Chiara De Capitani (PhD), a linguist agent at the European Commission and member of Amnesty International Belgique francophone’s Sexual Orientation and Gender Identity (OSIG) coordination. The views, thoughts and opinions expressed in this paper are solely that of the author and do not necessarily reflect the views, policy or opinion of the European Commission or of Amnesty International.
Photo
credit: O. Ortelpa, via Wikimedia Commons
Introduction
In
the Wojewoda
Mazowiecki
case (hereafter “the present case”), the Court of Justice of the European Union
(hereafter “the Court”) was called upon to rule on whether to extend its
jurisprudence concerning the civil registration of a surname or gender identity
change obtained in another Member State to marriage certificates. In the present
case, the applicants' State of origin does not recognize same-sex marriages and
refused to transcribe a marriage certificate concluded in another EU Member
State (hereafter “host Member State”).
In
the present case, the Grand Chamber of the Court examined several crucial
aspects of the recognition of same-sex marriages and found, for the first time,
the existence of a general principle prohibiting any form of discrimination
based on sexual orientation.
Indeed,
according to the Court, although the rules relating to marriage and civil
status fall under the jurisdiction of the Member States, they are obliged to
recognize - for the purpose of exercising the rights conferred by EU law - the
marital status acquired legally in another Member State. Furthermore, although
Member States may establish the procedures for such marriages' recognition,
these procedures must not render impossible or excessively difficult the
implementation of rights conferred by European law.
Additionally,
the present case highlights the necessity to ensure the effective enjoyment of
rights that a Union citizen derives from Article 21 TFEU, notably that the
family life that this citizen has created or strengthened in a Member
State can be continued upon their return to their Member State of nationality.
The
dispute in the main proceedings
Mr
Trojan and Mr Cupriak-Trojan are a Polish and German-Polish same-sex couple who
got married in Germany in 2018. Wishing to reside in Poland as a married
couple, they filed a request for the transcription of the German marriage
certificate in the Polish civil status register with the head of the Warsaw
civil registry office in 2019. However, this request was denied on the grounds
that Polish legislation does not allow same-sex marriages. After a series of
failed appeals, the case was finally brought by referring Court to the Court of
Justice.
Scope
of the case: right to freedom of movement or EU citizenship?
At
first glance, the facts resemble those of Coman in 2018 - a case concerning
the application of the right of free movement to same-sex marriages - but the
context is different here because both applicants are European citizens.
Therefore, their right to move and reside freely within the Union does not
depend on the recognition of their marriage for the purposes of family
reunification under the provisions of the freedom of
movement directive,
but instead relies on the rights conferred to them by European citizenship
according to Articles 20 and 21 of the TFEU.
Firstly,
the Court recalls that, pursuant to these articles and its established case
law, citizenship of the Union confers on each Union citizen a right to move and
reside freely within the territory of the Member States and to rely on the
rights pertaining to said EU citizenship (paras 41 and 42). These rights
include the ability to lead a “normal family life” both in the host Member
State and in the Member State of which the citizen is a national, benefiting
from the presence of family members upon their return.
Additionally,
the present case allows the Court to address one of the several unresolved
issues from Coman: the obligation to recognize the marriage between the
applicants extends beyond the specific context of family reunification,
“extending the obligation to all areas of life in which a married couple may
need to invoke their status as a couple” (Tryfonidou).
Practical
effects of the non-recognition of the applicants' marriage
In
light of these considerations, the Court specifies that the refusal by Polish
authorities to recognize the applicants' marriage would cause them significant
prejudice, resulting in serious administrative, professional, and private
inconveniences (para 51). Indeed, the lack of recognition of their “certain”
legal status, which is also enforceable against third parties, would hinder the
everyday organization of the applicants' family life in their country of
nationality - both in public and private spheres (paras 52-54).
The
applicants, in their observations submitted to the Court, clarified that they
had already experienced a series of constraints due to the non-recognition of
their marital status: for example one of the applicants did not benefit from
public health insurance coverage when he was unemployed, and his request to
update his surname in the land register was rejected for one of his properties
(para 50).
Furthermore,
the Court has previously clarified in the Coman ruling that the notion
of “public policy” as justification for a derogation from a fundamental freedom
must be interpreted strictly and may be relied on if only there is a
genuine and sufficiently serious threat to a fundamental interest of society
(see Coman, para 44). In the present case, the Court notes that the
obligation for the State of origin to recognize a marriage between same-sex
Union citizens, contracted in the host Member State, does not undermine the
institution of marriage in the State of origin, which remains defined by
national law and falls under the competence of the Member States.
Obligation
to establish a legal framework providing the recognition of same-sex couples
Polish
legislation does not currently recognize the possibility for same-sex
individuals to marry or conclude a civil union, since marriage is defined by
the Polish Constitution as a union between a man and a woman. This notion was
recently criticized by the European Court of Human Rights (hereafter “ECtHR”).
In the Przybyszewska and
others v. Poland
ruling,
the ECtHR found a violation of Poland’s positive obligation to protect private
and family life arising from Article 8 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms (hereafter “ECHR”), due to
the absence of a national legislative framework offering recognition and legal
protection to same-sex couples.
The
rights guaranteed by Article 7 of the EU Charter
of Fundamental Rights (hereafter “The Charter”) have the same meaning and scope
as those guaranteed by Article 8 of the ECHR, with the latter provision
constituting a minimum protection threshold. Therefore, the Court confirms,
failure to recognise the marriage concluded by two Union citizens of the same-sex
having exercised their freedom to move and reside is contrary to Article 7 of
the Charter (para 67).
It
is interesting to note that the Court appears to foresee the possibility of
such a Charter violation even in a situation where people have stayed in
another Member State to marry “on the grounds that” the law of the
Member State of which they are nationals does not allow same-sex marriage and,
therefore, only for the purpose of circumventing such a lack of
authorization. This possibility appears to be implied throughout the text
of the present case due to the recognition by the Court of the right of
same-sex individuals to continue a family life that would only have been “strengthened”
in the host Member State – without, I believe, the need for them to “genuinely
reside” there.
It
follows from Article 7 of the Charter and Article 8 ECHR that a Member State
that does not authorize same-sex marriages must establish adequate procedures
for recognizing such marriages when legally concluded in a host Member State by
two Union citizens exercising their freedom of movement and residence rights.
On
this point, several authors (Luku, Tryfonidou, Acconciamessa) question the
risk of “downgrading” due to the divergence of rights recognized by Member
States who do recognise unions contracted by same-sex individuals. Indeed, the
rights recognized to same-sex individuals vary depending on the type of union
that the Member State allows them to contract - civil union or marriage - as well
as the content of the rights (notably regarding the recognition of parenthood).
Moreover, the applicability of the protection recognised by the Court in the present
case to same-sex marriages contracted outside the European Union remains
uncertain (Tryfonidou, Bribosia and
Rorive).
Choice
of procedures for recognising marriages concluded in a host Member State
As a
preliminary point, the Court notes that Member States retain the power to
choose the procedures for recognizing marriages concluded in a host Member
State and that the procedure of transcribing marriage certificates in the civil
status register constitutes only one modality among others (paras 69-70).
However,
to avoid diverging results between Member States and their national procedures,
the Court sets up a series of requirements Member States have to respect.
Firstly, whichever types of procedures they pick, they must not render “impossible
or excessively difficult” the implementation of rights conferred by Article 21
TFEU. Secondly, the Court assesses the specific situation of Member States -
such as Poland - where the transcription of the marriage certificate in the
civil status register is the only way possible to legally recognize a marriage
concluded in a host Member State. In these circumstances, given the absence of
a recognition procedure equivalent to that granted to opposite-sex couples, the
Court recognises the existence of discrimination based on sexual orientation,
prohibited by Article 21,
paragraph 1,
of the Charter.
It
follows from the above that when a Member State provides a single procedure for
recognizing marriages concluded in another Member State, it must apply this
modality indistinctly to marriages concluded between same-sex couples and those
concluded between opposite-sex couples.
This
approach, both protective and pragmatic, aligns - I believe, with the Court's
recent case-law regarding the recognition of a person's gender identity.
Similarly to the commented case, in the Deldits ruling, the Court
prohibited unnecessary or disproportionate administrative practices for
rectifying personal data relating to a person's gender identity in a public
register, further adding that “a medical certificate - including a psychiatric
diagnosis” might suffice (Deldits ruling, paras 47-49).
Prohibition
of discrimination based on sexual orientation: a general principle of EU law
with direct effect
What
truly distinguishes the commented decision is the Court's interpretation of
Article 21 of the Charter—dealing with the prohibition of any discrimination
based notably on sexual orientation—to which the Court recognizes an imperative
character as a general principle of EU law (para 70). Indeed, the existence of such
a general principle has only been expressly recognized until now for discriminations
on grounds of age (Mangold, Association de
médiation sociale,
Dansk Industri rulings) and
religion (Egenberger, Cresco
Investigation
rulings).
The
Court further specifies that Articles 20 and 21 TFEU and Articles 7 and 21 of
the Charter “are sufficient in themselves and do not need to be made more
specific by provisions of EU or national law to confer on individuals rights
which they may rely on as such”. Therefore “if the referring court were to find
that it is not possible to interpret its national law in conformity with EU
law, it would be required to [disapply] the national provisions concerned”
(para 76).
While
the recognition that the prohibition of any discrimination based on sexual
orientation constitutes a general principle of EU law is revolutionary— its
practical effects are currently difficult to appreciate.
Conclusion
The present
case undoubtedly constitutes a turning point in the protection of LGBTIQ+
individuals. The Court, embracing its recent and consolidated jurisprudence (Mousse, Deldits, Mirin) concerning the
rights of non-binary and transgender individuals in the EU, further enshrines
the principle that “lives, names, and ties should not unravel when crossing
internal borders” (Escach-Dubourg).
It
is worth mentioning, in this regard, that the Court has recently received a request for a
preliminary ruling
by a Romanian court similar to the present one. This request would open the
door for the Court to clarify a series of unsolved questions regarding the
cross-border mobility of same-sex couples. The case concerns the
non-recognition of an Italian civil union by Romania for the purpose of
granting a residence permit to a spouse from a third country.
Firstly,
the preliminary ruling request concerns the recognition of a civil union rather
than a same-sex marriage, allowing the Court to clarify whether the protective
considerations highlighted within the present case also apply to this type of
union. Moreover, the case will enable the Court to confirm if a same-sex couple
can “strengthen” their union in a Member State without actually residing in
it.
Finally,
the Court's reasoning is particularly striking: it is grounded in the search
for practical solutions to real, current administrative obstacles encountered
by same-sex couples in several Member States. The Court favours transparent,
direct solutions to avoid the possibility that same-sex couples live in the
shadows and face relentless administrative hurdles due to its ruling’s lack of
clarity. Such an approach is reminiscent of the landmark Minister voor Immigratie
en Asiel v X and Y and Z 2013 ruling dealing with the conditions
for granting refugee status. Asked whether homosexual third country nationals
could be expected to conceal their orientation from everyone in their country
of origin in order to avoid persecution, the Court famously replied that:
“requiring members of a social group sharing the same sexual orientation to
conceal that orientation is incompatible with the recognition of a
characteristic so fundamental to a person’s identity that the persons concerned
cannot be required to renounce it” (Minister voor Immigratie en Asiel v
X and Y and Z ruling, para 70).
*
[Patroclus to Achilles]: “A last request—grant it, please. Never bury my bones
apart from yours, Achilles, let them lie together . . . just as we grew up
together in your house. […] So now let a single urn, the gold two-handled urn
your noble mother gave you, hold our bones-together!”
The
Iliad, Book 23, lines 99-110
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