The EU Court in Luxembourg is raising the bar on LGBT rights

By Sam MacMahon Baldwin, Attorney-at-law (Advokat) at Gorrissen Federspiel

2017 ended with the Strasbourg Court reaffirming the decision from Orlandi and Others v. Italy that Member States must recognize and protect same-sex unions – although the Court did not require recognition of actual same-sex marriage. Now well into the new year, it is the EU Court in Luxembourg that is pursuing LGBT rights and personal dignity. Two cases from January are set to raise the bar for EU Member States.

The first case is Advocate General Wathelet’s opinion in Coman and Others v. Romania in which he recommends the CJEU to hold that the term spouse applies equally to same-sex as well as opposite-sex marriages under the Citizens’ Rights Directive. If the CJEU decides to follow the Advocate General’s opinion, it could have a huge impact on how same-sex unions are viewed under European human rights law. While Member States would still be free to provide (or not) for marriage for persons of the same sex in their domestic legal orders, the judgment would essentially require Member States to accept the notion of same-sex marriage when applying European Union law.

The second case F v. Hungary deals with what tests asylum seekers can be subjected to when Member State border controls seek to verify an asylum seeker’s claim that he is being persecuted in his own country on account of being homosexual. Certain psychological tests for the purpose of assessing such claims are offensive to the Refugee Status Directive read in light of the Charter, says the CJEU. In addition to the issue of LGBT rights, this judgment comes in the middle of a broader legal and political stand-off between the EU and Hungary on the issue of accepting refugees and migrants.

Coman and others v. Romania – EU law recognizing same-sex marriage

The Citizens’ Rights Directive fleshes out the treaty based right for Union citizens to move and reside freely in the territory across Member States. For free movement opportunity to be effective, the Directive affords Union citizens the right to bring along their closest family members even when such family members are not themselves Union citizens.

In 2012, Mr. Coman sought to make use of his free movement rights by returning to his home country of Romania to work and reside after having worked for three years at the European Parliament in Brussels. During his time in Brussels, he married Mr. Hamilton, a US national, whom he naturally wished to bring back to Romania. The Romanian government, however, refused to grant Mr. Hamilton residence permission under the Romanian framework implementing the Citizens’ Rights Directive. Although the couple were indeed married in the eyes of the Belgian state, Romania recognizes no form of same-sex union – be it marriage or other form of registered partnership – despite Strasbourg case law. The couple challenged the rejection decision before the Romanian courts who asked the CJEU whether refusing to recognize the marriage could be squared with the Directive read in light of the Charter.

Defining the notion of marriage

Entry and residence rights under the Directive apply to a Union citizen and his/her spouse. The rights apply equally to a registered partner of a Union citizen, but only if the host Member State treats registered partnerships as equivalent to marriage under domestic law. In other words, the Directive clearly and intentionally discriminates between the spouse of a Union citizen on the one hand and the registered partner of a Union citizen on the other.

Backed by the European Commission and the Dutch government, Mr. Coman argued at the CJEU that he was not traveling from Belgium to Romania with a registered partner. He was traveling with a spouse which meant that the domestic law limitation did not apply. The position of the Romanian government – supported by those of Latvia, Hungary, and Poland – was that defining the notion of marriage falls within the exclusive competence of each Member State and that the Directive cannot directly or indirectly override this prerogative.

A term intentionally left open by the drafters

The Advocate General makes it clear from the beginning of his opinion that the case goes far beyond the Directive and free movement in general. He emphasizes in his introduction that

“[T]he definition of the concept of ‘spouse’ to be given will necessarily affect not only the very identity of the men and women concerned, and therefore their dignity, but also the personal and social concept that citizens of the Union have of marriage, which may vary from one person to another and from one Member State to another.”

After a thorough analysis of wording, context, and purpose, the Advocate General reaches the conclusion that the interpretation of the term spouse under the Directive must be one that is autonomous and independent of sexual orientation. Mr. Hamilton is thus Mr. Coman’s spouse for the purpose of the Directive.

Based on the need for uniform application of EU law and equal treatment, he rejects the Romanian government’s position that the concept of marriage under EU law must respect and be subordinate to the domestic law definition in each host Member State.  The Advocate General emphasizes that the term spouse was intentionally left undefined in the Directive by its drafters back in 2004, thus supporting a gender-neutral interpretation independent of the place where the marriage was concluded.

Combining human rights and free movement reasoning

In probably the most pivotal part of his opinion, the Advocate General recalls the need to interpret EU law “in the light of present day circumstances, that is to say, taking the ‘modern reality’ of the Union into account.”. And that failure to adopt such an approach “would run the risk of imposing outdated views and taking on a static role.” Indeed true human rights law language and overlapping with Strasbourg reasoning.

Interestingly, during the drafting process of the Directive, the European Parliament did actually table an amendment of the wording, so that the term spouse would expressly include that of the same sex. However, the Council and European Commission rejected this amendment, referring to the fact that only two Member States provided for same-sex marriage at the time (2004). Importantly though, the European Commission stressed while drafting, that the final wording allows for a possible change in interpretation in the light of developments in family law in the Member States. On this basis, the Advocate General asserts that the 11 more Member States who have since amended legislation to allow for same-sex marriage form part of a general movement justifying a new interpretation.

Finally, the Advocate General emphasizes the Directive’s overall objective to facilitate and encourage free movement. When faced with a choice, he says, the interpretation which “facilitates the free movement of a greater number of citizens” must be chosen.

Will the CJEU follow the Advocate General’s opinion?

In a case like this, the composition of the chamber hearing the case could well play a role in whether or not the CJEU will follow the Advocate General’s opinion. One need not look very long at a map of Europe before spotting that Central/Eastern Europe Member States have been less adamant than Western European ones in pursuing pro-LGBT policies. Cultural differences in this regard are also reflected at the highest judicial level, cf. for example the dissenting opinions in the ECtHR’s judgment in Orlandi and Others v. Italy.

In the same vein, a likely debate in the deliberation chamber will be what level of Member State consensus is required to trigger a dynamic interpretation based on present day conditions. Although there is indeed a real trend in favour of complete equality by way of recognizing same-sex marriage,  half of the Member States still do not allow for it. Further, a handful of Member States have even enshrined in their constitutions that marriage is exclusively reserved for a union between a man and a woman. Critical members of the CJEU will be questioning whether the Advocate General’s opinion is simply reacting to a change in society or rather seeking to drive it by imposing a development in Western Europe upon the rest of the Union.

F v. Hungary – border control psychology tests    

How are immigration authorities to verify the credibility of statements made by an asylum seeker who claims, as grounds for seeking asylum, fear of being persecuted in his country of origin for reasons relating to his sexual orientation? In particular, does EU law preclude psychologists’ expert opinions?

These were, in essence, the questions that a Hungarian court asked the CJEU in the case between F, a Nigerian national, and the Hungarian Immigration and Asylum Office. In 2015, F submitted an application for refugee status expressing his fears that he would be persecuted because of his homosexuality if he were to return to Nigeria. To test the credibility of his claims, the Office carried out a number of personal interviews with him. The Office also appointed a psychologist to examine F’s personality which served to substantiate his sexual orientation. The psychologist in question made use of various projective tests in the form of the “Draw-a-Person-in-the-Rain” test, the Rorschach test, and the Szondi test. The psychologist concluded that the test results did not support F’s claims that he was a homosexual and, on this basis, the Office rejected his request for asylum.

F challenged the decision before the Hungarian courts arguing that subjecting him to these tests violated his fundamental right of human dignity under Article 1 of the Charter. He moreover submitted that the tests were wholly unsuitable to determine his sexual orientation.

No scientific basis for using projective tests to determine sexual orientation

The CJEU – who was asked by the Hungarian court for guidance – essentially agreed with F. The CJEU held that the assessment under the Refugee Status Directive must, in particular, be based on whether the applicant’s statements are found to be coherent and plausible. Also taking into account whether the applicant’s general credibility has been established and that his statements do not run counter to the available specific and general information relevant to the case.

Psychological expert reports may be relevant, the CJEU says, only if they are based on sufficiently reliable methods and principles in light of standards recognized by the international scientific community. The CJEU then notes that although it ultimately falls to the Hungarian court to consider, the reliability of the report on F was rigorously contested by the French and Dutch governments as well as by the European Commission. The Hungarian government had not put on a very persuading case as to the suitability of the tests, which was also noted by Advocate General Wahl who stated the following in his opinion:

“It would seem to me, though, that such type of analysis inevitably involves the use of stereotyped notions as to the behaviour of homosexuals. In fact, when asked at the hearing, the Hungarian Government was at pains to explain why the analysis at issue in the main proceedings did not involve the use of stereotyped notions.”

On this basis – and considering the serious and intrusive nature of the tests in question – the CJEU found Hungary’s use of projective personality tests to be a disproportionate interference with F’s right to privacy. In no uncertain terms the CJEU therefore precludes the use of such tests for the purpose of determining a person’s sexual orientation under the Refugee Status Directive read in the light of Article 7 of the Charter.

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