Monday 29 June 2015

Same-Sex Marriage: The EU is Lagging Behind

Alina Tryfonidou, Associate Professor in EU Law, School of Law, University of Reading

Last Friday, in its much-awaited ruling in Obergefell v. Hodges, the US Supreme Court held that same-sex couples derive from the US Constitution the fundamental right to marry and, for this reason, invalidated State laws which impose a ban on such marriages. The Supreme Court, also, held that marriages lawfully performed in one US State must be fully recognised in all other US States. This is, without a doubt, an historical ruling of immense symbolic and practical importance, since it means that all LGB US citizens are now able to marry a same-sex partner, and to be recognised, together with the latter, as a married couple everywhere in the US.

Given that the first country in the world that opened registered partnerships to same-sex couples was Denmark, in 1989, and that the first country that opened marriage to same-sex couples was the Netherlands, in 2001, one would have expected the EU to be a pioneer in matters regarding the legal recognition of same-sex relationships. Nonetheless, the EU’s stance on these matters and on the protection of the rights of same-sex couples remains disappointingly aloof.

This piece will focus on same-sex marriage and shall seek to examine the EU’s position towards a) same-sex marriage in situations confined within a single Member State; and b) the cross-border legal recognition of same-sex marriages (i.e. when EU citizens who are married to a person of the same sex move to another Member State).

Can the EU Require Member States to Open Marriage to Same-Sex Couples?

The answer is simple and it is ‘no’, at least as things stand at the moment. In its judgment in Römer, the Court stressed that ‘as European Union law stands at present, legislation on the marital status of persons falls within the competence of the Member States’. Moreover, the drafters of the EU Charter of Fundamental Rights seemed to share the same view, when in the Explanations Relating to the Charter of Fundamental Rights, it was pointed out that the Charter Article providing the right to marry (Article 9) ‘neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex’.

Because matters that fall within the ambit of family law are (usually) matters for which there is no European consensus and for which it is believed that each Member State should be left alone to make its own choices, family law is an area in which the EU has no competence to legislate. Thus, it is the Member States that can decide in situations that fall within their jurisdiction, who can marry whom, the requirements for divorce, adoption issues, the regulation of assisted reproduction, and any other issues falling within the ambit of family law. The legal recognition of same-sex relationships is no exception to this, and, hence, it is up to each Member State to decide whether it will allow in its territory two persons of the same sex to marry. This has resulted in an EU which is divided between the (mostly northern and western) Member States which have opened marriage to same-sex couples,[i] and the (mostly central and eastern) Member States which have not,[ii] with some Member States having a constitutional ban on opening marriage to same-sex couples.[iii]

Does the EU Require Member States to Recognise Same-Sex Marriages Lawfully Performed In Another Member State?

Even when the EU does not have the competence to make legislation in a certain area, this does not mean that the Member States have a carte blanche when exercising their powers in that field. This is because Member States must ensure that when they take action in an area which falls to be regulated exclusively by them, they comply with their obligations under EU law.

The next important question, therefore, is what happens to married same-sex couples comprised of (at least) one Union citizen, who move between Member States? If they move to a Member State which has not opened same-sex marriage to its own nationals, do they lose their status as a married couple and, with it, the automatic EU law right to move and reside to the host State together as a couple? Also, once they are within that State’s territory, are they not treated as a married couple for all legal purposes and, hence, are they refused benefits and advantages that are only available to married couples? Or does EU law require Member States which do not offer the option of marriage to same-sex couples in their own territory, to, nonetheless, recognise the status of same-sex couples who lawfully contracted their marriage in another Member State? The answer to this question is not entirely clear.

The reason behind this uncertainty is that the EU legislation which makes provision for the rights (including family reunification rights) of mobile Union citizens, uses the gender- and sexual orientation-neutral term ‘spouse’, without clarifying that this term – at least in this context – refers to both same-sex and opposite-sex spouses. This has proved problematic, because it has been read by some Member States as a licence to refuse to recognise same-sex marriages contracted in other Member States.

More specifically, Directive 2004/38, which lays down the conditions governing the exercise of the right of Union citizens and their family members to move and reside in the territory of another Member State, provides, in its Article 2(2)(a), that ‘family member’ for the purposes of this Directive means, inter alia, ‘the spouse’, and, thus, Union citizens can be accompanied or joined by their ‘spouse’ in the host Member State. One would have thought that a marriage – whether comprised of persons of the same or the opposite sex – lawfully contracted in a Member State, would be considered valid in all other Member States. After all, Recital 31 of the Directive, provides that ‘In accordance with the prohibition of discrimination contained in the Charter, Member States should implement this Directive without discrimination between the beneficiaries of this Directive on grounds such as … sexual orientation’. This, on its own, should suffice for making it clear to the Member States that when implementing the Directive, they must ensure that they do not act in a way which is (directly) discriminatory on the ground of sexual orientation, and, thus, just as they recognise (all) opposite-sex marriages lawfully performed in other Member States they must, also, recognise (all) such same-sex marriages.

In any event, refusing to an LGB Union citizen the right to be joined or accompanied in the host Member State by his or her same-sex spouse can, without a doubt, constitute an obstacle to that person’s fundamental right to move and reside in the territory of another Member State, which stems from the free movement provisions of the FEU Treaty. The rationale of the EU legislature – and the ECJ – for granting family reunification rights to mobile Union citizens, has always been that the refusal of such rights will give rise to a restriction on the exercise of free movement rights (Singh; Carpenter; Metock). It goes without saying that such a restriction will emerge, whether the spouse of a Union citizen is of the same or the opposite sex and hence it appears entirely arbitrary to treat same-sex couples differently from opposite-sex couples. Although the ECJ has not, yet, had the opportunity to rule on whether the refusal of the host State to admit within its territory the same-sex spouse of a mobile Union citizen amounts to a breach of the free movement provisions of the Treaty, a case is currently pending before it (Cocaj), where one of the questions referred is whether ‘registered partnerships’ under Article 2(2)(b) of Directive 2004/38, include same-sex registered partnerships.
Once it is found that the refusal to recognise same-sex marriages contracted in other Member States amounts to an obstacle to free movement, the onus will then fall on the recalcitrant Member State to justify its refusal. It seems, nonetheless, that it will be unable to rely on the public policy exception, which is one of the Treaty derogations from the free movement provisions, and this will be so for two reasons. Firstly, since it is engaging in a block refusal to recognise same-sex marriages contracted elsewhere, the requirement laid down in Article 27 of Directive 2004/38, that the measure which limits the exercise of free movement rights is based on the personal conduct of the individual concerned, will not be satisfied. Secondly, national measures can be justified under the Treaty derogations only if they are compatible with fundamental human rights protected under EU law (ERT) and, as will be explained below, a refusal to recognise same-sex marriages contracted in other Member States seems to amount to a breach of Article 21 of the EU Charter of Fundamental Rights and, in particular, the prohibition of discrimination on the ground of sexual orientation, and of the right to human dignity.

A restriction on the exercise of free movement rights is, also, likely to emerge from the simple fact that a same-sex married couple will lose its status or will have its status converted into a ‘lesser’ one (namely, registered partnership), something which will, obviously, have important (negative) implications once the couple is admitted into the territory of the host State. Apart from the hurt feelings and uncertainty that such a loss or ‘downgrading’ of status will cause, it shall, also, give rise to a substantial degree of (practical) inconvenience which, in turn, can lead to an obstacle to the exercise of free movement rights, since the couple – although lawfully married in another Member State – will not be entitled to benefits and advantages reserved to married couples.[iv] For instance, hospital visitation rights or pensions, and tax, social or other advantages, which, under national law, are only available to married couples, will not be granted to the spouses, since in the eyes of the law of the host State, they are not married.

Apart from Article 21 of the EU Charter of Fundamental Rights (see the analysis below) and/or the free movement provisions of the Treaty, some relief in this context can, also, be offered via Directive 2000/78, which prohibits discrimination on, inter alia, the ground of sexual orientation, in the areas of employment, occupation and vocational training. In particular – and applying in this context the principles established in case-law involving stagnant Union citizens (Maruko; Römer; Hay) – same-sex spouses who move to another Member State where they are ‘downgraded’ to registered partners, can rely on the Directive to require the host State to extend to them benefits reserved to opposite-sex spouses, provided that the benefits relate to employment, occupation or vocational training, and provided that the host State considers the two categories of couples (opposite-sex spouses and same-sex registered partners) to be in a comparable situation for the purposes of the claimed benefit. Nonetheless, this is, only, a partial solution to the problem, since it will not offer any remedy to same-sex spouses who move to Member States which do not grant any legal recognition to same-sex relationships or Member States which do not consider – for the specific benefit that is claimed or more generally – opposite-sex spouses to be in a comparable situation with same-sex registered partners. Furthermore, it will not offer any remedy in situations where the claimed benefit or advantage does not relate to employment, occupation or vocational training.

The refusal of the host Member State to recognise same-sex marriages contracted in other Member States of the EU is, also, in breach of fundamental (human) rights that are protected under the Charter and/or as general principles of EU law.

Article 21(1) of the Charter, provides that ‘Any discrimination based on any ground such as … sexual orientation shall be prohibited’. Since all Member States automatically recognise (opposite-sex) marriages contracted in other Member States, a refusal to recognise same-sex marriages, amounts to (direct) discrimination on the ground of sexual orientation. In its Article 51(1), the Charter provides that its provisions are addressed ‘to the Member States only when they are implementing Union law’. Recent ECJ rulings have interpreted this broadly, by noting that ‘The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter’ (Fransson). Accordingly, it would seem that situations which involve measures that lead to an obstacle to the exercise of EU free movement rights can fall within the scope of the Charter. Union citizens can, therefore, rely on Article 21 of the Charter in order to require the Member State to which they move to recognise their same-sex marriage and to admit them within its territory and treat them as a married couple. Of course, Member States may wish to try to justify this instance of differential treatment (e.g. on the need to protect the traditional notion of marriage as a union between a man and a woman), but given that – as made clear in the ECHR context – only ‘particularly serious reasons’ can justify discrimination on the ground of sexual orientation (Dudgeon v. United Kingdom; Smith & Grady v. United Kingdom; Karner v. Austria), they will be faced with an uphill struggle, and, in practice, it is unlikely that they will be able to successfully rely on a justification.

Stripping a same-sex married couple of its legal status seems to be, also, a breach of the right to human dignity of the persons comprising it, which is protected under Article 1 of the Charter and which is, also, a general principle of EU law.[v] Forming intimate relationships with other individuals and choosing to formalise such relationships is an exercise of personal autonomy, which is an aspect of the dignity of every human being. The EU, by prohibiting discrimination on the ground of sexual orientation, (tacitly) admits the equal worth of all individuals irrespective of their sexual orientation, and, with it, the equal moral worth of opposite-sex and same-sex relationships. When a Member State refuses to give effect to the choices of individuals as regards their same-sex relationships and the legal status attached to them, it treats such relationships differently from opposite-sex relationships and it treats them as inferior – and as not having the same moral worth – as the latter. Accordingly, it fails to respect the autonomy and dignity of the individuals who have formed and formalised such relationships. The right to human dignity appears, in fact, to have formed the backbone of the majority Opinion in Obergefell v. Hodges which, taking as its basis that ‘the right to personal choice regarding marriage is inherent in the concept of individual autonomy’ and that ‘[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices’, concluded that the US Constitution should be read as granting to same-sex couples the fundamental right to marry in the same terms that this has always been granted to opposite-sex couples.

Accordingly, it is obvious from the above analysis that the refusal of the host Member State to recognise the same-sex marriages of mobile Union citizens, amounts to an unjustified breach of a number of fundamental rights (free movement and residence rights; non-discrimination on the ground of sexual orientation; human dignity) that these individuals derive from EU law.


As things stand, it is clear that the EU cannot require Member States to open marriage to same-sex couples. Nonetheless, a number of EU law provisions appear to require Member States to recognise same-sex marriages lawfully entered into in the territory of another Member State. Accordingly, Union citizens who move to another Member State should be allowed to be accompanied or joined there by their same-sex spouse and should be treated as ‘spouses’, once they are admitted into the territory of the host State. Accordingly, the EU can no longer stand idle, turning a blind eye to the violation by some Member States of the fundamental rights of a segment of the EU population (i.e. the LGB population). The ECJ (when given the opportunity) and the EU legislature, should make it clear that EU Member States are required by EU law to recognise the same-sex marriages of mobile Union citizens, just as they do in situations involving Union citizens who are married to an opposite-sex partner.

Further Reading

A. Tryfonidou, ‘EU Free Movement Law and the Legal Recognition of Same-Sex Relationships: The Case for Mutual Recognition’ (2015) Columbia Journal of European Law (forthcoming)
C. Casonato and A. Schuster (eds), ‘Rights on the Move: Rainbow Families in Europe: Proceedings of the Conference:  Trento, 16-17 October 2014’ available at
D. Gallo, L. Paladini and P. Pustorino (eds), Same-Sex Couples before National, Supranational and International Jurisdictions (Springer, 2014)
R. Wintemute and M. Andenas (eds), Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law (Hart, 2001)

[i]  The Netherlands (2001), Belgium (2003), Spain (2005), Sweden (2009), Portugal (2010), Denmark (2012), France (2013), UK (2014) (apart from Northern Ireland), Luxembourg (2015), Finland (from 2017), Ireland (popular referendum yielded a positive result; awaiting for the law to be passed), Slovenia (proposal for same-sex marriage currently under discussion).
[ii]  Austria, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Germany, Greece, Hungary, Italy, Malta, Latvia, Lithuania, Poland, Romania, Slovakia. Some of these Member States (i.e. Austria, Croatia, Czech Republic, Estonia, Germany, Hungary, Malta), however, offer to same-sex couples the option of a registered partnership/cohabitation.
[iii]  Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland, Slovakia.
[iv]  A parallelism can be drawn here with ECJ case-law where it was held that the refusal to recognise a surname registered in another Member State or in accordance with the practice followed in another Member State leads to a substantial degree of inconvenience which, in its turn, can impede the exercise of free movement rights. See, most prominently, Case C-148/02 Garcia Avello ECLI:EU:C:2003:539 and Case C-353/06 Grunkin and Paul ECLI:EU:C:2008:559. This parallelism was first drawn in G. Biaggioni, ‘On Recognition of Foreign Same-Sex Marriages and Partnerships’ in D. Gallo, L. Paladini and P. Pustorino (eds), Same-Sex Couples before National, Supranational and International Jurisdictions (Springer, 2014), 376-377.
[v] This right was, also, used by the Court (together with other the right to respect for private and family life protected under Article 7 of the Charter and Directive 2004/83) in order to limit the freedom of national authorities to use various practices when seeking to establish the sexual orientation of LGB asylum-seekers – see A., B, C case (for comments on the case see the piece by Steve Peers in this blog here). 

Barnard & Peers: chapter 13, chapter 20
Photo credit:


  1. I am a UK citizen, legally married in 2006, in Spain, to my same sex partner, a Slovak citizen. We were resident in Spain at the time. 4 months ago, we moved to Slovakia, where our marriage is not recognised. Thus, we have lost our pension rights, hospital visitation rights and, above all, our right to be recognised as married people. We are expected to fill in forms as being single, rather than married, something we continue to resist doing.
    The above article is extremely interesting and we are longing for the day when we, as E.U. citizens can enjoy the same rights as the citizens of the U.S.A.
    Thank you, Steve Peers for your informative article and we continue to fight for our right to be treated as citizens of equal value.

    1. Thanks, but all praise to Alina Tryfonidou for the article.

  2. Will the ruling re Italy be applicable to all member states?

    1. I take it you're referring to today's judgment of the European Court of Human Rights in Oliari v Italy, which said that it is a violation of the ECHR not to have some form of official recognition of same-sex relationships. Its impact outside Italy depends on how each State transposes judgments of the European Court of Human Rights into its national law, in particular judgments that don't concern that State. It is possible that the judgment will influence the CJEU in some way as well, for instance in the pending case of Cocaj mentioned in the blog post..

  3. Hello, Anoniempje... We are in same situation. I,m Dutch me same sex partner has Bulgarian nationality. We married in 2013 in The Netherlands. We want to move to Bulgaria. This means i lose me pension right? I not not want to sign anonymous. Marcel van Birgelen-Mehmed

    1. Thanks for your question, Marcel. That's an interesting and important question. It may be that Bulgaria is less restrictive as regards pensions than Slovakia, I don't know. In the UK there were legal moves toward equality on some of these issues before same-sex marriages as such were legalised. If we're talking about pension rights that were already accrued in the Netherlands then you should logically not lose what you had accrued there (although perhaps Bulgaria would not give married tax exemptions where the Netherlands would?) but there could be a very complex question if the issue is whether the Dutch pension contributions could still be added to the Bulgarian contributions in the same way that might be the case for an opposite-sex married couple. In order to look into the details, you would need to consult a lawyer.

    2. Thank you for you reaction. I ask me pension fund. They tell me its now problem. I got my penion even when we move to Bulgaria. When i die me partner get my pension. I don't know if i have to pay tax i Bulgaria about me pension and how much. To go to lawyer for this this to much stress comes for this for me. There is one other problem and for this i already go to laywer and this is what happens when i should die. I made a will. Kind regards, Marcel

  4. Thank you for a very informative article

    Im seeking some clarity regarding immigration to the UK via EEA Family Permit or alternatively options for EU immigration

    My fiancé(Italian/South African) and I(South African) are planning on relocating to the UK later this year or alternatively looking at opportunities within the European Union.

    We currently reside in South Africa and have been in a relationship for more than 8 years. We recently got engaged and plan on getting married later this year in South Africa. Same sex marriage is legal in South Africa, and as far as I am aware, this marriage will also be recognized in the UK.

    Our query is; due to the Italian government not recognizing same sex marriage, we will not be able to register our marriage with the local Italian Mission(Embassy). We are unsure whether this would bear any effect on an application for a EEA Family Permit for myself.

    1. I can't give advice in individual cases. But arguably there are three possibilities where someone has a same-sex marriage outside the EU and wants to come to a Member State which recognises same-sex marriage. 1) it could be argued that since the citizens' Directive refers to a 'spouse' without clarification it should be sufficient that a marriage was legally contracted anywhere in the world, at least where the member state which the couple wants to move to recognises that concept (it could presumably be documented by certificates from the third state); or 2) the marriage should be treated as a 'partnership' in that State for the purposes of the Directive, and recognition in the UK of the marriage in a third country should count as 'the legislation of a Member State'; or 3) the spouse must count as a 'partner' for the purposes of the extended family member rules in Article 3.2 of the Directive, which create an obligation to consider an application and to give reasons for a refusal.

  5. The ECJ decided that the case was to be removed from the ECJ's register after the request for the preliminary ruling was withdrawn (2015/C 398/31). I've tried to find information on why it was withdrawn, but have not been able to. Any information on why?

    1. I take it you mean the Kocaj case. I don't know the reason why. Sometimes cases are settled because a government offers a good deal to the plaintiffs so as to avoid creating a precedent. Maybe that happened here.

  6. It is a shame we're still discussing this in 2017.