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Gender as an Impediment of Marriage, Free Movement of Citizens, and EU Charter of Fundamental Rights

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Protecting Human Rights in the EU

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Abstract

This chapter discusses if it is clearly stated by the Charter of Fundamental Rights (Charter) that marriage is allowed only between different genders or if every member state may recognise same-sex marriages. Family status is a feature related closely to a person’s identity, and moving from one state to another it plays an important role in granting certain status or social benefits. When one member state does not recognise marriage contracted in another member state, there raises a question of violation of free movement of persons related to marriage. As Community law leaves the questions of family law to the member states to decide, it is inevitable to turn to the Charter to find the “right” answer for this question. However, it seems that also the Charter evades giving an answer supporting one or another statement. The Charter refers to its nature as being a living instrument and leaves it open if Article 9 thereof and Article 12 of the ECHR have the same or different substance in question of same-gender marriages.

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Notes

  1. 1.

    Case 3-12-1446 Estonian Administrative court (18 October 2012).

  2. 2.

    Case of Schalk and Kopf v. Austria ECtHR (June 2010).

  3. 3.

    Concept of marriage itself needs clarification. Ivic points out that in Europe there is a big gap between the theory and praxis, culture and legislation. The concepts of “marriage” and “family” are needed to be reopened and redefined. These concepts are not fixed (Ivic 2009, p. 288).

  4. 4.

    http://www.evs-eu.org/.

  5. 5.

    Ethnic, religious, or class divisions in society may be exacerbated rather than channelled into democratic debate, sowing seeds of conflict and undermining pluralism and respect for human rights. This especially applies to discriminated groups/people in vulnerable situations such as women, children, indigenous peoples, migrants and asylum seekers, minorities, LGBT persons, and persons with disabilities [European Instrument for Democracy and Human Rights (EIDHR) Strategy Paper 2011–2013 C (2010) 2432 21 April 2010, p. 7].

  6. 6.

    For example, mutual Recognition and Enforcement of Family Law Decisions throughout the EU: Council Regulation (EC) No 1347/2000 of 29 May 2000 (Brussels II); Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251 of 3.10.2003; Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 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 (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93796/EEC.

  7. 7.

    Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. 2011. Report on the Application of the EU Charter of Fundamental Rights. COM(2012) 169 final.EC 16.4.2012. SWD(2012) 84final, SWD(2012) 85final, p. 10.

  8. 8.

    Bringing the Charter to life—opportunities and challenges of putting the EU Charter of Fundamental Rights into practice. Copenhagen Seminar Report. 15–16 March 2012. Danish Presidency of the Council of the EU and EU Agency for Fundamental Rights, p. 5.

  9. 9.

    Peréz (2009).

  10. 10.

    See Green Paper—Less bureaucracy for citizens: promoting free movement of public documents and recognition of the effects of civil status records. European Commission. Green Paper. COM(2010)747final.14. December 2010.

  11. 11.

    Ivic notes that the Charter should be revised in order to move towards the postmodernist political liberalism that does not base its concepts on metaphysical and moral assumptions but on political and constructivist approach, which emphasizes heterogeneity and multiple identities. Ivic refers to Taylor, explaining that political liberalism is neutral and does not include notions such as “common values”, “moral heritage”, “inherent”, and so forth (Ivic 2009, p. 281).

  12. 12.

    Case C-249/96, Lisa Jacqueline Grant v. South West Trains Ltd.(17 February 1998) and Case C-122/99 P and C-125/99 P, and the Kingdom of Sweden v Council of the European Union (31 May 2001).

  13. 13.

    Cornides and Brussels (2010), pp. 2–3.

  14. 14.

    Case C-59/85, State of Netherlands v Ann Florence Reed (17 April 1986).

  15. 15.

    Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251 of 3.10.2003, p. 12.

  16. 16.

    According to the “Legal Explanations” (drafted by the members of the ECHR that drafted the Charter), the wording of Article 9 has been “modernised” to cover cases in which national legislation recognises arrangements other than marriage for founding a family. This article neither prohibits nor imposes the unions between people of the same sex. This right is thus to that afforded by the ECHR, but its scope may be wider when national legislation so provides (Cornides and Brussels 2010, pp. 2–3).

  17. 17.

    Commentary of the Charter of Fundamental Rights of the European Union, p. 87.

  18. 18.

    Case C-122/99 P and C-125/99 P, D and the Kingdom of Sweden v. Council, ECHR I-4319 (31 May 2001).

  19. 19.

    Commentary of the Charter of Fundamental Rights of the European Union, p. 102.

  20. 20.

    Laffranque (2006), p. 328.

  21. 21.

    Bringing the Charter to life—opportunities and challenges of putting the EU Charter of Fundamental Rights into practice. Copenhagen Seminar Report. Danish Presidency of the Council of the EU and EU Agency for Fundamental Rights. 15–16 March 2012, p. 6.

  22. 22.

    Ibid., p. 7.

  23. 23.

    Reding (2012).

  24. 24.

    Ibid., p. 13.

  25. 25.

    Commentaries refer to the Article 23(2) of the ICCPR, Article 10(1) of the ICESCR, Article 16(2) of the CEDAW, and Article 5d(iv) of the CERD.

  26. 26.

    The ECHR established in, e.g., F. V. Switzerland that a state may not restrict or reduce the right to marry in such a way or to such an extent that the very essence of the right is impaired (Case of F.v. Switzerland, 18 December 1987). The court has, furthermore, indicated that restrictions on marriage within European societies relate only to the aspects of marriage, which deal with procedures, the legal capacity or consent to marry (Commentary of the Charter of Fundamental Rights of the European Union, p. 98). In that sense, Article 9 of the Charter contains particularly dynamic and variable concepts. Different societies have dissimilar views regarding marriage, the family, and its functions. “(M)atrimony is so closely bound up with the cultural and historical traditions of each society and its deep-rooted ideas about family unit” (Case of F. v. Switzerland, 18 December 1987, para. 33). The EU Council has, in addition, expressed the view that family law is “Very heavily influenced by the culture and tradition of national (or even religious) legal systems, which could create a number of difficulties in the context of harmonisation”. Council report on the need to approximate Member States’ legislation in civil matters of 16 November 2001 (13017/01 justciv 129) (Commentary of the Charter of Fundamental Rights of the European Union, p. 98). See also the analysis about the meaning of marriage, Joamets (2012), pp. 97–115.

  27. 27.

    Pull discusses if the right to marry is a fundamental right at all. He concludes that the notion of fundamental rights implies firm privileges that the state cannot deny, define, or disrespect, but marriage boundaries (the legal rules establishing who is eligible to marry whom, what formalities are required for marriage, and the legal ramification of marriage) in the United States have always been subject to almost plenary state control that denies some marriages and refuses to give legal effect to others. The word “marriage” has several different meanings that are related to each other but conceptually distinct. The fundamental right to marry conundrum arises in part from the conflation of these various meanings. Moreover, the history of Western marriage regulation—particularly the contemporary rejection of the traditional beliefs about sexuality and marriage that once provided principled boundaries for a right to marry—explains why the various meanings of marriage often are confeated today, and it suggests how the law can escape the “fundamental right to marry” comendrum (Pull 2006, p. 1).

  28. 28.

    Cornides and Brussels (2010), pp. 2–3.

  29. 29.

    See Case Schalk and Kopf v. Austria (Appl. No. 3014104 24) (June 2010), para. 60.

  30. 30.

    Commentary of the Charter of Fundamental Rights of the European Union, p. 98.

  31. 31.

    Actually, the reference to anybody is missing completely.

  32. 32.

    Cornides and Brussels (2010), p. 5.

  33. 33.

    Bradley (1996), p. 49.

  34. 34.

    Ibid., p. 65.

  35. 35.

    Ibid., p. 66.

  36. 36.

    Ibid., p. 67.

  37. 37.

    Direct lineal ascendants could not marry, and neither could full siblings. However, marriage between half-brother and half-sister was possible. Objections on genetic grounds were considered insufficient. Only the consent of the government was required (Bradley 1996, p. 67).

  38. 38.

    Bradley (1996), p. 68.

  39. 39.

    Commentary of the Charter of Fundamental Rights of the European Union, p. 99.

  40. 40.

    However, according to international law, domestic laws must not prohibit or discriminate against marriage across racial, religious, or national border: for example, there should be no restrictions on interreligious marriages, inter-racial marriages, or marriages between a national of a country and a foreigner. Furthermore, a change has been brought about in the jurisprudence of the European Court through an alteration in the understanding of who can marry, i.e., post-operative transsexuals have a right to marry in their new sex. Case of Christine Goodwin v. United Kingdom (11 July 2002). Departing from its earlier decisions in Case of Rees v. United Kingdom (17 October 1986), Case of Cossey v. UK (27 September 1990), and Case of Sheffield and Horsham v. UK (30 July 1998) and invoking the living instrument doctrine, the Court acknowledged that the rights of transsexuals ought to be viewed in the light of medical progress and social changes in the attitudes towards transsexual person. According to the Court “the stress and alienation arising from a discordiance between the position in society assumed by a post-operative transsexual and the status imposed by law which refuses to recognize the change of gender, cannot be regarded as a minor inconvenience arising from a formality”, in other words, a conflict between social and any other illegal coercion or domination of the will of one of the intending spouses. One can ask if the same-sex couples do not have the stress and alienation as well as social conflict (Commentary of the Charter of Fundamental Rights of the European Union, p. 99).

  41. 41.

    Case of Sheffield and Horsham v. United Kingdom (30 July 1998).

  42. 42.

    Commentary of the Charter of Fundamental Rights of the European Union, p. 102.

  43. 43.

    Ibid., p. 102.

  44. 44.

    Case of Emonet and others v. Switzerland (13 December), paras 33, 34, and Case of Schalk and Kopf v. Austria (24 June 2010), para. 92.

  45. 45.

    Commentary of the Charter of Fundamental Rights of the European Union, p. 102.

  46. 46.

    Case C-122/99 P and C-125/99 P, D. and the Kingdom of Sweden v. Council. 2001 ECR I-4319 (31 May 2001).

  47. 47.

    Commentary of the Charter of Fundamental Rights of the European Union, p. 102.

  48. 48.

    See, for example, Joint Dissenting Opinion of Judges Rozakis, Spielman, and Jebens and of Judge Malinverni Concurring Opinion in Case of Schalk and Kopf v. Austria (http://hudoc.echr.coe.int/…).

  49. 49.

    Case of I. v. The United Kingdom (11 July 2002), para. 54.

  50. 50.

    Case C-353/06 Grunkin and Paul v. Niebüll (14 October 2008), para. 21.

  51. 51.

    See Case C-406/04 De Cuyper (18 July 2006), para. 39, and Case C-499/06 Nerkowska (22 May 2008), para. 32.

  52. 52.

    See Case C-148/02 Garcia Avello (20 October 2003), paras 25 and 26, and the case law cited (Case C-353/06 Grunkin and Paul v. Niebüll (14 October 2008), para. 16). See also Case C-148/02 Carlos Carcia Avello v État Belge (20 October 2003), para. 72. Opinion of Advocate General Jacobs, delivered on 22 May 2003. http://curia.europa.eu 11.01.2013 para. 25.

  53. 53.

    See Schalk and Kopf v. Austria (24 June 2010), para. 53: “…this reflects their own vision of the role of marriage in their societies…”, para. 62 “…that marriage has deep-rooted social and cultural connotations which may differ largely from one society to another…”

  54. 54.

    There is one decision about divorce as an impediment; see ECtHR Case of Aresti Charalambous v. Cyprus, Appl. 43151/04, (19 July 2007).

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Authors and Affiliations

  1. Tallinn Law School, Tallinn University of Technology, Akadeemia tee 3, 12618, Tallinn, Estonia

    Kristi Joamets

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  1. Tallinn Law School, Tallinn University of Technology, Tallinn, Estonia

    Tanel Kerikmäe

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Joamets, K. (2014). Gender as an Impediment of Marriage, Free Movement of Citizens, and EU Charter of Fundamental Rights. In: Kerikmäe, T. (eds) Protecting Human Rights in the EU. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-38902-3_6

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