Der Schutzgrund sexuelle Ausrichtung
Another field of applicability of the Directives is sexual orientation discrimination. Sexual orientation is protected only in those fields related to employment and professional life-membership in trade unions or professional organisation or provision of some service as regard the employment. So other spheres of our social life where the sexual orientation may become a ground of discrimination are not covered by the Directive. To put it shortly, when we have a gay couple who want to hire a hotel room and the owner of the hotel room refuses them to have access to such hotel room because he says he will not allow for such things to happen in his hotel, such a situation would not be covered by the Directives because it would be access to good and services which are publicly offered and such situations with this specific ground of discrimination, which is sexual orientation, they are not covered by the Directive. It does not mean that such a situation will not be covered by domestic legislation because we might have a domestic law which goes further than the Directive requires but as such the Directive currently does not cover such situations and is only limited to the employment field.
Usually the Directive is applicable when people are dismissed from their workplace due to sexual orientation or when someone makes jokes concerning gays or lesbians knowing that one of his colleagues from work is gay or lesbian, when someone is not promoted due to his or her sexual orientation, when there are some specific clubs created by the employees of the firm and, for example gays are not admitted to those clubs. There is an interesting example of the sexual orientation discrimination case, a case brought by the ACCEPT organisation to the court in Bucharest and the court in Bucharest decided to make a preliminary reference to the European Court of Justice. The case concerned the statement made by the owner of the Steaua Bucharest football club, in which the owner of the club stated that under no conditions whatsoever he will not employ any homosexual football player, that in his opinion it is contrary to God, that he may risk different things with his company, with his Steaua Bucharest but he will never employ a homosexual in the football club. Such a statement is regarded as direct discrimination.
There are two leading cases of the European Court of Justice concerning the sexual orientation discrimination. The first case Tadao Maruko (C-267-06) was decided on 1 April 2008. The second case Römer v the city of Hamburg (C-147/08) was decided on 10 May 2011. Those cases concern situations when people live in their registered partnership and there are certain social consequences of living in such registered partnerships.
In the case of Mr Tadao Maruko, Mr Tadao Maruko had a life long partner. His partner was a designer of costumes in German theatres. He died. Mr Tadao Maruko wanted to enjoy the widow pension which was sponsored by the German theatres, a special pension fund. So basically his partner for a number of years saved money in this German theatre pension fund and Mr Tadao Maruko wanted to take advantage of this situation. So like a traditional situation: we have a couple one of the partners is the surviving partner so he is taking advantage of some additional retirement scheme. According to the rules which were binding in the German pension fund for theatres, it was possible to inherit or to get such a widow pension only in a situation when you were in a marriage not in a situation where you were a partner, registered under the same sex partner regime. Mr Tadao Maruko decided to challenge this regulation and the domestic court decided to make a preliminary question to the European Court of Justice. The European Court of Justice stated that such a situation may be regarded as direct discrimination because it is a differentiated treatment of surviving married partners versus surviving partners in registered partnership. But basically the European Court of Justice requested the domestic court to consider whether there are any substantial reasons behind the differentiated treatment here of marriages and registered partnership. Basically the court referred the case back to the domestic courts saying ‘ok dear German courts please consider right now are their any justifiable grounds on the basis of which you can differentiate in the case of inheriting the widower's pension between married partner and registered partner’. As far as I know the German courts did not find such reasons and ultimately Mr. Tadao Maruko got the pension after his deceased partner.
Another case, the case of Mr Römer v the city of Hamburg is much more complicated. Mr Römer was living in a stable relationship with his partner. In 2001 when the Lebenspartnerschaftsgesetz, the German law on registered partnership entered into force, Mr Römer decided to make a registered partnership with his partner. Later on he retired and he started to get additional supplementary bonuses from the city of Hamburg as a part of this pension. He claimed that his special bonus is taxed according to a regulation which should not be applicable in his particular situation. He basically claimed that he should be taxed in the same way as married partners. Once again the court in Hamburg decided to refer the case to the European Court of Justice and the European Court of Justice responded that it is once again the task for the national court to determine whether there are any compelling reasons behind differentiated treatment of same sex couples living in registered partnership and married partners who just concluded an ordinary marriage. The case is quite interesting because it is not a dispute concerning one euro but the difference in treatment is 300 euro. At the same time, when you compare the registered partnership and marriage you can see that maybe there are some different types of obligations of partner towards each other: usually in marriage there are children or some other duties to care than in a typical registered partnership.
It is a duty for the domestic courts right now to consider how we should treat these situations. But those cases, Tadao Maruko and Römer are important because of two reasons. First, they show that the European Court of Justice will come into assessment of different situations concerning same sex couple in those countries which adopted same sex couples legislation, so they have same sex registered partnership or marriages. On the other hand, this case will not be applicable to such countries, for example Poland which has no legislation whatsoever. Second, this case shows that in those situations where people live together and one of the partner is employed it is a potential huge scope for the development of the case law of the European Court of Justice under the Directive 2000/78/EC. So one may expect some new cases appearing here in the jurisprudence of the European Court of Justice. But in general when we look into the sexual orientation discrimination right now we can see that those standards tend to emerge both in the Luxembourg Court and the Strasbourg Court. There is a long line of interesting judgments concerning the sexual orientation discrimination. One of the most interesting cases is Karner v Austria (ECHR 24-7-2003) as well as Kozak v Poland (ECHR 2-3-2010), which concerns the situation of stepping into the lease agreement after the deceased homosexual partner. The ECHR, the Strasbourg Court, quite clearly decided that the lack of such possibility to inherit the house after the deceased partner may be regarded as discrimination under the European Convention of Human Rights and may be regarded as a violation of their private life. But still we have to wait for judgments concerning the recognition of same sex couples rights or there are some case pending which concerns the possibility to adopt children by same sex couples.
Thank you very much.