On the Right to Life:
Brüstle v Greenpeace (C‑34/10):
This is the most important CJEU Decision on the Right to Life so far, and it is one with a highly satisfying result. The Court affirms that each human being is a bearer of human dignity as from the moment of conception, and therefore must not be made the object of commercial and/or industrial exploitation by others.
The case goes back to a request for a request for preliminary ruling in a patent litigation before a German law court. Mr. Brüstle, a renowned stem-cell researcher had applied for the registration of a patent concerning a specific type of human embryonic stem-cells that were obtained at a very early stage of embryonic development. As Article 6(2)(c) of Directive 98/44/EC (the EU Biopatent Directive) explicitly exempts from patentability any invention that involves “uses of human embryos for industrial or commercial purposes”, Mr. Brüstle argued that at the very early stage of its development when the stem-cells were obtained from it the embryo was not yet an embryo, but something else.
The determination that the human embryo has dignity and must not be made the object of economic exploitation was thus already made by the EU legislator; it is inherent in Directive 98/44. The CJEU’s task was solely to decide the question what the term “embryo” means. The Court decided clearly, and on the basis of sound common-sense arguments, that an embryo is an embryo as from the moment of conception, and that there is no period in time after conception in which the embryo can be made the object of commercial exploitation. In so deciding, the Court rejected the attempt to rescind the scope of human rights through arbitrary and pseudo-scientific re-definitions of the term embryo.
Although this decision was made in the context of a private litigation concerning the validity of a patent, its significance reaches far beyond. The Court did not base its decision on a definition of “embryo” in Directive 98/44, but on the generally accepted meaning of that term – and on the finding that the exclusion of uses of the human embryo from patentability served the purpose of protecting human dignity (see § 34 of the decision). Implict in this decision is therefore the finding that the human embryo is a bearer of human dignity as from the moment of conception. This implication is of general validity, so that the Brüstle case will have to be taken into account whenever and whereve the quetion of the status of the embryo might arise in future.
Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and Others (C-159/90):
This is so far the one and only CJEU decision that concerns the issue of abortion. It resulted from a legal dispute in Ireland, a country where abortion laws are still restrictives. Pro-abortion groups claimed that they could rely on the free circulation of services, one of the EU’s four fundamental freedoms, to provide information on how to obtain abortions abroad.
The Court found that abortion, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of the EU Treaty. However, it also said that the provision of information on an economic activity is not to be regarded as a provision of services within the meaning of the Treaty where the information is not distributed on behalf of an economic operator but constitutes merely a manifestation of freedom of expression.
As a result, it is not contrary to Community law for a Member State in which abortion is forbidden to prohibit students associations from distributing information about the identity and location of clinics in another Member State where abortion is lawfully carried out and the means of communicating with those clinics, where the clinics in question have no involvement in the distribution of the said information.
On Equality and Anti-Discrimination:
Tadao Maruko v Versorgungsanstalt der deutschen Bühnen (C-267/06):
The Maruko Decision was the first CJEU case to deal with an alleged “discrimination on grounds of sexual orientation” on the basis of Directive 2000/78/EC. That Directive provides for equal treatment on the workplace, including with regard to pay (where the salary is based on a fixed scheme). The plaintiff, Mr. Maruko, claimed that he had been discriminated because he had not been granted a widower’s pension subsequent to his same-sex registered partner’s death, given that the social benefits system under which his partner had been employed provided for a survivor’s pension for the deceased employee’s spouse.
The case raised two questions: first, whether a survivor’s benefit granted under an occupational pension scheme can be considered a part of “salary” rather than a social benefit (which would have been outside the scope of the Directive), and second, whether life partnership places persons of the same sex in a situation comparable to that of spouses. The Court answered both questions in the affirmative sense, but with some restrictions.
In both regards, the judgment merits criticism. With regard to the qualification of a survivor’s benefit as part of the deceased employee’s “pay”, it might have been appropriate to distinguish between cases where such benefits are individually negotiated (e.g. with a top manager) and thus easily qualifiable as a part of the salary, and cases where such benefits are granted under a fixed pension scheme, in which latter case they rather should be qualified as a social benefit. Lacking such distinction, it might be argued that the next victims of “discrimination” (this time on grounds of their marital status) are single persons after whose death no beloved one continues to receive a survivor’s benefit…
With regard to the “equality” between marriage and registered same-sex partnerships, the Court’s reasoning is completely circular: if, under the law of a given Member State, life partnership places persons of the same sex in a situation “comparable”to that of spouses, then there should be equal treatment beween both. If the situation is not “comparable”, then there should be no equal treatment. It is for the national judiciary to determine whethere there is such a “comparable” situation.
In other words, the decision highlights the conceptual flaws of the EU’s anti-discrimination legislation, which provides for “equal” treatment in (merely) “comparable” situations.
Jürgen Römer v Freie und Hansestadt Hamburg (C-147/08):
A case that is very similar to Maruko and was decided soon thereafter. The sole difference is that in this case the plaintiff requested, on the basis of his having concluded a registered same-sex partnership, additional social benefits for himself (i.e. a higher pension than he would otherwise have received). The comments and criticism made above with regard to Maruko apply mutatis mutandis also to Römer.
Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres (C-236/09):
This is arguably so far the most important of the Court’s “anti-discrimination” decisions, and certainly the most erroneous one. The case concerns not unequal treatment on the grounds of sexual orientation, but between men and women.
Directive 2004/113/EC is the first EU “Anti-discrimination Directive” to extend the concept of equal treatment to the provision of goods and services, stipulating that all goods and services must be made available to men and women for the same price and without discrimination. This will not be a big issue in most cases, as it rarely occurs, with or without EU Directive, that any supplier of goods and services has the idea of charging different prices for the exactly same good or service depending on whether his client is male or female. However, there are some services where such differentiation makes perfect sense. One of them is insurance contracts, where in many cases the actuarial risk to be insured is widely different between men and women, due to different health risks (such as childbirth or pregnacy for women, prostate cancer and heart disease for men…), different behavioral patterns (young men are more likely to cause car accidents than young women), or differences in life expectancy. This is the reason why Article 5 (2) of Directive 2004/113 provided for a sectoral exemption, allowing Member States to maintain legal provisions that made it possible for insurance companies to ask different premiums for the same insurance from men and women.
The CJEU’s Test Achats decision sets an end to this exception. Following a complaint in which a consumers’ association challenged the compatibility of the provision with the Belgian constitution, the Belgian constitutional court passed the question on to the CJEU, asking whether Article 5 (2) of Directive 2004/113 was compatible with the equality principle in Articles 21 and 23 of the EU Fundamental rights Charter. The Court answered this question in the negative sense and invalidated Article 5 (2). In other words, the Anti-Discrimination Directive itself was found discriminatory.
The decision raises severe criticism for two reasons. First, because it fails to take into account the fact that differences between the sexes mean that different risks must be insured, which in turn means that the product that is offered, i.e. the insurance contract, is actually different according to whether the client is a man or a woman. A prohibition to take into consideration the sex of the insured person means that in practice men and women must now pay the same price for what are in fact different products, which in turn means that the relationship between the premium to be paid and the risk to be covered is disturbed. In the end this means that all will pay higher premiums than would be necessary. On the more structural side it is to be remarked that Directive 2004/113, being based on Art. 13 of the EC Treaty, was adopted by Member States under a procedure that required unanimity – but now a part of it is invalidated by a simple majority vote of CJEU Judges. The Member States are now required to comply with a Directive they would not have adopted in its current version – and they cannot correct that situation, except by modifying the EU Fundamental Rights Charter, which in turn would require not only a unanimous decision, but also a popular referendum in certain Member States.
The Test Achats decision thus exposes how EU Member States are caught in a self-constructed trap. By including “equality” into the EU Fundamental Rights Charter, and by making that Charter legally binding, they have conferred to the CJEU the power to impose far-reaching new rules that are nearly impossible to correct. The EU’s “anti-discrimination” legislation not only interferes in an unprecedented way with thecontractual freedom of citizens, but it also leads to results that are economically unreasonable and that, if they had been anticipated, most Member States would not have voted in favour of.
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