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To the lighthouse: same sex marriages
after Lisbon treaty
Avv. Marinella Baschiera
Pisa
89th of July 2014
“Come now,” said Mr. Ramsay, suddenly shutting his book.
Come where? To what extraordinary adventure? She woke
with a start. To land somewhere, to climb somewhere? Where
as he leading them? For after his immense silence the words
startled them. But it was absurd. He was hungry, he said. It was time
for lunch. Besides, look, he said. “There’s the Lighthouse. We’re almost
there.” ( Virginia Wolf, To the lighthouse)
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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To the lighthouse: same sex marriages
after Lisbon treaty
• The window or The fundamental right to marry as
recognised in treaties and charters
• Time passes or How case law of ECHR and ECJ
influenced the process of recognition and enforcement
of the right to marry (SSM)
• To the lighthouse or How the Lisbon treaty changed the
scenario: federalization of Fundamental rights
recognition
• Case study: Windsor vs. United States
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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To the lighthouse
• The window or The fundamental right to marry as
recognised in treaties and charters
• Time passes or How case law of ECHR and ECJ
influenced the process of recognition and enforcement
of the right to marry (SSM)
• To the lighthouse or How the Lisbon treaty changed the
scenario: federalization of Fundamental rights
recognition
• Case study: Windsor vs. United States
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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To the lighthouse: the window
• Partitions of fundamental rights:
• Liberty rights, civil rights, social rights, “new
generation rights”
• Right to marry as a civil right: the liberty of the
individual as a human being to make a life choice.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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The Window: International
Conventions/Treaties/Charters
• A) protection of family as an institution
• B) protection of non traditional families: heterosexual couples
outside the wedlock and same sex marriages
• Art. 8 European Convention of Human Rights (ECHR): Right to
respect for private and family life
• 1. Everyone has the right to respect for his private and family life,
his home and his correspondence.
• 2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national
security, public safety or the economic wellbeing of the country, for
the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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The window: European Charter of
Fundamental Rights
• Article 7: Respect for private and family life
• Everyone has the right to respect for his or her
private and family life, home and
communications
• Article 9: Right to marry and right to found a
family
• The right to marry and the right to found a family
shall be guaranteed in accordance with the
nationallaws governing the exercise of these
rights.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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The window: European Charter of
Fundamental Rights
• Article 10: Freedom of thought, conscience and
religion
• 1. Everyone has the right to freedom of thought,
conscience and religion. This right includes freedom to
change religion or belief and freedom, either alone or
in community with others and in public or in private, to
manifest religion or belief, in worship, teaching,
practice and observance.
• 2. The right to conscientious objection is recognised, in
accordance with the national laws governing the
exercise of this right.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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Time passes: How case law of ECHR influenced the
process of recognition and enforcement of the right to
marry (SSM)
a) Niemietz vs. Germany (1993): the Court
refused to define private life, stating that it
would be neither possible nor necessary to
do so.
b) Botta vs. Italy (1996) : the Court makes clear
that the right to respect for private life
certainly comprises the right to establish and
develop relationships with other human
beings
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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Time passes: How case law of ECHR influenced the
process of recognition and enforcement of the right to
marry (SSM)
c) Mata Estevez vs. Spain (2001):
- long term homosexual relationship do not fall
within the scope of art. 8 of the Convention
- margin of wide appreciation/ discretionality of
states adhering to the Convention
Turning point in the Court case law: the bond
recognised in
d) Burden vs. United kingdom (2005)”what is
determinative id the existence of a public
undertaking”
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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Time passes: How case law of ECHR influenced the
process of recognition and enforcement of the right to
marry (SSM)
d) Schalk and Kops vs. Austria(2001) applicants sought
protection from violation art. 12 ECHR, sinche the
expression “men and women” should be interpreted
as “every person”
The Court : 1 in the light of recent developments of the
right to marry enshrined in art. 12 cannot be limited
“in all circumstances to marriage between two
persons of the opposite sex”
- But also acknowledges that since the institution of
marriage has deep social roots and cultural
connotations national authorities are best placed to
assess and respond to the need of society.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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To the lighthouse: ECJ and the Lisbon
Treaty
• Pre- Lisbon Treaty:
• Case 29/69 Stauder [1969] ECR--‐419) ECJ
affirms fundamental (human) rights form an
integral part of the general principles of EU
law whose observance the Court ensures
• 1 When MS act as EU agents
• 2 When MS apply EU LAW
• 3 When MS derogates EU LAW
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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To the lighthouse: ECJ and the Lisbon
Treaty
• 1 When MS act as EU agents :
• ECJ clarified in Wachauf (Case 5/88) and
reaffirmed in Case C--‐2/92 Bostock [1994]
that national authorities, when implementing
EU measures, must indeed comply with EU
fundamental rights as they form an integral
part of the general principles of EU law
protected by the Court.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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To the lighthouse: ECJ and the Lisbon
Treaty
• 2 When MS apply EU Law:
• ECJ releases two judgments in 2003 Rundfunk
and Lindqvist Cases C--‐465/00, C--‐138/01 and
139/01: EU fundamental rights bind Member
States/National Authorities not only when they
adopt administrative or legislative acts in order to
implement EU rules but more generally, when
they interpret or apply any domestic legal
provision that falls within the scope of EU law.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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To the lighthouse: ECJ and the Lisbon
Treaty
• 3 When MS derogates EU Law: a long story
• Balance between the exercise of residual powers by MS (principle
of sovereignity) and EU obligations
• In the ERT Case (the Greek television case) Case C--‐260/89 ECJ
maintained:
• “In particular, where a Member State relies on the combined
provisions of Articles 56 and 66 [now 52 and 62 TFEU] in order to
justify rules which are likely to obstruct the exercise of the freedom
to provide services, such justification, provided for by Community
law, must be interpreted in the light of the general principles of law
and in particular of fundamental rights. Thus the national rules in
question can fall under the exceptions provided for by the combined
provisions of Articles 56 and 66 only if they are compatible with the
fundamental rights the observance of which is ensured by the
Court”
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
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To the lighthouse: the Lisbon Treaty
• Article 6 (1) and (3) TEU provides for the Charter
and general principles as Union norms ensuring
the protection of fundamental rights in the EU
• “recognises the rights, freedoms and principles
set out in the Charter of Fundamental Rights of
the European Union of 7 December 2000, as
adapted at Strasbourg, on 12 December 2007,
which shall have the same legal value as the
Treaties”
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
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To the lighthouse: the Lisbon Treaty
•
•
•
•
•
Changes:
A) potential federalising effect of the charter
B) Horizontal application of fundamental rights
A) art. 51 (1) ECFR: Article 51 Scope
1. The provisions of this Charter are addressed to the institutions
and bodies of the Union with due regard for the principle of
subsidiarity and to the Member States only when they are
implementing Union law. They shall therefore respect the rights,
observe the principles and promote the application thereof in
accordance with their respective powers.
2. This Charter does not establish any new power or task for the
Community or the Union, or modify powers and tasks defined by
the Treaties.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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To the lighthouse: the Lisbon Treaty
• Art. 51 is not paralizing: a prohibited national action may be
interpreted by the ECJ as falling within the scope of application of
EC law without the Community necessarily having legislative power
to act in that field ( De Burca 1999 JCMS)
• Zambrano Case (Case C‐34/09 ): Article 20 TFEU precludes national
measures which have the effect of depriving EU citizens of the
genuine enjoyment of the substance of the rights conferred by
virtue of their status as EU citizens. Because a refusal to grant a
right of residence and a work permit to a third country national
with dependent minor children in the Member State where those
children are nationals and reside has such an effect, the Court
decided that it was irrelevant that the children never exercised his
right to free movement within the territory of the Member State.
• Belgium’s decision fell within the scope of Union law
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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To the lighthouse: the Lisbon Treaty
• As regards Horizontal application of
fundamental rights.
• The research question is whether the legally
binding status of the Charter may increase the
opportunities for individuals to invoke EU
fundamental rights in the context of legal
proceedings between private parties.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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To the lighthouse: the Lisbon Treaty
• ECJ Mangold Case (Case C-129/96):
• the general principles of Union law, including fundamental
rights, can be relied in the context of legal disputes
between private parties when they are further developed
in directives regardless of whether the deadline for
transposition of the directives had passed or not
• it is the responsibility of the national court hearing a
dispute involving the principle of non discrimination in
respect of age, to provide the legal protection which
individuals derive from rules of Union law to ensure that
those rules are fully effective, even if this means setting
aside any provision of national law which may conflict with
EU law.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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This is not the lighthouse, but only a
Case Study: Windsor vs. United States
Fabbrini “Fundamentals rights in Europe:
Challenges and Transformations in
Comparative perspective” 2014
Comparative methodology
Comparison EU/ US more appropriate post
Lisbon Treaty
Conclusions
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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