C-117/01

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1976 to 1996. She paid contributions to the judgment of 30 April 1996 in P. v S. and NHS pension scheme throughout those 20 Cornwall County Council, 3and those of years and acquired, inter alia, a right to Directive 75/117. For K.B., those provi- annual income of GBP 5 375.86. sions require that in this context the term 'widowhood' or 'widowerhood' should be interpreted in such a way as to encompass the surviving member of the couple, who would have achieved the status of widower The NHS scheme provides for a survivor's or widow had his or her sex not resulted pension to be payable to a member's from surgical gender reassignment. surviving spouse. 'Spouse' means solely a person to whom the member has been married.

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concluded that the respondents' arguments 13. By letter of 4 October 2002, the Court were founded. The case was then referred of Appeal informed the Court of Justice to the Court of Appeal, which has made a that under national law it was obliged to reference to the Court of Justice for a summon the parties before deciding preliminary ruling. whether to proceed with the reference for a preliminary ruling.

Procedure before the Court of Justice 14. On 5 March 2003, the Court of Appeal stated that it continued to take the view that an answer to the question referred was necessary, since the point of the judgment in Goodwin was different from that in the 10. The request for a preliminary ruling main proceedings. It added that imminent was registered at the Court Registry on changes in legislation or judicial precedent 15 March 2001. might provide a solution to the case in the main action without the need for a ruling from the Court of Justice.

11. Following receipt of the written obser- vations of K.B., the United Kingdom Gov- ernment and the Commission, a public hearing was held on 23 April 2002.

Relevant national law

16. Following the judgment in P. v S., 5the 17. The NHS pension scheme provides for United Kingdom introduced the Sex Dis- a pension to be paid to the widow or crimination (Gender Reassignment) Regu- widower of NHS employees. The fact of lations 1999. These regulations amended being a widow or widower implies that the Sex Discrimination Act 1975 and there is a surviving spouse. brought direct discrimination on the ground of an employee's gender reassign- ment within the scope of the Act. However, the legislation dealing with equal treatment as regards pay (the Equal Pay Act 1970) and pensions (the Pensions Act 1995) was 18. Under English law, marriage is defined not amended. as the voluntary union between a man and a woman. For that purpose, on the basis of the rule laid down by the High Court in 1971 in Corbett, 6sex must be determined by reference to chromosomal, gonadal and genital factors whilst the fact that a person has undergone surgery cannot be taken into account.

The new provisions define gender reassign- ment as 'a process which is undertaken under medical supervision for the purpose of reassigning a person's sex by changing 19. Furthermore, section 11(c) of the Mat- physiological or other characteristics of rimonial Causes Act 1973 provides that a sex'. marriage is void if the parties are not respectively male and female.

20. In its judgment of 10 April 2003 in Bellinger v Bellinger, 7the House of Lords dismissed an application for recognition of a marriage celebrated by a transsexual in According to the Guide to the new legis- her acquired gender. The House of Lords lation, 'transsexualism affects an estimated understood English law not to give legal 5 000 people in the United Kingdom. recognition to a change of gender. It none Medical treatment to enable transsexual the less made a declaration that section people to alter their bodies to match their 11(c) of the Matrimonial Causes Act was gender identity is highly successful. The incompatible with the European Conven- process is known medically as "gender tion on Human Rights for the purposes of reassignment"'.

23. The Court of Justice has consistently held that the concept of pay, as defined in Article 141 EC, does not encompass social security schemes or benefits, in particular 22. The first paragraph of Article 1 of retirement pensions, directly governed by Directive 75/117 9provides that the prin- legislation. 10 On the other hand, benefits ciple of equal pay for male and female granted under a contractual pension workers means, for the same work or for scheme, which essentially relate to the work to which equal value is attributed, the employment of the person concerned, form elimination of all discrimination on part of the pay received by that person. 11 grounds of sex with regard to all aspects For the purposes of determining whether a and conditions of remuneration. Under retirement pension falls within the scope of Article 3 of that Directive, Member States 10 — Case C-262/88 Barber [1990] ECR I-1889, paragraph 22; Case C-7/93 Beune [1994] ECR I-4471, paragraph 44, and 8 — The House of Lords did nor consider it possible to read the Case C-50/99 Podesta [2000] ECR I-4039, paragraph 24. disputed provision in a way which is compatible with the 11 — Case 170/84 Bilka [1986] ECR 1607, paragraph 22; Convention, as provided for in section 3(1) or the Human Barber, paragraph 28; Beune, paragraph 46; Joined Cases Rights Act. C-234/96 and C-235/96 Vick [2000] ECR I-799, para- 9 — Cited at point 2 above. graph 32; and Podesta, paragraph 25.

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Transsexualism can thus be defined as a syndrome where the anatomical (gonadal) or biological 24. The Court of Justice has also stated (chromosomal) sex of a patient is not that a survivor's pension provided for on congruent with his or her psychological the same conditions falls within Article 141 sex. 15 EC. It has stated in that connection that that interpretation is not negated by the fact that the widow's or widower's pen- sion, by definition, is not paid to the worker but to his or her survivor, since such a benefit is an advantage deriving from the survivor's spouse's membership of the scheme, so that the pension is vested in the survivor by reason of the employment 15—The syndrome has always existed and has been better relationship between the employer and the understood in primitive cultures, removed from the influence of Christianity. M. Vargas Llosa in El Paraíso survivor's spouse and is paid to the survivor en la otra Esquina, Ed. Alfaguara, Madrid, 2003, pp. 67 and 68, 434 and 436, for example, recalls these tendencies by reason of the spouse's employment. 13 among the Maoris in recounting the adventures of the The surviving spouse may rely on painter, Paul Gauguin, in Tahiti. Prior to the developments in medicine and surgery in the Article 141 EC in order to have the second half of the 20th century, women who felt com- pelled to be men had to resort to complicated strategies principle and scope of the entitlement to and run great risks, which generally turned out badly.

Many women managed to be soldiers or sailors. In the judicial proceedings which followed, it is stated that some of them claimed that their conduct was predestined by God; that when they were born their Transsexuals' right to marry parents were hoping for a boy; that, although they appeared to be women, their nature was in fact male. Fear that their deception would be discovered pushed these women to suicide, as in the case of Catherine Rosenbrock in 1765, who, having spent 12 years working as a sailor and soldier in Holland, returned home to Hamburg, where her mother accused her of having denied her female sex;

to death. Her popularity and pressure of public opinion 13 — Case C-109/91 Ten Oever [1993] ECR I-4879, paragraphs resulted in the conviction being quashed. From then on, 12 and 13, and Case C-147/95 Evrenopouios [1997] ECR although she continued to dress as a man, the authorities I-2057, paragraph 22. decided to ignore her flirtations. C. Spencer, Homosexual- 14 — Case C-200/91 Coloroll Pension Trustees [1994] ECR ity: a history, (1995), London, Fourth Estate, refers to I-4389, paragraph 19. certain of these cases.

27. From a legal point of view, the desire of transsexuals to marry on the basis of their acquired gender 17 has been addressed both in the legislation and administrative prac- Transsexualism is clearly different from the tice of the Member States and in case-law, various conditions associated with sexual in particular the case-law of the European orientation (heterosexuality, homosexual- Court of Human Rights. Those factors are ity or bisexuality), where the individual of the utmost importance for the purpose of unequivocally accepts his or her sex and the analysis which the Court of Justice any problems arise fundamentally in emo- must carry out, since a general principle of tional expression, and from transvestism, Community law may be derived from a which entails wearing the clothes of the constitutional tradition common to the opposite sex for sexual gratification. countries of the European Union or from guidance given by international treaties concerning the protection of human rights ratified by all the Member States.

26. I wish to make clear that although, in principle, the obstacle preventing transsex- uals from marrying is the impossibility of amending data in the Register of Births in order to reflect the change of gender, the fact is that their right to marry is thereby 28. A comparative study of the prevailing restricted in the absence of general accept- legal situation shows that the marriage of ance of associations between persons of the transsexuals in their acquired gender is generally accepted. Whether it is as a result

18—Paragraphs 8 to 12 of the Law of 10 September 1980 Article 12 of the Convention provides that concerning transsexualism (Gesetz über die Änderung der 'men and women of marriageable age have Vornamen und die Feststeilimg der Geschlechtszugebörig- keit in besonderen Fällen — Transsexuellengesetz). the right to marry and to found a family, 19 — Article 14 of Law No 2503/1977 on civil status (ΦΕΚ 107 according to the national laws governing A 1997). 20 —Article 1 of Law No 164 of 14 April 1982 on gender the exercise of this right'. reassignment (Norme in materia di rettificazione di sesso). 21 — Articles 28 to 28c of the Civil Code (Burgerlijk Wetboek). 22 — Law 1972:119 on the determination of sex (Lag om fastställande av könstillbörhet). 23 — Circular from the Minister for the Interior of 27 November 1996 ('Transsexuellen-Erlaß' des Btindesministerinms fur Inneres (36.250/66-IV/4/96)). 24 — Circular No 12003 of 10 November 1976 (Cirkulæresk- rivelse om ændring af fødselstilførseler som følge af kønsskifte). 25 — See, for example, the judgments of the Tribunal de 31. Faced with a series of claims brought premiere instance de Verviers (Court of Fitst Instance, Verviers) of 19 February 1996 and of the Hof van Beroep by transsexuals, particularly of British (Court of Appeal), Amberes, of 27 January 1999. nationality, who invoked Articles 8 and 26 — See, for example, the judgments of the Audiencia Provin- cial de Barcelona (Provincial Court, Barcelona) of 12 to claim recognition of their right to 11 February 1994 and of the Juzgado de primera instancia marry in their reassigned gender, the Euro- de Lérida (Court of First Instance, Lérida) of 21 September 1999. pean Court of Human Rights stated in its 27 — Judgment of the Korkein Hallinto Oikeus (Supreme judgment of 17 October 1986 Rees v 31 Administrative Court) 1988-A-46. United Kingdom that 'it must for the 28 — Judgment of the Cour de Cassation (Court of Cassation, Full Assembly) of 11 December 1992. time being be left to the respondent State to 29 — Judgments of the Tribunal administratif (Administrative Court) of 28 January 1987 and 31 May 1989. 30 — See, for example, the judgment of the Ttibunal da Relaçao (Court of Appeal) of 9 November 1993. 31 — Series A No 156.

32. That was the situation when the main 35. In the sphere of Article 12, the Euro- proceedings were commenced. It had not pean Court found that it was artificial to changed at the time when this question was assert that post-operative transsexuals have referred for a preliminary ruling and not been deprived of the right to marry as, remained unchanged until after the public according to law, they remain able to hearing on 23 April 2002. marry a person of their former opposite

32 — Paragraph 47 of Rees. Emphasis added. 36 — No 28957/95, ECHR 2002. See also the judgment of the 33 — Scries A No 256. same date in A v United Kingdom (No 25680/94 ECHR 34 — Reports 1998-V, p. 2021. 2002) of similar purport. 35 — Paragraph 58 of Sheffield and Horsham. 37 — Paragraph 93 of the judgment in Goodwin.

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36. By order of 14 December 2000 the Court of Appeal asked the Court of Justice for a ruling on 'whether the exclusion of the female-to-male transsexual partner of a female member of the National Health Service Pension Scheme, which limits the (b) If there is a breach of Article 14, and possibly also Article 8, of the European 38 — Paragraph 101 of Goodwin. Convention on Human Rights, the 39 — Paragraph 103 of Goodwin. bearing of such a breach on the inter- I-552

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39. However, the Court of Appeal har- bours some doubt about the meaning of Article 2(1) of the Directive, which pro- hibits all discrimination 'on grounds of sex either directly or indirectly by reference in It is settled case-law that benefits granted particular to marital or family status'. This under a pension scheme which relate to the principle appears to limit the use of marital employment of the person concerned form

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42. The appellant in the main proceedings and the national court are not at all at one 44. In its order, the Court of Appeal on what exactly the question is about. expressed uncertainty as to the principle which distinguishes the decisions in P. v S. and Grant: is the principle that treatment 40 — See point 23 above. 41 — See point 24 above. 42 — Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men 43 — Specifically, Directive 76/207 on equal treatment but, as I and women as regards access to employment, vocational have indicated, there is no reason for not applying the rule training and promotion, and working conditions (OJ 1976 in relation to the Equal Pay Directive. L 39, p. 40). 44 — Operative part of the judgment in P. v S..

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45. I am merely concerned to point out that it can, at the least, be inferred from the reasoning of the referring court that it does 48. In P. v S. the question for the Court not exclude the possibility that the correct was whether the dismissal of an employee approach in the present case may be to because he had undergone gender reassign- treat the fact that it is impossible for ment surgery was discrimination of the transsexuals to marry as direct discrimi- kind prohibited in the Directive on equal nation based on sex. treatment for men and women.

46. In practical terms, for the purposes of the question as worded, whether the pres- 49. The Court of Justice observed that the ent case entails discrimination contrary to principle of equal treatment means that

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there should be no discrimination what- by all persons equally and which is guar- soever on grounds of sex and therefore anteed by Directive 76/207 or 75/117, as gives expression to the fundamental right to the case may be. equality, whose observance the Court ensures. 45

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53. Before pursuing that argument, which ships outside marriage between two per- digresses from the original approach to the sons of opposite sex. Finally, it considered question, it is appropriate to mention other whether discrimination based on sexual judicial precedents in order to distil the orientation entailed discrimination based essence of the Court of Justice's case-law in on the sex of the worker. 48 this area. I shall refer first to the judgments of 17 February 1998 in Grant, cited above, and of 31 May 2001 in D v Council. 47

As regards the first of the questions, the Court of Justice confined itself to stating 54. In Grant, a female employee of a that the condition applied in the same way railway company claimed that the grant to female and male workers, so could not of travel concessions to an employee and constitute discrimination directly based on his or her spouse or common law opposite- sex. 49 sex partner with whom the employee had sustained a 'meaningful' and stable rela- tionship, and the corresponding refusal of concessions to same-sex couples in similar circumstances infringed the prohibition on discrimination set out in what was then Article 119 of the EC Treaty.

The second also lends support to the United Finally, with regard to the third issue, the Kingdom Government's position, since it Court of Justice stated that discrimination refers to the fact that Article 12 of the based on sex did not cover discrimination European Convention on Human Rights based on sexual orientation. It also found protects only traditional marriage between that the rule in P. v S. was limited to the two persons of opposite biological sex (see case of a worker's gender reassignment. Eur. Court H.R., Rees v United Kingdom, judgment of 17 October 1986, and Cossey v United Kingdom, judgment of 27 September 1990). 51 Those judgments encapsulate European law on the matter.

55. The judgment in Grant lends support to the United Kingdom Government's argument that this case does not involve unlawful discrimination. To that end it applies the tripartite reasoning outlined The United Kingdom Government submits above. that the third part of the reasoning in Grant is not relevant for K.B.

The first point, in its submission, is wholly applicable to the present case: all unmar- ried persons are excluded from the 56. The judgment in Grant does not sup- widow(er)'s pension, whether they are male port the arguments of the appellant in the or female, and there are therefore no main proceedings, since the Court did not grounds for invoking direct discrimination find that there was a violation of the right

50 — Ibid., paragraph 35. 51 — See point 31 above.

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For that reason, the United Kingdom Government, whilst continuing to assert that the United Kingdom rules are com- patible with Articles 8 and 14 of the Convention on Human Rights, submits that any such incompatibility would not 58. On appeal, the Court of Justice found make the rule at issue infringe Article 141 that the word 'marriage', according to the EC. definition generally accepted by the Member States, meant a union between two persons of the opposite sex and, although it was true that in an increasing number of cases, statutory arrangements had been introduced, alongside marriage, which granted recognition to various forms of union between partners of the same sex or of the opposite sex and conferred on such unions certain effects which, both It refers to paragraphs 45 to 47 of the between the partners and as regards third judgment in Grant, in which it was stated parties, were the same as or comparable to that although respect for the fundamental those of marriage, such arrangements were, rights which form an integral part of the in the Member States which had introduced general principles of law is a condition of them, distinct from marriage per se. Con- the legality of Community acts, those rights sequently, the Community Courts could cannot in themselves have the effect of not interpret the Staff Regulations of Offi- extending the scope of the Treaty provi- cials of the European Community in such a sions beyond the competence inherent in it. way that legal situations distinct from The scope of any provision of Community marriage were treated in the same way as law is to be determined only by having marriage. 52 regard to its wording and purpose, its place in the scheme of the Treaty and its legal context. 52 — D vCouncil, paragraphs 34 to 37.

The Court of Justice pointed out, first, that Eyiip 55 is of more marginal interest to the the alleged discrimination based on sex did present case. The appellant in the main not exist, since it was irrelevant whether action submits that the judgment entailed the applicant was a man or a woman: nor the recognition by the Community judica- was there any unequal treatment on ground ture that marriage was equivalent to a of sexual orientation given that it was not stable relationship between unmarried per- the sex of the partner which determined sons. whether the household allowance was granted, but the legal nature of the ties between the official and the partner. 53 That statement appears to mean that the Community judicature is not competent to determine whether the conditions on which persons may marry under national law are compatible with fundamental rights. How- ever, the Court of Justice went on to consider the views prevailing within the Community as a whole, from which it concluded that there was a diversity of laws and an absence of any general assimilation of marriage and other forms of statutory In that case, the issue to be decided was union. 54 whether the foreign, cohabiting partner of a Turkish worker lawfully established in a Member State should be regarded as a 'family member' for the purposes of the first paragraph of Article 7 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association between the European Economic Community and Turkey. The facts which gave rise to the question referred are particular: in 1983, Mrs Eyüp 59. The judgment in D v Council does not married a Turkish worker who had been lend support to K.B.'s claims either. As in part of the legal Austrian labour force since Grant, the Court of Justice found that there 1975. They were divorced in 1985 but had been no discrimination based on sex. remarried in 1993. In the interim they had continued to live together in Austria, dur- ing which time four of the couple's seven children were born. The Court had to determine whether that period should be included for the purposes of calculating the five years of legal residence, which under Decision No 1/80 is a condition of the members of the family of a Turkish worker 60. In my opinion, the judgment in Safet having access to the host country's labour market.

From the detailed terms employed by the Court of Justice, a clear inference may be drawn that it was not maintaining that, in Community law, a stable relationship between two people may be equated to marriage. Moreover, Decision No 1/80 refers, in general terms, to the 'members 61. As I understand it, the foregoing analy- of the family' of a Turkish worker, a looser sis of the case-law indicates that neither the term than 'widower' or 'widow', used in Equal Pay Directive nor Article 141 EC the United Kingdom pension scheme. suggests that the unmarried partner of a female worker should be awarded a bene- fit, such as a pension, which is restricted to the surviving spouse. The fact that such a person is transsexual is not, in principle, a determining factor, since the same outcome would apply in relation to various other impediments to marriage. Thus, it would apply in the case of same-sex partners, but also where the persons concerned had not reached marriageable age, did not have legal capacity, were already married or In any event, the judgment in Eyüp can were in a relationship of consanguinity. In shed some light on the question before the none of those cases would it be possible, if Court but for reasons distinct from those the situation were to arise, to claim a widow(er)'s pension, unless the impedi- ments were an expression of discrimination 56 — Eyüp, paragraph 36. based on sex.

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It might be asked whether is reasonable to select marriage as the relationship upon which the grant, in relevant circumstances, of a widow(er)'s pension is conditional. 64. The question referred, as reformulated, Consideration of that issue would require would thus concern the compatibility with consideration to be given to the objective Community law of a national rule which, pursued by a pension of that kind and, in by not recognising marriage between trans- parallel, to the suitability of a purely formal sexuals, denies them access to a widow's or contract to symbolise a community based widower's pension. on solidarity: consideration should at least be given to the possibility that relations of another kind merit like protection. That 57 — See, to that effect, Council Regulation of 4 December 1997 type of analysis, which is appropriate in a on measures to be adopted on the combating of marriages of convenience (OJ 1997 C 382, p. 1). mature society in which substance prevails 58 — See the judgment in Eyüp, cited above.

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65. If the underlying claim is to receive a the protection of human rights which have positive response, a twofold test must be been ratified by the Member States. 60 The passed: European Convention on Human Rights is also of particular relevance in that regard. 61

(a) the national rule must be contrary to Community law;

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the conditions which must be fulfilled for nation based on sex as regards workers' gender reassignment to be valid, to the pay. consequences for previous marriages and to the obligation to inform an intended spouse about the gender change. 63

72. Clearly it is beyond dispute that the entitlement to a widow(er)'s pension, in the circumstances of the present case, falls within the scope of Article 141 EC and Directive 75/117 as a benefit linked to 69. Consequently, both methods employed pay. 64 by the Court of Justice to give substance to the general principles of Community law lead to the same conclusion: transsexuals have a fundamental right to marry on conditions which take account of their acquired sex. 73. Nor can there be much doubt that the unequal treatment to which transsexuals are subject amounts to sexual discrimi- nation. That can be seen from the judgment in P. v S., where it was held that sex discrimination cannot be confined 'to dis- crimination based on the fact that a person is of one or other sex, but that it includes discrimination which arises as a result of 70. However, that conclusion is not suffi- the gender reassignment of the person cient. As the United Kingdom Government concerned. Such discrimination is based, points out, merely because a national rule is essentially if not exclusively, on the sex of incompatible with a fundamental right the person concerned.' 65 recognised in the Community sphere, that sphere cannot be extended beyond the competences attributed by the Treaty.

not have specific protection at Community 76. It is not a question of developing level. It will be recalled that neither 'European matrimonial law' but of ensur- Article 13 EC nor Article 21 of the Charter ing that the principle that there should be of Fundamental Rights of the European no discrimination based on sex is fully Union makes express reference to trans- effective. Take, for example, a hypothetical sexuals. 6 7 national rule which excludes women from entering into a particular legal arrangement or from obtaining a qualification which is a necessary precondition for earning money. Such a limitation, unless it could be explained as a proportionate response based on objective criteria, would amount to direct discrimination c o n t r a r y to Article 141 EC. 74. The unusual feature which distin- guishes this case from P. v S. is that the discrimination at issue does not directly affect enjoyment of a right protected by the Treaty but rather one of the preconditions of such enjoyment. The discrimination is not focused on the award of a widow(er)'s The same is true of the present case: pension; it arises merely by virtue of a although the unequal treatment operates necessary precondition: the capacity to mediately, the discrimination is still direct. marry. Discrimination may be described as indi- rect only where it makes use of criteria distinct from sex, but the impediment to marriage in this case is based on, and is solely accounted for by, the gender reas- signment of the person concerned, which is covered by Article 141 EC, following the interpretation of the Court of Justice referred to above. 75. That difference cannot in itself lead to a different solution from the one adopted in P. v S.. The Court of Justice must ensure that the exercise of rights protected by the Treaty remains free of any prohibited discrimination and also that those rights are not made conditional on requirements 77. In addition to equality at work, there is which are contrary to European public also an issue — as the judgment in P. v S. policy. recognises — of respect for the dignity and freedom to which transsexuals are entitled. 'Human dignity and the fundamental right 67 — Article 13 EC refers to 'discrimination based on sex, racial to free personal development make it or ethnic origin, religion or belief, disability, age or sexual orientation'. Article 21 or the Charter covers cases of imperative that an individual's status 'discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, should be adapted to the sex to which he religion or belief, political or any other opinion, member- ship of a national minority, property, birtli, disability, age or she belongs in accordance with his or her or sexual orientation'. psychological and physical make-up... For

78. I am aware that such an interpretation entails certain technical problems as regards implementation. Until the United Kingdom adopts the necessary legislation enabling transsexuals to marry, the national court — which is also a Commu- nity court — must ensure, in accordance with national law, that the discrimination to which transsexuals are subject does not have any repercussions for the rights which 80. I shall finish in the same way as they derive from the Treaty. Possible sol- Advocate General Tesauro in his Opinion utions range from interpreting the terms in P. v S. when he paraphrased the words of 'man' and 'woman' in such a way that Advocate General Trabucchi in an Opinion transsexuals are entitled to marry, 69 to dating from almost 30 years ago: If we creating a notional marriage there and then want Community law to be more than a or to establishing a separate, more flexible mere mechanical system of economics and link, which would enable transsexuals to to constitute instead a system commensur- have access to a pension following the ate with the society which it has to govern, death of the person who would have been if we wish it to be a legal system cor- their spouse had that not been prohibited responding to the concept of social justice by unfair rules. and European integration, not only of the economy but of the people, we cannot fail to live up to what is expected of us. 71 68 — Order of the Bundesverfassungsgericht (Constitutional Court, Germany) of 11 October 1978 (BVerfGe 49, p. 286). 69 — Although the House of Lords has recently refused to do 70 — See the dissenting opinion of Judge Martens in the this, allowing difficulties of how to implement the right in judgment of the Court of Human Rights in Cossey v practice to prevail over the fundamental right, an approach United Kingdom, cited above. diametrically opposed to that taken by the German 71 — Opinion of Advocate General Trabucchi in Case 7/75 Mr Constitutional Court. and Mrs F. v Belgium [1975] ECR 679, point 6.