Budapest Pride: banned? - Banning Pride as a violation of EU free movement

 

Attila Szabó, LLM in European law, Head of Legal Aid Service, Hungarian Civil Liberties Union

The author would like to thank Steve Peers and Máté Szabó, HCLU's professional director, for their ideas for the text!

 

Photo credit: Tételes istentagadó, via Wikimedia Commons

 

On 5 April, Renáta Uitz published a pinpoint blog post on Verfassungblog about how and why Budapest Pride, which has been held every year for 30 years in Hungary for the equality of LGBTQ+ people, was banned. Uitz describes in detail why this is contrary to Article 2 of the TEU and how this government action violates the European Court of Human Rights case law. The CEU (and Royal Holloway) professor also explains how Hungary got to this point.

 

I would like to add two things to this reflection. One is just brief: Hungarian civil society organisations are committed to organising and hosting Pride and the Mayor of Budapest also supported the organizers, despite the categorical legal ban, on the very same fundamental rights basis that Uitz explains: assembly and thus standing up for LGBTQ+ rights is a fundamental right and can only be restricted if it restricts another fundamental right. The abstract and unscientific paedophile arguments that the Hungarian government is operating with are not. Consequently, the restriction of rights is also contrary to the Hungarian Fundamental Law and goes against the ECtHR case law cited by Uitz.

 

It is another matter that the Hungarian legislator allowed for fines to be imposed on the basis of the face recognition system at banned rallies, such as the Budapest Pride, which was planned to take place despite the ban. The legal issues involved would require a separate blog post. A very careful Hungarian-language piece concludes that "the use of facial recognition technology to detect and punish offences, and thus to restrict assembly and free expression, may be objectionable on a number of points. Although (...) the prohibition rules (Article 5 of the EU AI Regulation) do not directly preclude the non-real-time use of facial recognition technology, there are nevertheless a number of fundamental rights concerns which render the use of the system unlawful. The primary avenue of redress may therefore be to invoke these fundamental rights violations."

 

My argument, which may be news to many, is that the restriction runs counter to one of the EU's four freedoms, the right of free movement and residence. This is what I want to convince readers of.

 

Freedom of movement: limited?

 

In my view, if a non-Hungarian EU citizen can enjoy the right to participate in an LGBTQ+ rights march in every EU country then she can not freely choose this given country.

 

Participation in Pride is a fundamental right that has become part of Atlantic and therefore European culture. All EU citizens have the right to express their support for LGBTQ+ people in any EU Member State within the framework of Pride. If an EU citizen is not allowed to participate in Budapest Pride because it cannot take place, he or she is not free to choose Hungary as a place of residence, as this means that he or she cannot freely exercise in that Member State the fundamental rights that he or she could exercise in another Member State. So, an EU citizen who is committed to LGBTQ+ rights cannot come to Hungary to work or study, because he cannot stand up for the rights he could stand up for anywhere else in any city.

 

One might think that restrictions on freedom of movement are only violated if hard barriers are put in place, but in my view this is not the case. If a Member State introduces an ideological, ideological, theoretical or even religious restriction that alienates other EU citizens from exercising their right to move and reside freely, then that right is infringed. This is particularly so in cases where the exercise of the right in question is consensual in the EU or protected by human rights court decisions and other international law standards. Participation in Pride is such a case.

 

In my view, this conclusion is true in all cases where an EU citizen wishes to stay in Hungary on a long-term basis, but is discouraged from doing so by this kind of unlawful restriction of a fundamental right, and also in cases where an EU citizen wishes to come to Budapest specifically for Pride. The latter case is not unprecedented either, as Budapest Pride in recent years has hosted many EU citizens who would not otherwise have stayed in Hungary for a longer period. So banning Pride is not only an obstacle to the free movement of those who would like to attend such an event but cannot, but also to those who attend a formally illegal event and face sanctions for doing so.

 

Based on Art 6 of Directive 2004/38, free movement also extends to people who make short-term visits, ie to participate in an event or demonstration. The Cowan and Bickel and Franz judgments show that free movement rights in the context of short-term visits go further than entry onto the territory – ie. equal treatment as regards victims’ rights and fair trial rights respectively.

 

Legal bases and arguments

 

The right to freedom of movement is a cornerstone of EU law, enshrined in Article 21 of the Treaty on the Functioning of the European Union (TFEU). Furthermore, the EU Charter of Fundamental Rights reinforces this right, particularly Article 45, which explicitly states that every EU citizen has the right to move and reside freely within the territory of the Member States. Although Article 51 of the Charter says that the Charter itself should only be taken into account in the application of EU law, I am not arguing that the Charter should be taken into account in relation to the right of assembly in the Member States. I say that the Charter should be taken into account in relation to Article 21 TFEU. Indeed, the restriction on the right of assembly restricts this EU right, guaranteed in TFEU Article 21, as follows.

 

The Court of Justice of the European Union (CJEU) plays a vital role in shaping and expanding the interpretation of EU freedom of movement, particularly in light of the EU Charter of Fundamental Rights. The CJEU increasingly considers the Charter when assessing national measures that may restrict freedom of movement. This means that restrictions must not only be justified under EU law but also comply with fundamental rights.

 

Cases involving the rights of LGBTQ+ individuals and their families have highlighted the CJEU's willingness to use the Charter to protect fundamental rights within the context of freedom of movement. The Charter has strengthened the protection of freedom of movement by providing a clear and comprehensive list of fundamental rights. It has also given the CJEU a stronger basis for challenging national measures that are deemed to be incompatible with these rights.

 

The Coman and Hamilton (C-673/16) judgment helps us to understand the context. This case dealt with the refusal of a Romanian authority to recognize the marriage of a Romanian citizen with a US citizen, a same-sex couple, celebrated in Belgium. The CJEU ruled that the term "spouse" in the context of EU freedom of movement includes same-sex spouses. The Court emphasized the need to respect the fundamental rights of EU citizens, including the right to respect for private and family life (Article 7 of the Charter) and the principle of non-discrimination (Article 21 of the Charter). This case significantly expanded the rights of same-sex couples in the EU, ensuring that their family life is protected when exercising freedom of movement.

 

Steve Peers wrote about the case that “[t]he Court added that any measure restricting free movement rights also has to comply with human rights guaranteed by the EU Charter of Rights, which has to be interpreted consistently with the European Convention on Human Rights. According to the case law of the European Court of Human Rights, “the relationship of a homosexual couple may fall within the notion of ‘private life’ and that of ‘family life’ in the same way as the relationship of a heterosexual couple in the same situation.”

 

In another case (C-808/21), the CJEU determined that EU citizenship, established by the Maastricht Treaty and articulated in Article 20 TFEU, implies a right for EU citizens to join political parties in other Member States, despite the absence of explicit provisions. The Court reasoned that denying this right undermines the effective exercise of voting rights in municipal and European Parliament elections, which are expressly granted to EU citizens. The CJEU emphasized the principle of equal treatment under Article 22 TFEU, stating that Member States cannot impose conditions on non-national EU citizens that are not applied to their own nationals. While acknowledging national identity and the Member States' authority over national elections, the Court asserted that EU values, such as democracy and equal treatment, limit national discretion. The Court's rulings enhance EU citizenship's political rights, reinforcing its role as a fundamental status within the EU legal order. Finally, the court linked the right to join political parties to Article 12 of the Charter, which concerns freedom of association.

 

Peers wrote in the Verfassungblog that “remarkably, the Court links the implied political rights of EU citizens in municipal and European Parliament elections not only to the express rights of EU citizenship, but also to democracy and equal treatment, as represented in Article 10 TEU and the EU’s values – putting them at the same rank as national identity. So national identity cannot constitute an exception to democracy or the rule of law et al – but must be reconciled with those values.”

 

I think that the EU understandings, based on the ECtHR rulings, is that restrictions on certain political freedoms are not only a violation of EU law if they discriminate against EU citizens, but also if they restrict those rights without discrimination. For, as I argued above, a Member State that falls below the standards of European fundamental rights is in fact restricting the free movement of its citizens by alienating the citizens of other States from the freedom of movement and residence. Who would like to study in Budapest without being able to choose to participate in the celebration of equality according to sexual orientation? I think it can be argued that far fewer people would do so than if this right were not restricted.

 

The EU’s Fundamental Rights Agency has a more detailed collection of relevant cases.  These cases demonstrate the CJEU's commitment to protecting fundamental rights within the context of freedom of movement. The EU Charter of Fundamental Rights provides a vital framework for the CJEU's interpretation of EU law in this area.

 

Obviously, the facts of these cases are different from those of the Budapest Pride ban, but they follow a similar logical structure: that is, national measures become relevant under EU law when, in the exercise of free movement, they deprive an EU citizen of fundamental rights that would be guaranteed in another Member State.

 

Conclusion: no pasarán

 

I argue that banning Budapest Pride is not only a violation of the Hungarian Fundamental Law, not only a violation of the European Convention on Human Rights, not only a violation of Article 2 of the TEU, but also a violation of the right to freedom of movement and residence. There is the same human rights minimum without which an EU Member State cannot be considered so free, so grounded in European values, that a citizen of any other Member State is free to choose to travel and reside there. Member States must not violate the privacy prohibitions on which freedom of movement and residence are based, and they must not, in my opinion, exclude citizens of other Member States from joining political parties by excluding everyone equally. In the same way, Member States cannot exclude EU citizens from lawful assembly by European legal standards. If they do so, they restrict freedom of assembly.

 

Of course, many things can deter an EU citizen from moving to another Member State: from the climate, to the quality of social and health services, to tax policy. However, fundamental rights deterrence is different from other types of deterrence because of the Charter and the relevance of ECtHR jurisprudence. Denial of fundamental rights, on the other hand, carries a normative message: 'You cannot exercise certain fundamental rights here'. And it is no longer a matter of preference for the person, but of the exercise of his or her citizenship status. It is up to the Court of Justice of the European Union to work out the yardstick for this.

Jonathan Sumption’s view of human rights makes no sense in relation to the history of gay rights

Professor Paul Johnson, Head of the Department of Sociology at the University of York; editor, ECHR Sexual Orientation Blog

Jonathan Sumption, in his Reith Lecture “Human Rights and Wrongs”, attempts to persuade us that the European Court of Human Rights has usurped the power of democratically elected governments by way of an ever expanding interpretation and application of the European Convention on Human Rights. Sumption claims that the Court is continually adding rights, in areas that should be left to governments to legislate in, by interpreting the Convention in ways that it was never intended to do so.

This is not the first time that Sumption has made such claims. Back in 2016, Sumption argued that the Court was “the international flag-bearer for judge made fundamental law extending well beyond the text which it is charged with applying”. Sumption’s claims chime with the idea, popularized by some politicians, that Strasbourg judges routinely exceed their authority in order to impose changes on and meddle with law in the UK and, in doing so, “abuse” human rights.

If you are a gay or lesbian person reading this, you might be particularly irked by Sumption’s remarks. And if you are irked, it’s probably because you know that, whilst the Strasbourg Court has certainly played an important part in bringing about changes to UK laws that once discriminated against people on the grounds of sexual orientation, the Court has also frequently adopted a conservative interpretation of the Convention and, much to the disappointment of gay men and lesbians, rejected complaints about sexual orientation discrimination.

When it comes to sexual orientation issues, it is restraint rather than activism that has usually been a hallmark of the Strasbourg approach to interpreting the Convention. So, whilst Sumption would have us believe that the Court has invented mechanisms – like its “living instrument” doctrine – to enable it to give rights away to everyone, the reality is that the Court is usually very careful and cautious in evolving its interpretation of the Convention. And in terms of sexual orientation discrimination, the Court’s approach has often proved extremely frustrating and damaging.  

For example, take the criminalization of private same-sex sexual acts between consenting adults. Although such criminalization no longer exists in Europe, it did exist in several countries when the Convention came into force. In 1955, a man who had been imprisoned in Germany for “two cases of homosexuality” under law previously enacted by the National Socialist German Workers’ (Nazi) Party complained to Strasbourg about his treatment. Strasbourg rejected the complaint and, in relation to the right to respect for private life enshrined in Article 8 of the Convention – which Sumption claims has been stretched beyond recognition by the Court – stated that this permitted a state to make homosexuality a punishable offence. It took 26 years for Strasbourg to change its mind on this when, in the famous case brought by Jeffrey Dudgeon, it declared that the complete criminalization of same-sex sexual acts in Northern Ireland was in violation of Article 8. However, even in 1981, Strasbourg was quite comfortable to let the UK maintain a higher minimum age for male same-sex sexual acts, and it was only in response to a complaint by Euan Sutherland in the late 1990s that Strasbourg recognized that an unequal “age of consent” was in violation of the Convention.

Nearly every aspect of sexual orientation discrimination complained about in the Court has followed the same pattern. Complaints about such discrimination have been rejected time and time again, until Strasbourg has finally come around to recognizing a further aspect of “gay rights” under the Convention. And this is because the Strasbourg approach is always cautious and, as Judge Sicilianos has put it, the Court has “always sought to avoid the evolutive interpretation of the Convention from being perceived … as a sort of ‘carte blanche’ allowing for excessive liberties with the text of the Convention”. The Court has avoided such excessive liberties by developing interpretative mechanisms that pay attention to the intentions of those who wrote the Convention, and the “present-day” conditions in which the Convention operates. One such way that the Court does this is by taking into account European consensus on certain issues that come before it, so as to be guided by “present-day” conditions rather than its own view of what societal conditions should be.

The Court’s restrained approach is often a disaster for gay men and lesbians. The clearest contemporary example of this is the Court’s repeated refusal to recognize that the right to marry enshrined in the Convention places states under an obligation to grant same-sex couples access to marriage. Completely contrary to Sumption’s view of what the Court does, the Court has resolutely refused to evolve its interpretation of the right to marry in such a way that would make same-sex marriage an effective human right. As such, the Court’s current position makes the Convention inapplicable to same-sex couples who are excluded from marriage in European countries, including in one part of the UK.

So I am irked by Sumption’s claims that the Court is usurping state power and meddling in things that should be left to governments and the ballot box. Not only is this not true, some of us wish it were true. If you are a gay man or lesbian in a European country where you have very few rights, are subject to horrendous forms of discrimination, and are at the mercy of a majority who will not support legal change by parliamentary means, then you look to the Strasbourg Court for help. Unfortunately, because the Strasbourg Court often behaves in exactly the opposite way to how Sumption describes it, it is often unwilling to extend the protection of the Convention to gay men and lesbians in ways that would challenge homophobic domestic laws. To put it simply, when gay men and lesbians knock at Strasbourg’s door and ask for help, they very often have the door slammed in their faces.

The European Court of Human Rights is the conscience of Europe. It interprets a Convention that opens with the commitment to the maintenance and further realization of human rights. To further realize human rights the Court must evolve its interpretation of the Convention and, therefore, it must be encouraged to do so. We – the “everyone” that the Convention secures human rights and fundamental freedoms to – must demand, encourage and support the Court in interpreting the Convention in ways that challenge prevailing forms of inequality and discrimination in European countries. That’s why Sumption is wrong that human rights law should not, for the most part, be used to decide sensitive issues which should be decided through the ballot box. Such a view encourages Strasbourg to be cautious; on the contrary, we should encourage Strasbourg to be bold in realizing a vision in which human rights law prevails in Europe.

Listen to some of the gay men and lesbians from the UK who have taken cases to Strasbourg here: https://goingtostrasbourg.com/podcast

Barnard & Peers: chapter 9, chapter 20

Photo credit: ECHR Sexual Orientation Blog

A Vanishing Breed? Walker v Innospec Ltd - The UK Supreme Court Disapplies a Statutory Provision on the Grounds of Incompatibility with EU Equality Law

Colm O’Cinneide, Professor of Law, UCL

Last week’s decision of the UK Supreme Court (UKSC) in the same-sex pension rights case of Walker v Innospec Ltd [2017] UKSC 47 generated plenty of excited commentary in the UK media. This mainly focused on the UKSC’s finding that it constitutes direct discrimination on the basis of sexual orientation – and thus a breach of EU law - for the rules of a employer’s contributory benefit scheme to deny payment of a ‘spouse’s pension’ to a surviving member of a same-sex married couple, in circumstances where such a pension would be paid to the surviving member of an opposite-sex married couple. This finding is obviously significant, both for its application at national level of the prohibition on direct discrimination on the basis of sexual orientation set out in Article 2 of the Framework Equality Directive 2000/78/EC, and also its concrete impact on the acquired pension rights of same-sex married couples in the UK. However, the media coverage glossed over two other important elements of the judgment, which are of especial interest from the perspective of EU law.

One of those elements relates to the complex issue of the temporal effects of a finding that national law is incompatible with EU legal requirements – namely the Court’s conclusion that, in Lord Kerr’s words at para. 56, ‘the point of unequal treatment occurs at the time that the pension falls to be paid’ and not when the benefit in question was accrued, and that no basis existed for limiting the retrospective effect of the judgment in line with the ECJ’s approach in Case C-262/88, Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889.

The other neglected dimension to the case is of more general interest, especially in the run-up to Brexit – namely how the case resulted in the Supreme Court disapplying the provisions of Schedule 9 para. 18 of the UK Equality Act 2010, insofar as they permitted the type of discriminatory treatment at issue in the circumstances. In other words, in Walker, the obligation on national courts to give direct effect to the requirements of EU anti-discrimination legislation resulted in incompatible national legislation being set aside – perhaps one of the last times this happens before Brexit insulates UK parliamentary legislation from legal challenges based on EU law or other fundamental rights standards.

The case involved a legal challenge by a former employer of Innospec Ltd against their refusal to agree to pay a survivor’s pension to his same-sex spouse if he died first, even though such a benefit would have been paid out to Mr Walker’s spouse had she been a woman. Innospec Ltd justified this exclusion in part by reference to the provisions of Schedule 9 para. 18 of the 2010 Act, which permitted employers to restrict access to occupational benefits where the right to that benefit accrued before 5 December 2005 (the date same-sex couples became legally entitled to enter into civil partnerships).

At first instance, Mr Walker won his claim that he had been subject to direct and indirect discrimination on the grounds of sexual orientation, with the Employment Tribunal concluding that Schedule 9 para. 18 could be applied in a manner compatible with the relevant requirements of Directive 2000/78/EC. Subsequently, however, Innospec appealed successfully against that decision, with the Court of Appeal concluding that Mr Walker had been subject to direct discrimination on the basis of his sexual orientation but that the principles of ‘non-retroactivity’ and ‘future effect’ as developed in the case-law of the CJEU meant that the prohibition on discrimination applied only to benefits accruing after the transposition of the Directive in December 2003. (Mr Walker had taken early retirement in March 2003.)

This conclusion was criticised by Robert Wintemute amongst others, in particular in a case-note in the Industrial Law Journal in 2016 (‘Unequal Same-Sex Survivor’s Pensions: The EWCA Refuses to Apply CJEU Precedents or Refer’ (2016) 45(1) Ind Law J 89-100), and his criticisms were subsequently explicitly cited by Lord Kerr in giving the judgment of the majority of the Supreme Court reversing the decision of the lower court.

In brief, the Supreme Court initially applied the established case-law of the CJEU in cases such as Case C-267/06, Maruko [2008] 2 CMLR 32 and Case C-147/08, Römer [2011] ECR I-3591, and confirmed that less favorable treatment by an employer of same-sex partners as compared to opposite-sex partners who have entered into the same or equivalent type of legally recognised relationship will constitute direct discrimination on the grounds of sexual orientation.

Turning to the question of the remedy and by extension the legal effect of Schedule 9 para. 18, the UKSC went on to survey the relevant case-law of the CJEU dealing with issues of the retrospective effect of judgments. It concluded that the ECJ’s decision to restrict the temporal effect of its finding of sex discrimination in the occupational benefits case of Barber was a judicial technique that should only be applied ‘in the most exceptional circumstances and where the impact [of a judgment] would be truly “catastrophic”’ (para. 44).

The Supreme Court further concluded that the CJEU case-law established that the discriminatory treatment in question should be viewed as taking effect at the time when the pension was due to be paid, in part because it was only at that point of time that the spousal obligations at issue crystallised into tangible form. In so doing, they rejected suggestions by counsel based on views expressed by AG Van Gerven in Case C-109/91, Ten Oever [1993] ECR I-4879 that pension entitlements accrued as they were earned, and therefore that any discrimination occurring would have predated the date of transposition of the Directive. The UKSC therefore concluded that the provisions of Schedule 9 para. 18 of the 2010 Act could not be applied insofar as they precluded liability arising for the discriminatory behaviour in question, which was incompatible with the requirements of Directive 2000/78/EC and the general principle of equal treatment as confirmed to exist by the CJEU in case C-555/07, Kücükdeveci [2010] 2 CMLR 33.

The Walker judgment is thus particularly interesting for three reasons: (i) the faithful application by the UKSC of the case-law of the CJEU in relation to discrimination against same-sex partners; (ii) the Supreme Court’s interpretation of the relevant CJEU case-law relating to the temporal effect of findings of discrimination in the context of occupational benefits, which gives strong effect to the principle of non-discrimination; and (iii) the way in which it illustrates how parliamentary legislation can be disapplied if its conflicts with fundamental rights secured under EU law, in particular the right to non-discrimination.

After the process of Brexit is complete, this form of legal protection of equality is likely to fall away, along with the supremacy of EU law in general. Walker may thus mark one of the last instances where EU law takes effect as a trump card within the British legal system; as such, it is striking that its effect was to disapply a statutory provision designed to limit liability for discriminatory behaviour.

Photo credit: BBC.co.uk
Barnard & Peers: chapter 27, chapter 20, chapter 6

Awaiting the ECJ Judgment in Coman: Towards the Cross-Border Legal Recognition of Same-Sex Marriages in the EU?

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

Photo: Mr Adrian Coman (right) with his spouse, Mr Claibourn Robert Hamilton (left)

(picture from PinkNews http://www.pinknews.co.uk/2016/11/29/romania-goes-to-court-over-whether-to-recognise-gay-couples-marriage/)

Introduction

The legal recognition of same-sex relationships has, in the last couple of decades, become one of the most prominent issues discussed in parliaments, in courts, and in the media, around the world, with views on both sides of the debate being overwhelmingly strong. This is a complicated and sensitive matter which touches on issues relating to human rights, religion, morality, and tradition, as well as on constitutional principles such as equality, autonomy, and human dignity. Despite the fact that there has been research which demonstrates the benefits – especially for young LGB persons – of opening marriage to same-sex couples (see, for instance here), most religions and Churches reject this move and are, even, often vehemently opposed to it, considering homosexuality a ‘sin’, this leading, in turn, to negative societal attitudes towards LGB persons, especially in countries that are deeply religious. The decision to extend legal recognition to same-sex relationships – in countries where this has been made – does not signal the end of the debate, but a number of additional questions emerge once this step is taken: what legal status should be given to same-sex couples? Should they be allowed to adopt children as a couple? Should same-sex couples comprised of two men be allowed to have a child through a surrogacy arrangement? Should same-sex couples comprised of two women be allowed to have a child (as a couple) through medically assisted insemination and, if yes, should the State fund this?

Europe has, until recently, boasted as the most progressive continent regarding the legal recognition of same-sex relationships, with Denmark being the first country in the world to introduce same-sex registered partnerships (in 1989) and the Netherlands being the first country to introduce same-sex marriage (in 2001). In fact, all western EU Member States now make provision for legal recognition of same-sex relationships, and in some of them the law treats same-sex couples in exactly the same way as it treats opposite-sex couples. Yet, the majority of the eastern European countries do not offer legal recognition to same-sex relationships and, in fact, a handful of them have – or have recently introduced – a constitutional ban on same-sex marriage (of the EU Member States, these are Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland and Slovakia).

The EU has managed to avoid having to take a clear stance on the issue of the legal recognition of same-sex relationships, considering that this is a matter that falls exclusively within Member State competence. However, what happens when a married couple comprised of persons of the same sex moves between Member States in exercise of EU free movement rights? Must a same-sex marriage entered into in another Member State be recognised by a Member State which does not provide for the legal recognition of same-sex relationships in its territory, when a Union citizen seeks to rely on EU law to claim family reunification rights on his return to that State? The EU judiciary has, now, been called to clarify the EU’s position on this issue in the Coman case (Case C-673/16). The case is pending before the ECJ and the judgment is eagerly awaited by LGBT organisations, lawyers and academics interested in LGBT rights, and married same-sex couples who have, so far, been disappointed by the lack of clarity as regards the protection they enjoy under EU law when exercising their free movement rights.

LGBT Rights in Romania

Romania does not provide any form of legal recognition for same-sex couples and two draft bills on the matter have been recently rejected by the Romanian Parliament with large majorities. In addition, the country’s Civil Code expressly bans same-sex marriages and registered partnerships and prohibits the recognition of same-sex marriages and registered partnerships entered into abroad. Romania is a deeply religious country with the majority of its population being against the legal recognition of same-sex relationships: in 2016, within a period of six months, around 3 million Romanians signed a petition calling for a referendum to change the country’s constitution to define marriage as an institution between a man and a woman, which, if it yields a positive result, will effectively introduce a constitutional ban on same-sex marriage. The petition – which has been strongly backed by the US Evangelical firm Liberty Counsel and the Romanian Orthodox Church – has been organised by the ‘Campaign for Family’ which is a Romanian coalition of religious and conservative NGOs established in 2015, and has been held valid by the Romanian Constitutional Court. At the moment, there is, still, no constitutional ban on same-sex marriage in Romania, as the proposed constitutional amendment can be made only once it is approved in a referendum and by a majority in the Romanian parliament.

Romania has received one of the lowest scores in ILGA Europe’s Rainbow Map (with only 3 other EU Member States – Poland, Lithuania and Latvia – having received a lower score), as the protection it offers to LGBT persons and same-sex couples appears rather rudimentary. This seems to be reflective of the fact that public acceptance of LGBT people and same-sex relationships in this country is lower than the EU average.

The Coman case is the second reference to the ECJ from Romania concerning LGB rights; the first such case was Asociaţia ACCEPT, which involved the prohibition of discrimination on the ground of sexual orientation under Directive 2000/78 (see the comments on that case by Belavusau here).

The Coman Case

Adrian Coman is a Romanian gay rights activist. He married his male partner (Claibourn Robert Hamilton) – a US citizen – in Belgium in 2010 and the couple currently lives in the US. In 2012, Mr Coman asked the Romanian immigration authorities for information on the requirements for obtaining a residence permit for his spouse. He was told that such a permit would be refused on the ground that the couple’s same-sex marriage could not be recognised in Romania as the Romanian Civil Code bans the recognition of same-sex marriages performed abroad; if Mr Coman’s spouse was a woman, the marriage would have been automatically recognised in Romania and Mr Coman’s spouse would have been entitled to a residence permit by virtue of that. As a result of this, the couple brought an action, claiming that the refusal of the residence permit due to the failure of the Romanian authorities to recognise same-sex marriages contracted abroad, amounted to a breach of Mr Coman’s EU free movement rights as well as to discrimination on the ground of sexual orientation, contrary to the EU Charter of Fundamental Rights (EUCFR). The first instance court hearing the case referred a question to the Romanian Constitutional Court regarding the constitutionality of the relevant provisions of the Civil Code. The Romanian Constitutional Court, by a majority of seven to two, then, decided to stay the proceedings and to refer a number of questions for a preliminary ruling to the ECJ, which can be summarised as follows:

a) whether the word ‘spouse’ in Article 2(2)(a) of Directive 2004/38 includes a same-sex spouse and, if yes, whether the host Member State is required by the Directive to grant the right of residence on its territory for more than three months to the same-sex spouse of a migrant Union citizen

and, in case the previous question is answered in the negative,

b) whether the same-sex spouse of a migrant Union citizen can qualify as ‘any other family member’ under Article 3(2)(a) of the 2004 Directive or as ‘the partner with whom the EU citizen has a stable relationship’ under Article 3(2)(b) of the Directive and, if yes, whether the host Member State is required to facilitate entry and residence on its territory by the same-sex spouse of a migrant Union citizen, even if it does not recognise same-sex marriage and does not provide for an alternative form of legal recognition for same-sex couples.

The hearing for the case has been scheduled for 30 March 2017. 

The case has attracted extensive national and international media coverage and a number of Romanian and non-Romanian NGOs have intervened.

The Issue in a Nutshell

Although the EU Treaties do not make reference to the family reunification rights of Union citizens who exercise their free movement rights, already in the 1960s it was recognised that if Member State nationals were to move between Member States in furtherance of the Community’s objectives, they had to be given the right to be accompanied by their close family members in the Member State to which they moved (see Regulation 1612/68 and Directive 73/148). Accordingly, secondary legislation has always made provision for family reunification rights – these are, currently, provided by Directive 2004/38 – for Union citizens who exercise their right to move and reside freely in the territory of a Member State other than that of their nationality. In addition ‘returnees’ (i.e. Member State nationals who return to their State of nationality after having exercised free movement rights) have been considered, also, to enjoy such rights by virtue of primary EU law and, in particular, by the EU free movement provisions (see the Singh case); however, as made clear in the O & B case (para. 50), the interpretation of the family reunification rights granted by Directive 2004/38 is relevant to them as well, since the family reunification rights laid down in the Directive apply ‘by analogy’ to returnees, this being the reason that the questions referred in Coman (which involved a ‘returnee’) concerned the interpretation of the Directive.

The ‘spouse’ of the migrant Union citizen (now referred to in Article 2(2)(a) of Directive 2004/38), has always been considered one of the family members that can rely on EU law in order to require the Member State of destination to accept him or her in its territory. The nationality of the ‘spouse’ and, in particular, whether he is a Union citizen or a third-country national, has never mattered, as the rationale behind granting family reunification rights has, simply, been to encourage the exercise of free movement by the Union citizen and this can be impeded if the spouse – whatever his/her nationality – cannot accompany or join the migrant Union citizen. Practically speaking, family reunification rights have been mainly used by Union citizens who are married to third-country nationals, as the latter do not enjoy an individual right to free movement under EU law.

The important question for our purposes – and the one raised in Coman – is whether the term ‘spouse’ in this context includes the same-sex spouse of the Union citizen who has exercised free movement rights. A quick perusal of Directive 2004/38 demonstrates that the matter is not clear: the gender- and sexual orientation-neutral term ‘spouse’ is used in Article 2(2)(a) of the Directive, when defining one of the categories of family members that enjoy an automatic right to join or accompany the migrant Union citizen in the Member State of destination, without the meaning of this term being further clarified in any other part of the Directive. This is so, despite the fact that when the proposal for the Directive was discussed by the EU legislature, the question of whether the term should be read to include a same-sex spouse had been expressly laid on the table.

Due to the sensitivity of the issue and the divergence of views among the Member States, the EU legislature consciously chose vagueness over clarity, thus making this an issue that would have to be resolved by judicial interpretation. Coman is the first opportunity that has been given to the ECJ for providing an interpretation of the term ‘spouse’ in this context and for clarifying whether this term must be read as including the same-sex spouse of a Union citizen. Three years ago – in the Cocaj case (C-459/14) – the ECJ was asked to clarify the meaning of the term ‘registered partner’ in the same Directive and to specify, in particular, whether it includes same-sex registered partners, but the reference was subsequently withdrawn by the referring court, meaning that that question remains unresolved.

What Must the Court rule?

Two years ago, the issue of the legal recognition of same-sex relationships in the US was resolved once and for all by the US Supreme Court’s judgment in the Obergefell v. Hodges case. The Supreme Court based its decision to require all US states to extend marriage to same-sex couples and to recognise same-sex marriages contracted in another US state, on a dual basis: a) the need to respect the fundamental right to marry as one of the fundamental liberties protected by the US Constitution’s Fourteenth Amendment’s Due Process Clause, since the freedom to choose who to marry is central to individual dignity and autonomy; and b) the US Constitution’s Fourteenth Amendment’s Equal Protection Clause, since the refusal to open marriage to same-sex couples leads to inequality between same-sex and opposite-sex couples: the former are denied benefits and a status afforded to opposite-sex couples and – unlike the latter – are barred from exercising a fundamental right (i.e. the right to marry).

As argued in another post in this blog, Obergefell v. Hodges is the case that put the US ahead of the EU with regards to the issue of the legal recognition of same-sex relationships, and has stripped the latter of its position as a pioneer in the field of LGBT rights protection. However, is Coman now the EU’s opportunity not merely to catch-up with the US but, also, to re-acquire its position as pioneer in the protection of LGB rights, since EU law already provides protection to LGB persons from discrimination on the ground of sexual orientation in the employment field, something which is currently lacking at federal level in the US?

Coman is only about the cross-border legal recognition of same-sex relationships and, in particular, about the cross-border recognition of same-sex marriages. Accordingly, the Court is not asked to rule on whether the EU – as the US – can require Member States to open marriage to same-sex couples in their own territory. After all, it is clear that even if it was asked to rule on this, its hands would be tied since – as it confirmed not long ago in cases involving sexual orientation discrimination (see, for instance, Römer and Hay) – ‘as European Union law stands at present, legislation on the marital status of persons falls within the competence of the Member States’. This means that whether same-sex couples should be allowed to marry in a Member State, is a matter entirely left to be decided by the said Member State. Refusing to allow same-sex couples to marry does, of course, violate a number of human rights, however because the issue of determining the marital status of persons falls within the exclusive competence of the Member States and because the way that each Member State decides to regulate this matter has not – so far – interfered with the exercise of rights stemming from EU law and/or with the execution of any of the EU’s policies, the issue falls outside the remit of the Court.

The question, therefore, is whether the Court in Coman should rule that the term ‘spouse’ in Directive 2004/38 must be read to include the same-sex spouse of a Union citizen and, thus, to effectively require all Member States (even those that have not opened marriage to same-sex couples in their territory) to admit within their territory the same-sex spouse of Union citizens who move between Member States.

In my view the answer to this question is ‘yes’, and this is for the following reasons.

First, if the ECJ rules that the term ‘spouse’ does not include same-sex spouses, this will amount – in effect – to granting a license to the Member States to restrict the free movement rights of LGB Union citizens who are in a same-sex marriage. It is hard to believe that a Union citizen who is happily married in a Member State would willingly move to another Member State where his/her same-sex spouse would not be allowed to accompany or join him/her; or, assuming that the spouse could join him/her in the host State on another basis (i.e. not as his/her spouse), it would be highly unlikely that (s)he would be willing to move to a Member State where the marriage would not be recognised and, thus, where his/her spouse and him/her would not be treated as a couple for the purposes of taxation, social security, property law, inheritance and so on, with the obvious disadvantages that would ensue from this.

In fact, the current lack of clarity that persists with regards to the mutual recognition of same-sex marriages in EU Member States and the consequent inconvenience that emerges as a result of this uncertainty is, in itself, an obstacle to free movement: being unsure as to whether your same-sex spouse may be able to join you in another Member State and/or be considered as your spouse there is highly likely to deter your exercise of free movement. The ECJ cannot interpret a provision of EU law (namely, Article 2(2)(a) of Directive 2004/38) in a way which permits Member States to breach other provisions of EU law (namely, the EU free movement provisions). A measure which impedes the exercise of free movement rights cannot be justified if it violates fundamental human rights protected under EU law (see, for instance, Carpenter, para. 40). Hence, a restriction on free movement which emerges as a result of the failure of a Member State to recognise a same-sex marriage, cannot be justified since, as will be seen below, it breaches a number of fundamental human rights protected under EU law.

Second, the ECJ – as one of the EU institutions – is bound by the EUCFR (see Art. 51(1) EUCFR), in interpreting EU law provisions (including Article 2(2)(a) of Directive 2004/38) it must ensure that it does not breach the prohibition of discrimination on the ground of sexual orientation, laid down in Article 21 EUCFR. An interpretation of the term ‘spouse’ which excludes from it same-sex spouses is, clearly, directly discriminatory on the ground of sexual orientation and is, thus, contrary to Article 21 of the Charter. Furthermore, the 2004 Directive itself provides in its Recital 31 that in accordance with the prohibition of discrimination contained in the Charter (in Article 21), Member States must implement it without discrimination between its beneficiaries on, inter alia, the ground of sexual orientation. Accordingly, the Directive itself appears to be requiring an interpretation of its provisions – including of the term ‘spouse’ – which does not give rise to discrimination against same-sex couples.

A third and related reason is that following (as required by Article 52(3) EUCFR) the ECtHR’s recent judgment in Pajić v Croatia (see the comments by Hodson here) which was a case about the family reunification rights of an unmarried same-sex couple, the refusal to recognise same-sex marriages validly recognised in another Member State and the consequent refusal to grant family reunification rights to same-sex married couples when they move between Member States – can amount to a breach of Article 7 EUCFR (the right to private and family life) when read together with Article 20 EUCFR which states that ‘Everyone is equal before the law’, given that same-sex married couples are treated differently, under the law, from opposite-sex married couples who, under EU law, enjoy automatic family reunification rights when they move to another Member State. Although – as confirmed in Pajić (para. 80) – the right to family life (as protected under Article 8 ECHR) does not give the right to a family member to enter or to settle in a particular country for family reunification purposes, States must exercise their ‘immigration policies in a manner which is compatible with a foreign national’s human rights, in particular the right to respect for his or her private or family life and the right not to be subject to discrimination’. Hence, although Article 7 EUCFR cannot, if interpreted in the same manner as Article 8 ECHR, be relied on to require a Member State to admit within its territory the (opposite-sex or same-sex) spouse of a Union citizen, when that provision is read together with Article 20 EUCFR, it requires same-sex spouses to be admitted to the territory of the host State under the same conditions that are imposed on opposite-sex spouses (i.e. automatically).

Fourth – and drawing inspiration from the US Supreme Court’s judgment in the Obergefell v. Hodges case – the refusal of the ECJ to consider same-sex marriages as valid marriages for the purposes of Directive 2004/38, is liable to amount to a breach of another human right protected under the EU Charter of Fundamental Rights, namely, the right to human dignity (Article 1 EUCFR). The argument goes as follows: forming intimate relationships with other individuals, choosing to formalise these relationships and consequently attaching to them a legal status is an exercise of personal autonomy, which is an aspect of the dignity of every human being. All human beings are equal in dignity. By prohibiting discrimination on the ground of sexual orientation, the EU has accepted 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 the EU institutions and/or the Member States refuse to give effect to the choices of individuals as regards their same-sex relationships and the legal status attached to them, they treat such relationships differently from opposite-sex relationships and they seem to be considering the relationship choices of LGB individuals who are in a same-sex relationship as inferior to opposite-sex relationships and, hence, as not having the same moral worth as the latter. Treating LGB Union citizens as second-class citizens by failing to recognise and respect their choices in forming intimate relationships and formalising them can, therefore, amount to a violation of their right to human dignity.

Finally – following ECtHR case-law (see, for instance, Wagner) – by interpreting Directive 2004/38 in a way which refuses to recognise a family status (i.e. that of a ‘spouse’) the ECJ may be acting in a way which violates the right to family life, as this is protected under Article 7 EUCFR. In addition, by allowing Member States to relegate same-sex spouses to one of the other categories of family members laid down on the list provided in Directive 2004/38 and to strip them of their legal status – as asked in some of the questions referred to the ECJ in Coman – will, also, be contrary to EU law as this will not, only, amount to a breach of Article 7 EUCFR but will, also amount to a breach of the EU free movement provisions, given that migrant Union citizens will lose the automatic right to be accompanied or joined by their spouse in the Member State where they move, with the obvious deterrent effect that this may have.

It is true that as late as 2001, the ECJ attached a heteronormative meaning to the term ‘marriage’ noting, in its judgment in the case D and Sweden v. Council, that it ‘means a union between two persons of the opposite sex’. In subsequent years, however, it was made clear that the EU does recognise same-sex marriages as valid marriages for the purposes of EU law (for instance, when it comes to the application of the EU Staff Regulations – see the W case). Nonetheless, for the reasons stated above, the ECJ should now take the additional step of clearly holding that all Member States (and even those that do not provide legal recognition to same-sex relationships in their territory) must recognise same-sex marriages validly contracted in another Member State in situations that fall within the scope of EU law. A marriage validly contracted in one Member State – whether between two persons of the same- or two persons of the opposite-sex – should be considered a ‘marriage’ in every other Member State and, thus, the parties to a same-sex marriage should, also, be considered ‘spouses’ for the purposes of Directive 2004/38. This will mean that all EU Member States will be required by EU law to recognise same-sex marriages validly entered into in another Member State, and this will be so irrespective of whether they have opened marriage to same-sex couples in their own territory.

Barnard & Peers: chapter 13

Further Reading:

U. Belavusau and D. Kochenov, ‘On the “Entry Options” for the “Right to Love”: Federalizing Legal Opportunities for LGBT Movements in the EU’ EUI Working Paper Law 2016/09 available here

C. Bell and N. B. Selanec, ‘Who is a “spouse” under the Citizens’ Rights Directive? The prospect of mutual recognition of same-sex marriages in the EU’ (2016) 41 European Law Review 655

C. Cojocariu, ‘Same-Sex marriage before the courts and before the people: the story of a tumultuous year for LGBT rights in Romania’, VerfBlog, 25/1/2017

M. Fichera, ‘Same-Sex Marriage and the Role of Transnational Law: Changes in the European Landscape’ (2016) 17 German Law Journal 383 (available here)

N. Markard, ‘Dropping the Other Shoe: Obergefell and the Inevitability of the Constitutional Right to Equal Marriage’ (2016) 17 German Law Journal 509 (for an analysis of Obergefell) (available here)

S. Titshaw, ‘Same-Sex Spouses Last in Translation? How to Interpret “Spouse” in the EU Family Migration Directives’ (2016) 34 Boston University International Law Journal 45 (available here)

A. Tryfonidou, ‘EU Free Movement Law and the Legal Recognition of Same-Sex Relationships: The Case for Mutual Recognition’ (2015) 21 Columbia Journal of European Law 195

Another failed opportunity for the effective protection of LGB rights under EU law: Dr David. L. Parris v. Trinity College Dublin and Others

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

Introduction

The recent judgment in the Parris case is another failed opportunity for the ECJ to offer effective protection to LGB persons and same-sex couples under EU law. Despite some signs in recent cases (Asociaţia Accept and Hay) that the EU Court has been taking its role as protector of the rights of LGB persons under EU law more seriously, in its judgment in Parris, like in its decision in Léger (discussed here) which was the last case involving LGB persons that was decided prior to Parris, the Court seems to be treading cautiously around matters that are delicate from the point of view of the Member States. In particular, in this case, the Court seems wary of the danger of being accused of imposing its own views with regards to a matter for which there is – still – great diversity of opinion among the Member States, namely, the recognition of same-sex relationships. The judgment, also, demonstrates the ECJ’s failure to accept the reality of multiple discrimination, as it was ruled that if a measure does not give rise to discrimination on any of the grounds prohibited by Directive 2000/78 – when these grounds are taken in isolation – then it cannot be considered to produce discrimination on the basis of the combination of those two factors.

Legal and Factual Background

The request for a preliminary ruling in the Parris case was referred by the Labour Court (Ireland) hearing an appeal from a decision of the Equality Tribunal (Ireland) in proceedings brought by Dr David L. Parris – a retired academic – against Trinity College Dublin (his former employer), the Higher Education Authority (Ireland), the Department of Public Expenditure and Reform (Ireland) and the Department of Education and Skills (Ireland), arguing that he had been discriminated against by the defendants by reason of his age and sexual orientation. The proceedings concerned the refusal by Trinity College Dublin to accept Dr Parris’s request that on his death, the survivor’s pension provided for by the occupational benefit scheme of which he was a member, should be granted to his civil partner. The refusal was based on the fact that Dr Parris entered into a civil partnership with his male partner only after he had turned 60 and the said occupational scheme provides that survivor’s pension is payable only if the claiming member married or entered into a civil partnership before reaching the age of 60. (Note that the civil partnership was entered into in the UK in 2009, once Dr Parris was over 60, but was only recognised in Ireland from 2011 onwards, when the Irish legislation regarding civil partnerships came into force).

In Ireland, civil partnerships can only be entered into since January 2011, whilst marriage between persons of the same sex has been made available only since November 2015. In addition, the statute which gave same-sex couples the right to enter into a civil partnership, excluded the retrospective recognition of civil partnerships registered in another country, which meant that civil partnerships entered into abroad could be recognised in Ireland only prospectively, from January 2011. Thus, as Dr Parris was born in 1946, he could only enter into a civil partnership or marry his same-sex partner in Ireland after reaching the age of 60; and, similarly, any civil partnership he had entered into in another country, could only be recognised in Ireland after he had reached the age of 60.

This meant that under no circumstances would a person who had Dr Parris’s sexual orientation and age be able to claim a survivor’s benefit for his (same-sex) civil partner or spouse under the contested pension scheme. Or, to put the issue more broadly, LGB persons born before 1 January 1951 are excluded in all instances from claiming a survivor’s benefit for their same-sex civil partner or spouse under the contested pension scheme.

The main question of the referring court was whether the application of a rule in an occupational benefit scheme specifying an age by which its members must marry or enter into a civil partnership for their spouse or civil partner to be entitled to a survivor’s pension, amounts to discrimination on grounds of age and/or sexual orientation, contrary to Directive 2000/78.

The AG Opinion

In her Opinion, Advocate General Kokott firstly noted that the contested rule does not amount to direct discrimination on the ground of sexual orientation, as ‘[t]he mere fact that an employee has not married or entered into a civil partnership before his 60th birthday – whether on account of legal barriers or by choice – is not directly linked to his sexual orientation … Had Dr Parris married a woman after his 60th birthday, for example, she would have been excluded from eligibility for the survivor’s pension in exactly the same way as his current partner under the terms applicable to that pension’. The Advocate General then pointed out that the rule does, however, amount to indirect discrimination on the ground of sexual orientation since ‘the 60-year age limit affects a large number of homosexual employees in Ireland more severely and more deleteriously than their heterosexual colleagues … all homosexual employees in Ireland who were born before 1951 were universally barred from entering into a civil partnership in good time before their 60th birthday because the institution of civil partnership did not exist in that Member State until 2011 and the best option previously available to same-sex couples was to live together as “common-law” partners. It was therefore impossible for legal reasons for that group of people to secure a survivor’s pension for their respective partners under the occupational pension scheme at issue and thus to provide the latter with a form of social protection that their heterosexual colleagues and their spouses were able to take for granted’. The Advocate General also found that there was (unjustified) direct discrimination on the ground of age as ‘employees who do not enter into a marriage or civil partnership until after they have reached their 60th birthday are treated less favourably than employees who do so at a younger age’.

Despite the fact that the Advocate General found that the contested rule can amount to discrimination on the grounds of sexual orientation and age taken separately, her preferred approach was to consider that the rule is discriminatory on the combined grounds of sexual orientation and age: ‘In the present case, particular attention will have to be given to the fact that any discrimination perpetrated against the person concerned is attributable to a combination of two factors, age and sexual orientation. The Court’s judgment will reflect real life only if it duly analyses the combination of those two factors, rather than considering each of the factors of age and sexual orientation in isolation.’ The Advocate General explained that ‘employees such as Dr Parris would, in accordance with Article 2(2)(b) of Directive 2000/78, have to be regarded as being at a particular disadvantage by reason of a combination of their sexual orientation and their age because the terms of the pension scheme have the effect of systematically depriving their surviving partners in particular of a survivor’s pension. It is true that, for all employees, the surviving partner’s eligibility for a survivor’s pension is subject to the (apparently neutral) condition that the couple must have entered into a marriage or civil partnership before the employee’s 60th birthday. In truth, however, this systematically excludes homosexual employees born before 1951 in particular – unlike all other categories of employee – from a survivor’s pension of this kind because those employees would never have been able to satisfy the aforementioned condition even if they had wanted to’.

The Judgment

The Court in its judgment was of the view that the contested rule does not give rise to direct discrimination on the ground of sexual orientation because it does not refer directly to the worker’s sexual orientation. Unlike the Advocate General, however, the Court also found that the contested rule did not give rise to indirect discrimination on this ground either.

The Court began by considering the reason behind Dr Parris’s failure to satisfy the contested rule:

‘on the date on which Mr Parris retired, 31 December 2010, he did not satisfy the conditions laid down by the applicable national rule for his civil partner to be entitled to the survivor’s benefit at issue in the main proceedings, since the civil partnership he had entered into in the United Kingdom was not yet recognised in Ireland, and in any event, even if it had been recognised, it could not have given an entitlement to such a benefit, as it had been entered into after the member’s 60th birthday.’

‘the fact that Mr Parris is unable to satisfy that condition is a consequence, first, of the state of the law existing in Ireland at the time of his 60th birthday, in particular the absence at that time of a law recognising any form of civil partnership of a same-sex couple, and, secondly, of the absence, in the rules governing the survivor’s benefit at issue in the main proceedings, of transitional provisions for homosexual members born before 1951’.

The Court then – referring to Recital 22 of Directive 2000/78 – proceeded to highlight the deference it shows towards Member State laws regarding the regulation of marital status in their territory and, in particular, the legal recognition of same-sex relationships: these are matters with respect to which Member States have maintained their full competence, and, thus, they can regulate them in whichever way they choose, provided that when doing so they comply with their obligations under EU law. The Court then explained that the ‘Member States are thus free to provide or not provide for marriage for persons of the same sex, or an alternative form of legal recognition of their relationship, and, if they do so provide, to lay down the date from which such a marriage or alternative form is to have effect’. From this, the Court concluded that ‘EU law, in particular Directive 2000/78, did not require Ireland to provide before 1 January 2011 for marriage or a form of civil partnership for same-sex couples, nor to give retrospective effect to the Civil Partnership Act and the provisions adopted pursuant to that act, nor, as regards the survivor’s benefit at issue in the main proceedings, to lay down transitional measures for same-sex couples in which the member of the scheme had already reached the age of 60 on the date of entry into force of the act’. Accordingly, in the ECJ’s view, the contested rule did not produce indirect discrimination on grounds of sexual orientation.

The Court, however, found that the contested measure did establish a difference in treatment that was directly based on the criterion of age: ‘such a rule thus treats members who marry or enter into a civil partnership after their 60th birthday less favourably than those who marry or enter into a civil partnership before reaching the age of 60’. This difference in treatment, nonetheless, falls – according to the Court – within the scope of Article 6(2) of the Directive, as it ‘fixes an age for entitlement to an old age benefit’ and, hence, it does not constitute discrimination on grounds of age.

The final issue that the Court had to consider was that of multiple discrimination, i.e. whether the contested rule was capable of creating discrimination as a result of the combined effect of sexual orientation and age, where that rule does not constitute discrimination either on the ground of sexual orientation or on the ground of age taken in isolation. The Court noted:

‘while discrimination may indeed be based on several of the grounds set out in Article 1 of Directive 2000/78, there is, however, no new category of discrimination resulting from the combination of more than one of those grounds, such as sexual orientation and age, that may be found to exist where discrimination on the basis of those grounds taken in isolation has not been established.’

‘Consequently, where a national rule creates neither discrimination on the ground of sexual orientation nor discrimination on the ground of age, that rule cannot produce discrimination on the basis of the combination of those two factors’.

Analysis

The judgment in the Parris case confirms and further highlights two trends that had already been prevalent in previous case-law: a) that the Court is reluctant to intervene in situations which touch on matters that fall to be regulated exclusively at Member State level, especially when such matters involve morality judgements for which there is great diversity of views among the Member States and b) that the Court ignores the reality of multiple discrimination.

a) Sensitive Matters that Fall within Exclusive Member State Competence

As seen earlier, Recital 22 of Directive 2000/78 played an important role in the Court’s conclusion in the case that the contested rule did not amount to (indirect) discrimination on the ground of sexual orientation. The Recital provides that ‘[t]his Directive is without prejudice to national laws on marital status and the benefits dependent thereon’. In relation to this, the Court in its judgment explained that the Member States are free to decide whether to open marriage or registered partnerships to persons of the same sex and if they do so to lay down the date from which such a marriage or alternative form is to have effect. From this it concluded that the refusal of the survivor’s benefit was – simply – a consequence of the application of Irish law concerning same-sex partnerships (and, in particular, the lack of a civil status for such partnerships at the relevant time), and, hence, respecting the competence of the Member States with regards to these matters, EU law (and, in particular, Directive 2000/78) could not apply in order to require Ireland to ‘to provide before 1 January 2011 for marriage or a form of civil partnership for same-sex couples’.

This line of reasoning appears – with respect – to be erroneous. In areas like this (i.e. legal recognition for same-sex relationships) which fall to be regulated by Member States exclusively, the ECJ can still intervene in order to require the said legislation to be applied in a manner which is compliant with EU law. Hence, the application of Directive 2000/78 in this instance would require the removal of discrimination on the (combined) grounds of sexual orientation and age – which, in my view, is the discrimination that was suffered on the facts of the case – which could be achieved by an amendment of the rule (most likely, the requirement would be to permit LGB persons born before 1951 to claim survivor’s benefit for their same-sex partner even if they entered into a civil partnership or marriage after they turned 60), but it wouldn’t require Ireland to recognise such relationships retrospectively, by changing the date from which they have effect (which is a matter that falls to be regulated exclusively by Ireland). In other words, Ireland would remain free to determine how to regulate same-sex relationships – as required by Recital 22 of Directive 2000/78 – but would have to require pension schemes etc which apply to such relationships to make provision for the different legal situation of persons that have such relationships and to take that into account, by providing for an exception to the rule in situations where it is (legally) impossible to satisfy the age condition due to the law in Ireland (as opposed to the personal choice of the couple), which only allowed the legal recognition of same-sex relationships after a certain date.

As noted by Advocate General Kokott in response to the argument of the defendants, the UK Government, and the Commission, that a finding of discrimination based on sexual orientation in this case could have the consequence of conferring de facto retroactive effect on the institution of civil partnership (which would go against Recital 22 of Directive 2000/78), such a finding ‘does not in any way compel the Irish State to change the marital status of an employee such as Dr Parris retroactively’ as ‘Dr Parris and his partner are today recognised by the Irish State as living together as a couple, and they are today claiming – prospective – occupational pension scheme benefits corresponding to their marital status as it stands today. They are not in any way claiming a benefit to which their marital status does not entitle them. They are certainly not claiming such a benefit retroactively. Nor are they seeking a retroactive change to their marital status. Rather, they are simply defending themselves against a term contained in the occupational pension scheme at issue – the 60-year age limit – which was laid down in the past but discriminates against them today.’

Accordingly, by hiding behind Recital 22, the Court seems to be avoiding to intervene in this case, in this way allowing Member States not merely to regulate same-sex relationships and the consequences ensuing from entering them (which is, indeed, a matter that is wholly to be regulated at Member State level), but also to discriminate against LGB persons who – by virtue of a legal disability (i.e. their inability to enter into a marriage or registered partnership in a certain Member State until a certain date) – are differently situated from heterosexual persons who had the (legal) option of entering into a marriage or registered partnership by the required age, but chose not to do so. This approach seems to be in line with the approach followed by the Court with regards to issues involving fundamental societal choices. In particular, in relation to matters which involve deeply held national societal mores or values, the Court and the EU legislature have been very reserved in their approach and have focused on respecting the sovereignty of the Member States, even to the extent of avoiding applying EU law rigorously (e.g. Henn and Darby) or at all (e.g. Grogan). This nonetheless comes at a cost, this being that the rights that individuals derive from EU law are sacrificed at the altar of Member State sovereignty. Should there not be a requirement that the EU, which is a polity that values, inter alia, fundamental human rights and equality, act as an external arbiter of the choices of the Member States with regards to these issues when these choices come into conflict with the rights that individuals derive from the Treaty and secondary legislation? In other words, should the EU not come to the rescue of individuals that derive rights from EU law and require the Member States to ‘think federal’ with regards to these matters, as long as the EU does not impose its own views in relation to them? It is not suggested here that morality and value judgements should now be made at the EU level; as Weiler has noted, there should be ‘fundamental boundaries’ which are ‘designed to guarantee that in certain areas communities […] should be free to make their own social choices without interference from above’.[1] However, Member States should be aware that when regulating these matters they must take into account and cater for the rights that individuals enjoy under EU law, and if they do not, then the ECJ or (in most instances) the national courts as enforcers of EU law, should intervene in order to ensure that Member States comply with their obligations under EU law. 

b) Multiple Discrimination

The other notable feature of the judgment in Parris is the Court’s express rejection of the possibility that multiple discrimination can be prohibited by Directive 2000/78. The Court had, already, been faced with a situation involving discrimination on the combined grounds of sex and sexual orientation in the Léger case, which was decided in 2015. Despite the fact that the Advocate General in that case found that the contested measure did amount to such (multiple) discrimination, the Court in that case simply brushed aside the matter, by focusing on the question of whether the said measure amounted (simply) to discrimination on the ground of sexual orientation.

In this case, however, it was more difficult for the Court to avoid the matter as the possibility of multiple discrimination – in this instance on the combined grounds of sexual orientation and age – was specifically mentioned by the referring court and the third question referred was, exactly, focused on this issue. However, as noted earlier, the Court explicitly pointed out that ‘where a national rule creates neither discrimination on the ground of sexual orientation nor discrimination on the ground of age, that rule cannot produce discrimination on the basis of the combination of those two factors’, thus rejecting the possibility of a finding of multiple discrimination under Directive 2000/78.

It is, indeed, true that multiple discrimination presents challenges that are not faced when an assessment of a single ground of discrimination is made.

One such difficulty is that a multiple discrimination assessment contradicts the classic single-ground model of discrimination law analysis which requires the identification of a single hypothetical comparator who must only have a single characteristic – the one that it is claimed that the discrimination complained of is based – that is different from the person that is treated worse. Yet, at the same time, an analysis which is – artificially – pushed to fit this model by insisting on an examination of the difference in treatment by using a single ground, may be incapable of accurately reflecting the situation that pertains in a certain case. For instance, on the facts in Parris, it would be inaccurate to compare all LGB persons with all heterosexual persons; or all LGB persons who have entered into a marriage or registered partnership with all heterosexual persons who have done so too; or all persons born before 1951 with all persons born after 1951. It was only LGB persons who were born before 1951 that were treated worse than everyone else (i.e. LGB persons born after 1951 and heterosexual persons in general). Accordingly, the difference in treatment complained of was based on the combined grounds of sexual orientation and age and, thus, the failure of the Court to find this misrepresents the reality of discrimination that was suffered on the facts of the case and – at a broader level – contributes to the continued invisibility of the phenomenon of multiple discrimination.

Another difficulty with multiple discrimination and its prohibition under EU law is that there is a hierarchy in the protection from discrimination on various grounds (with race and ethnic origin coming at the top, followed by sex, and then by the Directive 2000/78 grounds) which means that it is difficult to apply a single analysis in a situation where discrimination is suffered on more than one ground simultaneously. This, in fact, is the reason why legal advisors handling cases involving multiple discrimination usually make a strategic decision as to which single ground to choose, taking into account the protection afforded in relation to that ground as well as what is possible and attainable on the facts of the case.

Yet, and despite the above difficulties, it is important that where there is multiple discrimination, that this is reflected in the Court’s analysis. This is because, as noted by the Advocate General in Parris, a finding of multiple discrimination requires that a different approach to justifications is taken, as ‘[t]he combination of two or more of the grounds for a difference of treatment referred to in Article 1 of Directive 2000/78 may also mean that, in the context of the reconciliation of conflicting interests for the purposes of the proportionality test, the interests of the disadvantaged employees carry greater weight, which increases the likelihood of undue prejudice to the persons concerned, thus infringing the requirements of proportionality sensu stricto’.

Despite the fact that the EU legislature and the ECJ seem to ignore the reality of multiple discrimination, there have already been calls by the EU institutions to take this form of discrimination more seriously and to take action in order to increase both the capacity to recognise and identify occurrences of multiple discrimination and awareness of the need to combat them as such. It is important for the institutions, bodies and courts, that apply anti-discrimination law to become aware and able to identify the unique ways in which individuals experience multiple discrimination (see, for instance, Report commissioned by the European Commission ‘Tackling Multiple Discrimination: Practices, policies and laws’ (2007) available at http://ec.europa.eu/social/main.jsp?catId=738&pubId=51). Accordingly, the ECJ should take the opportunity – when it arises again – to rule that EU anti-discrimination law prohibits not merely single-ground but also multiple discrimination and to provide guidance as to how to deal with cases of such discrimination. After all – as stressed by the Advocate General in Parris – ‘it is apparent at several points in the Directive [i.e. Directive 2000/78] that its authors were acutely aware of this issue [i.e. multiple discrimination] and assumed that it could be adequately resolved by recourse to the instruments provided by the Directive’.

Further Reading

N. Bamforth, M. Malik and C. O’Cinneide, Discrimination Law: Theory and Context (Sweet & Maxwell, 2008), Chapter 9

K. Lenaerts, ‘Federalism and the Rule of Law: Perspectives from the European Court of Justice’ (2011) 33 Fordham International Law Journal 1338

A. Tryfonidou, ‘The Federal Implications of the Transformation of the Market Freedoms into Sources of Rights for the Union Citizen’ in D. Kochenov (ed.), Citizenship and Federalism in Europe (Cambridge, CUP, 2016, forthcoming)

A. Tryfonidou, ‘Discrimination on the Grounds of Sexual Orientation and Gender Identity’ in S. Vogenauer and S. Weatherill (eds), General Principles of Law: European and Comparative Perspectives (Oxford, Hart, 2017, forthcoming)

Report: ‘Tackling Multiple Discrimination: Practices, policies and laws’ (2007) available at http://ec.europa.eu/social/main.jsp?catId=738&pubId=51

Report by S. Fredman, ‘Intersectional discrimination in EU gender equality and non-discrimination law’ (May 2016), available at http://ohrh.law.ox.ac.uk/new-report-intersectional-discrimination-in-eu-gender-equality-and-non-discrimination-by-professor-fredman/

Barnard & Peers: chapter 20

Photo credit: cbc.ca

---

[1] J. H. H. Weiler, ‘Fundamental Rights and Fundamental Boundaries: On the Conflict of Standards and Values in the Protection of Human Rights in the European Legal Space’, in J. H. H. Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ And Other Essays on European Integration (Cambridge: Cambridge University Press, 2005), pp. 103–104.