Opinion of the Advocate General — ECLI:EU:C:1997:449
Date: 1997-09-30
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

summary, I therefore consider that 
Article 119 of the Treaty covers all cases 
where, on an objective assessment, there is 
de jure or de facto discrimination based 
exclusively or essentially on gender. 
Is there gender discrimination in this case? 
19. South-West Trains, the French Govern­
ment and the United Kingdom contend that 
7 — [1991] ECR 1-4685. 
in this case there is discrimination based, not 
on sex, but rather on sexual orientation. 
20. Examination of the question whether, in 
this case, there is de jure gender discrimi­
nation must start with a more detailed analy­
sis of Clause 8 of the Ticket Regulations. 
Under that clause, an employee is entitled to 
travel concessions for a cohabitee of the 
opposite sex, but not for a cohabitee of the 
same sex. The issue is therefore whether the 
different treatment of the two cases, viewed 
objectively, is exclusively or essentially 
gender-based. 
21. I would point out more generally that 
the travel concessions under the Ticket 
Regulations are in reality household benefits. 
Under Clauses 10 to 12 of the Ticket Regula­
tions employees are entitled to travel conces­
sions for children and close relatives main­
tained by the employee and under those 
clauses the sexual orientation of the employ­
ees or their relatives is irrelevant. If, there­
fore, Lisa Grant was maintaining a child or a 
mother or father, she would, regardless of 
her sexual orientation, have received travel 
concessions for them. 
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GRANT v SOUTH-WEST TRAINS 
22. Where, under Clause 8 of the Ticket 
Regulations, an employee is also entitled to 
travel concessions for a cohabitee, under the 
wording of the provision the same applies as 
for the concessions under Clauses 10 to 12. 
The concessions are in fact a household ben­
efit. Clause 8, like Clauses 10 to 12, makes 
no mention of the sexual orientation of the 
employee or cohabitee, and the question of 
sexual orientation is thus, under the objective 
content of that clause, irrelevant as far as 
entitlement to the concessions is concerned. 
Nor does South-West Trains investigate the 
question of the employee's sexual orientation 
either by requiring the employee to provide 
such information in the declaration to be 
produced or by inspecting the joint home. 
23. Clause 8 of the Ticket Regulations 
makes the concessions conditional, however, 
on the cohabitee's being of the ‘opposite sex' 
to the employee. The discrimination is there­
fore, under the objective content of the pro­
vision, exclusively gender-based. Gender is 
simply the only decisive criterion in the pro­
vision. If the rule had been gender-neutral so 
that the concessions were given, without dis­
crimination, to all employees who submitted 
a declaration that for at least the last two 
years they had been living in a permanent 
relationship, Lisa Grant would have obtained 
the pay benefit in question which, according 
to her undisputed evidence, is worth 
UK £1 000 per annum (corresponding to 
ECU 1 500). Gender is thus, objectively, the 
factor that leads to discrimination relating to 
pay against a particular group of employees. 
24. Thus Clause 8 of the Ticket Regulations 
makes the grant of the pay benefit in ques­
tion dependent on the gender of the 
employee, inasmuch as employees must be of 
the opposite sex to their cohabitees. At the 
same time the clause contains a requirement 
that the cohabitee must be of the opposite 
sex to the employee. Whether the require­
ment for obtaining the concessions is satis­
fied accordingly depends on the gender both 
of the employee and of the cohabitee. Travel 
concessions for a male cohabitee may only 
be obtained if the employee is a woman. 
Travel concessions for a female cohabitee 
may only be obtained if the employee is a 
man. 
25. The fact that Clause 8 of the Ticket 
Regulations does not refer to a specific sex as 
the criterion for discrimination, but lays 
down a more abstract criterion (‘opposite 
sex') can, in my view, make no difference, 
since the decisive point, as laid down in P v S 
is whether discrimination is exclusively or 
essentially based on sex, whereas the fact that 
the discrimination is, de jure or de facto, on 
the basis of a specific sex cannot be decisive. 
26. In the light of the foregoing, it is my 
view that a provision in an employer's pay 
regulations under which the employee is 
granted travel concessions for a cohabitee of 
the opposite sex to the employee but refused 
such concessions for a cohabitee of the same 
sex as the employee constitutes discrimi-
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OPINION OF MR ELMER — CASE C-249/96 
nation on the basis of gender which falls 
within the scope of Article 119 of the Treaty. 
Does the case concern a family law issue 
falling outside the EC Treaty? 
27. A further question that must, however, 
be examined is whether that discrimination is 
a consequence of the family law legislation in 
the Member State in question. The Commis­
sion has thus stated that the case concerns 
the definition of a 'common law spouse' and 
is thus a family law issue which does not fall 
under the EC Treaty. 
28. Had Clause 8 of the Ticket Regulations 
specified, as the determinant criterion, that 
the employee and the cohabitee must have 
contracted marriage, that would, in my opin­
ion, have been a restriction on the travel con­
cessions which was not contrary to Commu­
nity law, because it would be by reference to 
a family law concept, the content of which is 
laid down by the Member States. 
29. There would, nevertheless, have been a 
precondition that male and female employees 
and their spouses be treated in the same way. 
If an employer, on the basis of his private 
moral views, wished to combat the breaking-
down of the traditional sex roles by giving 
employees whose wives stayed at home a 
special benefit but refusing to give employ­
ees whose husbands stayed at home a corre­
sponding benefit, such a rule would be con­
trary to Article 119 of the Treaty, since that 
would involve discrimination based on both 
the employees' gender and the gender of 
their spouses, and would not simply refer to 
family law status. 
30. Clause 8 of the Ticket Regulations does 
not, however, refer to a concept which in 
English law confers a family law status, but 
rather uses the expression 'common law 
spouse'. However, neither in statute law nor 
common law does that expression have any 
legal significance in England. English law has 
put unmarried cohabitees on the same foot­
ing as married couples only in limited cir­
cumstances, for example under rent legisla­
tion, and here a more precise formulation is 
used such as, for example 'a man and a 
woman who lived with each other as hus­
band and wife'. Such provisions are assumed 
in general to require that the couple in ques­
tion have shared finances, share a social life 
and have sexual relations, although the 
absence of the last is not decisive. 8 
8 — See, further, P. M. Bromley and N. V. Lowe, Family Law, 
8th ed., p. 5 et seq. 
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GRANT v SOUTH-WEST TRAINS 
31. The term 'common law spouse' and 
similar terms are thus not used in English 
family law legislation and, in a case in the 
social law area, 9 the members of the House 
of Lords expressed a certain reluctance to 
employ the term in a legal context when stat­
ing inter alia that the case in question con­
cerned 'an unmarried woman commonly but 
not very appropriately referred to as "a com­
mon law wife"'. The expression 'common 
law spouse' or similar expressions must 
therefore be regarded simply as an expres­
sion used in everyday language with no spe­
cifically defined content which is liable to 
change in accordance with changes in the 
general view, so that in principle there is 
nothing to prevent the expression 'common 
law spouse' extending to cohabitees of the 
same gender. 10 
32. The fact that two persons of the same 
sex may, in the United Kingdom, be 
regarded as 'common law spouses' would 
also appear to be the case on an a contrario 
construction of Clause 8 of South-West 
Trains' own Ticket Regulations. If the 
expression 'common law spouses' referred 
exclusively to persons of different sexes, 
there would be no reason to refer to a 'com­
mon law opposite sex spouse'. 
33. It was South-West Trains itself which 
introduced that restriction, leading to gender 
discrimination, into the term. 
34. Gender discrimination is accordingly, in 
this case, not the result of family law legisla­
tion in the Member State in question and for 
that reason outside the scope of Community 
law. 
May gender discrimination be justified by 
reference to an employer's conception of 
morality? 
35. South-West Trains' reason for restricting 
employees' entitlement to travel concessions 
for cohabitees to entitlement for persons of 
the opposite sex is, according to the evi­
dence, its intention to benefit only persons 
who are married or living in a heterosexual 
relationship, but not persons living in a 
homosexual relationship, since cohabitation 
9 — Davis y Johnson [1979] AC 264, [1978] 1 All ER 1132, HL. 
10 — In English contract law the expression 'agency of cohabita­
tion' is, moreover, used to mean that in certain circum­
stances cohabitation entitles a person to enter into certain 
legal transactions which will bind his or her cohabitee (See 
Cheshire, Fif oot Sc Furmston's Law of Contract, 13th ed., 
p. 491 et seq.). Such entitlement is based on society's view 
of the permanency and character of the cohabitation, and 
therefore there does not seem to be anything, in principle, 
to prevent cohabitees of the same sex from satisfying the 
conditions for an 'agency of cohabitation'. 
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OPINION OF MR ELMER — CASE C-249/96 
with a person of the same sex is not tradi­
tionally regarded as equivalent to a hetero­
sexual relationship. As the national court 
implies in its sixth question, consideration 
must be given to the question of whether 
gender discrimination can be justified on the 
basis of conceptions of morality. 
36. Lisa Grant submits that discrimination 
under Article 119 of the Treaty may only be 
justified if it is on essential economic or 
business grounds or is required by law. On 
the other hand, an employer cannot justify 
gender discrimination which is prohibited 
under the Treaty by reference to his private 
conception of morality, regardless of the fact 
that it might correspond to the prevalent 
conception of morality in the Member State 
in question. 
37. I would begin my examination of that 
question by pointing out that in its assess­
ment of whether discrimination based on sex 
might be justified, the Court has tradition­
ally drawn a distinction between direct and 
indirect discrimination. 1 1 Whether discrimi­
nation is direct or indirect depends on 
whether it follows directly from the legal cri­
teria applied (direct discrimination) or 
whether, without being evident under the 
legal criteria, in practice it proves detrimental 
to one sex (indirect discrimination). Only 
where discrimination is indirect does the 
Court appear to accept the possibility that it 
might be justified by reference to objective 
circumstances. 12 
38. In the present case gender discrimination 
results directly from the legal criterion laid 
down in Clause 8 of the Ticket Regulations, 
and according to the Court's case-law such 
direct discrimination cannot be justified by 
reference to objective circumstances. 
39. Even were it assumed, however, that this 
was a case of indirect discrimination that 
might be justified by reference to objective 
circumstances, I find it difficult to see how 
discrimination such as this could be so justi­
fied. An employee's household's expenses in 
travelling by train must, all things being 
equal, be just as high regardless of whether 
the household consists of cohabitees of dif­
ferent sexes or of the same sex. South-West 
Trains' justification consists in reality simply 
in a reference to the purely subjective cir­
cumstance that its intention is to treat homo­
sexuals differently from heterosexuals. That 
constitutes therefore, in my view, a purely 
subjective reason as opposed to objective cir­
cumstances such as, for instance, actuarial 
11 — See Case C-177/88 Dekker [1990] ECR I-3941, paragraph 
13; Case C-184/89 Nimz [1991] ECR I-297, paragraph 15; 
and Case C-127/92 Enderby [1993] ECR I-5535, paragraph 
14. 
12 — See paragraph 13 of Dekker, cited in footnote 11, as com­
pared with paragraph 14 of Enderby, also cited in footnote 
11. 
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GRANT v SOUTH-WEST TRAINS 
calculations relating to the value of contribu­
tions paid in under certain forms of pension 
arrangements in relation to average life 
expectancy for men and women. 13 
40. South-West Train's justification 
amounts, in reality, to nothing more than 
saying that on the basis of its own private 
conceptions of morality that employer 
wishes to set aside a fundamental principle of 
Community law in relation to some people 
because it does not care for their life style. 
41. Whether the private conceptions of 
morality held by the employer in question 
correspond to those prevalent in the United 
Kingdom or not must be irrelevant in this 
connection. Under the Treaty it is the rule of 
law in the Community that the Court must 
safeguard; it is not its task to watch over 
questions of morality either in the individual 
Member States or in the Community, nor 
does it have any practical possibility of or 
political mandate for doing so. If a choice 
should have to be made in the Community 
between various views of morality that must 
be a task for the Community's political insti­
tutions, and hence it is for the legislature to 
make such choices by way of treaty or Com­
munity legislation. 
42. There is nothing in either the EU Treaty 
or the EC Treaty to indicate that the rights 
and duties which result from the EC Treaty, 
including the right not to be discriminated 
against on the basis of gender, should not 
apply to homosexuals, to the handicapped, 
to persons of a particular ethnic origin or to 
persons holding particular religious views. 
Equality before the law is a fundamental 
principle in every community governed by 
the rule of law and accordingly in the Com­
munity as well. The rights and duties which 
result from Community law apply to all 
without discrimination and therefore also to 
the approximately 35 million citizens of the 
Community, depending on the method of 
calculation used, who are homosexual. 14 
43. To summarise, I consider that the answer 
to that part of the questions referred should 
therefore be that the said gender discrimi­
nation cannot be justified by reference to the 
fact that the employer's intention is to confer 
benefits on heterosexual couples as opposed 
to homosexual couples. 
Direct applicability 
44. By its fourth question, the national court 
wishes to ascertain whether Article 119 of 
the Treaty is directly applicable and there­
fore, in a case such as this, may be enforced 
directly before national courts. 
13 — See Case C-200/91 Colorou Pension Trustees [1994] ECR 
I-4389, paragraph 76 et seq. and Case C-152/91 Neath 
[1993] ECR 1-6935, paragraphs 28 to 33. 
14 — See in this respect paragraph 22 of P v S, cited in point 14 
above. 
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OPINION OF MR ELMER — CASE C-249/96 
45. The Court held in the Defrenne judg­
ment 15 that Article 119 of the Treaty is 
directly applicable if direct discrimination is 
involved, in other words discrimination that 
can be ascertained by applying the criteria 
laid down in the provision. As an example, 
the Court mentions discrimination which 
has its origin in legislative provisions or in 
collective labour agreements, as well as dis­
crimination in relation to pay, operating in 
one and the same private or public undertak­
ing or service, inasmuch as such discrimi­
nation can be detected on the basis of a 
purely legal analysis of the situation. 
46. In this case discrimination against 
employees whose cohabitees are of the same 
sex in relation to employees whose cohabi­
tees are of the opposite sex can be detected 
in one and the same undertaking and one 
and the same set of regulations, namely 
South-West Trains and Clause 8 of the Ticket 
Regulations. The precondition for Article 
119 having direct effect must, therefore, be 
satisfied. 
47. The national court is accordingly 
required to ensure that the disadvantaged 
group is treated in the same way as the 
favoured group,16 and thereby to ensure that 
employees of South-West Trains Ltd who 
have a cohabitee of the same gender are put 
on the same footing as employees who have 
a cohabitee of the opposite gender and 
accordingly receive travel concessions for 
their cohabitee. 
48. The answer to that question must there­
fore, in my opinion, be that Article 119 of 
the Treaty is directly applicable and it is for 
the national courts to ensure that the disad­
vantaged group of employees is treated in 
the same way as the favoured group. 
Temporal effect 
49. In its observations the United Kingdom 
requested the Court to limit the temporal 
effect of the judgment if the questions 
referred to it are answered in the affirmative. 
The United Kingdom did not repeat that 
request at the hearing and has not produced 
evidence to show that in this case there is a 
need for temporal effect to be restricted. In 
my view a judgment that followed my Opin­
ion would not depart from the Court's case-
law hitherto and would also be founded on 
its facts. I do not see any reason for laying 
down any temporal restriction on the effect 
of the judgment. 
15 — Cited in footnote 3. See paragraphs 18 and 22. 
16 — See Case C-200/91 Coloroll Pension Trustees, cited in foot­
note 13, paragraph 32; Case C-154/92 Van Cant [1993] 
ECR I-3811, paragraph 22; and Case 286/95 McDermott 
and Cotter [1987] ECR 1453, paragraph 19. 
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GRANT v SOUTH-WEST TRAINS 
Conclusion 
50. In the light of the foregoing, I would suggest that the Court reply to the ques­
tions referred by the Industrial Tribunal, Southampton, as follows: 
(1) A provision in an employer's pay regulations under which the employee is 
granted a pay benefit in the form of travel concessions for a cohabitee of the 
opposite gender to the employee, but refused such concessions for a cohabitee 
of the same gender as the employee, constitutes discrimination on the basis of 
gender, which is contrary to Article 119 of the EC Treaty. 
(2) Such discrimination on the basis of gender cannot be justified by reference to 
the fact that the employer's intention is to confer benefits on heterosexual 
couples as opposed to homosexual couples. 
(3) Article 119 of the EC Treaty is directly applicable and it is for the national 
courts to ensure that the disadvantaged group of employees is treated in the 
same way as the favoured group. 
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