Article, Case comment

Inching Towards an EU-Wide Recognition of Same-Sex Relationships?

Adel Msolly

Introduction

Harmonisation in EU law has been justified as means of facilitating the internal market. Such process has expanded to areas of law not economic in nature, family law being the prime example. Broadening EU competence in family law and thus furthering judicial cooperation in civil matters is necessary to enable free movement of persons and their family members (see Article 81(3) TFEU). As such, EU enjoys competence in family law on conflict of laws matters in matrimonial proceedings, parental responsibility, maintenance and succession. However, family law is one of the areas most laden with socially sensitive issues, every Member State having different values and policies in the field.

Nowhere is this divide in policies more apparent than in the context of recognition of same-sex relationships. Currently, under EU law some Member States have full marriage equality (e.g. United Kingdom[1], Netherlands), some provide for registered or civil partnerships (e.g. Italy, Czech Republic), and some offer no recognition[2] (e.g. Bulgaria, Slovakia). It does not seem likely that there would be a Regulation to legalise same-sex marriage across the EU any time soon. Notwithstanding, the discrepancies in marriage laws across the EU do hamper free movement of persons; just like heterosexual marriage, same-sex marriage and civil partnerships also have consequences in other areas of law, namely property law (for instance, in some Member States certain ways of owning joint property are only available to married couples[3]), succession (how do same-sex spouses or registered partners inherit on their spouse’s death?), among others. Does EU law address this at all?

This blog post will examine the current state of EU law on recognition of same-sex relationships, which is at a standstill. In this context, it is worth mentioning that the Coman case, currently pending before the ECJ, holds great potential for reform. Subsequently, the post considers whether existing EU law on succession and property regimes provides for at least limited recognition of same-sex relationships even in those Member States that do not recognise same-sex relationships outright. Same-sex partners should not need to navigate technical areas of EU law in order to ensure that they can, for instance, inherit the same way a heterosexual married couple would. However, such a limited recognition is a step in the right direction, and may affect attitudes in more conservative Member States, so that one day an EU-wide regime on recognition of same-sex relationships would be viable.

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Article, Case comment

‘Counting every sip of my whiskey?’ The CJEU rules on minimum alcohol price

Dr. Agne Limante, Research Fellow, Law Institute of Lithuania

 While most Europeans were buying presents and wine for Christmas eve, on 23 December 2015 the Court of Justice of the European Union delivered a long awaited judgment in Scotch Whisky Association case[1] which related to a plan of the Scottish government to introduce a minimum unit alcohol price. In short, the Court ruled that introducing a minimum unit alcohol price would breach EU law if other tax options exist.

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Article, Case comment

Dano and Alimanovic – the end of a social European Union

Giulia Barbone, LLB King’s College London

The judgments in Dano[1] and Alimanovic[2] have become landmarks for the contemporary understanding of Union citizenship and, thus, they must be fully understood. It is also important to note from the outset that this is not a political question as to whether or not economically inactive migrants should be entitled to social benefits. Indeed, those people who applaud the judgments purely on the basis of their political preference are closing their eyes to a much more troubling question: the CJEU has dramatically changed the legal meaning of Union citizenship without a legally sound justification. This is why the problem is not about being or not being on Ms Dano’s side. These judgments are about today’s legal content of Union citizenship and, for this purpose, political preferences should be kept aside.

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Case comment, Case note

‘One for all, all for one’: the sweeping notion of defects in product liability case Boston Scientific

Luigi Lonardo, LLM in EU Law, King’s College London

The Court of Justice of the European Union’s (CJEU) first ruling on what is a ‘defective product’[1] will likely not be the last one, since it was highly ambiguous to say the least. The judgement is doomed to have broad repercussions indeed on European product liability litigation and consumer protection law.

The Court found that, with reference to medical devices implantable in the human body, “a product is defective within the meaning of Article 6 of Directive 85/374[2] (“the Directive”) “if products belonging to the same group or forming part of the same production series have a potential defect. In other words, there is no need to prove the defect in each individual case, if other products in the same batch have a potential defect. Moreover, the Court stated, under Article 9 of the same Directive, the producer is liable for the damages caused by a surgical operation necessary to replace a defective product.

Even if limited to implantable medical devices, such a definition may nonetheless surge compensation claims against producers and insurers for two reasons. First it simplifies what the claimant has to prove. Second it resorts to ill-defined concepts that may lead national courts to request further clarifications and plaintiffs to try action by taking advantage of the indiscriminate wording of Boston Scientific.

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Article, Case comment

Case C-578/11 P Deltafina v Commission – The CJEU Confirms Its Ruling on Effective Remedies for Undue Delay

Michal Ovadek, LLB student of International and European Law and BA student of International Relations at the University of Groningen in the Netherlands

Last November the Court of Justice of the EU decided a trio of breakthrough cases which concerned the choice of the appropriate remedy for reasonable time requirement breaches.[1] The reasonable time requirement finds its expression in a number of international treaties, not least in Article 47 of the Charter of Fundamental Rights of the European Union. In essence, it requires the CJEU to decide cases without undue delay, while also requiring an effective remedy for any breaches of the procedural guarantee. On 12 June 2014 the CJEU has ruled on a more low-key appeal in Deltafina[2] which had been previously deferred until the case-law was clarified. The CJEU has used this opportunity to repeat the previously expounded approach without taking into account any criticism levied by commentators. This led in dismissing the plea and directing the litigants to recover their damages at the General Court; yet, once again, the CJEU did not leave the matter entirely in the hands of the General Court and instead itself established that the General Court has exceeded what can be considered reasonable time for the purpose of Article 47 of the Charter.

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