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, Netherlands), some provide for registered or civil partnerships (e.g. Italy, Czech Republic), and some offer no recognition (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), 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.
Recognition of same-sex relationships in EU law
Although the EU has been progressive in combatting discrimination on the ground of sexual orientation post-Treaty of Amsterdam (currently Articles 10 and 19 TFEU), there is no harmonisation of recognition of same-sex relationships. This is hardly surprising: as recalled, opinions and policies on the topic vary widely across the EU countries. As such, its exclusion from the scope of EU law can be justified; EU-wide regulation of areas unrelated directly to the economy remains a controversial issue. This does not mean that areas of social policy are not and should not be harmonised. Furthering free movement of EU citizens is fundamental to the functioning of the single market. Similarly, as more and more countries in Europe and globally move towards marriage equality, EU law should adapt to this new reality and ensure that its citizens in same-sex relationships and their families are equally able to move between Member States and take advantage of the single market.
That said, recognition of same-sex relationships in EU legal instruments continues to be scarce. For instance, the Brussels II bis Regulation, regulating cross-border family law disputes, especially divorce and child proceedings, has no explicit mention of same-sex relationships. Swennen argues that inclusion of same-sex marriages under the scope of the Regulation does not equate imposing same-sex marriage on all Member States, and that we can assume same-sex marriages are covered because of the gender-neutral language used throughout the text. Additionally, the 2003 Regulation came after the Netherlands already legalised same-sex marriage and they could have been explicitly excluded from the Regulation’s scope. However, he also excludes civil partnerships from the scope of Brussels II bis as they are held to be different from marriage.
In absence of an EU legal regime on recognition of same-sex relationships, other rules of private international law apply. This leads to inconsistencies due to different conflict of laws rules on marriage validity in each Member State. Some use the lex loci celebrationis principle, whereby a marriage is recognised if it were valid in the place of its celebration. Other countries apply personal jurisdiction, recognising a marriage if the parties to it had the capacity to marry under the law of their nationality. Davis notes that, aside from a lack of uniformity in the EU, this is how more conservative Member States deny recognition to same-sex marriages and registered partnerships alike, although this often follows from a use of the ordre public exception to applying foreign law.
In contrast, EU human rights law is more open to recognising same-sex relationships. The relevance of Articles 8 and 14 ECHR to same-sex relationships has generated significant ECtHR jurisprudence. In Schalk and Kopf v Austria, delivered in 2010, no obligation to legislate for nor recognise same-sex marriages was found. Five years later, in Oliari and Others v Italy, a positive obligation to legally recognise same-sex couples was found. While a significant step forward, this decision was binding solely on Italy, and does not relate directly to EU legal order. This distinction is signified particularly by ECJ’s rejection of the EU accession to the ECHR in Opinion 2/13.
A significant reform of this largely unaddressed issues may come this year through the Coman case, in which a request for a preliminary ruling by the ECJ was submitted in April 2017. The case concerns a Romanian gay rights activist who married his American partner in Belgium. Romania refused to recognise their marriage and the American spouse was excluded from the rights of residence conferred on non-EU national spouses under the Citizenship Directive. The issue is whether the third country spouse validly married to an EU national is under the scope of Article 2(2)(a) of the Citizenship Directive; and if not, whether they would be “any other family member” (Article 3(2)(a)) or a long-term partner (Article 3(2)(b)). The second issue is that if same-sex spouses are covered by the Directive, whether Member States are to grant them entry and residence rights, even if they do not provide for any form of legal recognition for the relationship.
The second question is of paramount importance, as consistent interpretation would required all Member States to recognise same-sex relationships to this extent. On the other hand, it will not mean EU-wide marriage (or civil partnership) equality, although residency and working rights for third country family members of EU citizens are a major facet of free movement of persons. Similarly, such decision would likely be met with backlash from conservative Member States as it constitutes a sidestepping of their national sovereignty. Nevertheless, such a decision would ensure that all EU citizens have the option to move within the EU with their family members and gain at least basic rights, even when Member States have different laws relating to recognition of same-sex relationships. AG Wathelet has delivered an Opinion on 11 January 2018, recommending that the Citizenship Directive, as well as Article 21 TFEU on free movement of persons should be interpreted as including same-sex spouses. He argued that this interpretation accurately reflects the social change in many Member States that do provide for same-sex marriages. At the same time, he emphasises that this interpretation does not mean Member States are obliged to grant residence for more than three months to third-country same-sex spouses. This shows hesitation in adopting EU-wide recognition of same-sex unions, although an affirmative answer from the ECJ would pave the way for further harmonisation of rights in this area.
Legal effects of same-sex relationships under EU law
As the lack of uniformity across the EU as regards recognising same-sex relationships remains, they also continue to be formed in the more progressive Member States. As with opposite-sex marriages, they have legal consequences upon divorce, dissolution and property redistribution. This section focuses on succession and property regimes in EU law and how they enable same-sex couples, married or civilly partnered, to have some protections in these areas under EU law, even in Member States that offer no such protections under their national law.
In property law, one of the benefits of a marriage or civil partnership is the capacity to inherit from the spouse or partner. Conferring this advantage on same-sex partners has been one of the motivations behind legal reform. Regulation 650/2012 (the Succession Regulation) provides for limited EU-wide recognition of rights following from same-sex marriages and registered partnerships. Under Article 22, an individual can choose a governing law for their will, so long as they are a national of that State. The entire will, including its formal and substantive validity, is then to be assessed under that State’s law. In effect, this should allow people with same-sex spouses or civil partners to ensure they can inherit their property by choosing a legal system that recognises same-sex relationships, for example that of the State where they got married or civilly partnered. Even though there is no ECJ case law specifically on the application of Article 22 in the context of same-sex partners, the Court’s willingness to uphold Articles 22 and 23 is apparent in Case C-218/16 Kubicka. The choice of law provisions were upheld to maximise certainty and avoid fragmentation of proceedings if multiple legal systems were to apply, citing Recital 37 of the Succession Regulation (paras 43-44). This position was supported by the Opinion of AG Bot (in particular para 45).
While this system gives at least some leeway to same-sex spouses, who otherwise would not inherit from their partners in more conservative Member States’ jurisdictions, it is hardly an ideal solution. First, the testator has to be aware of the Succession Regulation and expressly include the choice of law provision in the will. Second, the nationality requirement may pose a further bar, as the testator may not be a national of a State that recognises same-sex relationships. Third, not all EU Member States are bound by the Succession Regulation; the UK and Ireland have opted out, and Denmark by default opts out of Justice and Home Affairs provisions. In these jurisdictions, traditional conflict of laws rules apply. Therefore, equality in succession proceedings does not exist within the EU, and the limited recognition under the Regulation 650/2012 is a legally complicated process that may well be challenged in national courts.
A logical consequence of equal recognition of same-sex relationships is that there should be equality in property redistribution on divorce or dissolution. Council Regulations (EU) 2016/1103 and 2016/1104 regulate property regimes of marriages and registered partnerships respectively. The Marriage Regulation is of relevance as it also covers same-sex marriages. The two Regulations provide all couples with various rights in cross-border property proceedings, such as a choice of law provision similar to Article 22 of the Succession Regulation. However, universal recognition of same-sex relationships rights are more difficult to find for a number of reasons.
First of all, these Regulations are not binding on all Member States; instead, they cover eighteen Member States that participate in the enhanced cooperation procedure under which the Regulations were adopted. Most of these States already recognise same-sex relationships. As such, Member States that do not recognise same-sex relationships would not give effect to them in property proceedings if they use their (or another conservative) legal system pursuant to their rules of private international law. Secondly, even if bound, a national court of a Member State is free to decline jurisdiction under Article 9 of Regulation 2016/1104 as a way of avoiding having to deal with the issue in the first place. While this is detrimental to recognition, it benefits same-sex couples by allowing them to take their case to a jurisdiction where their relationship would be legally recognised, resulting in a fairer outcome. Importantly, the two Regulations hint at the cautious approach on EU-wide recognition of same-sex relationships. Recital 21 of both Regulations explicitly excludes the questions of validity and recognition of marriages and registered partnerships from their scope. However, Recital 25 still advocates for recognition of property rights in more conservative Member States through an assimilation of sorts.
EU law on recognition of same-sex marriages and registered partnerships remains fragmented and hardly harmonised. The Council maintains that existing instruments of EU law do not have the effect of universal recognition, and as a matter of public policy, recognition is largely left to Member States. However, the varying levels of recognition across the EU mean that not all EU citizens are treated equally in this respect, and even if they are able to legalise their relationship, they face difficulties not encountered by opposite-sex couples. So long as EU Member States become more welcome to the idea of legally recognising same-sex relationships, harmonisation may be more viable. The future decision in Coman could possibly be the starting point towards harmonisation of this area of law.
 With the exception of Northern Ireland, which only recognises civil partnerships for same-sex couples.
 Some Member States go as far as to explicitly exclude same-sex marriage at the constitutional level.
 An example of this is the bezpodielové spoluvlastníctvo manželov in Slovak property law, akin to a constructive trust of the family home in English law of trusts, but available only to married couples.
 Johan Meeusen and others, International Family Law for the European Union (2007) <http://anet.ua.ac.be/record/opacirua/c:irua:60777/N%5Cnhttp://hdl.handle.net/10067/607770151162165141>. p 397
 ibid. p 396
 ibid. p 397
 Stuart M Davis, ‘Conflicts of Law and the Mutual Recognition of Same-Sex Unions in the EU’ (2015). p 76
 Application no. 30141/04
 Application nos. 18766/11 and 36030/11
Adel Msolly is a third year LLB Law student at University College London.