1
‘Somewhere Over the Rainbow’
An analysis of how to strategically advance the right to
private and family life for same-sex couples in Europe.
Christopher Hugh Andrew Clannachan
christopherclannachan@live.co.uk
Student No. 12359513
LLM International and European Law: European Union Law
Supervisor - Prof. Christina Eckes
Master’s Thesis in Law submitted 23/07/19
Word Count: 12,997
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ABSTRACT
In its predominant aim, this thesis seeks to uncover and present ways to advance the right of same-sex couples to private and family life in Europe.1 Thus, the following shall be
presented: a) the current legal protection enjoyed by same-sex couples concerning their right to private and family life firstly under the ECHR; b) secondly under the EU law (if that situation differs); and c) an analysis of that situation before recommendations on how to advance that right under relevant conditions. It seeks to utilise the differences between the CoE/ECHR and EU law in order to uncover which regime can be used, under what
circumstances, to the benefit of same-sex couples.
This study uses the classical legal research method to examine the law from an internal perspective. Given the two-fold aim to: map out the current legal protection under the ECHR and EU law; and to advise same-sex couples which legal regime under what circumstances, the following methodology will be used: part a and b: descriptive research detailing the current state of affairs in an objective and neutral manner; part c: analytical research analysing the differences between the ECHR and EU law and the descriptive research of the current state of affairs, to produce a set of recommendations.
It is clear from these findings that several common themes emerge:
• The Convention is of most use when Article 14 is applicable in conjunction with Article 8. This often requires a comparison with a heterosexual couple in a relevant similar situation where the State has to advance particularly weighty reasons to justify any difference in treatment based on sexual orientation.
• One of the main set-backs of EU law is the cross-border element whereby forcing a couple to move in the first place in order to obtain more rights is clear discrimination. Union law may be a more effective avenue to pursue than a claim under the ECHR if this is within an area of competence which has been conferred upon the Union such as residency rights or worker’s benefits since both facilitate the internal market.2 The
CJEU is not tasked with the protection of human rights, thus it is in the interest of a same-sex couple to frame any case as a hinderance to free movement law and thus the internal market.
1 Advancement, for the purposes of this study, may be defined as gaining more legal protection than what is
currently offered at supra/international level for same-sex couples.
2 Whether this is the right approach to take is arguable given the Union is an organisation of limited
3 TABLE OF CONTENTS ACKNOWLEDGEMENTS 6 LIST OF ABBREVIATIONS 7 INTROUCTION 8 a) Scope 8 b) Methodology 9 c) Structure 10
CHAPTER ONE: LEGAL AND PROCEDURAL DIFFERENCES 12
1.1 Introduction 12
1.2 Council of Europe 12
a) Legal Characteristics 12
b) Protection of Private and Family 13
c) Procedural Aspects 13
1.3 European Union 15
a) Legal Characteristics 15
b) Protection of Private and Family 15
c) Procedural Aspects 16
1.4 Concluding Remarks 17
CHAPTER TWO: PRIVATE LIFE 19
2.1 Introduction 19
2.2 Identity 19
a) ECHR 19
b) EU 20
4 2.3 Names 21 a) ECHR 21 b) EU 21 c) Analysis 22 2.4 Concluding Remarks 24
CHAPTER THREE: FAMILY LIFE 25
3.1 Introduction 25 3.2 Marriage 25 a) ECHR 25 b) EU 26 c) Analysis 26 3.3 Registered Partnership 28 a) ECHR 28 b) EU 28 c) Analysis 29 3.4 Residence Permits 30 a) ECHR 30 b) EU 30 c) Analysis 31 3.5 Parenthood 32 a) ECHR 32 b) EU 33 c) Analysis 34 3.6 Social Benefits 36 a) ECHR 36 b) EU 36 c) Analysis 37 3.7 Concluding Remarks 38
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CHAPTER FOUR: HOME 39
3.1 Introduction 39 3.2 Property Ownership 39 a) ECHR 39 b) EU 39 c) Analysis 40 3.3 Succession to a Tenancy 40 a) ECHR 40 b) EU 41 c) Analysis 41 3.4 Concluding Remarks 41 CONCLUSION 43 BIBLIOGRPAHY 45
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ACKNOWLEDGEMENTS
I would like to extend my thanks to Prof. Christina Eckes for her assistance and guidance throughout this process.
Secondly, I also sincerely thank my family and friends for their support throughout my education to date.
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LIST OF ABBREVIATIONS
Courts
‘CJEU’ Court of Justice of the European Union
‘ECtHR’ European Court of Human Rights
International Law Instruments
‘CFR’ Charter of Fundamental Rights of the European Union
‘CRD’ Council Directive 2004/38/EC of the European
Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States
‘TEU’ Consolidated Version of the Treaty on the European
Union
‘TFEU’ Consolidated Version of the Treaty on the Functioning
of the European Union
International Organisations
‘CoE’ Council of Europe
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INTRODUCTION
From the ashes of World War II, the promise of more cooperation between States in Europe emerged. As such, both the Council of Europe (‘CoE’) and the now European Union (‘EU’) were born in the same political climate, sharing certain common aspirations and institutional similarities. Underlying both was not only a desire to protect human life from another war, but also to enhance the quality of human life. Then, the nuclear family unit of a male-breadwinner, stay-at-home wife and ‘2.4 children’ was the norm which deserved protection. Consequently, this meant protection of homosexual individuals and same-sex couples at supranational level would not develop until years later. Nowadays, overlapping regionalism is a ‘global phenomenon’,3 and both the CoE an EU recognise that same-sex couples can enjoy the right to
private and family life in the same way that opposite-sex couples can.4 Sexual orientation is an immutable characteristic and a core part of one’s identity, thus in order to fully realise that identity, one must be able to actively engage in their personal private and family life. However, in Europe, an ‘East-West’ split on the rights of same-sex couples exists:5 respect for private
and family life will vary depending on their geographical location in areas such as legal recognition, migration and parenthood. Although there may be a horizontal influence between States to further the rights of same-sex couples, this is ultimately political. However, States are legally bound to the standards set by the CoE and EU, hence why a top-down approach may be the best way to advance same-sex rights. Based on the external standard of equal treatment, same-sex couples face many legal hurdles given the heteronormativity of society: they have been forced on a journey pursuing equality like it is a pot of gold somewhere over the rainbow.
a) Scope of Study
This study seeks to answer the following research question:
What rights do same-sex couples in Europe currently enjoy under respect for private and family life under the European Convention on Human Rights and in the European Union, and under what circumstances could each be used for the general advancement of these rights?
3 Diana Panke and Sören Stapel, ‘Overlapping regionalism in Europe: Patterns and Effects’ (2018) 20(1) The
British Journal of Politics and International Relations 238, 240.
4 Schalk and Kopf v. Austria, no. 30141/04, ECHR 2010, § 94.
5 The Netherlands legalised same-sex marriage in 2001 whereas in January 2019, the Polish administrative court
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In its predominant aim, this thesis seeks to uncover and present ways to advance the right of same-sex couples to private and family life in Europe.6 Thus, the following shall be presented:
a) the current legal protection enjoyed by same-sex couples concerning their right to private and family life firstly under the ECHR; b) secondly under the EU law (if that situation differs); and c) an analysis of that situation before recommendations on how to advance that right under certain conditions. It contributes to the legal and political debate about rights for same-sex couples by focusing on regional protection at European level. Given the rights of same-sex couples differ globally, only a European perspective will be examined to narrow the scope of the study. Further outside the scope of this study is a thorough description of the evolution of rights of same-sex couples in Europe since is not the aim of parts a) and b). There will be no evaluative comparison made between the protection offered by the ECHR and EU law given their fundamental differences: the CoE is an international organisation which cannot produce binding law, whereas the EU is a supranational polity which can produce legislation directly applicable in its Member States within the competence conferred upon it. Hence why a direct like-for-like comparison will not achieve the aim of this study.7 Furthermore, this study will not include an analysis of respect for one’s correspondence as no issues arise under that heading which are relevant for same-sex couples: only private life, family life and home will be discussed.
b) Methodology
This study uses the classical legal research method to examine the law from an internal perspective. Given the two-fold aim to: map out the current legal protection under the ECHR and EU law; and to advise same-sex couples which legal regime under what circumstances, the following methodology will be used:
i) Part a and b: descriptive research detailing the status quo;
ii) Part c: analytical research analysing the differences between the ECHR and EU law and the descriptive research of the current state of affairs to produce recommendations.
Regarding parts a) and b), descriptive research is most suitable to reveal the current state of affairs as it does not require an explanation of the evolution of the rights of same-sex couples
6 Advancement, for the purposes of this study, may be defined as gaining more legal protection than what is
currently offered at supra/international level for same-sex couples.
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in Europe (hence the exclusion of explanatory research), nor does it require a normative opinion on the jurisprudence of both the CJEU and ECtHR (hence the exclusion of evaluative research). Regarding part c), analytical and advisory research is most suited since it attempts to make recommendations on future possibilities of litigation with substantiation from the descriptive research done into the legal and procedural differences, as well as the current state of affairs under each component of the right. A normative element will be added here from the perspective of a lawyer advising the individual(s) what is more practical or strategic to enforce their rights or indeed to litigate strategically should the descriptive research of part a) uncover a gap in the law for same-sex couples. Here research will be predictive rather than prescriptive. Part b) of the research question asks an objective question: which regime may be used in given circumstances. The advisory, predictive statements are made according to the positive morality of the law but do involve a normative interpretation of how either the CJEU or the ECtHR would interpret a set of facts in a legal claim based on substantiation from research into legal and procedural aspects of each regime alongside the current situation of the law/jurisprudence.
c) Structure
Chapter 1 seeks to answer: what legal and procedural differences exist between the CoE and EU that are relevant to same-sex couples when invoking their right to private and family life at either the ECtHR or CJEU? This will provide a necessary understanding which can be built upon in subsequent chapters.
Chapter 2 will focus on the private life, seeking to uncover what same-sex couples currently enjoy. Many aspects within private life concern homosexual individuals but only those pertinent to same-sex couples, identity and names, will be discussed.
Chapter 3 aims to answer what same-sex couples enjoy under family life. This is the largest chapter given it is most relevant to same-sex couples as opposed to homosexual individuals. Broken down into five parts, this chapter will cover: marriage; registered partnership; residence permits; parenthood; and social benefits. The former two headings concern relationship recognition which have an impact on the latter three.
Chapter 4 will answer what rights sex couples have concerning their right to respect for their home in two headings: property ownership and succession to a tenancy. Again, relationship recognition has an indirect effect in this area.
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Recommendations will be produced under each heading in each chapter whereas the conclusion will highlight common themes deducible from chapter 2-4.
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CHAPTER ONE: LEGAL AND PROCEDUAL DIFFERENCES
1.1. Introduction
Despite their common inception and shared values, both the CoE and EU are ‘fundamentally different’8 in their organisation, membership and primary goal. The purpose of this chapter is
to expose differences which can be utilised by same-sex couples when pursuing strategic litigation. The necessary legal characteristics of both regimes will be mapped out before an account of how the right to private and family life is protected in each. Lastly, the procedural aspects of invoking this right will be provided to determine, in subsequent chapters, which legal system can be used, under what circumstances, in same-sex public interest litigation.
1.2. Council of Europe
a) Legal Characteristics
The CoE is an international organisation consisting of 47 Member States with the principal purpose of promoting human rights, democracy and the rule of law in Europe based on the retention of national sovereignty. Norms (opposed to laws) are produced through the adoption of multilateral international conventions: an expression of the will of States under international law.9 The ECtHR, created by the ECHR, is tasked with hearing applications of alleged human rights violations by Contracting Parties and uses several legal doctrines, including the margin of appreciation and subsidiarity, to respect national differences.
b) Protection of Private and Family Life
The right to private and family of same-sex couples is protected judicially given the CoE does not produce law. Article 8 is a qualified right: any interference can be justified if it is in accordance with the law, pursues a legitimate aim and is necessary in a democratic society.10 Several positive obligations also flow from Article 8. Furthermore, the right to non-discrimination is guaranteed by Article 14. For an issue to arise under Article 14, there must be a difference in treatment of persons in relevantly similar situations, but any discrimination
8 Christina Eckes, ‘EU Accession to the ECHR: Between Autonomy and Adaption’ (2013) 76(2) MLR 254, 256. 9 Ibid.
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based on sexual orientation will require particularly serious reasons by way of justification.11
Article 14 is not a free-standing right and must be raised in conjunction with another Convention right.12
c) Procedural Aspects i) Individual petition
Respect for Article 8 should be first and foremost secured at national level. However, same-sex couples can apply directly to the Court for an alleged violation of the Convention.13 This offers access justice internationally provided they are a ‘victim’.14 Only applications which satisfy the Rules of Court15 will be processed by the Registry.16 The right of individual petition, which extends to approximately 820 million people, makes the Convention an ‘unusual’17
international legal instrument resulting in the Court becoming a victim of its own success. This is exhibited by the dramatic increase in applications allocated to a judicial formation over the years: 1999 = 8400;18 2008 = 49,900;19 2018 = 43,000.20 Although this has started to decrease slightly, an excessive backlog of cases still exists as 56,350 applications were pending before a judicial formation as of 31 December 2018.21
ii) Admissibility Criteria
Additionally, same-sex couples must satisfy the admissibility criteria to have their case allocated to a judicial formation, reflecting the subsidiary role of the ECtHR. An application will be inadmissible: if it is outside the Court’s jurisdiction;22 and/or based on the merits if it is
manifestly ill-founded;23 and/or the applicants have not suffered a significant disadvantage.24
11 Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, ECHR 1999-VI, § 90; Karner v. Austria, no. 40016/98 ECHR 2003-IX, § 37; Schalk and Kopf, § 97.
12 Protocol 12, which seeks to strengthen the prohibition on discrimination, has not yet been ratified by all states. 13 Article 34 ECHR.
14 Applicants must be directly or indirectly affected by the alleged violation. 15 Rule 47, The Rules of Procedure of the European Court of Human Rights (2018).
16 Applications online at: <https://www.echr.coe.int/Pages/home.aspx?p=applicants/forms&c=> accessed 10
January 2019.
17 Steven Greer an Andrew Williams, ‘Human Rights in the Council of Europe and the EU: Towards
‘Individual’, ‘Constitutional’ or ‘Institutional’ Justice?’ (2009) 15 European Law Journal 462, 464.
18 European Court of Human Rights, ’50 Years of Activity’ (2010),
<https://www.echr.coe.int/Documents/Facts_Figures_1959_2009_ENG.pdf> accessed 12 January 2019.
19Ibid.
20 European Court of Human Rights, ‘In Facts & Figures’ (2018),
<https://www.echr.coe.int/Documents/Facts_Figures_2018_ENG.pdf> accessed 12 January 2019.
21Ibid.
22 Ratione personae; ratione loci; ratione temporis; ratione materiae.
23 Article 35(3)(a) ECHR, i.e. an application does not disclose the appearance of a violation of any Convention
right(s).
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Furthermore, there are several procedural grounds upon which the Court may declare the application inadmissible. The application must be lodged within six-months from when the final decision was taken,25 it cannot be anonymous,26 nor can it be substantially the same as a matter that has already been examined by the Court or another international investigation procedure,27 and there can be no abuse of the right of application.28 Of particular importance is the requirement to exhaust all domestic remedies before lodging the application.29 However, national remedies must be available in theory and practice, be capable of providing redress and offering a reasonable prospect of success.30 Although the Court is required to respond to every application, 94% of applications are declared inadmissible.31
iii) Enforcement
Same-sex couples must rely on political enforcement to ensure any violation is remedied at national level. Judgements are binding on the Contracting Party to the dispute,32 but not against other states. However, a good faith obligation exists.33 Judgements are declaratory thus it is up to the Contracting Party to implement the judgement. Implementation is supervised by the inter-governmental Committee of Ministers.34 This is generally successful,35 but the execution of judgements between the Contracting Parties varies greatly. For example, as of 31 December 2018, 10 cases were pending to be closed by final resolution concerning the Netherlands,36 whereas the number of Russian cases pending in the Committee of Ministers was 1,572.37
Therefore, even if the Court does find a violation, the effective implementation of that judgment very much depends upon the Contracting Party to the case.
25 Article 35(1) ECHR. This will be reduced to four months after all States have ratified Protocol 15. 26 Article 35(2)(a) ECHR.
27 Article 35(2)(b) ECHR.
28 Article 35(3)(a) ECHR, i.e. conduct that is manifestly contrary to the purpose of the right of individual
application.
29 Article 35(1) ECHR.
30 Sejdovic v. Italy [GC], no. 56581/00,ECHR 2006-II § 46; Paksas v. Lithuania [GC], no. 34932/04, ECHR
2011 (extracts) § 75.
31 In 2018, 40,023 out of 42,761 applications were declared inadmissible or struck,
<https://www.echr.coe.int/Documents/Facts_Figures_2018_ENG.pdf> (n.18)
32 Article 46(1), ECHR; Article 27, Vienna Convention on the Law of Treaties 1969. 33 Article 26 VCLT.
34 Article 46(2) ECHR.
35 In 2017, the number of closed cases reached its peak since 1998 at 3,691 and the number of pending cases fell
from 9,941 to 7,584 between 2016 to 2017 <https://rm.coe.int/overview-1998-2017-eng/16807b81c9> accessed 15 January 2019.
36 Department for the Execution of Judgements of the European Court of Human Rights, ‘The Netherlands’
(2018) <https://rm.coe.int/168070975b> accessed 12 June 2019.
37 Department for the Execution of Judgements of the European Court of Human Rights, ‘Russian Federation’
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1.3. European Union
a) Legal Characteristics
An exact definition of the EU is contested: under international law, it is ‘precluded by its very nature from being considered a State’,38 yet it is no ‘ordinary’ international organisation. It is
an ‘ever closer union’,39 comprising of 28 Member States,40 who have voluntarily transferred
certain competences to the Union institutions to exercise on their behalf whilst pursuing economic and political integration. Furthermore, every national of the Member States has Union citizenship,41 from which a plethora of rights derive. Thus, the EU is best understood as a ‘Federation of States’.42 It constitutes a ‘new legal order’, independent from national and
international law,43 whereby the Union legislature may produce laws directly applicable in the Member States, which is supreme over national law.44 Union law may be relied upon directly by private parties in national courts if the provision meets the conditions for direct effect.45 The CJEU remains the ultimate arbiter and is charged with the duty of interpreting and applying EU law,46 ensuring it is applied uniformity across the Member States. This sui generis nature of EU law which differentiates the Union from other international organisations.
b) Protection of Private and Family Life
The ECHR remains the ‘benchmark’ for human rights,47 but this does not prevent the Union from granting more extensive protection.48 Given accession of the EU to the ECHR has been
halted, the rebuttable presumption that the EU grants equivalent human rights protection as that guaranteed by the ECHR continues to apply.49 Post-Lisbon, the right to private and family life
as codified in Article 7 CFR became legally enforceable with the same meaning and scope as
38 Opinion 2/13 of the Court (Full Court) of 18 December 2014 ECLI:EU:C:2014:2454, [156]. 39 Article 1 TEU.
40 All of whom are Contracting Parties to the ECHR. 41 Article 20 TFEU.
42 R. Schütze, European Constitutional Law (Cambridge University Press, 2012), 75.
43 C-26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR, 12. See recent confirmation in Opinion 2/13 [170].
44 Case C-6/64 Flaminio Costa v E.N.E.L [1964] ECR-I.
45 Case C-26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR-Iif the provision is sufficiently clear, precise and unconditional.
46 Article 19 TEU.
47 Memorandum of Understanding between the Council of Europe and European Union (2007),
<https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680597 b32> accessed 12 June 2019.
48 Article 52(3) CFR.
49 Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, ECHR 2005-VI, §
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Article 8 ECHR.50 Discrimination based on sexual orientation, contained in Article 21(1) CFR,
is prohibited.51 However, the Charter does not extend the competences of the Union,52 or the
field of application of EU law.53 The Charter will only apply when Member States are acting ‘within the scope’ of Union law: situations outside Union law will be outside the Court’s jurisdiction.54 This means a same-sex couple must invoke another provision of EU law in proceedings to engage Article 7 and/or Article 21(1) CFR.
c) Procedural Aspects
The EU is based on cooperative federalism exhibited by its decentralised judiciary: national courts are functionally, not institutionally, Union courts when applying Union law.55 Nevertheless, the CJEU has jurisdiction to give preliminary rulings and to rule on direct actions brought by same-sex couples against the Union institutions.56 Furthermore, the right of same-sex couples to an effective remedy is codified in Article 47 CFR.
i) Remedies in national courts
The obligation to provide remedies sufficient to ensure effective legal protection falls to the Member States,57 guided by the principles of equivalence and effectiveness. All domestic acts or omissions (legislative, executive, judicial) which contravene EU law will give rise to state liability if the conditions are met.58
ii) Indirect actions
The preliminary reference procedure is exactly that: a procedure. It is not a remedy, nor a right. As an instrument of cooperation, it is based on a clear separation of functions between the two courts who partake in judicial dialogue. The decision to refer questions to the CJEU for interpretation is within the discretion of the referring court subject to certain requirements. Once the CJEU has provided an interpretation of the referred question(s), the case is sent back to the referring court who is bound to apply that interpretation and disapply inconsistent national law. Thus, the CJEU has jurisdiction to rule on the compatibility of national rules with
50 Explanations Relating to the Charter of Fundamental Rights (OJ 2007 C 303/20). 51 Cf. Article 14 ECHR.
52 Article 6(1) TEU. 53 Article 51(2) CFR.
54 C-617/10 Åklagaren v Hans Åkerberg Fransson [2013] ECLI:EU:C:2013:105, [19]-[20]. 55 Schütze, (n.40), 395.
56 Article 19 TEU. 57 Ibid.
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the Charter within the scope of EU law,59 which is a useful tool for same-sex couples pursuing
strategic litigation.
iii) Direct action for annulment
Same-sex couples may directly challenge the legality of legislative acts and acts of the Union institutions intended to produce legal effects.60 As non-privileged applicants, they must meet the locus standi requirements contained in Article 263 TFEU. The same applies for a failure to act.61
iv) Enforcement
Judgements of the CJEU are binding across all Member States.62 Failure to comply with a judgement, or any other EU law obligation, may result in infringement proceedings launched by the Commission,63 or another Member State.64 Same-sex couples may also make an administrative complaint to the Commission using the online complaint form.65 If a Member State does not comply with the reasoned opinion of the Commission, then the former may be brought to the CJEU,66 with the possible imposition of fines.67
1.4. Concluding Remarks
Evidently, many differences exist between the CoE and EU which makes a like-for-like comparison unsuitable to achieve the goal of this study. The CoE is an international organisation which guarantees a minimum standard of human rights protection through the production of norms respecting Member State sovereignty. The EU, although not a state under international law, is a supranational polity pursuing economic and political integration of its Member States by producing law directly applicable in those States. These differences, dating back to divergent post-war cooperation philosophies, remain uncontroversial in modern-day Europe. Yet, they are useful for the purpose of this study to answer which regime can be used, under what circumstances, to aid strategic litigation concerning a same-sex couples’ right to
59 C-617/10 Åklagaren v Hans Åkerberg Fransson, [19]. 60 Article 263 TFEU.
61 Article 265 TFEU. 62 Article 288 TFEU. 63 Article 258 TFEU. 64 Article 259 TFEU.
65 Available at: <https://ec.europa.eu/assets/sg/report-a-breach/complaints_en/> accessed 13 February 2019. 66 Article 258 TFEU.
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private and family life. Having mapped out differences between the two regimes, subsequent chapters will depict the status quo of the right to private and family life of same-sex couples before producing recommendations based on the specificities of each.
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CHAPTER TWO: PRIVATE LIFE 2.1. Introduction
The right to privacy is recognised across most cultures and pre-dates both the CoE and the EU. Yet, the right to private life in Europe encompasses more than simply a right to one’s privacy. Lacking an exhaustive definition, private life may be understood as embracing multiple aspects of one’s physical and social identity.68 To pursue and realise identity, including sexual
orientation, is a key component to enjoy other human rights. In guidelines to the ECHR, the CoE has grouped private life into three sub-categories: physical, psychological or moral integrity; privacy; and identity and autonomy.69 The last sub-category is of relevance to same-sex couples. This chapter will depict what same-same-sex couples can currently enjoy under private life before making recommendations how to advance that right. Several aspects of private life concern homosexual individuals but only those pertinent to same-sex couples, identity and names, will be discussed.
2.2. Identity
a) ECHR
Two aspects of identity can be deduced from the ECtHR’s jurisprudence of relevance for same-sex couples: personal identity and personal autonomy. Firstly, in Christine Goodwin v UK,70 the ECtHR held that Article 8 protects an individual’s right to establish details of their personal identity as a human being.71 Individuals have the right to pursue the development and fulfilment
of individual personality,72 including their sexual orientation73 which is a ‘most intimate aspect
of private life’.74 Secondly, linked to the right of personal identity is personal autonomy. The
Court held that personal autonomy is an important principle which underlies the protection guaranteed by the Convention.75 Derivative from personal autonomy is personal development which includes the right to establish and develop relationships.76 This extends to homosexual
68 S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR 2008, § 66.
69 Council of Europe, ‘Guide on Article 8 of the European Convention on Human Rights’, 2018. Available at:
<https://www.echr.coe.int/Documents/Guide_Art_8_ENG.pdf> accessed 12 June 2019.
70 Christine Goodwin v. the United Kingdom [GC], no. 28957/95, ECHR 2002-VI. 71 Ibid, § 90.
72 A.-M.V. v. Finland, no. 53251/13, 23 March 2017, § 76; Brüggemann and Scheuten v. Germany, no. 6959/75,
Commission decision of 19 May 1976, DR 5; National Federation of Sportspersons’ Associations and Unions
and Others v. France, nos. 48151/11 and 77769/13, 18 January 2018, § 153. 73 Dudgeon v. the United Kingdom, 22 October 1981, Series A no. 45, § 41. 74 Ibid, § 52.
75 Christine Goodwin, § 90.
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relationships which fall within the notion of private life.77 Furthermore, national legislation
which criminalises sexual acts between consenting homosexuals is prohibited by Article 8.78
b) EU
Competence has not been conferred upon the EU to regulate identity within the meaning of private life and will be regulated by national law. Article 7 CFR thus has the same meaning and scope as Article 8 ECHR.
c) Analysis
Given the EU is an organisation of limited competences, the CJEU’s impact in this area has been more limited given the ECtHR’s breadth and reach of action.79 Although personal identity
and personal autonomy are personal, their discussion is relevant as ‘preconditions’ to be able to enjoy private life as a same-sex couple: without being able to identify as a homosexual and enter a homosexual relationship, there can be no right to private life as a same-sex couple. Prof Kees Waaldijk articulates this as two separate rights: right to come out and the right to come together.80
The right to individual identity is inextricably linked to the right to life: only through existing can individuals cultivate their own identity. This logically flows from the ECtHR’s reasoning that establishing identity is an inherent part of existing as a human being.81 Sexual orientation
is an inalienable characteristic which strikes at the core of that identity, thus it is important that homosexuals retain the right to identify as such to fully enjoy other human rights. Furthermore, one school of thought in psychology argues the right to individual autonomy and to establish relationships is a ‘fundamental human need’.82 Of relevance is that homosexuals currently do
have the right to choose to enter a same-sex relationship: the possibility to pursue that ‘human need’ if they so wish. Although the right to ‘come together’ is protected, this only relates to
private life: same-sex couples do not have a right to engage in certain public relationships, like
77 For example, see Orlandi and Others v. Italy, nos. 26431/12 and 3 others, 14 December 2017, § 143. 78 Dudgeon, § 41.
79 Francesca Romana Ammaturo, European Sexual Citizenship, (Springer Nature, 2017), 24.
80 Kees Waaldijk, ‘The Right to Relate: A Lecture on the Importance of “Orientation” in Comparative Sexual
Orientation Law’, (University of Leiden, 20 April 2014).
81 Christine Goodwin § 90.
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contracting a marriage.83 Thus, the right to establish a same-sex relationship should not be
conflated with a right to formalise that relationship publicly.84
2.3. Names
a) ECHR
The ECtHR has held that issues surrounding a person’s forename and surname fall within the scope of Article 8,85 and personal identification and linking to a family through a person’s name constitutes private life.86 Nevertheless, refusal to register a name does not automatically breach of Article 8: the inconvenience must reach a sufficient level.87
b) EU
Firstly, competence has not been conferred upon the Union to regulate national family law (including names) but it shall ‘develop judicial cooperation in civil matters having cross-border implications based on the principle of mutual recognition’.88 The Council may establish
measures concerning family law with cross-border implications via the special legislative procedure, voting by unanimity.89 Secondly, the internal market is a shared competence,90 meaning that Member States may not exercise their competence insofar as the Union has done so.91 The European Parliament and Council may adopt measures aimed at ensuring the mutual
recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases,92 including names.
The CJEU has ruled on several cases concerning names in relation to the internal market. The Court found in Garcia Avello,93 that although surnames fall within the competence of the Member States, they must comply with EU law when exercising that competence. In
Grunkin-Paul,94 the German parents of an EU citizen born in Denmark registered the child with the
83 Schalk and Kopf v. Austria, §§ 62-63. 84 See Chapter 3.
85 Mentzen v. Latvia (dec.), no.71074/01, ECHR 2004-XII; Henry Kismoun v. France, no.32265/10, 5 December
2013.
86 Burghartz v. Switzerland, 22 February 1994, Series A no.280-B, § 24.
87 Guillot v. France, 24 October 1996, Reports of Judgments and Decisions 1996-V, § 27. 88 Article 81(1) TFEU.
89 Article 81(3) TFEU. 90 Article 4(2)(a) TFEU. 91 Article 2(2) TFEU. 92 Article 81(2)(a) TFEU.
93 Case C-148/02 Carlos Garcia Avello v Belgian State [2003] ECR I-11613, [25]. 94 Case C-353/06 Stefan Grunkin and Dorothee Regina Paul [2008] ECR I-7639, [22].
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double-barrelled surname ‘Grunkin-Paul’. They subsequently sought to have the name registered in Germany which was precluded by German law. The CJEU recalled that a ‘serious inconvenience’ like this can only be justified based on objective considerations which are proportionate to the legitimate aim pursued,95 and found a breach of free movement law. However, the Union is obliged to respect Member State’s national identities under Article 4(2) TEU,96 and that derogations from the fundamental freedoms are permissible to enforce public policy.97
c) Analysis
Firstly, the main downside pursuing a claim under the ECHR would be the requirement to exhaust domestic remedies. Two possibilities exist: exhaust domestic remedies or prove they were not available in theory and practice. If the couple could show that national remedies were not available in theory and practice,98 they could avoid this. For example, if there is consistent State practice which means the claim was ‘bound to fail’ and had ‘virtually no prospect of success’,99 such as a continued rejection of same-sex names, then the ECtHR would waive this
requirement.
Even if the case does reach the ECtHR, States enjoy a wide margin in this area.100 Taking a spouse’s surname is a tradition in orthodox marriage law and since there is no obligation on States to permit same-sex marriage, there is no obligation to provide registration of same-sex names. This is also not automatic when that State permits same-sex registered partnership.101
However, if a State does recognise same-sex marriage/registered partnership (going above the level of protection afforded by the Convention) then those rights must be ensured without discrimination.102 The complaint falls within the ambit of Article 8 and the comparator group would be a married or registered heterosexual couple depending on the couple. If the State in question cannot advance particularly convincingly and weighty reasons to justify the difference
95 Ibid, [29].
96 Case C-208/09, Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien [2010], ECR I-13693, [92]. 97 Ibid, [90].
98 I.e. not capable of providing redress or offering a reasonable prospect of success. 99 Cf. Salah Sheekh v. the Netherlands, no. 1948/04, 11 January 2007, §§ 121-123. 100 Johansson v. Finland, no. 10163/02, 6 September 2007, § 31.
101 This is excluded in Austria, Belgium, Czech Republic, Finland, Hungary and Slovenia. See: Kees Waaldijk,
‘Extending rights, responsibilities and status to same-sex families: trends across Europe’, 2018. Available at:
https://openaccess.leidenuniv.nl/bitstream/handle/1887/70273/Waaldijk_-_Extending_rights_-_Council_of_Europe_report_2018.pdf?sequence=1.
102 E.B. v. France [GC], no.43546/02, 22 January 2008; Vallianatos and Others v. Greece [GC], nos.29381/09
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in treatment, where administrative convenience will not be accepted,103 then the ECtHR would
find there has been a violation of Article 8 and/or 14 ECHR.104 Those rights must be protected
through accessible and effective procedures,105 i.e. it cannot be excessively difficult or impose unreasonable additional requirements for same-sex couples in comparison to heterosexual couples.
Under EU law, the CJEU has pointed out that EU law will not apply in internal situations.106 However, if there is a cross-border element, EU law will be applicable, and the same-sex couple can ask a national court to make a preliminary reference. If the case raises a question of EU law which the national court requires an interpretation to pass judgement, the national court may refer. Importantly, a gap in the Court’s case law: it has not yet had the opportunity to rule on the registration of names concerning a same-sex spouse. Thus, if the same-sex couple can invoke one of the fundamental freedoms and/or Union citizenship then EU law, including Article 7 CFR, will be applicable and failure to register a name would likely result in a preliminary reference to the CJEU. Furthermore, the ECHR may be used in litigation in national courts within the scope of EU law which may influence the court in a ‘race-to-the-top’. Pursuant to the EU’s model of cooperative federalism, the conditions for when a national court may not make a reference are strict,107 and are underlined by a duty of loyalty.108 The CJEU has already held that:
‘Provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom’.109
Arguably, failure to register the common name of a same-sex couple would constitute such a restriction. This is reinforced by the Garcia-Avello and Grunkin-Paul case law.
103 Case C-353/06 Grunkin and Paul, [36]. 104 For example, E.B. v. France, §§ 91-96.
105 A, B and C v. Ireland [GC], no. 25579/05, ECHR 2010. 106 Case C-148/02 Garvia Avello, [26].
107 Case C-283/81, Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR I-03415,
[16]-[20].
108 Article 4(3) TEU.
109 C-415/93 Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman[1995] ECR
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2.4. Concluding Remarks
Individual identity and autonomy are personal human rights, yet they are necessary preconditions for a homosexual to enjoy private and family life as a same-sex couple. Fortunately, the right to come out and come together is, and should remain, protected in both the CoE and EU. The same cannot be said concerning names. If the couple pursues a claim under the Convention, they should seek to have the exhaustion of domestic remedies requirement waived by proving there is State practice which fails to recognise the name of a same-sex couple. However, such a claim will likely be unsuccessful unless that offers the possibility of formalising the relationship. If the couple has exercised their free movement rights, then it is advised that they should proceed with a claim under EU law instead against the national measure via a preliminary reference. The CJEU has given a lenient/wide interpretation to what will constitute an obstacle to free movement given the economic underpinnings of those rights, and the ECHR would be applicable which may influence the CJEU. Chapter 3 will now discuss family life, including formalisation of relationships which has a knock-on effect for other private, family and home rights.
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CHAPTER THREE: FAMILY LIFE
3.1. Introduction
At the inception of the CoE and the Union, homosexuality was illegal in most States and same-sex family life would not be recognised until decades later. Under the Convention, family life is a broad, autonomous concept,110 examined on a de facto basis which presupposes the existence of close personal ties. Its malleable nature led the ECtHR to gradually break down barriers for same-sex couples including decriminalisation, access to legal recognition and parental rights against a back-drop of non-discrimination. In Schalk and Kopf,111 the ECtHR
found it artificial to assume that a same-sex couple cannot enjoy ‘family life’ under Article 8 ECHR in the same way opposite-sex couples do. Yet, family life will vary considerably based on the couple’s geographical location in Europe given the existence of an ‘East-West’ spilt on the issue. This chapter will map out what same-sex couples currently enjoy in relation to family life under five categories: marriage; registered partnership; residence permits; parenthood; and social benefits. A set of recommendations will then be produced under each heading to advance those rights.
3.2. Marriage
a) ECHR
Article 12 guarantees that: ‘Men and women of marriageable age have the right to marry and to found a family’. The choice of wording ‘deliberate’:112 it only applies to heterosexuals and
there is no obligation on States to legalise same-sex marriage. In Schalk and Kopf, the ECtHR found that although Article 12 ECHR is applicable to same-sex couples, the decision ‘whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State’, given that ‘marriage has deep-rooted social and cultural connotations which may differ largely from one society to another’.113 Furthermore, neither Article 8 nor Article 14 currently impose an obligation to recognise same-sex marriage.114 However, failure to provide any recognition to a same-sex marriage lawfully conducted abroad will violate Article 8.115
110 Marckx v. Belgium, 13 June 1979, Series A no. 31, § 31. 111 Schalk and Kopf, § 94.
112 Ibid, § 55.
113 Ibid, §§ 61-62. Confirmed in Oliari and Others, § 192; Chapin and Charpentier v. France, no.40183/07, 9
June 2016, § 39.
114 Schalk and Kopf § 108; Chapin and Charpentier, § 48. 115 Orlandi and Others.
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b) EU
The wording of Article 9 CFR differs from Article 12 ECHR as it excludes any reference to sex: ‘The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.’ Explanations of the Charter confirm that although the wording has been changed to accommodate situations where national law does allow same-sex marriage, it neither ‘prohibits nor imposes’ a right to same-sex marriage.116 The CJEU has also held that ‘marital status and the benefits flowing therefrom are matters which fall within the competence of the Member States and that EU law does not detract from that competence.’117 As such, ‘Member States are thus free to provide or not provide’ for same-sex marriage118 However, the CJEU held in Coman and Others, that ‘spouse’ in the Citizens Rights’ Directive (hereafter, the ‘CRD’),119 includes the same-sex spouse for the purposes of free movement law.120
c) Analysis
The issue of same-sex marriage is a controversial topic touching upon issues including human rights, religion, morality and equality. Same-sex couples do not have a right to marriage under the Convention or EU law, and non-recognition carries substantial negative consequences in areas such as: migration; parenthood; social benefits; testimonial privilege; and succession law. Based on the external standard of equal treatment, until Member States are obliged to provide for same-sex marriage, discrimination exists which violates their right to family life. Currently, 16/47 Member States of the CoE and 14/28 Member States of the EU permit same-sex marriage,121 evidencing an ‘East-West split’ on the issue.
The ECtHR has acknowledged a growing European consensus towards recognition of same-sex couples,122 but it is unlikely that the ECtHR will interpret Article 12 ECHR to include a
116 Explanations (n.48).
117 Case C-443/15 David L. Parris v Trinity College Dublin andOthers [2016] ECLI:EU:C:2016:897, [58]. 118 Ibid [59]; C-673/16 Relu Adrian Coman, Robert Clabourn Hamilton, Asociația Accept v Inspectoratul General pentru Imigrări, Ministerul Afacerilor Interne, Consiliul Național pentru Combaterea Discriminării
[2018] ECLI:EU:C:2018:385, [37].
119 Council Directive 2004/38/EC of the European Parliament and Council of 29 April 2004 on the right of
citizens of the Union and their family members to move and reside freely within the territory of the Member States.
120 C-673/16 Coman and Others, [35].
121 Austria being the last to do so as of 1st January 2019. See, Kees Waaldijk, ‘Extending rights, responsibilities
and status to same-sex families: trends across Europe’ (2018), para 1.3.
< https://openaccess.leidenuniv.nl/bitstream/handle/1887/70273/Waaldijk_-_Extending_rights_-_Council_of_Europe_report_2018.pdf?sequence=1> accessed 9 June 2019.
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right to same-sex marriage until it deems consensus has been reached.123 Fenwick explains the
ECtHR is trying to reconcile two conflicting aims: combat discrimination and preserve the legitimacy/authority of its decisions.124 Consensus between States could take decades,125 thus Article 12 is an ‘unpromising line to pursue’.126
In contrast, Waaldijk remarks that national authorities will be ‘spurred on’ by supranational courts in a top-down fashion concerning the equal treatment of same sex couples.127 Therefore, to surpass the piecemeal, consensus-based approach under Article 12 ECHR in a top-up fashion, same-sex couples should pursue an equal treatment approach in Strasbourg: an application for violation of Article 14 in conjunction with Article 8. Admittedly, the ECtHR has ruled that neither Article 8 nor Article 14 currently impose an obligation to recognise same-sex marriage,128 but an equal treatment approach is arguably the most suitable avenue to pursue. An example situation would be where State X allows both opposite and same-sex couples to enter into registered partnership, but only allows opposite-sex couples to marry.129 When pursuing a claim for non-discrimination, the comparator group would be an opposite-sex married couple. The ECtHR evaded the Article 14 issue in Oliari and Others v Italy (concerning registered partnership) by finding a violation solely on Article 8.130 Fenwick notes the Court’s decision to do so was ‘significant’131 as it then avoided the question of whether
Italy could advance significant and weighty reasons to justify the of exclusion of same-sex couples. Hamilton argues that Italy would have been unlikely to do so, and this precedent would have strengthened the case for same-sex marriage in future.132 Furthermore, reliance on Article
14 has been successful in the past for same-sex couples,133 and the State would have to provide
particularly convincing and weighty reasons to justify the difference in treatment.
In order for same-sex marriage to be introduced at EU level, two options exist: legislative harmonisation or a CJEU judgement. The first option requires action by the Union institutions, thus it is irrelevant to a same-sex couple in strategic litigation. The second option has the
123 Recently confirmed in Chapin and Charpentier.
124 Helen Fenwick, ‘Same sex unions at the Strasbourg Court in a divided Europe', (2016) 3 European Human
Rights Law Review 249, 250.
125 Same-sex marriage is constitutionally banned in several States.
126 Frances Hamilton, ‘The Case for Same-Sex Marriage Before the European Court of Human Rights’ (2018)
65 Journal of Homosexuality 1582, 1598.
127 Waaldijk, (n.140), para 3.2.
128 Schalk and Kopf § 108; Chapin and Charpentier, § 48. 129 For example, Cyprus, Czech Republic, Estonia or Slovakia. 130 Oliari and Others, § 188.
131 Fenwick (n.122), 274. 132 Hamilton (n.124), 1588.
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disadvantage that for EU law to be applicable, there must be a cross-border element to invoke free movement law and Article 7 CFR. Even if they are applicable, the rules on marriage are within Member State competence, who are not obliged to open up marriage to same-sex couples.134 Nevertheless, Member States must exercise that competence in compliance with EU law, including the right of Union citizens to move and reside in the territory of another Member State.135 Recommendations concerning this will be made under 3.3 relating to Residence Permits. Thus, it is argued that pursuing a discrimination claim under the ECHR is likely to be more effective which may in turn convince the CJEU given the ECHR’s applicability in litigation in national courts and preliminary rulings.
3.3. Registered Partnership
a) ECHR
In Oliari and Others v. Italy, the ECtHR found that Italy had violated Article 8 as it provided no means of legal recognition for same-sex couples. The Court reiterates that same-sex couples are in a relevantly similar situation to an opposite-sex couple regarding their need for legal recognition and protection of their relationship,136 as it constitutes a facet of an individual’s existence and identity.137 If a State introduces registered partnership, it must be open to
same-sex couples in the same way as opposite same-sex couples, otherwise there will be a breach of Article 14 in conjunction with Article 8.138 Furthermore, failure to provide any legal recognition of a
same-sex marriage lawfully conducted abroad will be a violation of Article 8.139 However, it
is not disproportionate for States to require the conversion of a heterosexual marriage to a same-sex civil partnership when one of the partners undergoes gender reassignment surgery.140
b) EU
The Union does not have the competence to approximate national laws concerning registered partnership which vary greatly between Member States.141 However, for the purposes of the CRD the same-sex partner of an EU citizen will be recognised under free movement law as the ‘partner’ if the host State provides for registered partnership.142 When a Member State does not
134 C-673/16 Coman and Others, [45]. 135 Ibid, [38].
136 Ibid, § 165. 137 Ibid, § 177.
138 Vallianatos and Others. 139 Orlandi and Others.
140 Hämäläinen v. Finland [GC], no. 37359/09, ECHR 2014.
141 Registered partnership does not exist in Bulgaria; Latvia; Lithuania; Poland; Romania; Slovakia. 142 Article 2(2)(b) CRD.
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provide for registered partnership, then the partnership will be considered a ‘duly attested long-term relationship’.143 Thus, the CRD gives Member States the explicit choice whether to
recognise the registered partner or not for entry and residence purposes.
c) Analysis
Registered partnership may be defined as a legal mechanism or relationship recognition which requires a formal act to produce legal effects for that couple. In Oliari and Others, the ECtHR noted that a European consensus had been reached where 24/47 Contracting Parties provided legal recognition to same-sex couples.144 Although the Court found a violation of Article 8, the judgement is ambiguous as to whether a right exists to a registered partnership for same-sex couples. The Court relies heavily upon the internal factors in Italy, mainly a discordance between the law and social reality of same-sex couples and calls from the Italian Constitutional Court for recognition.145 Fenwick criticises this approach arguing that it was the conduct of the Italian State which formed the basis for this decision,146 and the Court may decide differently in future cases where this internal consensus does not exist.147 Three cases currently pending at the ECtHR concerning Russian legislation which does not provide same-sex couples with the possibility to enter a marriage or any other legally recognised union will put this to the test.148
It is advised that in order to persuade the Court that a right to a registered partnership for same-sex couples can be derived from Article 8, the same-same-sex couples should argue that a European (as opposed to internal) consensus has been reached. Furthermore, based on Vallianatos, it can be deduced that if a State chooses to go beyond the level of protection afforded by the Convention, then they must do so without discrimination: same-sex couples cannot be excluded. Otherwise, it is likely the Court would find in favour of the applicants based on
Vallianatos, as well as Article 14 in conjunction with Article 8.
In the EU, it is unfortunate that the same-sex registered partner of an EU citizen will not be recognised as such in a State which does not provide registered partnership. Instead the partner will be considered a long-term partner, duly attested, which places those who have formalised
143 Article 3(2)(b) CRD. 144 Oliari and Others, § 55.
145 Schalk and Kopf, § 173 and §§ 179-180. 146 Fenwick (n.122), 276.
147 For example, Azerbaijan, Lithuania or Russia.
148 Fedotova and Shipitko v. Russia (no. 40792/10); Chunosov and Yevtushenko v. Russia (no. 30538/14); Shaykhraznova and Yakovleva v. Russia (no. 43439/14).
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their relationship at a significant disadvantage by reducing them to cohabitants, losing the legal benefits of formalisation. This could dissuade a same-sex couple with a registered partnership from exercising their free movement rights to another Member State which does not recognise their partnership. However, a gap in the CJEU’s case-law exists as it has not yet had the chance to rule on the mutual recognition of registered partnerships. Thus, it is advised that the same-sex couple seek a preliminary reference to the CJEU upon a Member State’s failure to recognise their registered partnership as a restriction to free movement. They can rely on the Coman and
Others case by analogy by arguing that if a same-sex marriage must be recognised under free
movement law, then so must a civil partnership. This argument is strong given same-sex marriage is a more controversial institution than registered partnership.
3.4. Residence Permits
a) ECHR
Article 8 does not provide a right to a permit for a same-sex partner but the ECtHR will examine cases of potential discrimination. In Pajić v Croatia,149 the Court found a violation of Article
14 in conjunction with Article 8 based on sexual orientation where Croatia reserved the possibility of applying for a residence permit for family reunification to opposite-sex couples. The difference in treatment was not necessary to achieve a legitimate aim or justified by any other reason. Furthermore, in Taddeucci and McCall v Italy,150 the ECtHR found rejection of
a family-based residence permit to a same-sex partner constituted discrimination based on sexual orientation in violation of Article 14 in conjunction with Article 8. As the couple were unable to marry in Italy, or at the time obtain any legal recognition, it was impossible to obtain a residence permit.151
b) EU
The EU has competence concerning residency rights to facilitate the internal market. Thus, negative and positive integration are relevant. Firstly, the free movement of persons shall exist without any internal frontiers,152 where every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and
149 Pajić v. Croatia, no. 68453/13, 23 February 2016.
150 Taddeucci and McCall v. Italy, no. 51362/09, 30 June 2016. 151 Ibid, § 83.
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conditions laid down by EU law.153 Secondly, the CRD was adopted to facilitate the free
movement of Union citizens and their family members. For the CRD to be applicable, the same-sex couple must fall within its personal scope: at least one must be a Union citizen.154 A family member includes the spouse,155 registered partner,156 or the partner with whom the Union citizen has a durable relationship, duly attested.157 The CJEU recently held in Coman and
Others that ‘spouse’ in the CRD is ‘gender-neutral and may therefore cover the same-sex
spouse of the Union citizen concerned’.158 The CRD will only apply to Union citizens who
move to or reside in another Member State other than that of which they are a national. If they fall within the personal scope of the CRD, they may enjoy certain residency rights. Union citizens and their family members may reside for up to three months without any conditions or formalities other than a valid identity card or passport.159 If they reside longer than three months they must meet the relevant conditions of being a worker, or self-sufficient and with comprehensive sickness insurance.160 After five years permanent residence is granted.161 These rights extend to third country national (‘TCN’) family members.162
c) Analysis
The difference between the ECHR and the EU concerning residency rights is vast given the EU’s competence to adopt law in this area. Since there is no right to a residence permit for a same-sex partner under the Convention, any claim should be framed as a violation of Article 14 in conjunction with Article 8 where the comparator group will be relevant. For example, in
Taddeucci and McCall, it was decisive that the comparator group was not an unmarried
opposite-sex couple to finding a violation of the Convention. Nevertheless, any blanket bans on family reunification for same-sex couples will not be compatible with the Convention following Pajić.
Given the economic foundations of the EU, Union law is likely to be more effective. The CRD only applies to Union citizens who move to or reside in another Member State other than that
153 Article 21(1) TFEU. 154 Article 3(1) CRD. 155 Article 2(2)(a) CRD. 156 Article 2(2)(b) CRD 157 Article 3(2)(b) CRD.
158 C-673/16 Coman and Others, [35]. 159 Article 6 CRD.
160 Article 7 CRD. 161 Article 16 CRD.
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of which they are a national. However, in Coman and Others which concerned the return to the home Member State, the third country national derived a right of residence from the Union citizen’s rights under Article 21(1) TFEU. The CJEU has not, however, had the chance to rule on a case where a same-sex couple lawfully marries in the home State but seeks to move to the host State, where the latter does not recognise same-sex marriage. In those circumstances, the same-sex couple could argue that the CRD was applicable,163 whereby spouse includes the same-sex spouse,164 and failure to recognise their marriage gives rise to a restriction to free movement rights. The CJEU previously held that recognition of such marriages for the purposes of granting a derived right of residence for a third country national ‘does not undermine the national identity or pose a threat to the public policy’.165 Any public policy
derogation from a fundamental freedom must be interpreted strictly and cannot be determined by individual Member States.166 Furthermore, under the CRD, a spouse must be considered a spouse irrespective of when and where their marriage took place.167 Arguably, it is more strategic to rely on EU law given it has a broader reach in this area and the Court interprets restrictions to free movement strictly. It is also wise to invoke the ECHR as this my influence the CJEU in a ‘race-to-the-top’ between the two Courts.
3.5.Parenthood
a) ECHR
Article 8 does not guarantee a right to found a family or adopt,168 but presupposes the existence
of family life which requires respect. This area is closely linked with private life as it involves the choice to become a parent.169 Parenthood for same-sex couples may be divided into two
main categories: medically assisted reproduction (hereafter, ‘MAR’) and adoption. Firstly, there exists a right to make use of MAR which falls within the notion of family life under Article 8,170 but it does not guarantee a right to found a family or adopt.171 The Court also stated that any concerns based on morality or social acceptability should be taken seriously
163 Article 3(1) CRD.
164 C-673/16 Coman and Others, [35]. 165 Ibid [46].
166 C-673/16 Coman and Others [44].
167 C-127/08 Blaise Baheten Metock and Others v Minister for Justice, Equality and Law Reform [2008]
ECR-I-6241, [99].
168 Paradiso and Campanelli v. Italy [GC], no. 25358/12, 24 January 2017 § 141; E.B. v. France, § 41. 169 Dickson v. the United Kingdom [GC], no. 44362/04, ECHR 2007-V § 66; Evans v. the United Kingdom
[GC], § 72.
170 S.H. and Others v. Austria [GC], no. 57813/00, ECHR 2011 § 82. 171 E.B. v. France, § 41.
