The Feasibility and Desirability of
a European Equal Marriage
MA Thesis in European Studies Graduate School for Humanities University of Amsterdam
Rick Hoen 11886196
Main Supervisor: Dr. P.P. Cebulak Second Supervisor: Dr. M.E. Spiering Word Count: 17070
Table of Contents
Introduction………….………...………3
1. The Past, Present and Possible Future of European Family Law.………...7
a. The Evolution towards (the Rudiments of) a European Family Law…………..7
b. The Issues that Arise from the Current Level of Harmonization of Family Law……….…11
c. The Feasibility and Legal Desirability of a European Family Law in General and of the Introduction of a European Equal Marriage in Particular..………..13
2. Council of Europe and EU Legislation and Jurisprudence relating to Same-Sex Unions……….18
a. Council of Europe Legislation and Jurisprudence………..18
b. EU Legislation and Jurisprudence………....23
3. The Legal Status of Same-Sex Couples in EU Member states..…...………...…29
a. Nordic Countries………...29
b. Central and Western European Countries……….………..31
c. Southern European Countries……….…………...33
d. Eastern European Countries………..35
e. Overview and Preliminary Conclusion.………..………...37
4. Possible Effects of a European Equal Marriage………...…...38
a. The Factors Influencing the Introduction of Same-Sex Union Legislation (and Equal Marriage)………38
b. The Social Influence of Same-Sex Union Legislation (and Equal Marriage)..40
Conclusion……….………..……….………...43
Introduction
Last June, the Court of Justice of the European Union (CJEU) has issued its (revolutionary) judgement in a preliminary ruling on the right of residence in Romania of the American half of a Romanian-American married same-sex couple (who married in Brussels) (Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne, 2018). It has ruled that the European Union (EU) has the competence to decide who counts as ‘spouse’ in the context of the EU’s freedom of movement. It further ruled that the term ‘spouse’ should include anyone who is in a marriage, irrespective of sex. Therefore, Romania has to grant the applicant his right of residence. This ruling is revolutionary because it is the first time the CJEU has dared to force a Member State to recognize a foreign same-sex marriage and it is revolutionary because claiming the competence to define the concept of ‘spouse’ and giving it a broad definition is perhaps the biggest step into family matters in general and same-sex union recognition in particular the CJEU has ever taken.
An increasing number of countries have already opened up their marriage to couples of the same sex. Many other countries offer various forms of registered partnerships that are similar to and can be more or less equal to (heterosexual) marriage. Among these countries are many EU Member States. However, a large number of countries still exclude
homosexuals from ‘marriage’ and some even do not provide any legal recognition or protection.
While the EU has integrated extensively over its 67 years of existence in many areas of policy and law, family law (including same-sex relationship recognition) has largely been excluded from this project, leaving it almost completely in the hands of the Member States. This leaves married or registered same-sex couples (who make use of their freedom of movement) in uncertainty, caught between various old and new, national and European laws and jurisprudence, which in most cases are not made for them. This uncertainty tends to be dealt with through private international law (conflict rules) and the recognition of foreign (same-sex) marriages or registered partnerships, especially within the EU (and this
approach is also taken to a large extent in the above mentioned recent CJEU case). While this approach has yielded some results, for instance in the CJEU case law, it is unlikely to provide complete legal certainty, end legal discrimination and enable same-sex couples to fully enjoy their freedom of movement within the EU internal market. Even if Member States are forced to recognize foreign same-sex marriages and registered partnerships (and for instance grant them residence rights), which the judgement in the Coman case to some
extent does, it remains to be seen whether same-sex couples can automatically rely on all the other rights of married couples in all Member States, beyond the right of residence in the home (or host) Member State of your spouse.
Therefore, this thesis will aim to answer the following research question: Would the
imposition of equal marriage on all EU Member States be legally and sociologically desirable based on the current level of legal certainty, the current level of acceptance of homosexuality throughout Europe and the influence it could have on these statistics? In order to answer this question, the following subquestions regarding the current supranational legal situation regarding the recognition of same-sex couples will be dealt with first: How did the present-day (rudiments of) European family law evolve?; What are the issues that arise from the current (low) level of harmonization in the area of family law? And; Which existing legislation and jurisprudence relating to the status of same-sex couples is there within the EU and within the Council of Europe?. Then, two subquestions regarding the current legal situation of same-sex couples on the national level, its consequences and its possible translation to the supranational level will be dealt with: What is the legal status of same-sex couples in various (groups of) European countries? And; What effects did the introduction of equal marriage on national levels have and how could this be translated to possible effects of a European equal marriage?
This thesis will argue that despite the obstacles that will have to be faced, the imposition of equal marriage on all EU Member States would in fact be desirable (and feasible, either via the legislative route or through litigation at the CJEU). The desirability of such an institution in the EU is assessed here from two angles: a legal and a social angle. From a legal perspective, there are several important general principles which play a role in the question of desirability of (equal) marriage harmonization, most importantly: legal certainty and respect for human rights (among which the right to marry and respect for private and family life and the prohibition of discrimination). Moreover, one principle specific to the EU plays a significant role and will be focused on here: the right to freedom of movement (and
residence) within the internal market. As discussed above, currently, same-sex couples who (try to) make use of their right to freedom of movement face legal uncertainty because of the patchwork landscape of legal institutions available to same-sex couples at the national level (and the lack thereof in many European countries) and the lack of legislation in this area at the European level. Therefore, these couples cannot fully enjoy the freedom of movement to which they are entitled as EU citizens. Moreover, their human rights to marry and to form families, for their private and family lives to be respected and their right not to be
countries. From a social perspective, national equal marriage legislation has in previous research (which will be discussed in chapter 5b) been proven to have positive effects on the acceptance of same-sex couples and families in particular and more generally of LGBTQI+ (Lesbians, Gays, Bisexuals, Transgenders, Queers, Intersexuals and related communities). As this thesis will argue, introducing equal marriage legislation at the European level could have similar effects.
Various scholars have written about this issue, but in most cases they have taken a more narrow approach and/or they have written from a normative philosophical perspective. Several authors have analyzed the variables that determine (and have determined in the past) differences in acceptance levels and legal recognition between various countries (for example Sani et al., 2018). This can provide insight into which factors have determined the introduction of equal marriage in the past and therefore could be of importance in future involvement of the EU or the Council of Europe and the possibilities of introducing legal institutions before (national and average European) acceptance levels are at a higher level. The contributors to the various publications of the Commission on European Family Law (CEFL) 1 (edited by Katherina Boele-Woelki and Angelika Fuchs, 2003; 2012; 2017) provide extensive overviews of the current legal situations in various (groups of) European countries and of the existing EU and Council of Europe legislation and jurisprudence in the area of family law in general and regarding same-sex union recognition in particular. This insight into the current situation (combined with the history) of family law in Europe (and its flaws) will shape the analysis of the above described legal aspects of the desirability of a European equal marriage. Moreover, it will provide the foundation from which to look towards the possible future of European family law and a possible European equal marriage. The possibilities for EU family legislation have been outlined by several scholars, among which David Bradley (2004) and Walter Pintens (2008).
The possible effects of the introduction of equal marriage on acceptance have been
researched by authors such as Judit Takaćs and Ivett Szalma (2011; 2015). After analyzing their results, a prediction can be made of a possible translation of these effects to the
European level if an equal marriage were to be introduced there. This will inform the analysis of the social factors that determine the desirability of a European equal marriage. Generally, the aim of this thesis is to combine (aspects of) all these studies in order to be able to answer the main research question mentioned above: Would the imposition of equal marriage on all EU Member States be legally and sociologically desirable based on the
current level of legal certainty, the current level of acceptance of homosexuality throughout Europe and the influence it could have on these statistics? This thesis does not aim to do so from a normative philosophical perspective. Rather, it aims to show the factual legal and social benefits that could arise after the introduction of such legislation. These legal and social benefits will be shown through the results of extensive literature research, a study of relevant legislation and jurisprudence and an analysis of acceptance levels in several European countries before and after introduction of same-sex union recognition and a comparison with countries who have not introduced these legal institutions.
The first three chapters of this thesis will focus on the legal aspects of equal marriage
legislation in Europe. Within this part of the thesis, the next chapter will first discuss the past, present and possible future of a European family law in general and a European equal marriage in particular. The second chapter will analyze the Council of Europe and EU
Legislation and ECtHR and CJEU Case Law relating to Same-Sex Unions. The third chapter will outline the legal status of same-sex couples (including alternatives to marriage such as registered partnerships and cohabitation laws) in four groups of European Countries: the Nordic Countries, the Central and Western European Countries, the Southern European Countries and the Eastern European Countries. At the end of this chapter, an overview and preliminary conclusion will be provided. The fourth chapter will focus on the social aspects of equal marriage, first outlining the factors that influence the introduction of same-sex
partnership recognition and equal marriage and then discussing the possible social effects of a European equal marriage. The concluding chapter will provide further discussion of the findings of the previous chapters and what answers they might provide to the research questions and draw conclusions from the research results outlined in all the previous chapters.
1. The Past, Present and Possible Future of European Family Law
This chapter will first shortly outline the history of the EU’s involvement in family matters in general, focusing on same-sex marriage / relationship recognition and the
development of a rudimentary European family law. Then, it will discuss the issues that arise from the (low) level of harmonization of family law that has been reached in the EU. Last, it will analyze in general the possible future of European family law and in particular the feasibility and desirability of the EU imposing the introduction of equal marriage on all Member States. This chapter aims to provide a clear overview of the relevant legal history and the issues that have arisen out of this history which help to formulate answers to the question whether a true European family law in general and the
introduction of a European equal marriage in particular are first of all feasible and if so whether these institutions would also be legally and sociologically desirable. It is based on an analysis of several of the most important publications from family law and
European law experts of the past two decades. Because the focus of this thesis is on equal marriage, this chapter focuses on publications on relationship recognition and marriage and leaves related topics such as decriminalization of homosexual behavior aside.
a. The Evolution towards (the Rudiments of) a European Family Law
Even though the EU officially only has shared competence in the area of family law, the then European (Economic) Community (E(E)C) has increasingly regulated families from the 1960s onwards and has increasingly impacted families in all areas of law. From the 1990s onwards the development towards a more harmonized private law in general has accelerated significantly. However, family law has stayed behind in this respect (Sumner, 2002, 160). There was thought to be no (economic) reason to harmonize this area of law, as opposed to for instance commercial law and parts of private law. Family and inheritance law were deemed unfit to be included in a proposed European civil code by the European Parliament and various scholars at the beginning of the 1990s
(MacGlynn, 2006, 181-182). However, by the end of the 1990s this common view had changed dramatically (largely because of a spillover effect, namely the increased EU involvement in family matters through other policy fields and the growing awareness of the need to regulate these matters in order to adequately deal with the other (core) areas of EU competence) and a European family law
was debated and written about extensively (MacGlynn, 2006, 181-182; Pylkkänen, 2007, 289).
True Europeanization in the area of family law has only happened sporadically. Nevertheless, it has become increasingly apparent that truly harmonizing other private law areas is impossible without touching upon family law. Since 2000 EU law includes some pieces of family law, for instance on the recognition and enforcement of divorce and parental responsibility rulings (Sumner, 2002, 160). Generally, the Court of Justice of the European Union has been creating a rudimentary European family law for decades, together with the EU family policy. However, they tend to more or less retain the status quo. In 2001, the
Commission for European Family Law (CEFL) was established, mostly by scholars, and initially funded by the European Commission (MacGlynn, 2006, 183). Its aim is to pioneer in the theory and practice of the harmonization of family law in Europe and to bring forward a number of European family law norms (Pylkkänen, 2007, 289). It strives to find a “common core” of family law in Europe and to facilitate voluntary evolution towards a harmonized family law in the EU. The CEFL’s investigation and analysis of European family law leads them to believe that harmonization of this field of law is possible (Bradley, 2004, 1).
Specifically regarding sexual orientation, a public and political norm rejecting discrimination based on sexual orientation has been created and promoted in the wider European polity from the 1980s onwards. This has helped convince
national policymakers and citizens to internalize and apply the ideal of equality for LGBTQI+ citizens domestically. This principle has led to public and political pressure in favor of same sex union recognition which has in turn catalyzed domestic policy change. Thus, Europe is often seen as a LGBTQI+ rights champion, although this is interpreted differently depending on the domestic circumstances and the interests of influential national policymakers. Specifically, from the beginning of the 1980s a wide range of actors such as LGBTQI+ rights activists, supportive bureaucrats within European institutions and legal advocates began to campaign for the inclusion of sexual orientation in European human rights legislation (Kollman, 2014, 101-102). Thus, European activists and institutions and the norms they created have helped legitimize LGBTQI+ rights (such as same-sex union recognition) as human rights (114-115). The influence of the EU on national same-sex union recognition has been mostly soft and legal mandates for this recognition are nearly absent (103). The European political
infrastructure sets the conditions for national discourses on policy change, but this change is not inevitable and domestic policymakers do not tend to blindly follow European norms without their personal political interests in mind (114-115).
The European Parliament (EP) has adopted several resolutions during the 1990s which also call for universal access to marriage or other forms of legal
recognition. In 1994, it explicitly demanded ending the exclusion of same-sex couples from marriage or from similar legal frameworks. In 1998 it again called on Member States to introduce equal marriage (moving beyond the alternative legal solutions this time) (Fichera, 2016, 387; MacGlynn, 2006, 161; Resolution on equal rights for homosexuals and lesbians, 1994; Resolution on equal rights for gays and lesbians, 1998). The wider European polity, including the Council of Europe and informal transnational policy networks and interest groups next to the EU, has had an important influence on domestic discussion of the recognition of same-sex unions (Kollman, 2009). By specifically including sexual orientation as a prohibited discrimination ground in Treaty of Amsterdam and through the mentioned EP resolutions, LGBTQI+ rights have been clearly defined as human rights. Despite the limited specific application to recognition of same-sex unions, domestic and transnational interest groups have taken these various
supranational policies, ruling and norms and created a public/political norm favoring the legal recognition of same-sex unions. This development is intertwined with national same-sex union recognition in Western Europe (Kollman, 2009, 38-39).
Thus, European and international public and political norms and hard law interact with national politics and have significantly pushed European countries to change their policies. Where these norms have not been accepted, efforts by European institutions to impose same-sex union recognition have had limited effects (Kollman, 2009, 38-39). Nevertheless, formal efforts to harmonize policies have influenced, accelerated and legitimated the adoption of legislation recognizing same-sex unions. Since 1989, general policy results have converged and from the end of the 2000s onwards the instruments with which countries choose to recognize same-sex unions have converged too. 29 European countries (of which 23 EU Member States) have some form of same-sex union legislation, just one of them only relies on the recognition of unregistered cohabitants in this respect and increasingly they have introduced equal marriage (ILGA-Europe, 2017). Generally, formal and informal rules, procedures, paradigms, styles,
methods and common ideals and norms are constructed, defined, diffused and institutionalized at the EU level and later incorporated domestically (Kollman and Paternotte, 2013, 512-517). The CJEU has provided benefits in the workplace to the registered partners of workers, but it did not force Member States to introduce registered partnerships (528).
Through the Charter of Fundamental Rights that was adopted in 2000, which brings human rights into official EU law and refers to the rights in the Council of Europe’s European Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR), the EU has recognized the significance of the family. Before the introduction of the charter, the limited involvement of the EU in family law matters fell under the umbrella of social policy, while in the charter fundamental rights regarding the family are included such as the right to marry and to found a family and the right to respect for private and family life. Moreover, it prohibits discrimination in general and based on sexual orientation in particular. While this does not change the EU’s competence in family law matters, it does provide room for broader interpretation of related legislation and cases (Pintens, 2008, 166-167).
Thus, ‘through the back door’, (rudimentary) EU family law has arisen and the question of competence appears to be less relevant now. Moreover, Article 81 TEU (Treaty on European Union) could provide the necessary competence to legislate family law matters in general and equal marriage in particular. This will be looked at further in the last part of this chapter. The question that is most relevant now is what the scope of EU family law is. An important factor in this is the EU’s economic goals which affect the shape of families and the division of labor. Families have become public as well as private matters in the all-encompassing strive towards enhancing the free market and increasing the growth of the economy. Social welfare, the labor market and family law have become intertwined. Thus, the limited social legislation in general and the lack of family law in particular becomes more problematic (Pylkkänen, 2007, 293). Therefore, the next subchapter will discuss the issues which arise from the present state of harmonization of family legislation.
b. The Issues that Arise from the Current Level of Harmonization of Family Law
EU legislation in for instance the fields of the free movement of citizens and judicial cooperation often does not appear to adequately deal with the evolution of the family and its needs, especially in the light of the above mentioned
increasing intertwinement of social welfare, the labor market and family law. This could possibly be based on the low support for same-sex marriages in the European Union (in 2006 only 44% of the citizens of the then 25 Member States supported it) and the even lower support for same-sex adoption. Family law is significantly more intertwined with political, religious and cultural discourses than many other areas of law (Pylkkänen, 2007, 292). An often asked question is whether family law is not still so unique to each countries’ culture that harmonizing or even unifying it within the EU would be undesirable and
unfeasible. However, even though law is indeed part of national cultures, law is a tool to bring order in human relationships and not a goal in and of itself
(MacGlynn, 2006). In fact, most European jurisdictions and their cultures have been highly influenced by the laws and cultures of the countries around them and have lost their national individuality to a large extent. Therefore, the differences in the national family laws are not so much based on culture or history but rather on the differing pace in which national legal systems evolve. The national pace of evolution is mainly determined by the allocation of political power either to proponents or opponents of equal marriage (MacGlynn, 2006, 181; Pintens, 2008, 157-160).
Because several European countries have chosen to introduce either equal marriage or other forms of partnerships open to same-sex couples, significant differences have arisen in couples’ rights and responsibilities. Substantive legislation has evolved differently across Europe, only few countries have adopted conflict rules regarding foreign partnership legislation and there are significant differences between the countries that have done so. Countries that do not recognize same-sex unions themselves in any way do not know how to handle couples that have used the legal options that do exist abroad and that make use of the free movement right within the EU. Despite the growing circulation of lifestyles, work and family arrangements and legal frameworks, European countries predominantly choose to hold on to their own national values and protect their national sovereignty (Bonini Baraldi, 2008, 548-550).
Thus, even though many Member States have evolved significantly in this area, at the EU level many same-sex couples get stuck in between old and new
legislation which is not made with them in mind (521-522). Therefore and in order to solve the current lack of legal protection for same-sex couples in various EU Member States, supranational interference might be essential. At the same time, it is very problematic because of the opposing national perspectives and the limited possibilities for mediation. However, in the long run these diverse views could converge through indirect harmonization resulting from related measures that are in place (548-550).
Member States do not trust each other regarding family law, which undermines the supremacy of EU legislation, obstructs the use of EU citizens’ economic freedoms and results in discrimination. These effects contradict EU legislation and its objectives. Not integrating further in the field of family law could eventually clash with the Union’s own fundamental public policy norms, values, customs and traditions, for instance the norm that double regulation is prohibited. Member States remain in control of the definition of families and their status because in ethical matters the EU chooses to uphold cultural pluralism. However, this approach has a large impact on the established EU law principles and holds citizens from complete enjoyment of their economic freedoms. Moreover, the EU’s ‘public policy’ is clearly based on respect for basic human rights. It is
questionable whether it is truly legal to ignore central principles of EU policy in the field of civil status. The preamble of the Charter of Fundamental Rights of the EU suggests this is not the case (Bonini Baraldi, 2008, 548-550).
Presently, EU law has limited influence over Member States’ laws (or the
absence thereof) on same-sex relationships and the later remain free to legislate in this field as they see fit in ‘purely internal situations’ where citizens have not used their freedom of movement. When this freedom of movement has been used even just by one EU citizen in a couple, neither home nor host Member States are allowed to violate free movement rights. However, because host Member States remain free to choose whether to legally recognize same-sex unions, in which manner and to what extent, EU legislation does not enter the domestic sphere in this field. Thus, free movement rights and the principle of non-discrimination can be violated. Conflict of law rules do not necessarily clarify this situation, because it is complicated to recognize unions that are not qualified as marriages (or enjoy other forms of legal recognition) by national legislation. If this
issue is even resolved, further questions arise, namely how the consequences of foreign marriages (inheritance rights, social benefits, divorce etcetera) that are not recognized under national legislation should be dealt with (Fichera, 2016, 397-401).
Using the above provided overview of the history of European family law and the issues arising from it as a starting point, the next subchapter will take a look at the question whether a European family law and more specifically the introduction of a European equal marriage would be feasible and if so whether it would be (legally) desirable.
c. The Feasibility and Legal Desirability of a European Family Law in General and of the Introduction of a European Equal Marriage in Particular
Family law is a complex field of law, because the EU officially only has a shared competence in this area but at the same time does have exclusive competence in some family law matters that also fall under other areas of policy and law, for instance the definition of family members (like spouses) within the free movement of workers. Thus, the EU and family law evolve and the idea that there could be a need to make the EU exclusively competent in the area of substantive family law is increasingly accepted. (Sumner, 2002, 156). The fact that the Treaty of
Amsterdam has brought civil judicial cooperation into Community law (now EU law) does not further unify substantive family law. However, Article 81 TEU contains some interesting provisions in this respect.
Paragraph 1 of this article states:
“The Union shall develop judicial cooperation in civil matters having cross-border
implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.” (European Union, 2009).
Paragraph 3 of this article states:
“Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.
The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.” (European Union, 2009).
Thus, the TEU provides the possibility of measures that (partially) harmonize national laws if judicial cooperation in cross-border civil matters necessitates this. Moreover, the Council is given the option to adopt family law measures if cross-border issues are concerned. Which matters have cross-cross-borders implications and which do not is of course open to interpretation, which leaves room for the both the Council and CJEU to broadly interpret this when adopting regulations or ruling on relevant cases. However, the requirement of unanimity makes the adoption of LGBTQI+-rights related measures in the Council extremely difficult. This issue will be further discussed later in this chapter (Pintens, 2008, 165).
The EU has chosen to leave it up to the Member States to define who counts as family members, except for spouses, who should always be recognized as family members. However, it is fairly heteronormative in this respect, especially where same-sex marriage is absent at the national level. The European Commission as well as the Council of Ministers have made clear that they do not wish to force Member States into a certain direction in family law matters. This creates a tension between respecting domestic family legislation and the supremacy of EU law on fundamental freedoms and rights. Thus, many family law questions remain unanswered at the EU level: whether if EU laws mention ‘marriage’ (for instance in Directives and Regulations on recognition of separations and divorces,
parental responsibilities and maintenance obligations) this includes all marriages; whether registered partnerships are thought of as comparable to marriages and if they are, under which criteria; if they are not (in all circumstances), whether this violates central principles of EU law and fundamental rights; whether registered partnerships and cohabiting couples should fall under family law or contract law;
and whether the benefits provided to married partners apply to unmarried/-registered partners as well in some cases. The most important factor holding back further EU involvement appears to be the absence of a consensus on whether the right to respect for family life applies to homosexual couples. The same issue is seen in the ECtHR’s case law. Generally, it appears to be the case that some Member States are unwilling or unable to accept that spouses can be of the same sex and that spouses and registered partners are comparable, regardless of their gender or sexual orientation (Bonini Baraldi, 2008, 531-541). However, despite the reluctance of the EU to meddle with family policy, LGBTQI+ rights activists have taken the increasing European legislation against
discrimination based on sexual orientation together with the front-running Member States in LGBTQI+ equality (for instance The Netherlands and
Denmark) to make same-sex union recognition as a human right the European norm (Kollman, 2014, 103).
The apparent Europeanization of family law that is occurring is largely a bottom up process (convergence). The fact that domestic family legislation is already converging to some extent indicates that actual harmonization of family law in general and the legal policies regarding marriage and same-sex couples’ access to it in particular does not have to be more problematic than that of other fields of law (Bradley, 2004, 3-4). Although traditions, ideologies and cultures play an important role in this matter, they are not necessarily insurmountable obstacles to harmonization of family law and the introduction of an EU-wide equal marriage. However, contestation based on political interests and public opinion is inevitable (16). Politicians are highly unlikely to not have strong opinions on topics like marriage and homosexuality. Therefore, national policies are unlikely to completely converge without explicit intervention by the EU (33-34). The European Commission does aim at a European family law, which would have further reaching implications than just private international law. If the Commission were to propose EU-wide legal recognition of same-sex partnerships and this proposal were to succeed, all jurisprudence of the CJEU regarding free
movement rights would then apply to same-sex partners too. Generally, because family law is so important to national political economies, harmonization would significantly push European integration forward (Bradley, 2004, 35-36).
Supranational legislation on an equal marriage appears to be essential to end legal discrimination, provide legal certainty and to enable same-sex couples to fully enjoy the freedom of movement to which they are entitled as EU citizens. In
short, the fundamental public policy norms, values, customs and traditions of the EU necessitate this step.
Despite the official lack of exclusive competence and despite national opposition (mostly by the countries that have acceded the EU since 2004), the importance of family law in the EU is growing (Ames, 2004, 504). The fact that many of the more recently acceded Member States are unlikely to progress towards equal marriage on their own could be an argument for the EU to get involved. Enticement by the EU is probably needed to stimulate national legislatures to legally recognize same-sex unions. However, because of the new composition of the Council, the Commission and the Parliament after the ‘Eastern accessions’, high pressure from the legislative side of EU is not very likely. Even the pressure from the European Parliament, which has historically been the strongest pro LGBTQI+ advocate, is diminished in the new, larger EU and because of the rise of right-wing and/or eurosceptic parties (Ames, 2004, 551-552). While the EU is still able to take actions to promote same-sex union recognition, this will to a large extent be dependent on Member State and institutional consensus (because measures to protect LGBTQI+ require unanimity instead of a qualified majority) which is now significantly harder to obtain in this area (518-524).
The balance between the interests of Member States and the goals of the EU in the area of family policies remains an intensely debated topic (Bonini Baraldi, 2007, 9). Nevertheless, in theory, Member States cooperation in the field of family law is possible. The increasing importance of the freedom of movement within the EU and the increasing number of people making use of it have led the EU’s activity and family law to interact (Pintens, 2008, 169. In fact, the European governments agree that “sustainable family policies have a part to play in improving social cohesion and in sound economic development” and that cooperation in this area can contribute to reaching the “Lisbon Strategy for Growth and Jobs” goals and the general EU social cohesion goals. Thus, Member States apparently agree that family matters and the EU’s ‘core
businesses’ are closely related and that there is at least room for comparison and sharing of national policies (Bonini Baraldi, 2007, 9). Moreover, national cultures and laws have already been influenced by each other and have lost their
individuality to such an extent that the cultural aspect should not form an obstacle to harmonization or even unification (Pintens, 2008, 169).
Legal issues come up at the private law as well as the public law level and clarity is often nowhere to be found. However, because citizens’ mobility continuously increases, these issues arise increasingly often and the call for legislators to take action grows louder (Verschraegen, 2012, 259). The CJEU makes use of the freedom of movement and the European citizenship to get involved in the area of family law (for instance in D and the Kingdom of Sweden v Council of the
European Union (2001) (Pintens, 2008, 169). Thus, even if the legislative EU institutions will not move further down the road to a European equal marriage, the CJEU could have an important influence on the promotion of legal recognition for homosexual partners in the EU (Ames, 2004, 534-535).
The EU’s goal to harmonize other areas of private law will not be attainable without getting involved in family law as well. Moreover, the widely varying landscape of family law in general and same-sex union recognition in particular across the EU and the lack of (consistent) conflict rules makes the EU’s lack of involvement in this area problematic. It leaves many same-sex couples (who make use of their freedom of movement rights) in uncertainty, caught between various laws which mostly are not made for them. Of course, many obstacles will have to be tackled to make European involvement possible. However, the
Treaties and secondary EU law leave room to be broadly interpreted by the CJEU and the EU Charter of Fundamental Rights has increased this room for
interpretation by explicitly providing the right to marry, to found a family and the right to respect for private and family life and by prohibiting discrimination based on sexual orientation (Pintens, 2008, 169). While the Commission and the
Council would have much difficulty legislating the recognition of same-sex unions, the CJEU has significantly more opportunities to be a pioneer regarding this issue through revolutionary judgements.
Historically, developments in this area have been cautious and the CJEU have not dared to question the Member States’ competence to legislate most family matters yet. However, the instances in which the Court have intervened in related matters and the above described evolution of its rulings leave open possibilities for future interventions in family law in general and in the recognition of same-sex unions and equal marriage in particular. Therefore, to get a clearer picture of future possibilities through knowledge of past jurisprudence, the third chapter will delve deeper into Council of Europe and EU legislation and ECtHR and CJEU case law relating to same-sex unions and their evolution and impact on legal
recognition for these unions. However, first the next chapter will discuss the legal status of same-sex couples at a national level, providing an overview of the current European ‘landscape’ of same-sex union recognition in general and equal marriage in particular, the complexity of which is one of the most important arguments for the Europeanization of this policy field in order to provide legal certainty, prevent discrimination and truly safeguard freedom of movement for every individual and every couple or family.
2. Council of Europe and EU Legislation and Jurisprudence relating to Same-Sex Unions
This chapter will provide an overview and analysis of the existing Council of Europe and EU legislation and jurisprudence relating to same-sex unions. Because of the focus of this thesis on equal marriage and relationship recognition, only legislation and
(landmark) cases on these matters will be discussed. Legislation and cases on related (LGBTQI+ rights) topics, such as decriminalization of homosexual behavior, will not be taken into account. All EU Member States have decriminalized this behavior, which levels the ‘playing field’ in this respect. Other LGBTQI+ rights do not necessarily form pre-conditions for same-sex union recognition.
This chapter will first look at the Council of Europe and then discuss the EU in this
regard. Because of the important role past ECtHR case law has played in this matter and the influence it has had on CJEU case law, it is relevant to take a closer look at the past and current Council of Europe legislation and ECtHR jurisprudence first and discuss the past and current EU legislation and CJEU jurisprudence last, of which the latter has shown interesting developments in recent cases.
a. Council of Europe Legislation and Jurisprudence
The case law of the ECtHR is not consistent. In some cases it rules surprisingly innovatively and in others it remains rather cautious and conservative. Regarding same-sex unions, several articles of the ECHR have been invoked: the
prohibition of discrimination (Article 14), the right to marry and to establish a family (Article 12) and the right to private and family life (Article 8). Progress is further stimulated by the autonomous interpretation of these rights, imposing duties on Member States and the growing significance of European norms
restricting countries’ room for interpretation. In its interpretation of the ECHR, the ECtHR takes into account social and economic changes, allowing for the
continuous evolution of human rights protection. Article 8 ECHR not only protects against random meddling by the state, it also entails a positive obligation to make family life possible. This could include the obligation to introduce new laws or the obligation to protect and support existing family relationships (D’Amico and Nardocci, 2017; ILGA-Europe, 2017; Sumner, 2002; Van der Vleuten, 2014; Verschraegen, 2012, 260-261).
Until recently the ECtHR had not explicitly dealt with same-sex marriage. Its perspective on this matter has evolved in two phases during the end of the 20th century. In the first phase, it did not consider the recognition of same-sex unions to be part of human rights. Only during the second phase, near the dawn of the 21st century, did the ECtHR start to reinterpret the concept of ‘family’ and therefore Article 12 ECHR on the right to marry (Fichera, 2016, 389-390). Only from the beginning of the 21st century did the ECtHR start to acknowledge same-sex unions as constituting ‘family life’. Nevertheless, it held on to its stance that Member States deserved a broad margin of appreciation regarding the
recognition of same-sex partnerships because a consensus among Member States was still lacking. For instance in the case Mata Estevez v.Spain (2001), Spain was allowed to withhold the applicant’s survivors’ allowances because it had an interest in protection of the traditional family even though Spain thus discriminated against the claimant (391-397). The Court did acknowledge that the applicant’s partnership is intertwined with his private life, which is protected by Article 8 ECHR. Therefore, this relationship could be protected by the same provision. On the other hand, the Court stated that based on its existing
jurisprudence, male homosexual relationships were not covered by the protection of family life which is also provided by Article 8 ECHR. Because of the absence of a consensus among Member States, they still enjoyed a broad margin of
appreciation in this matter. However, it is important to note that this case regarded a de facto same-sex union and not a legally recognized relationship. Therefore, the statements of the Court do not rule out the possibility that legally recognized same-sex unions could actually be protected by the right to family life (D’Amico and Nardocci, 2017; ILGA-Europe, 2017; Scherpe, 2013, 88; Sumner, 2002; Van der Vleuten, 2014; Verschraegen, 2012).
A number of years later, the ECtHR inverted its position, holding that in two cases (Karner v. Austria. (2003) and Kozak v. Poland (2010)) regarding tenancy
succession of deceased partners the state had used disproportional means to achieve the aim of protection of traditional families. In these cases, the Article 8 ECHR right to family life and the Article 14 ECHR prohibition of discrimination were successfully invoked. Karner and Kozak formed a foundation for further development of the ECtHR’s perspective on same-sex union recognition. The next step in this process was the reexamination and reinterpretation of the Article 12 ECHR right to marry. In Cossey v. United Kingdom (1990) and Goodwin v. United Kingdom (2002) the Court acknowledged that some countries have opened up their marriage to same-sex couples, but that to the Court this did not completely do away with the traditional marriage. Moreover, the ECtHR moved away from the requirement of the ability to procreate in order to be allowed to marry and acknowledged that the institution of marriages had significantly changed which was represented by Article 9 of the EU Charter of Fundamental Rights which had taken out the words “men and women” from the original Article 12 ECHR (D’Amico and Nardocci, 2017; Fichera, 2016, 391-397; ILGA-Europe, 2017; Van der Vleuten, 2014; Verschraegen, 2012).
Horst Michael Schalk and Johan Franz Kopf, two Austrian homosexual partners, were unable to acquire a marriage license because only heterosexuals were allowed to marry in Austria. They appealed against this decision and after having used up all national possibilities, they went to the ECtHR. They complained that Austria violated their Article 12 right to marry, the Article 14 discrimination prohibition and the Article 8 right to respect for private and family life because it denied them the chance to get married or to obtain any other legal recognition. On the right to marry, the ECtHR ruled that the reference to “men and women” in Article 12 should be seen as deliberate because such reference is absent in other articles. The absence of consensus among Member States led the Court to rule that the applicant’s right to marry had not been violated. Thus, in the current situation the choice is left to Member States to regulate same-sex marriage or not. For the future, it acknowledged that with the EU Charter in mind it would not regard the ECHR Article 12 right to marry as limited to heterosexuals anymore. In other words, once the European consensus changes, it would consider revisiting this matter. Regarding the applicability of Article 14 and Article 8, the Court held that the ECHR should be read in its entirety. Therefore, if Article 12 does not grant homosexuals the right to marry, then Article 8 and Article 14 do not grant
such a right either (D’Amico and Nardocci, 2017; ILGA-Europe, 2017; Sutherland, 2011, 98-100 Van der Vleuten, 2014).
Thus, the ECtHR strictly addressed the issue of same-sex marriages for the first time in Schalk and Kopf v. Austria (2010). It ruled that Member States are not obliged to open up their marriage to homosexual partners. However, it also ruled that the right to family life applies to same-sex partners as well and therefore Member States should provide these couples with some form of legal recognition (Sutherland, 2011, 98-100). The situation of Mr. Schalk and Mr. Kopf was found to be similar to heterosexual couples, because same-sex couples have the same ability to form stable committed unions. Therefore, there was “a difference in treatment of persons in relatively similar situations” under Article 14 ECHR. However, because Austria had introduced registered partnerships open to
homosexual partners in the meantime, the Court considered there no longer to be an issue. The absence of a European consensus on this matter led the Court to conclude that Member States still enjoy a margin of appreciation in their legal evolution (D’Amico and Nardocci, 2017; ILGA-Europe, 2017; Sutherland, 2011, 100-102; Van der Vleuten, 2014; Verschraegen, 2012).
Compared to Goodwin, the ECtHR allowed a greater margin of appreciation in Schalk and Kopf. The Court refused to oblige Member States to open up marriage and it has stated this in two other (second-parent adoption) cases as well: X and Others v. Austria (2013) and Valerie Gas and Nathalie Dubois v. France (2010). Thus, ECHR law only slowly evolves towards a broader interpretation of ‘family life’ (D’Amico and Nardocci, 2017; Fichera, 2016, 391-397; ILGA-Europe, 2017; Van der Vleuten, 2014).
In another case, Vallianatos v. Greece (2013), the ECtHR did not allow
distinguishing between cohabiting applicants and non-cohabiting applicants. The Court held that cohabiting does not imply greater stability of a couple. Because new Greek registered partnership legislation was only open to heterosexual couples, the Court held that the right to family life and the prohibition of discrimination had both been violated because the Greek government
differentiated purely on sexual orientation, which it deemed unacceptable. It went to note that same-sex partners have similar mutual assistance and support needs as heterosexual partners. Thus, despite the justifiable protection and recognition of the traditional family, Member States should take societal evolution in this
regard into account (D’Amico and Nardocci, 2017; Fichera, 2016, 391-397; ILGA-Europe, 2017; Van der Vleuten, 2014; Verschraegen, 2012).
More recently, the ECtHR went significantly further in Oliari and Others v. Italy (2015), ruling that Italy should provide some specific legal recognition and protection for same-sex unions. In this case, 6 Italians claimed that Italy violated their rights to private and family life and to marry and the prohibition of
discrimination by not allowing them to marry or to register their partnerships. The Court held that the existence of a legal vacuum in this area resulted in de facto discrimination because same-sex couples were not provided similar rights to other stable, committed couples. Here, the Court showed that it was ready to limit Italy’s margin of appreciation. It distinguished Oliari from its existing
jurisprudence, stating that recognition of same-sex relationships is crucial to peoples existence and identity. This judgement has undoubtedly contributed to the introduction of same-sex registered partnerships in Italy in 2016 (D’Amico and Nardocci, 2017; Fichera, 2016, 391-397; ILGA-Europe, 2017; Van der Vleuten, 2014; Verschraegen, 2012).
This short outline of the ECtHR’s jurisprudence on same-sex union recognition shows that the Court is cautious and on the one hand allows Member States to recognize homosexual partnerships and at the same time allows them to limit same-sex couples’ access to legal recognition. However, any differential treatment has to be seriously justified and proportional. While the Court slowly broadens its interpretation of the concept of ‘family life’, this is counterbalanced because it is required to remain deferential towards Member States. Because the Council of Europe lacks a supranational framework and has a large number of Member States who are not in consensus on this issue, the ECtHR is unlikely to be able to go further than this in the foreseeable future (Falcetta & Johnson, 2018, 13-15; Fichera, 2016, 391-397). The Court has ruled out the existence of a right to equal marriage under the ECHR in Hämäläinen v. Finland (2014) (Mulder, 2018, 130). It will only be able to introduce an obligation to provide same-sex marriage if and when an overwhelming majority of Member States will be in consensus on this issue. This would at the same time greatly decrease the effect of such a decision, if most Member States have already legislated equal marriage by that time. Nevertheless, at least a minimal level of recognition is apparent in the Member States, as is shown by the growing social acceptance of homosexual marriages and the legalization of such marriages in a more and more countries.
However, further national evolution could be discouraged by the fact that
introduction of same-sex union recognition will decrease Member States’ margin of appreciation because their current wide margin of appreciation is linked to the absence of specific legislation on same-sex unions in many Member States (D’Amico and Nardocci, 2017; Falcetta & Johnson, 2018, 13-15; Fichera, 2016, 391-397; ILGA-Europe, 2017; Van der Vleuten, 2014).
The next subchapter will take a closer look at EU legislation and jurisprudence, from which more evolution and influence could be expected than from the Council of Europe in the future.
b. EU Legislation and Jurisprudence
The EU Charter of Fundamental Rights, which is based on the ECHR, provides explicit rights to private life, family life (Article 7), the right to marry and to form a family as well. Moreover, Article 21 of the charter explicitly forbids discrimination based on sexual orientation among other grounds. Article 21 of the EU Charter carries more weight than the equivalent Article 14 of the ECHR. It is the first provision placing sexual orientation at the same level as other grounds for discrimination at the European level (Graupner, 2012; Sumner, 2002, 161-162; Verschraegen, 2012).
Scholars point to the fact that the ECHR provides the right to marry and to found a family for ‘men and women’ in Article 12, while the EU Charter for Fundamental Rights Articles 9 right to marry and to found a family has left out these words. The choice to leave out these words is thought to be deliberate and significant.
Nevertheless, in D and Sweden v. Council (2001) the CJEU still stated that based on the general consensus among the Member States, “marriage” refers to a union between a man and a woman. Moreover, the Charter’s explanatory notes clarify that Article 9 does not entail a prohibition nor an imposition of opening up marriage to same-sex couples. This appears to diminish the chance that Article 9 will be interpreted as applying to same-sex unions. This impression is
strengthened by the conservative interpretation of this provision in the past (Graupner, 2012; Sumner, 2002, 159; Verschraegen, 2012).
term ‘spouse’ in the EU Treaties had to be reevaluated. Regulation 1612/68 on the freedom of movement of workers provides the right to bring same-sex partners to other Member States only in cases in which host Member States similarly recognize same-sex union rights. Thus, this provides no recourse for same-sex couples who would like to move to countries without same-sex union laws (Graupner, 2012; Sumner, 2002, 161; Verschraegen, 2012). However, the CJEU has taken the rights to matrimonial benefits for homosexual couples in registered partnerships further, purely based on prevention of direct
discrimination (Maruko, 2008). Within the EU, the rights of same-sex partners only grew substantially after the introduction of same-sex union recognition in a number of Member States and the CJEU could consider their situations to be similar to marriages regarding direct discrimination (Maruko, 2008).
Because the EU shares competence in this area, the CJEU is unable to expressly challenge the lack of equal marriage in Member States. It has been reluctant to push the boundaries of this competence and the EU’s scope. Recently the CJEU has confirmed through its case law that it avoids interference with national family law. In Parris (2016), the Court ruled that workers were not allowed to challenge pension schemes which only gave survivor pensions to spouses who were married before the worker had turned 60, despite the applicants inability to do so because of the absence of equal marriage then. Because the lacking requirement for Member States to open up their marriage, current and future disadvantages because of the lack of access to marriage in the past cannot be challenged under EU legislation. Other cases (P v S, 1996) and (Mangold, 2005) have clarified that an equality principle cannot be derived from the related Directives. Instead, these Directives express and apply the general equal treatment principle within limits. However, the CJEU uses this perspective to purposely interpret the equality Directives in a manner that could widen their scope (Graupner, 2012; Mulder, 2018, 131; Verschraegen, 2012).
The CJEU appears to take a formalistic approach, assessing differential treatments of same-sex and opposite-sex couples as direct discrimination,
assuming that traditional marriage and the connected benefits are the standard to which all other forms of unions should be similarly compared. In other words, whenever homosexual and heterosexual partners are in specific similar situations they deserve equal treatment, an approach which the CJEU has taken repeatedly in its case law (Fichera, 2016, 397-401). Thus, the most recurring question in
CJEU jurisprudence on legal recognition and equality for same-sex partners is whether their situation is comparable to heterosexual married couples. The right to equal treatment if couples are in sufficiently similar situations was first
acknowledged in Maruko (2006). In deciding whether their situations are ‘sufficiently similar’, the official difference between marriages and registered partnerships does not suffice to reject comparability. The CJEU has elaborated on the comparability issue in Jürgen Römer v. Freie und Hansestadt Hamburg (2011) and Hay v. Crédit Agricole (2013). Even legal unions which entail
significantly different rights and obligations from heterosexual marriage could be entitled to the same rights in cases in which their situations regarding the
matrimonial benefits in question are similar (Mulder, 2018, 136-137). Generally, treating married couples more favorably to unmarried couples tends to lead to indirect sexuality discrimination as well if heterosexuals are more likely to be in marriages than homosexuals. Naturally, this is the case in the absence of equal marriage or registered partnerships open to same-sex couples (Graupner, 2012; Mulder, 2018, 140; Verschraegen, 2012).
The conclusion that same-sex couples in registered partnerships are in similar situations to opposite-sex married partners was easily made in Maruko and Römer because in these cases registered partnerships where solely available to same-sex couples. This created a legal connection between sexual orientation and the legal institution. In Hay (2013) the situation was slightly different,
because French registered partnerships (PACS: civil solidarity pacts) are open to anyone. Nevertheless, the CJEU allowed a comparison with marriages because the latter were still inaccessible to homosexuals. Therefore, it is suggested that in the absence of equal marriage, registered partnerships should receive equal treatment to marriages and should in fact be seen as marriages when workplace rights are concerned. Excluding same-sex registered partners from workplace benefits constitutes direct sexual orientation discrimination. The above mentioned judgements appear to imply that same-sex couples, regardless of their civil status, deserve at least a minimum level of legal recognition and rights. They would be indirectly discriminated against if married or registered couples are treated more favorably and homosexuals are less likely to get married or
registered (which is the case if they are legally unable to, but can still be the case when they have all the legal options). Moreover, they would be directly
discriminated against if registered partnerships (if these are their only option) and marriages are treated differently. This grants registered partnerships the same
effects as marriages and makes the differentiation obsolete from a legal point of view, if little more than the name of the institution differs in practice. Therefore, non-discrimination legislation can lead to a right of recognition for same-sex unions and perhaps even a right to marry if the absence of such recognition creates disadvantages (Graupner, 2012; Mulder, 2018, 139; Verschraegen, 2012).
Because of the limited competence of the European Communities and the EU in the area of discrimination until the Treaty of Amsterdam was signed, the CJEU has been cautious in applying the principle of non-discrimination to homosexual couples. After the entry into force of this treaty in 1999, the EU gained direct competence in the field of discrimination (the power to introduce Directives). First, the Employment Equality Framework Directive (Directive 2000/78/EC) was
introduced. With this Directive in mind, the CJEU ruled against Germany withholding survivors pension from the survivor of a registered homosexual couple, because it judged this surviving partner to be in a similar situation to that of married widow(er)s (Fichera, 2016, 397-401). The Advocate General in this case went on to argue that the protection of marriage and family is no justification for a different treatment based on sexual orientation. Nevertheless, the CJEU chose not to explicitly rule on the matter of access to marriage. In Hay v. Crédit Agricole (2013), the Court interpreted the Employment Equality Framework Directive again. In this case, an employee of a bank was not granted a bonus and special leave days which were normally provided to married employees. This employee, Mr. Hay, was in a registered partnership (PACS) and at the time, marriage was only open to heterosexual couples. The Court held that
homosexual partners in PACS were in comparable situations to heterosexual partners, but lack certain rights that were only provided to married partners. Therefore, restricting certain benefits to married employees amounted to direct sexual orientation discrimination, which can only be justified if public security, public order, public health, the prevention of crimes or the rights and freedoms of others are at stake. This was the first case in which the CJEU considered itself (and not domestic courts) to have the competence to decide on the comparability of registered partners and married couples (Fichera, 2016, 397-401).
The right to reunify as a family and the right to receive matrimonial benefits were completely dependent on whether host Member States recognize marriages or civil unions from home Member States, until recently. This can keep married
homosexual couples from moving to those Member States which do not recognize equal marriage because there they might lose their civil status (and possibly only one of them will be allowed residence). Thus, these couples cannot fully enjoy their right to freedom of movement. Therefore the question is whether Member States should recognize the civil statuses they have each granted their citizens and whether the term ‘spouse’ in Article 2 of the Citizenship Directive (2004) on the freedom of movement and residence of EU citizens within the territories of Member States) applies to married homosexual partners. This question is raised in the preliminary reference Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne (2018) in which the opinion of the advocate general and the judgement of the Court have been issued earlier this year (Mulder, 2018, 132-133).
The case concerned Mr. Coman, who possesses the Romanian nationality, and Mr. Hamilton, who possesses the American nationality. These two men are a couple and have become married in Brussels in 2010. At the end of 2012 their request for a permanent right of residence for Mr. Hamilton in Romania was denied. Romanian authorities argued that Mr. Hamilton did not fall under the category of ‘spouse’ of a Romanian (EU) citizen because Romania prohibits same-sex marriage and does not recognize foreign same-sex marriages or registered partnerships. From 2013 they have challenged this decision at the various levels of the Romanian courts. When they arrived at the Romanian Constitutional Court in 2016, it referred to the CJEU for a preliminary hearing regarding the question whether Directive 2004/38 imposes the provision of a permanent residence right for Mr. Hamilton on Romania. This Directive imposes Member States to provide such rights to spouses of EU citizens in heterosexual marriages and the question was whether this applies to same-sex spouses as well. In short, the definition of the word ‘spouse’ and whether (host) Member States or the EU institutions define this concept was at stake (CJEU, 2018; Kulczyk, 2018).
On the 11th of January of this year, the opinion of the Advocate General in this case has been issued. He stated that the EU has the competence to decide who is included in the definition of the word ‘spouse’ when the freedom of movement is concerned and that this definition should include anyone who is married (to an EU citizen), regardless of their sex. In other words, both opposite-sex and same-sex spouses are included in this definition. While Member States remain free to
choose whether to introduce same-sex marriage or not, they are not allowed to violate the freedom of movement and residence provision for EU citizens and their families. The Advocate General emphasized that the issue at hand was not that of the legalization of same-sex marriage but that of the free movement rights of EU citizens. Thus, based on the freedom of movement, Mr. Coman and Mr. Hamilton (and all future same-sex couples who married abroad) have to be granted a number of rights derived from marriage, among which the right of free movement and residence in any Member State of the EU, regardless of the national (legal) stance on same-sex marriage. As expected, the Court has taken over the Advocate General’s opinion and has ruled that Mr. Coman and Mr. Hamilton should be granted the right of residence in Romania, regardless of their sex, on the 5th of June of this year (D and Sweden v. Council) (CJEU, 2018; Kulczyk, 2018).
All EU legislation, its interpretation and possible derogations should comply with the fundamental principles of EU law in general and the EU Charter of
Fundamental Rights specifically. The scope of EU law on discrimination is significant here because it sets limitations to how far Member States can derogate from the freedom of movement. Therefore, this leads to the duty for Member States to recognize (foreign) same-sex marriages despite the lack of EU legislation providing such marriages. Previous cases have been inconclusive on this topic. Now the CJEU has recognized the substantial inconvenience which homosexual partners face when crossing borders and has imposed the duty on Romania to legally recognize Mr. Coman’s and Mr. Hamilton’s marriage (CJEU, 2018; Kulczyk, 2018; Mulder, 2018, 132-133).
In general, the (CJ)EU claiming the right to define the concept of ‘spouse’ and defining it to include any married person regardless of sex is likely to have a broader impact, influencing not only the identities of LGBTQI+ men and women and their dignity, but also the way EU citizens perceive marriage, at a personal and a social level. Moreover, this judgement constitutes a radical change from the previous CJEU jurisprudence in which the Court held on to the statement that “according to the definition generally accepted by the Member States, the term marriage means a union between persons of the opposite sex” (D and Sweden v. Council) (CJEU Opinion and Judgement, 2018; Kulczyk, 2018).
These judgements show how the CJEU has become increasingly less heteronormative (especially after the introduction of the EU Charter of
Fundamental) and more progressive. However, its judgements tend to remain limited to cross-border instances and to recognition of foreign same-sex
marriages / registered partnerships instead of introduction of such institutions in the Member States in question themselves. Thus, the legal certainty which same-sex couples face across the EU is not completely resolved, their legal
discrimination remains (and thus, one could argue, the lack of respect for their human rights) and they still cannot fully enjoy the EU’s freedom of movement.
Now that an overview of the most relevant European legislation and jurisprudence has been provided, the next chapter will zoom in on national legislation on same-sex union recognition.
3. The Legal Status of Same-Sex Couples in EU Member States
Based on the publications of the CEFL and several other significant sources such as those published by the largest and most well-known ngo focused on LGBTQI+-rights ILGA(International Lesbian, Gay, Bisexual, Trans and Intersex Association)-Europe, this chapter will take a look at the legal status of same-sex couples in 4 groups of EU
Member States: the Nordic countries, central and Western European countries, Southern countries and Eastern European countries. These groups have been formed based on common characteristics in their handling of the legal status of same-sex couples, in order to provide a more structured overview and to facilitate comparison. Moreover, this
division illustrates the lack of legal uniformity in this area within the EU. Although certain groups of countries have common characteristics in this respect, these ‘clusters’ differ greatly from each other.
a. Nordic Countries
The EU Member States among the Nordic Countries, or Scandinavia, are: Finland, Sweden and Denmark. They have a shared history of efforts to
harmonize family law because they are neighbors and share cultural and social similarities. Within these shared histories, cultures and social conditions, the legal recognition of homosexual relationships in these countries has moved in the
same direction, albeit at varying speeds (ILGA-Europe, 2017; Kollman and Paternotte, 2013; Lund-Andersen, 2012, 3; Pylkkänen, 2007; Savolainen, 2003; Szalma and Takaćs, 2011).
In fact, Denmark was the first country in the world to legally recognize same-sex unions through the Registered Partnership Act of 1989, which even made it possible for homosexual couples to share a last name. This act provided equal rights with the exceptions of the right of adoption, the right of joint custody and the right to marry in church. Several gender-specific legal rights and obligations that applied to heterosexual married couples did not apply (for instance rights and obligations concerning filiation) and international treaties only applied if other parties to these treaties agreed to it (ILGA-Europe, 2017; Kollman and
Paternotte, 2013; Lund-Andersen, 2012, 3-4; Pylkkänen, 2007; Savolainen, 2003; Szalma and Takaćs, 2011).
Sweden followed in 1994, Greenland in 1996 and Finland in 2001. The Faroe Islands never introduced registered partnerships. The exceptions regarding the equal rights of registered partners have been abolished over the years (ILGA-Europe, 2017; Kollman and Paternotte, 2013; Lund-Andersen, 2017, 4-9; Pylkkänen, 2007; Savolainen, 2003; Szalma and Takaćs, 2011).
Sweden introduced a gender-neutral marriage in 2009. Denmark followed in 2012, Finland in 2015, Greenland in 2016 and the Faroe Islands in 2017 by introducing same-sex marriage (ILGA-Europe, 2017; Kollman and Paternotte, 2013; Lund-Andersen, 2017, 3; Pylkkänen, 2007; Savolainen, 2003; Szalma and Takaćs, 2011).
When homosexual couples do not register their partnerships they enjoy the same legal recognition as unmarried heterosexual couples. In Finland and Sweden specific family cohabitation and joint homes laws apply to these couples. This provides certain protections when cohabiting couples break up. In Denmark similar protections are provided by case law (ILGA-Europe, 2017;
Lund-Andersen, 2012, 14-15; Pylkkänen, 2007; Savolainen, 2003; Szalma and Takaćs, 2011).
While the adoption of gender-neutral marriage in the Nordic countries has been largely just a change of terminology after the registered partnerships that were
