Academic journal article Denver Journal of International Law and Policy

Diversity and the European Union: Grant V. SWT, the Treaty of Amsterdam, and the Free Movement of Persons

Academic journal article Denver Journal of International Law and Policy

Diversity and the European Union: Grant V. SWT, the Treaty of Amsterdam, and the Free Movement of Persons

Article excerpt

I. INTRODUCTION

In the huge diversity of peoples who make up the human race, there are a number of universal constants which have always been part of the human condition. One is that people who are different inspire fear which often leads to prejudice; another is that a proportion of the human race is homosexual.(1)

This reality has lead to another phenomenon best summed up by George Orwell: "All animals are equal, but some animals are more equal than others."(2) This short and straight-forward characterization best describes the situation facing the lesbian and gay community with respect to a number of issues within the European Union ("EU"). One such issue is the free movement of persons. The EU has confronted this issue because of the recent focus on European economic unity and the rise of the gay rights movement during the last several years. This issue has an impact on economic unity because discrimination in the workplace that significantly affects one sector of the population (i.e. the homosexual population), directly inhibits the formation of the economic community the EU is attempting to build.

In the European Union, the European Social Charter promises that "[e]veryone shall have the opportunity to earn his living in an occupation fully entered upon."(3) Unfortunately, this promise does not universally apply. Theoretically, Community Law guarantees to all EU citizens the right to enter and to seek or take up work in any Member State.(4) This right, however, is limited by the ability of national authorities to impose restrictions on the right to work in their countries. EU Member States may base these restrictions on public policy, public security, and public health concerns.(5) These limitations, however, must apply equally to the nationals of the Member State, as they apply to citizens of other Member States.(6) Thus, in the sexual preference context, when a Member State discriminates against its own nationals, based on their sexual orientation, so long as the discrimination applies to nationals of other Member States the same as it applies to nationals of that Member State, Community law allows such discrimination. Most Member States, while not per se discriminating against homosexuals, do not prohibit discrimination based on sexual orientation. In fact, at the time of publication, only France, Ireland, and the Netherlands have laws that give legal protection against employment discrimination based on sexual orientation.(7) Consequently, only French, Irish and Dutch nationals, and nationals of other Member States working in France, Ireland or the Netherlands have formal protection against employment discrimination.

In the EU, a case before the European Court of Justice ("ECJ") brought the issue of discrimination based on sexual orientation to international attention.(8) In Grant v. South West Trains, Ltd. ("Grant v. SWT"), the ECJ addressed the issue of a corporation's obligation to provide same-sex partners of employees the same benefits as those offered to heterosexual partners of employees.(9) The Court held that:

   [t]he refusal by an employer to allow travel concessions to the person of
   the same-sex with whom a worker has a stable relationship, where such
   concessions are allowed to a worker's spouse or to the person of the
   opposite sex with whom a worker has a stable relationship outside marriage,
   does not constitute discrimination prohibited by Article 119 of the EC
   Treaty or Council Directive 75/117/EEC of 10 February 1975 on the
   approximation of the laws of the Member States relating to the application
   of the principle of equal pay for men and women.(10)

Due to the broad scope of ECJ decision-making power, this decision has more far-reaching implications than does a decision by a national court of an EU Member State.(11) One of the concerns raised by this decision is the possibility that allowing corporations within EU Member States to make discriminatory policies based on an employee's sexual orientation could infringe on that employee's right of free movement. …

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