Judgment No. 2860

• Organization: Food and Agriculture Organization of the United Nations (FAO)
• Date: 08.07.2009
• Original: English
• Judges: Ba, Gaudron, Rouiller, Gordillo, Barbagallo, Hansen, Frydman
• Full judgment text - Full judgment text (french)

Decision

1. The decision of 2 November 2007 is set aside.
2. The case is referred back to the FAO for a consideration of the complainant's entitlements in accordance
with consideration 22.
3. The FAO shall pay the complainant moral damages in the amount of 10,000 euros.
4. It shall also pay him 3,000 euros in costs.
5. All other claims are dismissed.

Considerations 9, 13, 17, 19 and 21

Extract:

The complainant, a French national, entered into a "Civil Solidarity Contract" (PACS) under French law with his same-sex partner. The FAO refused to recognise his partner as his dependent spouse for the purpose of dependency benefits.
"The Tribunal rejects the FAO's assertion that under the Staff Regulations and Rules, the status of 'spouse' can only arise in the context of a marriage. It is now well established in the case law that, unless the term 'spouse' is otherwise defined in the staff regulations, it is not limited to individuals within a marriage. It may also arise from other types of unions. As the Tribunal observed in Judgment 2760, under 4, in the absence of a definition of 'spouse' in the relevant regulatory provisions, 'same-sex marriages' [...] or unions in the form of 'registered partnerships' [have] to be recognised by these organisations where the applicable national legislation enable[s] persons who ha[ve] contracted such unions to be regarded as 'spouses' (see Judgments 2549 and 2550)'. (See also Judgment 2643, under 6.)"
"Accordingly, as the Tribunal also observed in Judgment 2549, under 11, it is necessary to determine whether in the light of the provisions of French law, the complainant and his partner should be considered as 'spouses' within the meaning of the FAO Staff Regulations and Rules."
"[The materials of the file] demonstrate that just as in a marriage relationship, PACS partners are required to provide each other with financial support and are jointly liable for debts incurred for daily living. In matters such as immigration, social security, health insurance, home leave and relocation of civil servants, special leave for persons bound by a PACS, inheritance fees and income taxes, PACS partners are treated the same as spouses in a marriage. In a significant recent development, reference is made to the existence of the PACS and the name of the partners in the official register of personal status of individuals who have entered into a PACS, just as marital status is recorded for married persons."
"Not only does a PACS change the legal status of the partners in relation to each other, but it also changes the legal status of the partners in relation to the State in a variety of ways enumerated earlier and in ways that mirror the status of married couples in relation to the State. Just as in a marriage, a PACS establishes a legal relationship of mutual dependence. Further, and at the very least, in the absence of a contrary provision in the Staff Regulations and Rules, the principle of non-discrimination requires that for the purposes of dependency benefits the term 'spouse' be interpretated as applicable to a relationship of mutual dependence under the relevant national law."
"In conclusion, having regard to the materials filed in this proceeding, the Tribunal is satisfied that the provisions of French law give rise to a relationship of mutual dependence, and accordingly, the complainant and his partner must be regarded as 'spouses' under the Staff Regulations and Rules. In these circumstances, the Director-General erred in refusing to recognise the status of the complainant and his partner for the purpose of dependency benefits and, therefore, his decision will be set aside."

Reference(s)

ILOAT Judgment(s): 2549, 2550, 2643, 2760

Keywords

marital status; applicable law; case law; domestic law; staff regulations and rules; family allowance; dependant; same-sex marriage

Judgment keywords

Keywords

complaint allowed; decision quashed; case sent back to organisation; dependant; same-sex partnership; plenary judgment; en banc review

Consideration 23

Extract:

[A]s there is no evidence that the impugned decision was motivated by malice, ill will, or discrimination, the claim for punitive damages is rejected.

Keywords

punitive damages

Dissenting opinion

Extract:

A dissenting opinion by Judge Gordillo is attached to the judgment.

Keywords

dissenting opinion