The concept of a couple having access to legal marriage is specific to the Staff Regulations and must be interpreted independently. It also reflects the aim pursued by the legislature, as set out in recital 8 of Regulation No 723/2004 which established that version of the Staff Regulations, which states that officials in a non-marital relationship recognised by a Member State as a stable partnership who do not have legal access to marriage should be granted the same range of benefits as married couples.

That article requires inter alia, first, that the couple should produce for the administration concerned a legal document recognised as such by a Member State or any competent authority of a Member State, acknowledging their status as non-marital partners, and provides, second, as a supplementary requirement, that the couple should not have access to legal marriage in a Member State. As regards the content and scope of the latter condition, the same provision states that a couple shall be considered to have access to legal marriage only where the members of the couple meet all the conditions laid down by the legislation of a Member State permitting marriage of such a couple.

The term ‘non-marital partnership’ in Article 1d of the Staff Regulations is an independent concept, since the article in question does not refer back to the conditions laid down by the national law applicable in each individual case, but establishes a separate legal status through the conditions laid down in that regard by Article 1(2)(c) of Annex VII.

With regard to alleged discrimination resulting from the difference of treatment in the grant of the household allowance between, on the one hand, officials who have entered into a non-marital partnership with a person of the same sex and to whom the applicable national legislation denies access to marriage, and, on the other hand, officials who, being of different sexes and having access to legal marriage, have preferred to conclude a stable, non-marital partnership, it must be noted that the comparison is incorrect, since Article 1(2)(c) of Annex VII to the Staff Regulations does not and cannot introduce independent rules capable of running counter to or going further than the provisions governing, in each Member State of the European Union, the rights and obligations specific to all the possible categories of marital or para-marital relationships provided for by that legislation. All that Article 1(2)(c) does, precisely because of the differences in national legislation, is to establish, for any official who is a member of a partnership that is legally recognised in a Member State and who applies for the household allowance, a specific condition that the couple, and not the official as such, should not have access to marriage. As far as the gender or sexual orientation of the official in the partnership is concerned, that condition depends solely on the legal status which each Member State’s legislation accords to non-marital partnerships, so that in terms of the Staff Regulations the condition is entirely neutral.

Moreover, in the light of the differences in national legislation on this subject, which is a matter for the sole competence of the Member States, the condition that the couple must not have access to marriage does not give rise to indirect discrimination because, of the various possible legally recognised interpersonal relationships, marriage is currently the only form of legal relationship common to all the Member States of the European Union, which is not, however, the case with partnership.

Admittedly, the provisions of Article 1(2)(c)(iv) of Annex VII to the Staff Regulations establish an objective difference of treatment between those two categories of officials. However, providing that those two categories of persons are placed in a comparable situation in the light of the purpose of the household allowance, that difference of treatment should be regarded as objectively justified, since the Union legislature intended that officials in a non-marital relationship recognised by a Member State as a stable partnership who do not have legal access to marriage should be granted the same range of benefits as married couples.

(see paras 27-29, 31-32)