1.Introduction. Barbara Safradin * Barbara Safradin, Conference paper beucitizen 2015

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1 The legal jungle of same-sex relationship recognition at the national and European level: a comparative constitutional law review on the ability of samesex couples to move and reside freely in the European Union Barbara Safradin * Abstract The definition of marriage varies across the European Union (EU). An increasing number of Member States is willing to or is in the process of including same-sex couples under the notion of marriage. Family law in general and the regulation of marriage in particular is something that has remained in the hands of Member States. Although the Union is not competent to harmonise Member States family laws, general principles such as supremacy and full effectiveness of EU law require national laws to adhere both to the right to the free movement, as well as fundamental rights such as the non-discrimination principle. Since Member States have retained almost full power in the area of family law, significant differences are noticeable; certain States provide for different legal institutions, such as registered partnership or marriage to same-sex couples. At the other end of the spectrum there are Member States that do not provide for any legal recognition. Hence, samesex couples often face difficulties since the civil status they acquired in one Member State may not be recognized in other States. Moreover, Directive 2004/38 gives the host State the full discretion to define what constitutes a family member under Article 2. Consequently, same-sex couples wishing to move and reside in another Member State may sometimes be denied the full benefits of EU citizenship. This paper focuses on the legal jungle that same-sex couples face when moving and residing from one Member State to another. A comparative constitutional law review will be conducted at the national and European level in order to analyse which obstacles same-sex couples face when invoking their free movement rights in the EU. At the national level, the level of legal recognition of same-sex relationships in Croatia and Italy is explored. The research hereby aims to examine how these profoundly Catholic Member States have dealt with citizenship rights of mobile same-sex couples. This paper argues that the recognition of same-sex relationships depends strongly on the interaction between the judiciary and the legislature. Keywords: EU citizenship, family member, family life, free movement, mutual recognition, (non-)discrimination based on sexual orientation, same-sex relationship recognition 1.Introduction The treatment of same-sex couples in the EU is characterized by a number of differences among EU Member States. 1 Through the institution of civil marriage, all countries in Europe recognize opposite-sex couples. As a legal institution, marriage can be characterized as a form of partnership between two people which is created by a formal act of registration, and that generates a number of legal consequences, i.e. rights and obligations between the partners themselves, but also between the partners and others, including the State. 2 Since the 1970s, * LLM, Legal Research Master Student, University of Utrecht, the Netherlands. The author can be contacted by at b.safradin[at]students.uu.nl. 1 M. Di Bari, Same sex Unions in the EU system of protection of fundamental rights, Lap Lambert Academic Publishing (2011), p K. Waaldijk, More or less together: Levels of legal consequences of marriage, cohabitation and registered partnership for different-sex and same-sex partners: A comparative study of nine European countries (in cooperation with John Asland et al.), Documents de travail no.125, Paris: Institut national d études démographiques (2005), p. 3. 1

2 various European countries have made an increased number of these legal consequences available to unmarried same-sex partners in informal cohabitation. 3 At the moment, primary EU law and secondary legislation, in particular Directive 2004/38 (also known as the Citizenship Directive) fail to grant same-sex couples legal certainty concerning their right to free movement. 4 Article 9 of the Charter, which became legally binding by the Lisbon Treaty in 2009, states that the right to marry shall be guaranteed in accordance with national law. 5 Same-sex marriage recognition has therefore not been harmonised or mutually recognized at the Union level. At the moment of writing, 11/28 Member States have legalized same-sex marriages so far, whereas 7/28 States provide for registered partnerships and 10/28 Member States do no provide for any legal recognition. There is now an increasing trend towards recognizing same-sex relationships in Europe. The following figure depicts the current level of acceptance in Europe concerning same-sex civil unions 6 : Highest level of recognition of same-sex partners Marriage equality Registered partnership recognition Non-recognition List of countries EU The Netherlands (2001), Belgium (2003), Spain (2003), Sweden (2009), Portugal (2010), Denmark (2012), France (2013), United Kingdom (2013), Luxembourg (2014), Finland (2014) 7, Ireland (2015) 8 Germany (2001), Slovenia (2005), Czech-Republic (2006), Hungary (2009), Austria (2013), Malta (2014), Croatia (2014) Bulgaria, Cyprus, Estonia, Greece, Italy, Lithuania, Latvia, Poland, Romania, Slovakia List of countries EEA & Switzerland Norway (2009), Iceland, (2010) Switzerland (2007) Liechtenstein Figure 1. Table showing the highest level of recognition of same-sex relationships in the EU-28, including EEA countries and Switzerland in a chronological order European couples entered into a heterosexual marriage constantly cross national borders without having to consider certain risks that go along with that. They have the certainty that their civil statuses and the legal consequences of their unions are recognized in 3 Waaldijk, More or less together, p J. Rijpma and N. Koffeman, Free Movement Rights for Same-Sex Couples Under EU Law: What Role to Play, in D. Gallo et al. (eds.), Same-Sex Couples before National, Supranational and International Jurisdictions, Springer-Verlag Berlin Heidelberg 2014, p See Article 9 of the Charter that states the right to marry and to found a family. 6 Recently, France, Luxembourg and Finland have also opened up marriage to same-sex couples. Croatia has adopted a life-partnership act for same-sex couples in July On the 23th of May 2015, Northern Ireland has voted a yes in its historical referendum on same-sex marriage. 7 The Finnish same-sex marriage law will take effect on 1 March Ireland recently legalized same-sex marriage, following approval of a referendum on 22 May 2015 to provide in the country's constitution that marriage is recognised irrespective of the sex of the partners. 2

3 all EU Member States. This is however not the case for same-sex couples. By crossing borders, married or registered same-sex couples may lose all their social and fiscal benefits, their rights as parents or even their nationalities of birth. 9 Under Directive 2004/38, each host Member State retains the discretion to decide whether it will allow or recognize same-sex marriages entered into or registered partnerships concluded elsewhere. 10 Differences between national legal systems in defining the concept of marriage create obstacles to move and reside freely within the EU for same-sex partners. In addition, the European Court of Human Rights (ECtHR) has ruled in numerous cases that it is up to the individual countries to decide whether or not to give access to civil marriage for same-sex couples, hereby leaving a margin of appreciation for the Member States. 11 The now binding EU Charter brings together in a single document the protection of fundamental rights in the EU. However, as Article 51(1) stipulates, the rights of the Charter apply only to the Member States when they are implementing Union law. Its Article 21 explicitly prohibits discrimination on the basis of sexual orientation. Despite this prohibition, the question of recognition of same-sex relationships is still controversial, and the attitude of the EU towards it remains unclear. 12 Generally, the EU legislator has been reluctant to interfere in the area of Member States family law, by mainly resorting to the principles of subsidiarity and conferral to justify its refusal to take action. 13 A ruling from the European Court of Justice (CJEU) under the free movement clause could allow married and registered same-sex couples to enjoy legal rights in all other Member States. However, up until now, the CJEU has never ruled on a case that concerns the entry and residence of samesex couples. Rijpma and Koffeman argue that the main reason for this could be that same-sex couples use their free movement rights independently in order to avoid legal difficulties that go along with travelling together. 14 This research examines how legislative and judicial (inter-) action at the national and European level influences the ability of same-sex couples to move and reside freely within the EU. 15 The paper employs a comparative constitutional law review method to evaluate how 9 See Marriage equality, available at [accessed on 13 April 2015]. 10 Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation No 1612/68 and repealing Directives 64/221, 68/360, 72/194, 73/148, 75/34, 75/35, 90/364, 90/365 and 93/ ECtHR case Schalk & Kopf v Austria, App /04 24 June See also latest ECtHR case on same-sex couple recognition; Hämäläinen v. Finland, Application no /09, delivered on 16 July P. Colletaz, Same-sex marriage and adoption: How Inequalities Affect and Hinder the feeling of European Cultural Citizenship? (2013), p L. A. Anaya, Policymaking in the Italian Courts The Affermazione Civile Project and the Struggle over Recognition of Rights for Same-sex Couples in Italy, Anthropological Journal of European Cultures Volume 23, No. 1 (2014), p Rijpma and Koffeman, Free Movement Rights for Same-Sex Couples, p Note that this will be problematic if the same-sex couple exists of third country nationals who do not have independent rights to move in the EU. 15 Note that this paper will not focus on same-sex couples existing of third country nationals. This situation is covered by Directive 2003/86 on the right to family reunification, [2003] OJ L251/12). The definition of family in the Family Reunification Directive (2003/86) is of high importance in assessing to what extent same-sex spouses of third-country nationals can join them when moving to or within the EU territory since it is referred to in most instruments regarding the status of legal third-country nationals. This Directive is however silent on the 3

4 courts and legislators have responded so far to claims made by same-sex couples. In order to find out how the notion of family in EU law influences the free movement of same-sex couples in Europe, the first section specifically draws upon Directive 2004/38. It focuses particularly on the positions of spouses, registered partners and durable partners under Directive 2004/38 ( ). It is shown that the current legal scheme provides the host State with full discretion to decide whether it will recognize foreign civil statuses or not. This is problematic since as will be shown it can lead to a violation of EU law. In addition, this section draws upon the role of the CJEU in free movement rights so far and evaluates which added value this might have for same-sex couples ( 2.3). The third section assesses the role of the EU legislator in family law matters ( 3.1). After this, a brief discussion is made with regard to the role of the Charter and the ECtHR on same-sex couple recognition ( 3.2). This section ends with an analysis of the European legal regime with regard to the prohibition of discrimination based on sexual orientation ( 3.3). The fourth section examines how legislative and judicial branches in Croatia and Italy have established certain rights for same-sex couples and hereby influenced free movement rights of same-sex couples. In both profoundly Catholic Member States, national courts and/or legislators have recently imposed certain amendments concerning same-sex legislation which consequently have influenced free movement rights of same-sex couples ( ). This part then focuses on the issue of reverse discrimination in this matter, i.e. the idea that static same-sex couples can be treated worse than mobile same-sex spouses or registered partners in cases of mutual recognition of civil statuses ( 4.3). Finally, in the end section of this paper some solutions are addressed with regard to the recognition of foreign same-sex civil statuses in the Union ( 5). The main argument is that since the current status-quo in Europe with regard to samesex legislation has shifted towards a positive trend to provide some form of recognition for same-sex couples, this signals a need for the EU legislator to amend its legislation so as to provide for a more practical approach to same-sex relationships, in all situations falling within the scope of Union law Conceptualization of the notion of family under EU free movement law 2.1. Implications of EU free movement law for same-sex couples in defining family under Directive 2004/38/EC EU citizens can benefit from a number of rights when moving from their home Member State to a host State. One of these advantages is that family members of those citizens can also be rights for registered partners or partners entered in a stable relationship. See more in J. Rijpma and N. Koffeman, Free Movement Rights for Same-Sex Couple, pp Nowadays, at least eleven Member States authorize the entry and residence of same-sex spouses for the purposes of Directive 2004/38. The EU Fundamental Rights Agency (FRA) confirmed in 2010 that eight Member States did not distinguish between a same-sex or an opposite-sex spouse for the purposes of entry and residence of Directive 2004/38. (i.e. Belgium, Denmark, the Netherlands, Portugal, Spain, Sweden, the UK, France, Luxembourg and Finland and Ireland). Since 2012 Italy can be added to this list. (Ministry of the Interior, Administrative Guideline n of 26th October 2012). Moreover, with the adoption of the Life- Partnership Act in 2014, Croatia now also belongs to this list. The report is available at 4

5 protected under EU free movement provisions. The ability to show that one is a family member of a EU citizen and in particular an economically active EU citizen is crucial when trying to invoke EU free movement rights. This becomes even more important for third country nationals who do not enjoy EU citizenship status. 17 Free movement is regarded as one of the fundamental freedoms of the Treaty. The CJEU has always interpreted the right to free movement of persons broadly and exceptions to it narrowly. 18 This is even more the case with the provisions laid down in Directive 2004/38, which has as its aim to facilitate the free movement of EU citizens. 19 Although the Union does not have any explicit competence in family law matters, EU free movement law has influenced family related issues having a cross-border dimension. 20 In 1992, the Maastricht Treaty for the first time introduced the term EU citizenship and extended the status of EU citizenship to Member State nationals: every citizen holding the nationality of a Member State shall be a citizen of the European Union (Article 8(1) EC). The status of EU citizenship entitles every Union citizen to freely move within the European Union. This right is nowadays regulated under Article 21 TFEU. 21 EU involvement in family matters is most likely to appear in situations in which the Union is required to define the notion of what constitutes a family. 22 The Union had to find out who would fall under the notion of family member from the perspective of the internal market. 23 Initially, free movement and related rights were granted to workers families by Regulation 1612/68, which provided rights to the EU worker s spouse and his or her descendants who were under the age of 21 years or dependents and dependent relatives in the ascending line of the worker and his spouse under Article 10(1)(a) and (b). More limited rights were given to other family members if dependent on the worker or living under his roof in the country where he/she comes from. 24 Nowadays, Directive 2004/38 regulates the free movement rights of EU citizens and their family members. Directive 2004/38 took more than two years to negotiate and one of the central issues in this Directive was the meaning of what constitutes family under EU law. The definition of a EU citizen is simple and refers to a national of any Member State under Article 2(1) of Directive 2004/ The definition of family member, however, is much more complicated. Article 2(2) of the Directive lists the family members to whom the rights laid down apply. The rights of family members in this Directive depend on the right of free movement of EU citizens. Hence, these rights are derived rights that only exist due to the fact 17 J. Guth, When is a partner not a partner Conceptualizations of family in EU Free Movement Law, Journal of Social Welfare & Family Law 2 (2011), p Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri [2004] ECR I-5257, pars C-127/08, Metock [2008] ECR I-6241, par Guth, When is a partner not a partner, p R. Amy-Elman, The limits of citizenship: migration, sex discrimination and same-sex partners in EU law, Journal of common market studies vol. 38, no. 5 (2000): 730. In Case C-184/99 Grzelczyk [2001] ECR I-6193, the CJEU held that Union citizenship is destined to be the fundamental status of nationals of the Member States. 22 Guth, When is a partner not a partner, p Ibid. 24 Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, Article 10(2). 25 Guth, When is a partner not a partner, p.194, 5

6 that the EU citizen has the right to freely move and because of the family tie between him and his family member. 26 In examining whether same-sex spouses and partners can receive rights of entry and residence under Directive 2004/38, this section distinguishes the following three categories: 1. Spouses under Article 2(2)(a) 2 Registered partnerships equal to marriage in the host State under Article 2(2)(b) 3. Durable partners that do not fall under the notion of "family member" but who can nonetheless derive some rights under Article 3(2)(b) The refusal of a host State to accept the civil status of same-sex couples can have negative implications in two ways: 1) either in the area of immigration law, where they seek to be recognized in a couple form or 2) when same-sex partners seek to receive certain tax benefits or benefits that are only available to recognized couples, once they are admitted into the host Member State. The first implication is mostly problematic for third country nationals that are not able to move independently in the EU. If the couple exists of both EU citizens they can enjoy an independent right to move freely, provided that the conditions under secondary legislation are fulfilled. 27 The difficulties in receiving certain benefits, however, will have implications for both EU migrant couples and couples existing of third country nationals. The above-mentioned categories will be outlined below in more detail in order to emphasize on the differences in the granting of rights to these categories that consequently influence the free movement rights of same-sex partners in the EU Position of spouses The term spouse in EU law refers explicitly to a married person. According to Directive 2004/38, the right to bring a spouse is regulated under Article 2(2)(a) which merely states that family member means the spouse. However, the term spouse is not explicitly defined in Directive 2004/38. In the absence of such a definition, it is left up to the CJEU to construe this notion. This could lead to a situation in which the CJEU could either define this term autonomously or refer to national law, either from the host state or the home state. 28 In the light of the Commission s proposal of Directive 2004/38, its assumption was that marriage did not include persons of the same-sex. 29 In its reasoning, the Commission considered the CJEU s case-law in other areas than free movement law employment matters 26 Rijpma and Koffeman, Free movement rights, p See Article 7 of Directive 2004/38 which states that the EU citizen must be economically active or if this is not the case be economically self-suficient and have medical assurance. See A. Tryfoniou, Free Movement Law and the Cross-Border Legal Recognition of Same-Sex Relationships: The Case for Mutual Recognition, UACES 44 th Annual Conference Paper (2014), p Rijpma and Koffeman, Free Movement Rights, p. 468.p COM(2001) 257 final, Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. 6

7 and EU Staff-regulations which concerned registered partnerships. 30 In this respect, the following two paragraphs will analyze three subsequent cases, Reed, Grant and D. and Sweden v. Council, in order to examine how the notion of spouse has been interpreted by the CJEU before the adoption of Directive 2004/38. In Reed, the unmarried opposite-sex partner of a British man working in the Netherlands argued that she was entitled to a residence permit because she should be treated as his spouse under Regulation 1612/68/EEC Article 10(1). The CJEU argued that longterm stable unmarried partners could not be considered as spouses, as this notion only covered marital relationships. 31 However, the CJEU also stipulated that the right to bring an unmarried partner could fall within the concept of a social advantage for the purposes of Article 7 (2) of Regulation 1612/68. Stressing on the prohibition of discrimination based on nationality, the CJEU held that Member States that recognize unmarried partners in their national immigration law, also have a duty to allow EU migrant workers to be joined by their unmarried partners. 32 The Commission proposed certain amendments to Regulation 1612/68 33, in order to bring the legislation in line with the CJEU judgment in Reed. The Commission stressed on the non-discrimination principle and stated that if a Member State accords advantages to its own nationals who live as non-married couples, under the principle of equal treatment in social advantages, the same advantages must be granted to migrant workers. 34 Furthermore, concerning third country nationals, the Commission argued that if third country nationals can prove that they are family members of a migrant worker, and that they present no threat on public policy grounds, the host Member State may not refuse them entry or residence, even if they do not have a valid visa. 35 The Parliament wanted to complement the proposal, and amended the draft text to extend free movement rights to any person with whom the worker lives in a de facto union, recognised as such for administrative and legal purposes. 36 However, the Commission responded negatively to this, using the lack of consensus among Member States on this issue as an argument and stated in particular that we are reluctant to impinge on the traditional moral values and precepts, and often deeply-held religious perceptions, which exist in the various Member States in relation to this matter. [ ] It is a fact that two Member States are prepared to accept such a provision. Equally, others are not. 37 Even the Commission s limited proposals as described above did not find a consensus in the Council and the EU legislator never adopted the amendment to Regulation 1612/ After these developments at the legislative and judicial level, it became clear that spouse could not be regarded as to include cohabitees or long-term partners. Interestingly, 30 Rijpma and Koffeman, Free Movement Rights for Same-Sex Couples, p Case 59/85 Reed v. the Netherlands [1986] ECR 1283, par Ibid., pars See also M. Bell, Anti-discrimination law and the European Union, Oxford University Press, New York (2002), p Proposal for a Council Regulation (EEC) amending Reg (EEC) 1612/68 on free movement for workers within the Community [1989] OJ C100/6. Section 2,5. 34 Ibid. See also Case 59/85 Reed v. the Netherlands, [1986] ECR Ibid., See also Case C-459/99, MRAX judgment of [1990] OJ C68/ V. Papandreou, Debates of the European Parliament No 3-386/59, 13 February M. Bell, Anti-discrimination law and the European Union, Oxford University Press, New York (2002), p

8 the CJEU did confirm that this area of law is sensitive to changing social conditions. However, since the binding provision in Regulation 1612/68 would affect all Member States, together with the fact that there was no shared consensus among Member States concerning the notion of spouse, the CJEU did not consider it appropriate to intervene and interpret spouse broadly, as to include partners under this term. 39 Reed hence clarified that the term spouse under EU law only refers to married partners. In Grant, the CJEU stated that according to Community law at the time, a stable relationship between two persons of the same-sex could not be regarded as equivalent to marriage. 40 In Grant, employees of South-West Trains (SWT) were entitled to free travel for their partners, whether they were married or not. The applicant in this case, Lisa Grant who had a female partner, was denied of this privilege since the entitlement only applied to opposite-sex couples. 41 The CJEU stated that a stable relationship outside marriage between people of the opposite-sex was different from a stable relationship between same-sex partners. 42 The Court compared the situation of a gay woman with that of a gay man. It argued that since both a gay woman and a gay man would be denied travel concessions for their same-sex partner, the national measure did not constitute discrimination based on sexual orientation in the eyes of the CJEU. 43 Although not related to the free movement of same-sex couples as such, a number of factors in Grant can still be regarded as relevant for same-sex partners. Grant contributed to setting the standards for the treatment of same-sex couples in the EU. In fact, the CJEU clarified in Grant that discrimination against same-sex registered partners did not constitute a breach of the general principle of respect for fundamental rights Interpretation of spouse after Grant The relevance of Grant has been affirmed by the Court of First Instance (CFI) in D. and Sweden. 44 In this judgment concerning the granting of certain benefits to spouses or unmarried opposite-sex cohabiting partners which were not granted to unmarried cohabiting same-sex partners the CFI rejected the applicant s challenge to the denial of the benefit mainly by relying on the CJEU s judgment in Grant v. South-West Trains. It specifically argued that there was no breach of fundamental rights, because the ECHR did not require States to regard same-sex partners as equal to married spouses. 45 Moreover, according to the CJEU there was no discrimination based on sexual orientation since the national measure applied equally to male and female homosexuals. 46 The term spouse under the Staff regulations was considered as having a Community law dimension, thereby excluding registered partners. The fact that the CJEU applied a European definition to define spouse is however striking, since the term spouse is a civil status that can only be acquired through national law. 39 Guth, When is a partner not a partner, p Ibid. 41 Case C-249/96, Grant v. South-West Trains [1998] ECR I Ibid., par B. Carolan, Judicial Impediments to Legislating Equality for Same-Sex Couples, Tulsa Law Review 3 (2004), p Case T-264/97 D. v. Council [1999] Reports of European Community Staff Cases (ECR-SC) II-l. 45 Case T-264/97 D. v. Council [1999] Reports of European Community Staff Cases (ECR-SC) II-l. par Ibid., par

9 D. and Sweden appealed the decision to the CJEU and based their claim on the free movement obstacle of the national rule at stake. They argued that the refusal to recognize the registered partnership resulted in an unlawful obstacle to their free movement. The applicants based their claim mainly on the argument as construed in the Bosman case: national provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute restrictions on that freedom, even if they apply without regard to the nationality of the workers concerned. 47 However, the CJEU held this argument inadmissible, since it was not raised in the first proceedings at the CFI. 48 The CJEU was then asked if the term married official within the meaning of the EU Staff Regulations could be interpreted as covering an official who had contracted a registered partnership with a person of the same-sex. The Court answered in the negative, stating that according to the definition that is generally accepted by a large amount of Member States, the term marriage referred to a union between two persons of the opposite sex. 49 The Court stated that the difference in treatment did not result from the difference in sexual orientation of the parties concerned but from the different legal status between marriage and civil partnership. The Court ruled that it was recognized that the term marriage means a union between two persons of the opposite sex. 50 It moreover confirmed that an increasing number of States have provided for legal recognition of same-sex partnerships. 51 However, it also stipulated that the fact that, in a limited number of Member States, a registered partnership is assimilated, although incompletely, to marriage cannot have the consequence that, by mere interpretation persons whose legal status is distinct from that of marriage can be covered by the term married official as used in the Staff Regulations. 52 Interesting after this case is how the CJEU would have responded to claims brought forward by Dutch married same-sex couples at that time. The Netherlands was the first country to legalize same-sex marriage in Consequently, these couples are considered as spouses in their own national legislation, but D. and Sweden has shown that the CJEU took a rather European approach in defining what constitutes a marriage. Therefore, Bell argues that even legally married same-sex partners could not be certain of their recognition as spouses for the purposes of Community law at that time. 53 At the time the CJEU decided on these three judgments, EU law did not yet contain a provision laying down the principle of discrimination based on sexual orientation. This has changed with the entry of the Treaty of Amsterdam and the insertion of Article 6a. Moreover, the binding force of the Charter in 2009 has contributed to the stronger position of same-sex partners regarding discrimination against them. 47 Case C-415/93 Union Royale Belge des Sociétés de Football Association ASBL v. Bosman [1995] ECR I-4921, 5069, par Case D. and Sweden v. Council, Joined Cases C-122/99 P & C-125/99 P, judgment of 31st May 2001[2001] ECR I-4319, pars Ibid., par Ibid., pars , pars Ibid., par Ibid., par M. Bell, Anti-discrimination law and the European Union, Oxford University Press, New York (2002), p

10 In its proposal for Directive 2004/38 the Commission did take into account the developments as highlighted by the CJEU in D. and Sweden, such as the increased recognition of same-sex registered partnerships across the EU in the form of statutory arrangements and the increasing de facto relationships outside marriage. 54 Next to the category of spouses, the Commission proposed a new category of family members that could receive rights under Directive 2004/38, i.e. that of unmarried partners, if the legislation of the host State would treat unmarried couples as equivalent to married couples and in accordance with the conditions laid down in any such legislation. 55 In the 2009 Roodhuijzen case, which concerned a stable non-marital partnership, the (now) General Court referred to D. and Sweden and argued that the CJEU had already given a self-standing definition of marriage by defining it as a union between two persons of the opposite-sex. 56 Under this notion regardless of national legal definitions a same-sex marriage would not exist of spouses for the purpose of Directive 2004/ Important to mention however, is that the Roodhuijzen judgment as well as Reed, Grant and D. and Sweden ruled on the question whether registered partnerships or stable partnerships could fall under the definition of marriage. There are, up until this point, no CJEU cases which answer the question whether a valid legal marriage in one Member State has to be recognized as a valid legal marriage in the host State. The Roodhuijzen case therefore merely confirms early-established case law that excludes same-sex registered partners or stable partners from the notion of spouse. 58 Whether or not the term spouse also included same-sex spouses was subject to debate during the adoption of Directive 2004/38. The version that was established in 2004 simply refers to spouse in a gender-neutral form, but as with similar expressions in fundamental rights case law and documents is assumed to refer to opposite-sex spouses only. 59 The European Parliament advocated for the inclusion of a reference to spouse of both sexes in Directive 2004/38, thus explicitly also recognizing same-sex marriage. However, this proposal was rejected since there was no Member State consensus on same-sex marriage or even on civil partnership status. The Commission stated the following: the court has also ruled that an interpretation of legal terms on the basis of social developments that has effects in all the Member States must take into account the situation in the whole Community. Commission therefore prefers to restrict the proposal to the concept of spouse as meaning in principle spouse of a different sex, unless there are subsequent developments. 60 In light of the developments in Member States towards same-sex marriage since the judgment in D. and Sweden, it can be acknowledged that the CJEU is no longer able to 54 Rijpma and Koffeman, Free movement rights, p See Art. 2(2)(b) of COM(2001) 257 Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, final. 56 Case T-58/08 P Roodhuijzen, judgment of 5th October 2009 [2009] ECR II-3797, par Rijpma and Koffeman, Free movement rights, p Ibid., p Ibid., p See in particular article 12 ECHR which states that men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right. 60 See COM/2003/0199 final - COD 2001/0111- Amended proposal for a Directive of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. See also Case C-59/85 Reed [1986] ECR I-1283, par

11 identify criteria under EU law or general principles of EU law that make it possible to define the scope and meaning of marriage by using an autonomous interpretation. 61 It should postpone this issue to the rules of relevant national legislation as interpreted by courts at the national level Mutual recognition of married same-sex spouses The question that arises in situations of recognition of foreign same-sex civil statuses is whether the rules of the home Member state or the host Member State should apply. From the perspective of free movement law in general, application of the rules of the home State would be in line with the principle of mutual recognition. Since the Citizenship Directive s aim is to promote EU free movement, mutual recognition would facilitate free movement of Union citizens entered in a same-sex marriage. 63 Traditionally, the function of mutual recognition in EU law is to set aside the rules of the host State. By applying the rules of the home State in the case of same-sex marriages, legally married same-sex couples would not be left without the protection of their civil status when moving to a Member State that does not provide for same-sex marriage. Following the analogy of the Metock case and later on strengthened in Sahin 64 the CJEU ruled that opposite-sex spouses qualify as family members under the Citizens Directive irrespective of when and where the marriage took place 65. The Court has hereby supported the idea to regard every validly conducted marriage as a marriage that has to be recognized by the host State. 66 This analogy could lead to a situation in which same-sex spouses could also be considered as spouses under Directive 2004/ However, Metock concerned an opposite-sex marriage and the CJEU has until this point never ruled on a case concerning the entry and residence of same-sex spouses under Directive 2004/38. This together with the fact that the Union legislator has left the choice to decide on the legality of same-sex marriages in the hands of the host State makes it farfetched to argue that the Metock analogy can also be applied to same-sex civil statuses. 68 Furthermore, the real problem of mutual recognition consists of the fact that mutual recognition of a civil status could have far more consequences than only providing for residence and entry to Union citizens and their partners. In fact, recognition of foreign civil 61 Rijpma and Koffeman, Free movement rights, p.471. See also T-43/90, Dıaz Garcıa [1992] ECR II-2619 par. 36 and T-85/91, Khouri [1992] ECR II-2637, par Case 24/71 Meinhardt, [1972] ECR 269, pars 6, 7 and 12; T-43/90, Dıaz Garcıa, [1992] ECR II-2619, pars ; T-85/91, Khouri [1992] ECR II-2637, pars 33-41; T-172/01, M v. Court of Justice, [2004] ECR II-1075, pars and Rijpma and Koffeman, Free movement rights, p Case C-551/07 Deniz Sahin v. Bundesminister für Inneres [2008] ECR I Case C-127/08, Blaise Baheten Metock and Others v. Minister for Justice, Equality and Law Reform [2008] ECR I-6241, par Rijpma and Koffeman, Free movement rights, p How this will be interpreted, depends on the specific questions asked by the national court to the CJEU. 68 Rijpma and Koffeman, Free movement rights, p In common law jurisdictions, the principle of lex loci celebrationis (the law of the land where the marriage was celebrated) applies, i.e. the assumption under the Common law that such a marriage, when lawfully and validly celebrated under the law of the land (lex loci) in which the marriage was celebrated should be recognized. See also the idea as posited by Leanarts who advocates for a case-by-case analysis when examining whether same-sex spouse could fall under the notion of spouse; K. Lenaerts, Federalism and the rule of law: perspectives from the European Court of Justice Fordham International Law Journal 33, pp

12 statuses can have implications in the field of tax law, social security law and even laws on criminal procedure. 69 In addition, mutual recognition of civil statuses may lead to reverse discrimination since own static same-sex nationals would not be able to get married and would hence be treated worse. This issue will be discussed in more detail in section 4.3. Even though numerous arguments plead in favour of the recognition of validly concluded same-sex marriages in the EU, the clear wording of Directive 2004/38 seems to indicate differently for same-sex spouses by leaving the power implicitly in the hands of the host Member State to decide upon the recognition of same-sex spouses under the Directive Position of registered partners Article 2(2)(b) of Directive 2004/38 characterizes a registered partner as: the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State. This entails that registered partners are recognized as family members under EU law and can move freely if the host Member States recognizes registered partnerships as having a status equal to marriage. In a situation in which a host State does not provide for a form of registered partnership equivalent to marriage for same-sex couples, EU law does not seem to require the recognition of the registered partner of a migrant EU citizen as family member within the meaning of Directive 2004/38, although a Member State would have the power to do so. 70 The Directive does not clearly define what exactly the conditions are for a registered partnership to be equally recognized as a marriage. If equivalence would entail that the registered partnership must offer the same rights and responsibilities as a marriage, it would be unlikely for civil unions to meet this standard. In some Member States, registered partnerships are considered as an alternative for a civil marriage, and are often restricted to same-sex partners only. Other Member States, however, provide for fewer rights under the registered partnership. It is also not clarified whether a Member State that does not provide for same-sex marriage is required to regard the same-sex spouse as a registered partner within the meaning of Article 2(2)(b) of Directive 2004/38 if this Member State provides for legislation which regards registered partnerships as equivalent to marriage. One way to solve this problem is through a national court that has to answer the question whether a national registered partnership can be considered as equivalent to marriage under the guidance of the CJEU.71 Furthermore, free movement case law shows that free movement provisions must be interpreted broadly, and that Member States must be prevented from eliminating at will the 69 Rijpma and Koffeman, Free movement rights, p.484. An important question is whether provisions such as Article 21 TFEU and Article of 24 Directive 2004/38 envisaging equal treatment based on nationality may entail that social benefits available to own spouses and registered partners in a Member State that does not recognize same-sex relationships must be extended to same-sex spouses and registered partners, once they are recognized for the purpose of entry and residence under EU law. 70 Rijpma and Koffeman, Free movement rights, p Ibid., p

13 protection afforded by the Treaty. 72 However, what the Directive does explicitly clarify is that in cross-border situations involving recognition of same-sex registered partners, legislation of the host State has to be applied. This means that the application of the mutual recognition principle, as was mentioned as an option in the earlier paragraph, would circumvent the rules laid down in Article 2(2)(b) and would therefore not be possible for this category. As things stand, registered same-sex partners are only protected under EU law if the host State recognizes registered partnerships as equal to marriage. It will be shown in the next paragraph that in cases where same-sex registered partners are not entitled to automatic entry and residence in the host State, Article 3(2) of Directive 2004/38 creates some obligations for the host State to facilitate entrance Position of (durable) unmarried partners Direct beneficiaries of Directive 2004/38 that do not constitute family members and that hence do not enjoy automatic rights of entry and residence in the host Member State for the purpose of Article 2, may fall under Article 3(2) of Directive 2004/38. This provision states that the host State has an obligation to facilitate entrance and residence on other dependent family members or those needing personal care, as well as on members of the citizen s household and partners with whom the citizen has a durable relationship, duly attested. 73 Concerning same-sex unmarried partners, this provision can have effect in three different situations: 1) where a same-sex couple has concluded a registered partnership, but wishes to move to another Member State that does not provide for registered partnership provisions (a Croatian couple in a registered partnership moving to Italy); 2) if a same-sex couple enjoys a legally recognized status in the home Member State, but this status is not sufficient enough to be treated as a registered partnership for the purpose of Article 2(2)(b) Directive 2004/38 (A Slovenian couple in a de facto relationship moving to Poland; 3) if a couple is neither married nor registered, but wishes to move to another EU Member State (an Romanian couple with no legal recognition moving to Italy). 74 With regard to the content of the provision, it first of all contains the element that a host State is obliged to facilitate the entry and residence of unmarried partners. According to Bell, this implies that Member States cannot have a total ban on the recognition of unmarried partners. 75 The CJEU ruled in Rahman that: Whilst it is therefore apparent that Article 3(2) of Directive 2004/38 does not oblige the Member States to accord a right of entry and residence to persons who are family members, in the broad sense, dependent on a Union citizen, the fact remains, as is clear from the use of the words shall facilitate in Article 3(2), that that provision imposes an obligation on the Member States to confer a certain advantage, compared with applications for entry and residence of other nationals of third States, on applications submitted by persons who have a relationship of particular dependence with a Union citizen Case 291/05 Minister voor Vreemdelingenzaken en Integratie v R. N. G. Eind and Case 75/63 Hoekstra v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten, par Rijpma and Koffeman, Free Movement Rights for Same-Sex Couples, p Bell, EU Directive on free movement, p Bell, EU Directive on free movement, p Case C-83/11, Rahman, [2012] ECR I-0000, par

14 Hence, it may be concluded from this that to facilitate means to confer a certain advantage to couples of this category. The CJEU nor the EU legislator have however explicitly defined this term. The second element contains the requirement that a couple must prove that the relationship is durable and duly attested. These couples must demonstrate that their relationship has lasted already for several years. 77 Furthermore, in the Commission s guidelines of Directive 2004/38 it is stipulated that this provision includes a duty for the host State to undertake an exhaustive assessment of the personal circumstances of the applicants and to give clear justification grounds when refusing to grant stable partners or members of the household, entry or residence for the purpose of Directive 2004/ The host State must also take into account the relationship of the stable partner with the Union citizen and other factors, such as their financial and physical dependence on the Union citizen. 79 In general, Member States must take into account fundamental rights in the application of Directive 2004/38. Recital 31 of the Directive stipulates in particular that discrimination on the grounds of sexual orientation is prohibited. It could hereby be argued that the refusal of a stable long-term same-sex partner, based on the sole fact that the couple is of the same-sex, would not be allowed. 80 Little guidance is given under EU law provisions to determine what exactly constitutes a durable relationship. The European Commission s guidance on the transposition of Directive 2004/38 simply repeats the point by stating that the Directive applies to a de facto durable relationship, duly attested. 81 This requirement must be evaluated by taking into account the Directive s aim to maintain the unity of the family in a broad sense 82. The guidance further indicates that documentary evidence, which shows that the relationship is durable can be required by the host State, but it gives no explanation on the content of this evidence. The UK border agency, for example, estimated a durable relationship at two years. However, having spent fewer years together may give rise to immigration rights where the durability of a shorter relationship can be duly attested. A policy rationale which prevents those partners who are in new relationships that may or may not turn out to be stable and long-lasting from acquiring immigration rights is understandable given the fact that the abuse of such rights is likely to happen. 83 The duly attested requirement of this provision is much more difficult to fulfill. It entails the requirement for documentary evidence which may cause some obstacles for some 77 Bell, EU Directive on free movement, p Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM(2009) 313 final, p See recital 6 of Directive 2004/ Rijpma and Koffeman, Free movement rights, p For example, Malta amended its law implementing Art. 3(2) of the Directive 2004/38 under which same-sex partners could not be recognized as durable, duly attested partners. See in particular European Union Nationals and their Family Members (Amendment) Order, 2011 (L.N. 329 of 2011). 81 Guth, When is partner not a partner, p European Commission, Communication on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. COM (2009) 313 final. p Guth, When is partner not a partner, p