Skip to main content
SpringerLink
Log in
Book cover

Same-Sex Couples before National, Supranational and International Jurisdictions pp 455–491Cite as

Free Movement Rights for Same-Sex Couples Under EU Law: What Role to Play for the CJEU?

  • Chapter
  • First Online:

Abstract

EU law as it stands fails to provide same-sex couples legal certainty as regards their right of free movement under the EU Treaties. This chapter analyses in detail the situation in which a Member State refuses entry and residence to the same-sex spouse or (registered) partner of an EU citizen invoking free movement rights. Although the EU does not have the competence to harmonise Member States’ family laws, the primacy and full effectiveness of EU law require these laws to respect both the fundamental right to free movement of persons, as well as fundamental rights. This chapter argues that it is for the CJEU, as the EU’s “Supreme Court” and constitutional adjudicator, to guarantee these freedoms. An approach based on mutual recognition of the relationship status of Member States would allow for an inclusive definition of family, whilst respecting the division of competences between the EU and its Member States.

This is a preview of subscription content, log in via an institution.

Chapter
USD   29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD   129.00
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Softcover Book
USD   169.99
Price excludes VAT (USA)
  • Compact, lightweight edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info
Hardcover Book
USD   169.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Learn about institutional subscriptions

Notes

  1. 1.

    Special Eurobarometer 393, Discrimination in the EU in 2012 (November 2012), p. 41.

  2. 2.

    The term ‘same-sex marriage’ will be used throughout this chapter. The authors however stress that this term is descriptive. Legally speaking there is no such thing as a same-sex or gay marriage, only civil marriage, which in six Member States has been opened to people of the same sex. Reference to he/his/him should be read so as to include she/her.

  3. 3.

    As evidenced by the massive protests in favour and against preceding the introduction of same-sex marriage in France in 2013.

  4. 4.

    Waaldijk (2011).

  5. 5.

    Art. 19 TFEU. See the chapter by Orzan in this volume.

  6. 6.

    Van Gend and Loos, Case 26/62, judgment of 5th February 1963 [1963] ECR 1.

  7. 7.

    Costa v. ENEL, Case 6/64, judgment of 15th July 164, [1964] ECR 585, 539; Internationale Handelsgesellschaft, Case 11/70, judgment of 17th December 1970 [1970] ECR 1125, para. 3; Melloni, C-399/11, judgment of 26th February 2013 nyr., para. 59. See De Witte (2011).

  8. 8.

    See Sect. 20.5.2.2.

  9. 9.

    Lenaerts (2010), p. 1340.

  10. 10.

    Art. 4(3) TFEU.

  11. 11.

    Internationale Handelsgesellschaft, para. 4. The Court identified the Member States common constitutional traditions, as well as international human rights treaties which involved the Member States as a source of these right (Nold, Case 4-73, judgment of 14th May 1974 [1974] ECR 491, para. 13). The Court has attributed specific significance to the ECHR: Rutili, Case 36–75, judgment of 28th October 1975 [1975] ECR 1219, para. 32 and subsequent cases such as Omega, C-36/02, judgment of 14th October 2004 [2004] ECR I-9609, para. 33.

  12. 12.

    Wachauf, Case 5/88, judgment of 13th July 1989 [1989] ECR 2609, paras 17–19.

  13. 13.

    ERT Case 260/89, judgment of 18th June 1991 [1991] ECR I-2925, para. 43.

  14. 14.

    Annibaldi, C-309/96, judgment of 18th December 1997 [1997] ECR I-7493, paras 21–25. See also Dereci, C-256/11, judgment of 15th November 2011 nyr., para. 71 and Iida, C-40/11, judgment of 8th November 2012 nyr., paras 78–79.

  15. 15.

    Art. 6(1) TEU.

  16. 16.

    Art. 51(1) CFR. It has been a matter of much debate whether this limits the scope of the Charter as compared to the general principles. See i.e. Besselink (2012a), p. 108 and Groussot et al. (2011), p. 19. Many authors have convincingly argued it does not, see recently: Lenaerts (2013), pp. 385–386.

  17. 17.

    Akerberg, C-610/11, judgment of 26th February 2013 nyr., para. 21.

  18. 18.

    Opinion of AG Sharpston of 30th September 2010 in Zambrano, C-34/09, judgment of 8th March 2011 [2011] ECR I-1177, paras 156–177. See also the references for a preliminary ruling from the Council of State (Netherlands), lodged on 10 October 2012—Minister voor Immigratie, Integratie en Asiel and O; other party: B (Case C-456/12) and S and Minister voor Immigratie, Integratie en Asiel; other party: G (Case C-457/12), both pending. See Gallo (2012).

  19. 19.

    Carpenter, C-60/00, judgment of 11th July 2002 [2002] ECR I-6279; Baumbast, C-413/99, judgment of 17th September 2002 [2002] ECR I-7091 and Garcia-Avello, C-148/02, judgment of 2nd October 2003 [2003] ECR I-11613.

  20. 20.

    Opinion of AG Jacobs of 9th December 1992 in Konstantinidis, C-168/91, [1993] ECR I-1191, para. 46.

  21. 21.

    Groussot et al. (2011), pp. 23–24. See Akerberg, C-610/11, judgment of 26th February 2013 nyr., para. 22.

  22. 22.

    Opinion of AG Sharpston of 30th September 2010 in Zambrano, para. 173.

  23. 23.

    Art. 270 TFEU.

  24. 24.

    Regulation No. 31 (EEC), 11 (EAEC), OJ 1962 L 45, p. 1385. See for instance D. and Sweden v Council, Joined Cases C-122/99 P & C-125/99 P, judgment of 31st May 2001 [2001] ECR I-4319. The Staff Regulations were amended in 2004, in order to accommodate non-married partners, including same-sex partners: Council Regulation (EC, Euratom) No. 723/2004 of 22nd March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities, OJ 2004 L 124, p. 1. See the chapter by Orzan in this volume.

  25. 25.

    The Treaty of Lisbon did introduce the competence to adopt measures concerning family law with cross-border implications (Art. 81(3) TFEU), but legislative progress in this area has been slow. See also Sect. 20.7.

  26. 26.

    Maruko, C-267/06, judgment of 1st April 2008 [2008] ECR I-1757 and Römer, C-147/08, judgment of 10th May 2011 nyr. See the chapter in this volume by Orzan.

  27. 27.

    Art. 258 TFEU.

  28. 28.

    The words of Commissioner of Justice seem to confirm this: ‘We have to advance cautiously, because what we do not want – and I believe all those who have spoken here of their experiences, from their hearts, understand this too – is [not] to be too harsh.’ Speech by Commissioner Reding of 7th September 2010, Strasbourg (PV 07/09/2010—17 CRE 07/09/2010—17).

  29. 29.

    Art. 267 TFEU.

  30. 30.

    Art. 52 (3) CFR.

  31. 31.

    Art. 52 (3) CFR, last sentence.

  32. 32.

    Art. 8 ECHR and Art. 7 CFR. See e.g. Dudgeon v. the United Kingdom, n. 7525/76, judgment of 22nd October 1981 and Norris v. Ireland, n. 8225/78, judgment of 26th October 1988.

  33. 33.

    See in detail: Waaldijk (2012).

  34. 34.

    Art. 12 ECHR and Art. 9 CFR.

  35. 35.

    Art. 8 ECHR and Art. 7 CFR.

  36. 36.

    Art. 14 ECHR and Art. 21 CFR.

  37. 37.

    Art. 1 CFR.

  38. 38.

    Art. 24 CFR. An extensive discussion of this right would however be beyond the scope of this chapter. See on the best interest of children under EU law the recent judgment in Joined Cases O, S, C-356/11 and L, C-357/11, judgment of 6th December 2012, nyr.

  39. 39.

    Schalk and Kopf v. Austria, n. 30141/04 judgment of 24th June 2010, paras 61–62. In cases like Serife Yigit v. Turkey (GC), n. 3976/05, judgment of 2nd November 2010, and Van der Heijden v. the Netherlands (GC), n. 42857/05, judgment of 3rd April 2012, the ECtHR also gave considerable protection to the traditional values that marriage is deemed to protect. On same-sex couples under the ECHR see the chapters by Crisafulli and Pustorino in this volume.

  40. 40.

    Schalk and Kopf v. Austria, n. 30141/04, judgment of 24th June 2010, paras 61 and 63.

  41. 41.

    Explanation on Art. 9 CFR, OJ 2007 C 303, p. 21. See also Declaration 61 on the CFR which was annexed to the Lisbon Treaty by Poland: “The Charter does not affect in any way the right of Member States to legislate in the sphere of public morality, family law, as well as the protection of human dignity and respect for human physical and moral integrity”.

  42. 42.

    Schalk and Kopf v. Austria, n. 30141/04, judgment of 24th June 2010, para. 94.

  43. 43.

    Tyrer v. the United Kingdom, n. 5856/72, judgment of 25th April 1978, para. 31.

  44. 44.

    The Court stressed that there was not yet a majority of States providing for legal recognition of same-sex couples (para. 105) and States are still free, to restrict access to marriage to different-sex couples (para. 108). The Court furthermore held that States must enjoy a margin of appreciation in the timing of the introduction of legislative changes’ (para. 105) and that they enjoy ‘a certain margin of appreciation as regards the exact status conferred by alternative means of recognition’ (para. 108). Emphases added. See also Melcher (2012), pp. 1080–1081.

  45. 45.

    Vallianatos and others v. Greece, n. 29381/09 and 32684/09, pending. In this case the Chamber relinquished jurisdiction to the Grand Chamber.

  46. 46.

    Taddeucci v. Italy, n. 51362/09, pending. The case was communicated to the Italian government in September 2009.

  47. 47.

    Wagner and J.M.W.L. v. Luxembourg, no 76240/01, judgment of 28th June 2007.

  48. 48.

    Karner v. Austria, n. 40016/98, judgment of 24th July 2003, para. 37; E.B. v. France, n. 43546/02, judgment of 22nd January 2008, para. 91; Kozak v. Poland, n. 13102/02, judgment of 2nd March 2010, para. 92.

  49. 49.

    E.g. Mata Estevez v. Spain, n. 56501/00, decision of 10th May 2001 and Manenc v. France, n. 66686/09, decision of 21st September 2010.

  50. 50.

    Schalk and Kopf v. Austria, paras 99–108 and Eweida and others v. the United Kingdom, n. 48420/10, 59842/10, 51671/10 and 36516/10, judgment of 15th January 2013, para. 105.

  51. 51.

    OJ 2000 L 303, p. 16. See the chapter by Orzan in this volume.

  52. 52.

    W. v. Commission, F-86/09, judgment of 14th October 2010, nyr.

  53. 53.

    See already Clapham and Weiler (1993), p. 42.

  54. 54.

    McCrudden (2008), p. 724.

  55. 55.

    Pretty v. the United Kingdom, n. 2346/02, judgment of 24th April 2002, para. 65: “[t]he very essence of the Convention is respect for human dignity and human freedom”.

  56. 56.

    Most explicitly in Omega, para. 34.

  57. 57.

    See e.g. P v. S and Cornwall County Council, C-13/94, judgment of 30th April 1996 [1996] ECR I-2143, para. 22 and Christine Goodwin v. the United Kingdom, n. 28957/95, judgment of 11th July 2002, paras 90–91.

  58. 58.

    McCrudden (2008), p. 691.

  59. 59.

    Court of Appeal for Ontario, Halpern v. Attorney General (2003) 65 OR (3d) 161, para. 5; Constitutional Court of South Africa, Minister of Home Affairs and Another v. Fourie and Another; Lesbian and Gay Equality Project and Others v. Minister of Home Affairs and Others [2005] ZACC 19, para. 78 per Sachs J. See the chapter by Mostacci in this volume.

  60. 60.

    Spanish Supreme Court 198/2012 of 6th November 2012 (Complaint of Unconstitutionality 6864-2005), BOE no 286, 28th November 2012, p. 168 at p. 199. On same-sex couples under Spanish law see the chapter by Fidalgo de Freitas and Tega in this volume.

  61. 61.

    Part of the 14th Amendment to the US Constitution. Perry v. Brown, Nos. 10-16696, 11-16577. On same-sex couples under US law see the chapters by D’Aloia and Romeo in this volume.

  62. 62.

    Ibidem, per Judge Reinhardt, p. 5.

  63. 63.

    A petition for a hearing en banc was rejected. On 7th December 2012 the US Supreme Court granted petition in this case (Hollingsworth v Perry, Docket no 12-144).

  64. 64.

    Art. 51(1) CFR.

  65. 65.

    OJ 2004 L 158, p. 77.

  66. 66.

    Tedeschi, Case 5/77, judgment of 5th October 1997 [1977] ECR 1555.

  67. 67.

    Art. 6(1) and 7 Directive 2004/38.

  68. 68.

    Orfanopoulos and Oliveri, Joined Cases C-482/01 and C-493/01, judgment of 29th April 2004 [2004] ECR I-5257, paras 64–65.

  69. 69.

    Metock, C-127/08, judgment of 25th July 2008 [2008] ECR I-6241, para. 89.

  70. 70.

    Regulation 1612/68 now 492/2011 which repealed Art. 10, Council Directive 73/148 now repealed by Directive 2004/38.

  71. 71.

    Surinder Singh, C-370/90, judgment of 7th July 1992 [1992] ECR I-4265, para. 21.

  72. 72.

    Reed, Case 59/85, judgment of 17th April 1986 [1986] ECR 1283, para. 28.

  73. 73.

    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, p. 5. See Case C-540/03 Parliament v. Council [2006] I-5769, para. 53 and the reference to the case-law of the ECtHR therein.

  74. 74.

    Metock, para. 58.

  75. 75.

    The term “family member” furthermore covers the direct descendants who are under the age of 21 or are dependents and those of the spouse or partner and the dependent direct relative in the ascending line and those of the spouse or partner (Art. 2(c) and (d) Directive 2004/38).

  76. 76.

    Ekro, Case 327/82, judgment of 18th January 1984 [1984] ECR 107, para. 11.

  77. 77.

    The word “spouse” is gender neutral, other language versions only refer to the male spouse, which could not however be interpreted as to exclude the female spouse.

  78. 78.

    COM(2001) 257 final.

  79. 79.

    Reed, Case 59/85, judgment of 17th April 1986 [1986] ECR 1283, para. 15.

  80. 80.

    Grant, C-249/96, judgment of 17th February 1998 [1998] ECR I-621, para. 35. See for a scorching critique: McInnes (1999).

  81. 81.

    D. and Sweden v Council, Joined Cases C-122/99 P & C-125/99 P, judgment of 31st May 2001 [2001] ECR I-4319, para. 34.

  82. 82.

    Art. 2(2)(b) of COM(2001) 257 final.

  83. 83.

    Amendment 14, Report EP (Rapporteur Giacomo Santini), 23rd January 2003, A5-0009/2003.

  84. 84.

    COM(2003) 199 final.

  85. 85.

    Common Position adopted by the Council on 5th December 2003 (Council Doc 13263/3/03).

  86. 86.

    Reed, para. 13.

  87. 87.

    D. and Sweden v Council, para. 59.

  88. 88.

    Lenaerts and Gutierrez-Fons (2010), pp. 1634–1635.

  89. 89.

    The Netherlands, Belgium, Portugal, Spain, Denmark, Sweden and France. Note that also Norway and Iceland, both applying Directive 2004/38 in the context of the EEA Agreement, have introduced same-sex marriage in their national legislation. In May 2013 the House of Commons for England and Wales approved a bill on same-sex marriage. Similar legislation is anticipated in Luxembourg. The legislative committee of the Finish Parliament rejected a bill for marriage equality by a narrow majority in March 2013.

  90. 90.

    In 2010, the EU Fundamental Rights Agency (FRA) reported that eight Member States did not distinguish between a same-sex or an opposite-sex spouse for the purposes of entry and residence (Belgium, Denmark, Finland, the Netherlands, Portugal, Spain, Sweden, and the UK): FRA 2010, p. 46. In 2012 Italy could be added to this list (Ministry of the Interior, Administrative Guideline n. 8996 of 26th October 2012). While it would be somewhat circular to ground the definition of an EU law term on the implementation of that same EU provision at national level, this nonetheless evidences a social and legal development toward recognition. The report is available at http://fra.europa.eu/sites/default/files/fra_uploads/1286-FRA-LGBT-report-update2010.pdf.

  91. 91.

    E.g. Art. L of the Fundamental Law of Hungary (25th April 2011), see also Decision of the Hungarian Constitutional Court no. 154/2008 (XII. 17); Art. 46 of the Constitution of the Republic of Bulgaria (12th July 1991); Art. 18 of the Constitution of the Republic of Poland (2nd April 1997); Art. 110 of the Constitution of the Republic of Latvia (as amended on 15th December 2005) and Art. 38 of the Constitution of the Republic of Lithuania (25th October 1992).

  92. 92.

    Roodhuijzen, T-58/08 P, judgment of 5th October 2009 [2009] ECR II-3797, para. 79.

  93. 93.

    Bertolete and Others, Joined Cases T-359/07 P to T-361/07 P, judgment of 20th February 2009, Reports of Cases 2009 FP-I-B-1-00005; FP-II-B-1-00021, para. 46.

  94. 94.

    Roodhuijzen, para. 75.

  95. 95.

    Díaz García, T-43/90, judgment of 18th December 1992[1992] ECR II-2619 para. 36 and Khouri, T-85/91, judgment of 18th December 1992 [1992] ECR II-2637, para. 32.

  96. 96.

    Meinhardt, Case 24/71, judgment of 17th May 1972 [1972] ECR 269, paras 6, 7 and 12; Díaz García, T-43/90, judgment of 18th December 1992 [1992] ECR II-2619, paras 37–41; Khouri, T-85/91, judgment of 18th December 1992 [1992] ECR II-2637, paras 33–41; M v. Court of Justice, T-172/01, judgment of 21st April 2004 [2004] ECR II-1075, paras 72–75 and 112.

  97. 97.

    Metock, para. 99.

  98. 98.

    Costello (2009), pp. 615–616.

  99. 99.

    Speech by Commissioner Reding of 7th September 2010, Strasbourg, PV 07/09/2010—17 CRE 07/09/2010—17.

  100. 100.

    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, p. 4.

  101. 101.

    Lenaerts (2010), pp. 1360–1361.

  102. 102.

    Barrington Wolff (2005), p. 2215. Others have argued that the Full Faith and Credit Clause must be construed in light of other constitutional norms, including those underlying the Commerce Clause, the constitutional right to travel, the Takings Clause, the First Amendment, and the fundamental right to marry, thus requiring recognition: Singer (2005), p. 35. Interestingly, the appeals at the US Supreme Court challenging national and Federal Defense of Marriage Acts (DOMA) do not evolve around the Full Faith and Credit Clause but around the 5th Amendment (Due Process) and 14th Amendment (Equal Protection). On the US see the chapters by D’Aloia and Romeo in this volume.

  103. 103.

    Commissioner Reding’s position that host Member States would have to recognize registered partners from migrating EU citizens, regardless of their own national laws, seems difficult to reconcile with the wording of the Directive and the Court’s case-law on non-marital partnerships (see Sect. 20.4.1.2).

  104. 104.

    Fallon (2007), p. 175.

  105. 105.

    In fact this is the case in Member States such as Portugal, Belgium, Sweden and Denmark.

  106. 106.

    Or alternatively as ‘member of the household’ of the EU citizen: Art. 3(2) Citizens Directive. Bell concludes that there are therefore two zones of migration for registered partners within the EU. An inner zone with free movement in Member States with registered partnership and an outer zone where admission and residence is left to the Member States. Bell (2004), p. 624.

  107. 107.

    Examples are the German Registered Partnership (Eingetragene Lebenspartnershaft) as introduced by Act of 16th February 2001 (BGBl. I S. 266) and the UK Civil Partnership, as introduced by the Civil Partnership Act 2004 (c 33).

  108. 108.

    Art. 515-1 to 515-7 French Civil Code, introduced by Act n° 99–944 of 15th November 1999, JORF No. 265 of 16 November 1999 p. 16959; see the chapter by Reyniers in this volume.

  109. 109.

    Toner (2012), pp. 288–289.

  110. 110.

    Cf. Maruko and Römer.

  111. 111.

    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. 4.

  112. 112.

    Recital 6 and Art. 3(2) Directive 2004/38.

  113. 113.

    This is also true where Member States apply discretionary clauses, see N.S. and M.E., Joined Cases C-411/10 and C-493/10, judgment of 21st December 2011, nyr, para. 69.

  114. 114.

    In response to an inquiry and negotiations by the Commission Malta amended its law implementing Art. 3(2) of the Citizens Directive under which same-sex partners could not qualify as durable, duly attested partners. See: European Union Nationals and their Family Members (Amendment) Order, 2011 (L.N. 329 of 2011).

  115. 115.

    A 2010 FRA report qualified the ‘duty to facilitate’ as ‘a vague expression which does not necessarily translate into practical consequences in the absence of specific and inclusive yardsticks.’ FRA 2010, p. 50. See also Toner (2012), p. 289.

  116. 116.

    Rahman, Case C-83/11, judgment of 5th September 2012, nyr., paras 21 and 24. This case did not involve a partner, but a half-brother and a nephew.

  117. 117.

    Ibidem, paras 21 and 24.

  118. 118.

    COM(2009) 313 final, p. 4.

  119. 119.

    See in more detail: Ensig Sørensen (2011), pp. 321–339.

  120. 120.

    Reed, para. 28.

  121. 121.

    Commission v Germany, Case 249/86, judgment of 18th May 1989 [1989] ECR 1263, para. 11.

  122. 122.

    Bosman, C-415/93, judgment of 15th December 1995 [1995] ECR 4921.

  123. 123.

    Dafeki, C-336/94, judgment of 2nd December 1997 [1997] ECR I-6761, para. 19.

  124. 124.

    Carpenter, para. 39.

  125. 125.

    Konstantinidis, para. 15.

  126. 126.

    Kraus, C-19/92, judgment of 31st March 1993 [1993] ECR I-1663, para. 32 and Gebhard, C-55/94, judgment of 30th November 1995 [1995] ECR I-4165, para. 37.

  127. 127.

    Centros, C-212/97, judgment of 9th March 1999 [1999] ECR I-1459, para. 22 and Überseering, C-208/00, judgment of 5th November 2002 [2002] ECR I-09919, para. 82.

  128. 128.

    Melcher (2012), p. 1081.

  129. 129.

    Zambrano, C-34/09, judgment of 8th March 2011 [2011] ECR I-1177, para. 42.

  130. 130.

    Baumbast, para. 84. Art. 20(2)(a) and 21(1) TFEU.

  131. 131.

    McCarthy, C-434/09, judgment of 5th May 2011, nyr., para. 49; Dereci, para. 68; O, S and L, para. 52.

  132. 132.

    Toner (2012), p. 304.

  133. 133.

    For the sake of completeness it is pointed out that homosexuality was finally declassified by the WTO as a disease in 1992.

  134. 134.

    Gebhard, para. 35.

  135. 135.

    Rutili, para. 28 and Bouchereau, Case 30/77, judgment of 27th October 1977 [1977] ECR 1999, para. 35.

  136. 136.

    Omega, para. 30 and Sayn-Wittgenstein, C-208/09, judgment of 22nd December 2010 [2010] ECR I-13693, para. 86.

  137. 137.

    Omega, para. 30 and Jipa, C-33/07, judgment of 10th July 2008 [2008] ECR I-5157, para. 23.

  138. 138.

    Contra, see Kochenov (2009), p. 203.

  139. 139.

    Adoui and Cornuaille, Joined Cases 115/81 and 116/81, judgment of 18th May 1982 [1982] ECR 1665, para. 8.

  140. 140.

    See, for instance, with regard to abortion, Grogan, Case C-159/90, judgment of 4th October 1991 [1991] ECR I-4685, para. 20; with regard to lotteries, Schindler, Case C-275/92, judgment of 24th March 1994 [1994] ECR I-1039, para. 32; and with regard to prostitution, Jany, Case-268/99, judgment of 20th November 2001 [2001] ECR I-8615, paras 56–57.

  141. 141.

    Omega, para. 31 and Sayn-Wittgenstein, Case C-208/09, judgment of 22nd December 2010 [2010] ECR I-13693 para. 87. Compare with the approach under the ECHR: Handyside v. the United Kingdom, n. 5493/72, judgment of 7th December 1976, para. 48.

  142. 142.

    Omega, paras 37–38.

  143. 143.

    Melcher (2012), p. 1085.

  144. 144.

    See Sect. 20.3.

  145. 145.

    See however Iida, para. 75, in which the CJ appears to have attached considerable importance to the fact that the applicant who claimed residence rights under Directive 2004/38, could in all likelihood claim rights of residence under Directive 2003/109 (Long Term Residents Directive) OJ 2004 L 16, p. 44.

  146. 146.

    Groener, C-379/87, judgment of 28th November 1989 [1989] ECR 03967.

  147. 147.

    Commission v. Luxembourg, C-473/93, judgment of 2 July 1996 [1996] ECR I-3207, para. 35.

  148. 148.

    German Federal Constitutional Court, judgment of 30th June 2009, BVerfG, 2 BvE 2/08, p. 240.

  149. 149.

    Polish Constitutional Tribunal, judgment of 24th November 2010 (K 32/09 (Traktat z Lizbony), 2010 No 229).

  150. 150.

    Van der Schyff (2012), p. 583 and Von Bogdandy and Schill (2011), p. 3.

  151. 151.

    Sayn-Wittgenstein, judgment of 22nd December 2010 [2010] ECR I-13693 and Runevič-Vardyn, C-391/09, judgment of 12th May 2011, nyr.

  152. 152.

    See in this respect also Declaration 61 on the CFR which was annexed to the Lisbon Treaty by Poland.

  153. 153.

    Opinion of AG Maduro of 8th October 2008 in Michaniki, C-213/07, judgment of 16th December 2008 [2008] ECR I-9999, para. 33, with reference to Internationale Handelsgesellschaft, Case 11/70, judgment of 17th December 1970 [1970] ECR 1125, para. 3.

  154. 154.

    Van der Schyff (2012), pp. 567–568.

  155. 155.

    Opinion of AG Maduro of 8th October 2008 in C-213/07 Michaniki, para. 33. See O’Brien, C-393/10, judgment of 28th July 2010, nyr., para. 49 as regards the status of a Member State’s judiciary and the Opinion of AG Bot of 2nd October 2012 in Melloni, para. 142 as regards fundamental rights included in national constitutions.

  156. 156.

    Besselink (2012b), p. 692.

  157. 157.

    Garcia-Avello and Grunkin Paul.

  158. 158.

    Art. 79 TFEU.

  159. 159.

    Ferrer Laderer, C-147/91, judgment of 25th June 1992 [1992] ECR I-4097, para. 7 and Iida, paras 51 and 66.

  160. 160.

    In addition to increased recognition in the form of registered partnerships, five countries have introduced same-sex marriage nationwide (Canada, South Africa, Argentina, New Zealand and Uruguay), some states recognize same-sex marriages (Israel), in some states same-sex marriage is legal only in some jurisdictions (Mexico, United States), other countries are in the process of discussing legislation aimed at introducing same-sex marriage, often as a result of Court rulings (Nepal, Colombia, Brazil).

  161. 161.

    Council Directive 2004/114/EC of 13th December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (OJ 2004 L 375, p. 12) and the Proposal for a Directive on the conditions of entry and residence of third-country nationals for the purposes of seasonal employment (COM(2010) 379 final) are silent on family members. Council Directive 2005/71/EC of 12th October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research (OJ 2005 L 289, p. 15) explicitly refers to the national law of the receiving Member State, although it emphasizes the importance of maintaining the unity of the researcher’s family, Recital 19 and Art. 9.

  162. 162.

    Council Directive 2003/86/EC of 22nd September 2003 on the right to family reunification, OJ 2003 L 251, p. 12. The Blue Card Directive (Directive 2009/50), which aims to attract highly qualified third-country workers, provides for more favourable conditions for family reunification and for access to work for spouses, by means of specific derogations to the Family reunification Directive. However, for the definition of the term ‘family members’ reference is made to Art. 4(1) of the Family Reunification Directive. See recital 23 and Art. 2(f) and 15 of Council Directive 2009/50/EC of 25th May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, OJ 2009 L 155, p. 17.

  163. 163.

    Art. 4(1)(a) Directive 2003/86.

  164. 164.

    See Sect. 20.4.1.1.

  165. 165.

    The Commission proposal had used the definition of ‘family member’ from the EU Asylum Qualification Directive (current Directive 2011/95/EC, OJ 2011 L 337, p. 9). Art. 2(j) of the Qualification Directive defines ‘family member’ as the spouse of the beneficiary of international protection or his or her unmarried partner in a stable relationship, ‘where the law or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to third-country’. See also Art. 2(d) of Council Directive 2003/9/EC of 27th January 2003 laying down minimum standards for the reception of asylum seekers, OJ 2003 L 31, p. 25.

  166. 166.

    Art. 4(3) Directive 2003/86.

  167. 167.

    Art. 2(e) Directive 2003/109.

  168. 168.

    Art. 16(1) Directive 2003/109.

  169. 169.

    Parliament v. Council, C-540/0, judgment of 27th June 2006 [2006] I-5769, paras 62–64.

  170. 170.

    Interestingly, when the previous Dutch government limited family reunification to spouses and registered partners, it provided for a special marriage visa for people who would not be able to marry in their home country because e.g. the spouse would be from a different religion or of the same-sex (Decree of 27th March 2012 amending the Aliens Act 2000 (Stb 2012, no 148). The limitation is now set to be repealed.

  171. 171.

    Art. 67(2) TFEU and the Stockholm Programme (OJ 2009 C 115, p. 1), para. 6.1.4.

  172. 172.

    Art. 81(1) TFEU.

  173. 173.

    Art. 81(2)(c) TFEU and Art. 81(3) TFEU.

  174. 174.

    Storskrubb (2011), p. 307.

  175. 175.

    COM(2011) 126 final and COM(2011) 127 final.

  176. 176.

    COM(2010) 747 final, Green Paper “Less bureaucracy for citizens: promoting free movement of public documents and recognition of the effects of civil status records”. The Green paper defines civil status records, i.e. “records executed by an authority in order to record the life events of each citizen such as birth, filiation, adoption, marriage, recognition of paternity, death and also a surname change following marriage, divorce, a registered partnership, recognition, change of sex or adoption.”

  177. 177.

    COM(2010) 747 final, para. 4.1.

  178. 178.

    See the various contributions by public authorities in the Member States on the official Commission website http://ec.europa.eu/justice/newsroom/civil/opinion/110510_en.htm (last visited 31st January 2012).

  179. 179.

    European Parliament Resolution on civil law, commercial law, family law and private international law aspects of the Action plan implementing the Stockholm Programme, 23rd November 2010, P7_TA(2010)0426. See also the Opinions of the Economic and Social Committee (OJ 2011 C 248, p. 113) and the Committee of the Regions (OJ 2012 C 54, p. 23).

  180. 180.

    Stockholm Programme (OJ 2009 C 115, p. 1), para. 3.1.2.

  181. 181.

    Denmark, the United Kingdom and Ireland.

  182. 182.

    See the application of enhanced cooperation with respect to the proposal on the law applicable to divorce and legal separation. Council Decision 2010/405/EU of 12th July 2010, OJ 2010 L 189, p. 12.

  183. 183.

    For example, in Antonissen, C-292/89, judgment of 26th February 1991 [1991] ECR I-745 the Court attributed direct effect to the Treaty Articles on the free movement of workers in the absence of secondary legislation (presently Directive 2004/38). Vlassopoulou, C-340/89, judgment of 7th May 1991 [1991] ECR I-2357 formed the impetus for the adoption of secondary legislation on the recognition of higher-education diplomas (presently Directive 2005/36/EC of the European Parliament and of the Council of 7th September 2005 on the recognition of professional qualifications, OJ 2005 L 255, p. 22).

  184. 184.

    Vesterdorf 2006, p. 609 and Rosenfeld 2006.

  185. 185.

    Weiss (2007), p. 84. Note that recently US gay rights activists have become increasingly involved in the political process, especially since in a number of States the question of same-sex marriages has been put to a popular vote. European gay rights activists, on the other hand, become increasingly involved in strategic litigation. See also: ‘To Have and to Hold’, The Economist 17th November 2012.

References

  • Barrington Wolff B (2005) Interest analysis in interjurisdictional marriage disputes. Univ Pa Law Rev 153:2215–2250

    Article  Google Scholar 

  • Bell M (2004) Holding back the tide? Cross-border recognition of same-sex partnerships within the European Union. Eur Rev Priv Law 12:613–632

    Google Scholar 

  • Besselink L (2012a) General report. In: Laffranque J (ed) The protection of fundamental rights post-Lisbon: the interaction between the charter of fundamental rights of the European Union, the European convention on human rights and national constitutions. Tartu University Press, Tallinn, pp 1–139

    Google Scholar 

  • Besselink L (2012b) Case C-208/09, Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien, judgment of the Court (second chamber) of 22 December 2010. Common Mark Law Rev 49:671–693

    Google Scholar 

  • Clapham A, Weiler JHH (1993) Lesbians and gay men in the community legal order. In: Waaldijk C, Clapham A (eds) Homosexuality: a European community issue. Martinus Nijhoff Publishers, Dordrecht, pp 6–69

    Google Scholar 

  • Costello C (2009) Metock: free movement and “normal family life” in the Union. Common Mark Law Rev 46:587–622

    Google Scholar 

  • De Witte B (2011) Direct effect, primacy and the nature of the legal order. In: De Burca G, Craig P (eds) The evolution of EU law. Oxford University Press, Oxford, pp 323–362

    Google Scholar 

  • Van der Schyff G (2012) The constitutional relationship between the European Union and its member states: the role of national identity in article 4(2) TEU. Eur Law Rev 37:563–583

    Google Scholar 

  • Ensig Sørensen K (2011) Reconciling secondary legislation and the treaty rights of free movement. Eur Law Rev 3:339–361

    Google Scholar 

  • European Union Agency for Fundamental Rights (2010) Homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity. Comparative legal analysis: Update, http://fra.europa.eu/sites/default/files/fra_uploads/1286-FRA-LGBT-report-update2010.pdf

  • Fallon M (2007) Constraints of internal market law on family law. In: Meeusen J, Pertegás M, Straetmans G, Swennen F (eds) International family law for the European Union. Intersentia, Antwerp, pp 149–181

    Google Scholar 

  • Gallo D (2012) Développements récents en matière de citoyenneté européenne et regroupement familial. Revue du Droit de l’Union européenne 101:121

    Google Scholar 

  • Groussot X, Pech L, Petursson GT (2011) The scope of application of EU fundamental rights on member states’ action: In search of certainty in EU adjudication, Prague, Czech Society for European and Comparative Law, Eric Stein Working Paper No. 1/2011

    Google Scholar 

  • Kochenov D (2009) On options of citizens and moral choices of states: gays and European federalism. Fordham Int Law J 33:156–205

    Google Scholar 

  • Lenaerts K (2010) Federalism and the rule of law: perspectives from the European Court of Justice. Fordham Int Law J 33:1338–1387

    Google Scholar 

  • Lenaerts K (2013) Exploring the limits of the EU charter on fundamental rights. Eur Const Law Rev 8:375–403

    Article  Google Scholar 

  • Lenaerts K, Gutierrez-Fons JA (2010) The constitutional allocation of powers and general principles of EU law. Common Mark Law Rev 47:1629–1669

    Google Scholar 

  • McCrudden C (2008) Human dignity and judicial interpretation of human rights. Eur J Int Law 19:655–724

    Article  Google Scholar 

  • McInnes J (1999) Annotation to Case C-249/96, Lisa Jacqueline Grant v. South West Trains Ltd. Common Mark Law Rev 36:1043–1058

    Google Scholar 

  • Melcher M (2012) Private international law and registered relationships: an EU perspective. Eur Rev Priv Law 20:1075–1096

    Google Scholar 

  • Rosenfeld M (2006) Comparing constitutional review by the European Court of justice and the U.S. Supreme court. Int J Const Law 4:618–651

    Article  Google Scholar 

  • Singer JW (2005) Same sex marriage, full faith and credit, and the evasion of obligation. Stanford J Civ Rights Civ Liberties 1:1–50

    Google Scholar 

  • Storskrubb E (2011) Civil justice – a newcomer and an unstoppable wave? In: Craig P, De Búrca G (eds) The evolution of EU law. Oxford University Press, Oxford, pp 299–321

    Google Scholar 

  • Toner H (2012) Migration rights and same-sex couples in EU law: a case study. In: Boele-Woelki K, Fuchs A (eds) Legal recognition of partnerships in Europe. Intersentia, Antwerp, pp 285–308

    Google Scholar 

  • Vesterdorf B (2006) A constitutional court for the EU? Int J Const Law 4:607–617

    Article  Google Scholar 

  • Von Bogdandy A, Schill A (2011) Overcoming absolute primacy: respect for national identity under the Lisbon Treaty. Common Mark Law Rev 48:1–38

    Google Scholar 

  • Waaldijk C (2011) From A to B: first results of a comparative law survey in seven cases on the (non-) recognition of same-sex couples moving from one European country to another. Presentation at the conference ‘The Lack of Mutual Recognition of Same-Sex Unions in Europe’, Organised by l’Autre Cercle, Strasbourg, 18–19 November 2011

    Google Scholar 

  • Waaldijk C (2012) The right to relate: on the importance of ‘orientation’ in sexual orientation law. Inaugural lecture delivered at Leiden University 2012

    Google Scholar 

  • Weiss A (2007) Federalism and the gay family: free movement of same-sex couples in the United States and the European Union. Columbia J Law Soc Probl 41:81–124

    Google Scholar 

Download references

Acknowledgement

Special thanks to prof. Kees Waaldijk for his valuable comments on an earlier draft. The usual disclaimer applies.

Author information

Authors and Affiliations

  1. Europa Institute, Leiden University, Leiden, The Netherlands

    Jorrit Rijpma & Nelleke Koffeman

Authors
  1. Jorrit Rijpma
    View author publications

    You can also search for this author in PubMed Google Scholar

  2. Nelleke Koffeman
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Jorrit Rijpma .

Editor information

Editors and Affiliations

  1. Department of Law, Luiss University, Rome, Italy

    Daniele Gallo

  2. University Institute SSML Carlo Bo, Rome, Italy

    Luca Paladini

  3. Political and International Sciences, University of Siena, Siena, Italy

    Pietro Pustorino

Rights and permissions

Reprints and permissions

Copyright information

© 2014 Springer-Verlag Berlin Heidelberg

About this chapter

Cite this chapter

Rijpma, J., Koffeman, N. (2014). Free Movement Rights for Same-Sex Couples Under EU Law: What Role to Play for the CJEU?. In: Gallo, D., Paladini, L., Pustorino, P. (eds) Same-Sex Couples before National, Supranational and International Jurisdictions. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-35434-2_20

Download citation

Publish with us

Policies and ethics

Search

Navigation