European anti-discrimination case law. Compilation of recent

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European anti-discrimination case law.
Compilation of recent decisions.1
(1st January 2011 to 31st May 2011)
I.
European Court of Human Rights................................................................................2
1.
CASE OF ANDRLE v. THE CZECH REPUBLIC (6268/08) ......................................2
2.
CASE OF SOARE AND OTHERS v. ROMANIA (24329/02).....................................2
3.
CASE OF KIYUTIN v. RUSSIA (2700/10) .................................................................3
4.
CASE OF HERRMANN v. GERMANY (9300/07) .....................................................4
5.
CASE OF SPORER v. AUSTRIA (35637/03)..............................................................4
6.
CASE OF WASMUTH v. GERMANY (12884/03) .....................................................5
7. CASE OF ŃEKEROVIC AND PAŃALIC v. BOSNIA AND HERZEGOVINA
(5920/04; 67396/09) ...........................................................................................................6
8.
CASE OF VISTINS AND PEREPJOLKINS v. LATVIA (71243/01) ..........................7
9.
CASE OF NEGREPONTIS-GIANNISIS v. GREECE (56759/08) ...............................7
10. CASE OF MAGGIO AND OTHERS v. ITALY (46286/09, 52851/08, 53727/08,
54486/08 and 56001/08) .....................................................................................................8
II.
Court of Justice of the European Union ...................................................................9
11.
Pensionsversicherungsanstalt v Christine Kleist (Case C-356/09) .............................9
12. Vasil Ivanov Georgiev v Tehnicheski universitet - Sofia, filial Plovdiv (Joined Cases
C-250/09 and C-268/09) .....................................................................................................9
13.
Dita Danosa v LKB Līzings SIA (Case C-232/09) .................................................. 10
14. Association Belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles
Basselier v Conseil des ministres (Case C-236/09) ............................................................ 11
1
15.
Deutsche Lufthansa AG v Gertraud Kumpan (Case C-109/09) ............................... 11
16.
Jürgen Römer v Freie und Hansestadt Hamburg (Case C-147/08) ........................... 12
17.
Malgožata Runevič-Vardyn, Łukasz Paweł Wardyn v Vilniaus (Case C‑391/09) ...13
All commentaries come from indicated web pages and relevant judgments of the Tribunals.
Strona 1 z 13
I.
European Court of Human Rights
1. CASE OF ANDRLE v. THE CZECH REPUBLIC (6268/08)
The case concerned the current pension scheme in the Czech Republic whereby women and
men who care for children are eligible for a pension at different ages. The applicant alleged
that he was discriminated against in the enjoyment of his right to protection of property on
account of his sex.
The Court considered that the lowering of the age for which women were eligible for a
pension in the Czech Republic pursued a "legitimate aim" as it was designed to compensate
for the inequality and hardship generated by the expectations of women under the family
model founded at the time (and which persists today): that of working on a full-time basis as
well as taking care of the children and the household. Indeed, the amount of salaries and
pensions awarded to women was also generally lower in comparison to men.
Therefore, the Court found that the Czech Republic's approach concerning its pension scheme
was reasonably and objectively justified and would continue to be so until such time as social
and economic change in the country removed the need for special treatment of women. There
had therefore been no violation of Article 14 taken in conjunction with Article 1 of
Protocol No. 1.
Judgment
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=6
268/08&sessionid=72359180&skin=hudoc-en
Commentary
http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/e4ca7ef017f8c045c1256849004787f5/05530c9f8d
74a4c5c1257834003781cb?OpenDocument
2. CASE OF SOARE AND OTHERS v. ROMANIA (24329/02)
In the case of Soare and Others v. Romania the ECHR considered the case of a 19-year-old
Roma man who was shot in the head by police during his arrest in Bucharest in May 2000,
resulting in his semi-paralysis. In addition to finding two violations of Article 2 of the
Convention in relation to the shooting of Muguel Soare (risk to life and lack of an effective
investigation), the Court found that the conditions in which two witnesses, Angela Vlasceanu
and Dorel Baicu, had been questioned by the police after they had observed the shooting had
violated Article 3 of the Convention (prohibition of degrading treatment).
The applicant alleged he was also discriminated on ground of his race.
The Court first sought to establish whether racism had been a factor in the police officer‟s
conduct. It took the view that, while the conduct of the officer in question was open to serious
criticism, it did not in itself provide sufficient basis for concluding that the treatment to which
Mugurel Soare had been subjected by the police had been racially motivated. There was no
evidence to suggest, either, that the police officers implicated in the incident had made racist
remarks during the events.
As to whether the Romanian authorities ought to have conducted a specific investigation into
the possibility of a racist motive – which they did not do – the Court replied in the negative.
The fact that, on the evening of the incident, the police officer had stated that he had been
Strona 2 z 13
“attacked by a Gypsy” was not sufficient in itself to require the authorities to ascertain
whether the incident had been sparked by racist motives.
There had therefore been no violation of Article 14 in conjunction with Articles 2 and 3.
Judgment
Commentaries
http://www.apt.ch/index.php?option=com_k2&view=item&id=1053:soare-others-vromania&Itemid=230&lang=en
http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/1d4d0dd240bfee7ec12568490035df05/91b80e1bf3
ffbcb1c125783e00359e73?OpenDocument
3. CASE OF KIYUTIN v. RUSSIA (2700/10)
In its decision of 10 March 2011 in Kiyutin v. Russia (Application No. 2700/10), the
European Court of Human Rights held unanimously that the refusal of the Russian authorities
to grant a residency permit to a national of Uzbekistan on the basis of his HIV-positive status
was discriminatory. The Court found that the refusal constituted a violation of Article 14
(prohibition of discrimination) of the European Convention on Human Rights (read in
conjunction with Article 8 on the protection of home and family life).
The applicant, a national of Uzbekistan, had been living in Russia since 2003 and is married
to a Russian national, with whom he had a child. Upon application for a residence permit, he
underwent a medical examination and tested positive for HIV. His application was then
refused on the basis of a legal provision precluding the issuance of residency permits to HIVpositive non-nationals.
In its ruling, the Court noted that people living with HIV represented a vulnerable group in
society which had been discriminated against in many ways in the past. The court noted that
HIV-related travel restrictions were not imposed on tourists or short-term visitors or Russian
nationals. It observed that the mere presence of an HIV-positive individual in the country did
not constitute a threat to public health and that the selective imposition of HIV-related travel
restrictions only on foreigners seeking residence were not justified. The Court found that Mr.
Kiyutin had been a victim of discrimination on the basis of his health status in violation of
Article 14, together with Article 8, and held that he was entitled to 15,000 euros in damages.
Judgment
Commentaries
http://strasbourgobservers.com/2011/03/21/kiyutin-v-russia-landmark-case-concerning-thehuman-rights-of-people-living-with-hiv/
http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/233813e697620022c1256864005232b7/9207eb6c5
d281a29c125784900374fa1?OpenDocument
Strona 3 z 13
4. CASE OF HERRMANN v. GERMANY (9300/07)
Mandatory membership of landowner in hunting association found to be justified by public
interest: the case concerned the applicant's complaint about being obliged to tolerate the hunt
on his premises even though he is opposed to hunting on moral grounds.
The applicant is a German national is the owner of two landholdings in Rhineland-Palatinate
each of which are smaller than 75 hectares. Under the German Federal Hunting Law
(Bundesjagdgesetz) he is thereby automatically a member of the Langsur hunting association
and has to tolerate the hunt on his premises. Being opposed to hunting on ethical grounds, he
filed a request with the hunting authority to terminate his adherence to the association, which
was rejected.
There existed a difference in treatment between the owners of smaller plots and those of
larger plots in that the latter remained free to choose in which way to fulfil their obligation
under the hunting laws.
However, the Court agreed with the German Government's argument that that difference in
treatment was justified in particular by the necessity to pool smaller plots in order to allow for
area-wide hunting and thus to assure an effective management of the game stock. As regards
the fact that Mr Herrmann was treated differently from owners of land which did not belong
to a hunting district, the Court considered that their exemption from the general adherence to
hunting associations was owed to the specific circumstances of the respective plot, which
justified a difference in treatment.
It followed that there had been no violation of Article 14 of the Convention taken together
with Article 1 of Protocol no. 1.
Judgment
5. CASE OF SPORER v. AUSTRIA (35637/03)
The Court considers that the impossibility of securing judicial review of custody of a child
born out of wedlock discriminates against father . The case concerned Mr Sporer‟s complaint
about custody proceedings with regard to his son who was born out of wedlock.
The Court held, unanimously, a violation of Article 14 (prohibition of discrimination) taken
together with Article 8 (right to respect for family life) of the European Convention on
Human Rights.
Relying on Article 6 § 1 (right to a fair hearing), Mr Sporer complained that in the custody
proceedings the district court had failed to hear him in person to discuss the decisive expert
opinion. He further alleged, under Article 14 taken together with Article 8, that he had been
discriminated against as the father of a child born out of wedlock. He argued that on the basis
of the relevant provisions of the Civil Code, he was treated differently in comparison with the
mother, in that he had no opportunity to obtain joint custody without the latter's consent, and
in comparison with married or divorced fathers, who were able to retain joint custody
following divorce or separation from the mother of their child.
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The Court first underlined that, as was undisputed between the parties, Mr Sporer's
relationship with his son had constituted "family life" for the purpose of Article 8, given that
he had taken parental leave and that he had continued to take care of him on a regular basis.
The Government had not submitted sufficient reasons to justify why the situation of Mr
Sporer, who had assumed his role as K.'s father from the very beginning, should allow for less
judicial scrutiny than that of fathers who had originally held parental authority and later
separated or divorced from the mother.
There had accordingly been a violation of Article 14 of the Convention taken in
conjunction with Article 8.
Judgment
Commentary
http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/233813e697620022c1256864005232b7/da3b4dd7
4fa47006c1257829003f6e11?OpenDocument
6. CASE OF WASMUTH v. GERMANY (12884/03)
Taxpayer's obligation to disclose non-affiliation with church to employer did not violate his
right to freedom of religion: the case concerned Mr Wasmuth's complaint of the compulsory
reference on his wage-tax card to the fact that he does not belong to a religious society
authorised to levy religious tax.
The applicant is a German national who was born in 1956 and lives in Munich. He is a lawyer
in private practice and is also employed as a lector in a publishing house. On his wage-tax
cards of the last few years, the entry "- -" could be found in the field "Church tax deducted",
informing his employer that he did not have to deduct any church tax for Mr Wasmuth. He
brought proceedings before the finance court, arguing that the information on the tax card
violated his right not to indicate his religious convictions, that there was no legal basis for the
public treasury to levy church tax and that it could not be expected of him as a homosexual to
participate in a tax collection system which benefited social groups - the churches - whose
stated goal was to question and to debase an integral aspect of his personality.
In accordance with its recent case-law, the Court found that the obligation to inform the
authorities of his non-affiliation with churches or religious societies authorised to levy
religious tax constituted an interference with Mr Wasmuth's right not to indicate his religious
convictions. The Court was satisfied that that obligation had a basis in German law, as the
domestic courts had consistently held. The interference had further served the legitimate aim
of ensuring the right of churches and religious societies to levy religious tax. It remained to be
established whether the interference had been proportionate to that aim.
The Court agreed with the German Government that the reference on the tax card at issue was
only of limited informative value as regards his religious or philosophic conviction, as it
simply indicated to the fiscal authorities that he did not belong to one of the six churches or
religious societies which were authorised to levy religious tax in Bavaria and exercised that
right in practice. In view of those considerations the Court concluded that there had been no
violation of Article 9.
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As regards Mr Wasmuth's complaint under Article 14 that he had been discriminated against
as a homosexual, the Court observed that he had not raised that point before the German
Federal Constitutional Court. That part of his complaint therefore had to be rejected as
inadmissible for non-exhaustion of domestic remedies.
Judgment
Commentary
http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/e4ca7ef017f8c045c1256849004787f5/7480f4bbe8
e87393c12578340037a455?OpenDocument
7. CASE OF ŠEKEROVIC AND PAŠALIC v. BOSNIA AND HERZEGOVINA (5920/04;
67396/09)
Bosnia and Herzegovina required to change its laws on pensions for internally-displaced
people: the case concerned the pension rights of internally-displaced people following their
return from the Republika Srpska to the Federation of Bosnia and Herzegovina after the war.
The applicants are citizens of Bosnia and Herzegovina who were born in 1932 and 1926
respectively. Mr Sekerovic lives in Tuzla, Bosnia and Herzegovina, and Ms Pasalic lives in
Belgrade, Serbia.
Mr Sekerovic was granted an old-age pension in 1984 and Ms Pasalic in 1981, when both of
them lived in what is today the Federation of Bosnia and Herzegovina (the Federation), one of
the entities of Bosnia and Herzegovina. In 1992, they moved to the Republika Srpska, the
other entity of Bosnia and Herzegovina. While living in the Republika Srpska, they received
their pensions from the Republika Srpska Pension Fund (RS Fund). Mr Sekerovic and Ms
Pasalic returned to the Federation in 2000 and 2001 respectively and sought, unsuccessfully,
to receive their pensions from the Federation Pension Fund. Pensions paid by the Federation
Pension Fund were higher than those paid by the RS Fund. They both applied in 2002 before
the Human Rights Chamber (the Chamber), a domestic human rights body which ceased to
exist in 31 December 2003. The Chamber delivered a landmark decision concerning, among
other things, Ms Pasalic, in which it found that it was discriminatory for people who had
moved to the Federation after the war to receive their pensions from the RS Fund rather than
the Federation.
The Court found that the applications were admissible, despite the fact that Bosnia and
Herzegovina had compensated Ms Pasalic and Mr Sekerovic. It held that it was necessary to
examine the cases on the merits in order to determine whether compensation sufficed for the
full enforcement of the judgments, or whether anything else was needed.
The Court observed that the domestic Human Rights Chamber had found in the case of Ms
Pasalic that, as someone who had returned from the Republika Srpska to the Federation, she
had been discriminated against, compared to pensioners who had remained in the Federation
during the war. The Court saw no reason to depart from that ruling. Having had regard to its
finding that the measures indicated in the domestic decision delivered in respect of Ms Pasalic
had not been implemented, the Court found that she continued to be discriminated against
solely on account of her status an internally-displaced person, in violation of Article 14.
Strona 6 z 13
Judgment
8. CASE OF VISTINS AND PEREPJOLKINS v. LATVIA (71243/01)
The rights of former owners of land expropriated to allow for extension of the Port of Riga
were not violated: the case concerned the expropriation of large plots of land in the middle of
the 1990s as part of the enlargement of the Autonomous Commercial Port of Riga. This
expropriation was based on a special law creating an exception to the ordinary rules
governing expropriation.
Relying on Article 1 of Protocol No. 1 (protection of property) to the Convention,
Mr Vistins and Mr Genadijs Perepjolkins complained about the conditions in which their land
had been expropriated, arguing, in particular, that they had been deprived of their property in
breach of national law. Relying also on Article 14 of the Convention, (prohibition of
discrimination), they complained that they had been discriminated against on the ground of
their "property".
Discrimination is treating differently, without an objective and reasonable justification, people
in relevantly similar situations.
The Court entertained serious doubts that the situation in which Mr Vistins and Mr
Perepjolkins found themselves was comparable to that of other owners of immovable
property. Even had it been, given the public interest pursued by the expropriation and the
margin of appreciation enjoyed by Latvia on account of the denationalisation process, the
Court considered that the difference in the way Mr Vistins and Mr Perepjolkins had been
treated had had an objective and reasonable justification (see the developments concerning
Article 1 of Protocol No. 1).
The Court therefore concluded, unanimously, that there had been no violation of Article 14.
Judgment
Commentary
http://sim.law.uu.nl/sim/caselaw/Hof.nsf/e4ca7ef017f8c045c1256849004787f5/5025aee4c892
9aa5c12578490033a343?OpenDocument
9. CASE OF NEGREPONTIS-GIANNISIS v. GREECE (56759/08)
Unjustified refusal to recognise the adoption of an adult by his uncle, a monk: the case
concerned the full adoption of the applicant by his uncle, a monk.
The applicant is a Greek national who was born in 1964 and lives in Athens. In 1984, when he
was a student living at the home of his uncle, Michaïl Negrepontis-Giannisis, an Orthodox
bishop, in the United States, he and his uncle initiated proceedings for his uncle to adopt him.
A Michigan court made the adoption order the same year. The applicant returned to Greece in
1985. His adoptive father returned in 1996 and died in 1998 in Athens. On 24 December 1999
the Athens Court of First Instance, following an application by the applicant, held that
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American adoption order was not contrary to public policy or contra bonos mores (immoral)
and declared it final and legally enforceable in Greece.
In 2000 and 2001 members of the Negrepontis family brought court proceedings challenging
the recognition of the adoption. On 25 April 2002 Athens Court of First Instance rejected the
application, holding that Greek law did not prohibit adoption by a monk. However, the Court
of Appeal overturned that decision on 18 December 2003 on the grounds that monks were
prohibited from carrying out legal acts, such as adoption. On 22 February 2006 a division of
the Court of Cassation dismissed an appeal on points of law lodged by Mr NegrepontisGiannisis, stressing that the adoption order had implications in terms of inheritance rights. It
referred to the full Court of Cassation the question whether adoption by a monk was contrary
to Greek public policy. In a judgment of 15 May 2008 the full Court of Cassation answered
that question in the affirmative. Relying on Articles 6, 8 and 14 of the Convention and Article
1 of Protocol No. 1, Mr Negrepontis-Giannisis complained of the refusal by the Greek
authorities to recognise the order for his adoption made in the United States.
The Court reiterated that a difference in treatment - such as the difference in the treatment of
Mr Negrepontis-Giannisis, as an adopted child, compared with a biological child - was
discriminatory if it had no objective and reasonable justification.
The Court observed that, since 1982, monks had been allowed to marry and found a family
and that the law laying down that rule had been enacted before the applicant's adoption in
1984. Hence, a biological child born to Mr Negrepontis at the time the applicant was adopted
could not have been deprived of his or her filial rights. In view of this unjustified difference in
treatment, there had been a violation of Article 8 taken in conjunction with Article 14.
Judgment
10. CASE OF MAGGIO AND OTHERS v. ITALY (46286/09, 52851/08, 53727/08,
54486/08 and 56001/08)
Re-adjusting pensions of Italians who worked abroad was in the general interest; however,
related proceedings were not fair: the cases concerned a group of Italian nationals who
migrated temporarily to Switzerland to work and the subsequent proceedings they brought on
their return to Italy about the calculation of their old-age pension.
The applicants were born in 1938, 1942, 1939, 1942 and 1940 respectively and live in Italy.
They all lived and worked in Switzerland, most for more than 30 years, before retiring in
Italy. On their return to Italy the Istituto Nazionale della Previdenza Sociale ("INPS"), an
Italian welfare body, decided to re-adjust the applicants' pension claims to take into account
the low contributions they had paid while working in Switzerland, namely 8% of their salary,
as opposed to 32.7% had they worked in Italy.
Mr Maggio brought proceedings complaining about this method for calculating his pension:
his claim was rejected on appeal in October 2003. The Court of Appeal held that the pension
calculation was to be made on the basis of Italian criteria, even if less favourable. In
December 2008 his claim was ultimately dismissed by the Court of Cassation, Law no. 296 of
December 20062 - which acknowledged the INPS' pension calculation - having in the
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meantime entered into force and that law not having been found to be unconstitutional by the
Constitutional Court.
The Court recalled that Law 296/2006 had been intended to level out any unjustified
advantages and that, in creating a scheme of benefits, it was sometimes necessary to use cutoff points that apply to large groups of people and which might appear arbitrary. This was
inevitable when replacing previous schemes with new regulations. The Court found that the
cut-off date - 1 January 2007, date of the entry into force of the new law - had therefore been
reasonably and objectively justified. Accordingly, there had been no violation of Article 14
in conjunction with Article 6 as concerned Mr Maggio.
Judgment
II.
Court of Justice of the European Union
11. Pensionsversicherungsanstalt v Christine Kleist (Case C-356/09)
Reference for a preliminary ruling - Oberster Gerichtshof - Interpretation of Article 3(1)(c) of
Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of
equal treatment for men and women as regards access to employment, vocational training and
promotion, and working conditions (OJ 1976 L 39, p. 40), as amended by Directive
2002/73/EC - National rules setting the retirement age at 60 years for women and 65 years for
men and facilitating the dismissal of employees when they reach that age - Dismissal by a
public employer of a woman aged 60 years and entitled to retire, on the grounds of a desire to
promote the employment of younger people
Article 3(1)(c) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of
the principle of equal treatment for men and women as regards access to employment,
vocational training and promotion, and working conditions, as amended by Directive
2002/73/EC of the European Parliament and of the Council of 23 September 2002, must be
interpreted as meaning that national rules which, in order to promote access of younger
persons to employment, permit an employer to dismiss employees who have acquired the
right to draw their retirement pension, when that right is acquired by women at an age five
years younger than the age at which it is acquired by men, constitute direct discrimination on
the grounds of sex prohibited by that directive.
Judgment
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009J0356:EN:HTML
12. Vasil Ivanov Georgiev v Tehnicheski universitet - Sofia, filial Plovdiv (Joined
Cases C-250/09 and C-268/09)
Reference for a preliminary ruling - Rayonen sad Plovdiv - Interpretation of Article 6(1) of
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for
equal treatment in employment and occupation (OJ 2000 L 303, p. 16) - National law
permitting university professors who have reached the age of 65 to conclude an employment
contract only for a fixed duration - National law fixing 68 as the final retirement age for
university professors - Justification for differences of treatment on grounds of age
Strona 9 z 13
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for
equal treatment in employment and occupation, in particular Article 6(1), must be interpreted
as meaning that it does not preclude national legislation, such as that at issue in the main
proceedings, under which university professors are compulsorily retired when they reach the
age of 68 and may continue working beyond the age of 65 only by means of fixed-term oneyear contracts renewable at most twice, provided that that legislation pursues a legitimate aim
linked inter alia to employment and labour market policy, such as the delivery of quality
teaching and the best possible allocation of posts for professors between the generations, and
that it makes it possible to achieve that aim by appropriate and necessary means. It is for the
national court to determine whether those conditions are satisfied.
Since this is a dispute between a public institution and an individual, if national legislation
such as that at issue in the main proceedings does not satisfy the conditions set out in Article
6(1) of Directive 2000/78, the national court must decline to apply that legislation.
Judgment
13. Dita Danosa v LKB Līzings SIA (Case C-232/09)
Reference for a preliminary ruling - Augustākās tiesas Senāts - Interpretation of Article 10 of
Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to
encourage improvements in the safety and health at work of pregnant workers and workers
who have recently given birth or are breastfeeding (tenth individual Directive within the
meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1) - Definition of
worker - Compatibility of the directive of national legislation authorising the dismissal of a
member of the board of directors of a capital company without any restriction taking account
in particular of that member's pregnancy
A member of a capital company's Board of Directors who provides services to that company
and is an integral part of it must be regarded as having the status of worker for the purposes of
Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to
encourage improvements in the safety and health at work of pregnant workers and workers
who have recently given birth or are breastfeeding (tenth individual Directive within the
meaning of Article 16(1) of Directive 89/391/EEC), if that activity is carried out, for some
time, under the direction or supervision of another body of that company and if, in return for
those activities, the Board Member receives remuneration. It is for the national court to
undertake the assessments of fact necessary to determine whether that is so in the case
pending before it.
Article 10 of Directive 92/85 is to be interpreted as precluding national legislation, such as
that at issue in the main proceedings, which permits a member of a capital company's Board
of Directors to be removed from that post without restriction, where the person concerned is a
'pregnant worker' within the meaning of that directive and the decision to remove her was
taken essentially on account of her pregnancy. Even if the Board Member concerned is not a
'pregnant worker' within the meaning of Directive 92/85, the fact remains that the removal, on
account of pregnancy or essentially on account of pregnancy, of a member of a Board of
Directors who performs duties such as those described in the main proceedings can affect
only women and therefore constitutes direct discrimination on grounds of sex, contrary to
Article 2(1) and (7) and Article 3(1)(c) of Council Directive 76/207/EEC of 9 February 1976
on the implementation of the principle of equal treatment for men and women as regards
access to employment, vocational training and promotion, and working conditions, as
Strona 10 z 13
amended by Directive 2002/73/EC of the European Parliament and of the Council of 23
September 2002.
Judgment
14. Association Belge des Consommateurs Test-Achats ASBL, Yann van Vugt,
Charles Basselier v Conseil des ministres (Case C-236/09)
Reference for a preliminary ruling - Cour constitutionnelle (Belgium) - Validity of Article
5(2) of Council Directive 2004/113/EC of 13 December 2004 implementing the principle of
equal treatment between men and women in the access to and supply of goods and services
(OJ 2004 L 373, p. 37) - Gender used as a determining factor in the assessment of risk and in
the calculation of insurance premiums and benefits on the basis of relevant and accurate
actuarial and statistical data - Life assurance contracts - Whether a difference in treatment is
permissible and justified
Article 5(2) of Council Directive 2004/113/EC of 13 December 2004 implementing the
principle of equal treatment between men and women in the access to and supply of goods
and services is invalid with effect from 21 December 2012.
Judgment
15. Deutsche Lufthansa AG v Gertraud Kumpan (Case C-109/09)
Reference for a preliminary ruling - Bundesarbeitsgericht - Interpretation, first, of Articles 1,
2(1) and 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general
framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) and,
second, of Clause 5(1) of the Annex to Council Directive 1999/70/EC of 28 June 1999
concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and
CEEP (OJ 1999 L 175, p. 43) - Prohibition on age discrimination - National legislation
allowing fixed-term employment contracts on the sole condition that the worker has reached
the age of 58 - Compatibility of that legislation with the above-cited provisions - Legal
consequences of any incompatibility
Clause 5(1) of the Framework Agreement on fixed-term work concluded on 18 March 1999
and annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework
agreement on fixed-term work concluded by ETUC, UNICE and CEEP must be interpreted as
meaning that the concept of 'a close objective connection with a previous employment
contract of indefinite duration concluded with the same employer', provided for in Paragraph
14(3) of the Law on part-time employment and fixed-term employment contracts (Gesetz über
Teilzeitarbeit und befristete Arbeitsverträge) of 21 December 2000, must be applied to
situations in which a fixed-term contract has not been immediately preceded by a contract of
indefinite duration concluded with the same employer and an interval of several years
separates those contracts, where, for that entire period, the initial employment relationship
continued for the same activity, with the same employer, by means of an uninterrupted
succession of fixed-term contracts. It is for the national court, to the fullest extent possible, to
interpret the relevant provisions of national law in such a way as to comply with Clause 5(1)
of the Framework Agreement.
Judgment
Strona 11 z 13
16. Jürgen Römer v Freie und Hansestadt Hamburg (Case C-147/08)
1.
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework
for equal treatment in employment and occupation is to be interpreted as meaning that
supplementary retirement pensions such as those paid to former employees of the Freie und
Hansestadt Hamburg and their survivors on the basis of the Law of the Land of Hamburg on
supplementary retirement and survivors‟ pensions for employees of the Freie und Hansestadt
Hamburg (Erstes Ruhegeldgesetz der Freien und Hansestadt Hamburg), as amended on 30
May 1995, which constitute pay within the meaning of Article 157 TFEU, do not fall outside
the material scope of the Directive either on account of Article 3(3) thereof or on account of
recital 22 in the preamble thereto.
2.
Article 1 in conjunction with Articles 2 and 3(1)(c) of Directive 2000/78 preclude a
provision of national law such as Paragraph 10(6) of that Law of the Land of Hamburg, under
which a pensioner who has entered into a registered life partnership receives a supplementary
retirement pension lower than that granted to a married, not permanently separated, pensioner,
if
–
in the Member State concerned, marriage is reserved to persons of different gender and
exists alongside a registered life partnership such as that provided for by the Law on
registered life partnerships (Gesetz über die Eingetragene Lebenspartnerschaft) of 16
February 2001, which is reserved to persons of the same gender, and
–
there is direct discrimination on the ground of sexual orientation because, under
national law, that life partner is in a legal and factual situation comparable to that of a married
person as regards that pension. It is for the referring court to assess the comparability,
focusing on the respective rights and obligations of spouses and persons in a registered life
partnership, as governed within the corresponding institutions, which are relevant taking
account of the purpose of and the conditions for the grant of the benefit in question.
3.
Should Paragraph 10(6) of the Law of the Land of Hamburg on supplementary
retirement and survivors‟ pensions for employees of the Freie und Hansestadt Hamburg, as
amended on 30 May 1995, constitute discrimination within the meaning of Article 2 of
Directive 2000/78, the right to equal treatment could be claimed by an individual such as the
applicant in the main proceedings at the earliest after the expiry of the period for transposing
the Directive, namely from 3 December 2003, and it would not be necessary to wait for that
provision to be made consistent with European Union law by the national legislature.
Judgment
Commentary
http://www.prawaczlowieka.edu.pl/index.php?orzeczenie=0477d720adf7c715b04850723531a
5fb1bc5334b-b0
Strona 12 z 13
17. Malgožata Runevič-Vardyn, Łukasz Paweł Wardyn v Vilniaus (Case
C‑391/09)
Forenames and surnames of citizens of the Union are to be entered on certificates of civil
status issued by a Member State. The law of the European Union does not preclude a refusal
to amend surnames and forenames appearing on certificates of civil status, on condition that
such a refusal is not liable to cause serious inconvenience to those concerned.
Mrs Malgožata Runevič-Vardyn, who was born in Vilnius in 1977, is a Lithuanian national.
She belongs to the Polish minority in Lithuania. She states that her parents gave her the
Polish forename „Małgorzata‟ and her father‟s surname „Runiewicz‟. She explains that her
birth certificate issued in 1977 was drawn up in Cyrillic characters and that it was only the
birth certificate issued in 2003 which showed her forename and surname registered in their
Lithuanian form, namely as „Malgožata Runevič‟. The same forename and surname appear
also on the Lithuanian passport which was issued to her in 2002.
In 2007, after living and working in Poland for some time, she married, in Vilnius, a Polish
national, Mr Łukasz Paweł Wardyn. On the marriage certificate, which was issued by the
Vilnius Civil Registry Division, „Łukasz Paweł Wardyn‟ is transcribed as „Lukasz Pawel
Wardyn‟ – the Lithuanian spelling rules being used without diacritical modifications. His
wife‟s name appears in the form „Malgožata Runevič-Vardyn‟ − indicating that only
Lithuanian characters, which do not include the letter „W‟, were used, including for the
addition of her husband‟s surname to her own surname. The couple are currently living with
their son in Belgium.
The Court notes that a person‟s forename and surname are a constituent element of his
identity and of his private life, the protection of which is enshrined in the Charter of
Fundamental Rights of the European Union and in the European Convention for the
Protection of Human Rights and Fundamental Freedoms.
With regard to the couple‟s request that the addition of Mr Wardyn‟s surname to his wife‟s
maiden name on the Lithuanian marriage certificate be amended (to Wardyn instead of
Vardyn), the Court does not exclude the possibility that refusal to make such a change might
cause inconvenience for those concerned. However, such a refusal cannot constitute a
restriction of the freedoms recognised by the Treaty unless it is liable to cause „serious
inconvenience‟ to those concerned at administrative, professional and private levels. It is for
the national court to decide whether the refusal to amend the joint surname of the couple is
liable to cause such inconvenience to those concerned.
Consequently, the Court holds that a refusal to amend the marriage certificate of a citizen of
the Union who is a national of another Member State in such a way that the forenames of that
citizen are entered on that certificate with diacritical marks as entered on the certificates of
civil status issued by his Member State of origin and in a form which complies with the rules
governing the spelling of the official national language of that latter State does not constitute
a restriction of the freedoms which the Treaty confers on every citizen of the Union.
Judgment
http://www.tinyurl.pl?rUKtAbxT
Commentary
http://www.tinyurl.pl?dYJZ57cb (Europe's Log)
Strona 13 z 13

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