July 27, 2016
This guest post was written by Dr. Nelleke Koffeman (*)
The Taddeucci and McCall v. Italy judgment of 30 June 2016 is a novelty in the ECtHR’s case-law on equal treatment of same-sex couples. It is the first time that the Court, in finding a violation of the prohibition of discrimination on grounds of sexual orientation (Article 14 ECHR in combination with Article 8 ECHR) in a case where stable same-sex partners do not enjoy the same rights as different-sex spouses, takes into account that those same-sex couples have no access to marriage under the relevant domestic law. It is not that the Court has never before been asked to acknowledge the (indirect) discrimination involved in such cases. Quite the opposite, but, as set out below, it has so far taken a formalistic approach in such cases. The present judgment is thus a clear – and to be welcomed – deviation from previous case-law.
The facts of the case are pretty straightforward. Taddeucci and McCall are Italian and New Zealand nationals who lived in New Zealand as an unmarried same-sex couple until December 2003 when they moved to Italy, where McCall applied for a residence permit on family grounds. The Italian authorities dismissed his application in 2004 because under the relevant Italian law only different-sex spouses could qualify for a residence permit for ‘family members’. After the Court of Cassation had confirmed that this was the correct interpretation and application of the domestic law, Taddeucci and McCall moved to the Netherlands where they have been living since 2009 and where they got married in 2010. The couple lodged an application with the Strasbourg Court in 2009, claiming that the refusal of the residence permit on family grounds to McCall constituted discrimination on grounds of sexual orientation.
From no relevantly similar situations…
So far, in cases where applicants complained about discrimination on grounds of sexual orientation, the Court assessed whether there was a difference in treatment of ‘relevantly similar situations’. In cases where there was a difference in civil status between two groups, the Court has been very hesitant to find these groups to be in relevantly similar situations. This was even more the case where marriage was involved, because (traditional) marriage enjoys a ‘special status’ under Strasbourg case-law. Hence, where unmarried same-sex couples claimed to be discriminated because they were treated differently from different-sex married couples in respect of a certain matter, such as a tax exemption or second-parent adoption, the ‘special status of marriage’ has been a ground for the Court for not finding these groups in relevantly similar situations (e.g. Courten and X. and Others). This has also been upheld in cases where the applicants had formalised their relationship to some extent, for instance by means of a partnership agreement like the French PACS (e.g. Manenc and Gas and Dubois).
In all these cases, the Court considered the fact that same-sex couples did not have access to marriage under the relevant domestic law to have no bearing on its findings. This formal equality-based approach has been criticized (e.g. Koffeman 2015, p. 399-400). It also deviated from the case-law of the Court of Justice of the EU (CJEU). Ruling on the basis of EU Directive 2000/78, the CJEU has had no difficulties with holding same-sex unmarried couples to be in a comparable situation with different-sex spouses in respect of a certain employment related benefit, where under the relevant national law marriage was not open to same-sex couples and where the same-sex partners concerned had concluded some ‘form of civil union’ such as the French PACS (Hay).
The ECtHR has so far only found same-sex couples and different-sex couples to be in relevantly similar situations where no ‘special legal status’ was involved, in other words where these groups had the exact same civil status. Where they were nonetheless treated differently, the Court has often found a violation of the prohibition of discrimination, because differences based solely on considerations of sexual orientation are unacceptable under the Convention (e.g. Vallianatos and Others and Pajić). On the other hand, in cases where unmarried same-sex couples and unmarried different-sex couples were not treated differently, the Court considered there to be no issue under Article 14 ECHR.
.. to significantly different situations
In the present judgment, the Court also establishes that the applicants are not treated differently from unmarried different-sex couples in respect of the granting of a residence permit on family grounds. After all, neither group qualifies for such a residence permit under the applicable Italian law. However, instead of leaving it at that as it used to do, the Court here takes its reasoning a step further by finding that very fact problematic. It recalls that discrimination may also consist of a failure to treat differently persons whose situations are significantly different (e.g. Thlimmenos). The Court finds the situation of the applicants significantly different from that of different-sex unmarried partners for a number of reasons.
Firstly, the applicants have no access to marriage under Italian law and the restrictive interpretation of the notion ‘family member’ under Italian immigration law is consequently an insuperable obstacle for them for obtaining a residence permit. Also, there was no alternative form of registration available to the applicants and their position under Italian law remained uncertain, a matter that must, of course, be redressed on the basis of Oliari. Lastly, the Court notes that, because the applicants had the status of unmarried couple in New Zealand and later married in the Netherlands, their situation cannot be compared to that of a different-sex partners who, for personal reasons, do not wish to enter into a marriage or civil union. On this combination of grounds the Court finds that as regards the residence permit for family members, the applicants were treated equally to couples in a significantly different situation, namely different-sex couples that decided not to have their relationship legally recognized.
The Court subsequently finds that there was no objective and reasonable justification for this equal treatment of significantly different situations. In this context it refers to case-law that it has not often referred to in LGBT-cases, on the basis of which ‘[…] the prohibition of discrimination enshrined in Article 14 of the Convention is meaningful only if, in each particular case, the applicant’s personal situation in relation to the criteria listed in that provision is taken into account exactly as it stands’ (Andrajeva, para. 91). It also reiterates its well-known case-law that a difference in treatment on grounds of sexual orientation requires ‘particularly convincing and weighty reasons’ by way of justification. In line with more recent case-law, the Court finds that protection of the traditional family is not in itself such a convincing and weighty reason (e.g. Vallianatos and Others). It underlines that precisely the absence of the possibility to have access to a form of legal recognition placed the applicants in a different situation from unmarried different-sex couples. The restrictive interpretation of the law paid too little attention to the personal circumstances of the applicants. Lastly, the Court notes a ‘significant trend’ at the global level to treating same-sex partners as family members for the purposes of immigration. In conclusion the Court finds a violation of Article 14 in combination with Article 8 ECHR.
Implications of this approach
Taking this approach – novel to the Court’s case-law on discrimination on grounds of sexual orientation – allows the Court to stay away from any normative claim about marriage; the case can be decided without any judgment about the comparability of spouses and unmarried couples. However, the establishment of significantly different situations is of course still clearly linked to marriage and one may wonder if the net effect is that different. Judge Sicilianos takes the position that from this judgment it a contrario follows that unmarried same-sex couples are compared to married different-sex couples and he finds that inconsistent with existing case-law in the field, as set out above.
Concurring Judges Spano and Bianku for their part hold that the present judgment ‘[…] does nothing more than require Italy to take due account of the existence of a serious and stable same-sex relationship in the specific context of immigration proceedings.’ Immigration may indeed be regarded a specific context, which may also limit the implications of this judgment. Accommodating cross-border movement by recognising same-sex stable partners like spouses for the purposes of immigration does, for example, not require that Italy opens up marriage to same-sex couples. At the same time, as I have set out elaborately elsewhere, it cannot be ruled out that such obligations of accommodation put pressure on national law for non-cross- border situations. In this regard it will also be interesting to see how the Court judges the pending case of Orlandi and Others v. Italy, where same-sex couples complain about the refusal to register their marriage contracted abroad.
Also, it can be questioned, how specific the Court’s reasoning in Taddeucci and McCall is for the immigration context. It appears that the imperative of treating significantly different cases differently may also hold in respect of various other rights and benefits that are reserved for marriage under Italian law. In fact, this imperative could be ground for ruling out further existing differences between the rights of unmarried same-sex couples and married couples in other Council of Europe Member States where marriage is not open to same-sex couples. However, because the Court bases its finding of significantly different situations in this case on a combination of factors – apart from the fact that marriage is not open to same-sex couples under Italian law also the fact that there is at all no alternative registration form available and the fact that the applicants enjoyed a certain status in New Zealand and later (!) married in the Netherlands – future case-law will have to make clear whether the here applied approach can be repeated in non-Italian cases. It would be especially interesting to see if it could also be applied in cases where same-sex couples cannot marry under the relevant domestic law, but have access to a weaker registration form.
All in all, while its full implications cannot be overseen yet, this judgment is another important contribution to the abolishment of discrimination on grounds of sexual orientation. In terms of outcome it may appear a logical follow-up to Pajić concerning family reunification, but in terms of its approach it is a welcome novelty that allows for the remedying of (indirect) discrimination of same-sex couples.