Can a landmark ruling by the court of the European Union signal a turning point for gay and lesbian rights in Malta? The jury is still out on the matter.
The case of German citizen Tadao Maruko, whose survivor’s pension was denied him despite having been in a registered union with his deceased husband, became a landmark case of “direct discrimination” because same-sex ‘life partnerships’ in Germany, the court said, were “legally comparable” to marriage – and had to be therefore be treated the same.
Despite claims by Austrian lawyer Helmut Graupner, who represented the European Region of the International Gay and Lesbian Association (ILGA-Europe) in the case, that the ruling would affect other EU member states, the fact that Malta does not even recognise couples through civil partnerships seems to make the possibility remote at this point.
The case, initiated by Maruko, concerned the refusal of his survivor’s pension by his partner’s employers, who claimed the pension was entitled only to married survivors. Since Maruko was in a registered partnership with his husband under German law, the European Court of Justice (ECJ) found he had been directly discriminated against on the grounds of his sexual orientation, because German law grants legal rights to life partners that are similar to those of married couples.
This “comparable legal situation” became the crux of why equal treatment, according to EU law, had to be afforded to both married and state-recognised life partners, gay or straight.
But what does such a sentence mean for a country like Malta, which has only just begun to discuss whether the State should recognise civil partnerships for unmarried, opposite-sex partners?
ILGA-Europe, which called the decision a “significant achievement”, said it was still concerned that the decision does not have “immediate legal consequences” for same-sex partners in those EU countries that do not yet recognise same-sex unions.
Indeed, there is little that could change at this point. Without any “comparable legal situation” in Malta, where there is no civil recognition of cohabiting or life partners, there can be no jurisdiction of the matter.
However, Silvan Agius, a policy officer at ILGA-Europe, makes reference to another aspect of the situation. He claims that if lesbian, gay or bisexual residents of an EU member state that does not recognise same-sex partnerships, are precluded from economic benefits that they would be entitled to under the equal treatment directive, then they might have the opportunity to argue that they are suffering from a case of “indirect discrimination”.
Directive 2000/87/EC – the employment and equal treatment directive – prohibits discrimination on the grounds of sexual orientation, amongst others, in the fields of employment and training.
Agius says that in the Maruko case, the ECJ found the denial of his survivor pension rights was a case of “direct discrimination” because Maruko’s registered partnership is legally comparable to marriage in Germany.
“What is interesting is that the ECJ did not merely say that it was “indirect discrimination”, which would still have meant that Maruko was entitled to these rights. This fact on its own could mean that the Court would most probably be ready to accept a case from a member state where gay and lesbian couples cannot at least register their partnership and hence the same economic rights enjoyed by heterosexual couples.”
Agius says the principal point in this court case is that the judgement leaves the door open for a case of “indirect discrimination” to be presented by gay and lesbian couples who are still denied entitlement to the same economic rights in the EU state where they reside vis-à-vis opposite-sex partners. Indeed the ECJ judgement is another one that highlights the two-tier citizenship across the EU, where married couples enjoy more rights than unmarried life partners.
What is interesting is that if the government had to follow up on Lawrence Gonzi’s pledge to “look into” the issue of cohabiting partners, then we could well be looking at a debate over whether the same rights of state-recognised civil unions for heterosexual couples should apply to same-sex partnerships – in terms of EU law and the ruling of the ECJ.
Gaby Calleja, from the Malta Gay Rights Movement (MGRM), told MaltaToday that the judgement could mean that the rights afforded to civil partnerships would have to be afforded to both gay and straight couples.
“I think they would have to extend these rights to same-sex couples as well. Indeed, when MGRM met with the Nationalist Party in the run-up to the election, they said that any rights to cohabiting partners would be extended to same-sex couples and live-in siblings.”
But it’s not just the ECJ sentence that seems to present this eventuality. Gay partnerships are now too topical to ignore: they are legal in almost half of the EU-27 bloc, Canada, Iceland, Switzerland, Norway, Andorra, South Africa, Uruguay, some states in the USA and the list keeps on growing. Sexual morality has been radically changed and personal freedom of choice has become a key element of our societies; and the European courts are increasingly closing on all forms of discrimination based on sexual orientation including discrimination against same-sex partners. It is very likely that, even in the face of general opposition in Malta, accepting civil partnerships just for opposite-sex couples will be outright discriminatory, relegating gay and lesbian citizens to second-class citizens.

mvella@mediatoday.com.mt