph 33.

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114. It should be noted, however, that he did not refer to that provision in his application, his complaint or his action 117. In relation to costs, it should be held before the Court of First Instance. The that, under Article 122 of the Rules of Court of Justice's jurisdiction is confined to Procedure, Article 70 of the Rules of Pro- review of the findings of law on the pleas cedure does not apply to the present case. argued before the Court of First Instance. 26 Therefore, Article 69(2) of the Rules of Procedure should apply, under which 'where there are several unsuccessful par- ties the Court shall decide how the costs are to be shared' and from which, in my opinion, there is no need to derogate using 115. It follows that, in my opinion, the plea the discretionary power provided for by relating to breach of Article l(2)(c) of Article 122 of the Rules of Procedure. Annex VII to the Staff Regulations is Taking into account the number of pleas inadmissible. relied on by D, and by the Kingdom of Sweden, it appears to me to be fair to order D to pay two thirds of the Council's costs and the Kingdom of Sweden to pay one third.

J — Final considerations

116. In short, I therefore consider that the appeals brought by D and by the Kingdom 118. As regards the interveners, they are to pay their own costs under Article 69(4) of 26 — Commission v Brazzelli, cited above. the Rules of Procedure.

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IV — Conclusion