Same-Sex Marriage: The EU is Lagging Behind

Alina Tryfonidou, Associate Professor in EU Law, School of Law, University of Reading

Last Friday, in its much-awaited ruling in Obergefell v. Hodges, the US Supreme Court held that same-sex couples derive from the US Constitution the fundamental right to marry and, for this reason, invalidated State laws which impose a ban on such marriages. The Supreme Court, also, held that marriages lawfully performed in one US State must be fully recognised in all other US States. This is, without a doubt, an historical ruling of immense symbolic and practical importance, since it means that allLGB US citizens are now able to marry a same-sex partner, and to be recognised, together with the latter, as a married couple everywhere in the US.

Given that the first country in the world that opened registered partnerships to same-sex couples was Denmark, in 1989, and that the first country that opened marriage to same-sex couples was the Netherlands, in 2001, one would have expected the EU to be a pioneer in matters regarding the legal recognition of same-sex relationships. Nonetheless, the EU’s stance on these matters and on the protection of the rights of same-sex couples remains disappointingly aloof.

This piece will focus on same-sex marriage and shall seek to examine the EU’s position towards a) same-sex marriage in situations confined within a single Member State; and b) the cross-border legal recognition of same-sex marriages (i.e. when EU citizens who are married to a person of the same sex move to another Member State).

Can the EU Require Member States to Open Marriage to Same-Sex Couples?

The answer is simple and it is ‘no’, at least as things stand at the moment. In its judgment in Römer, the Court stressed that ‘as European Union law stands at present, legislation on the marital status of persons falls within the competence of the Member States’. Moreover, the drafters of the EU Charter of Fundamental Rights seemed to share the same view, when in the Explanations Relating to the Charter of Fundamental Rights, it was pointed out that the Charter Article providing the right to marry (Article 9) ‘neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex’.

Because matters that fall within the ambit of family law are (usually) matters for which there is no European consensus and for which it is believed that each Member State should be left alone to make its own choices, family law is an area in which the EU has no competence to legislate. Thus, it is the Member States that can decide in situations that fall within their jurisdiction, who can marry whom, the requirements for divorce, adoption issues, the regulation of assisted reproduction, and any other issues falling within the ambit of family law. The legal recognition of same-sex relationships is no exception to this, and, hence, it is up to each Member State to decide whether it will allow in its territory two persons of the same sex to marry. This has resulted in an EU which is divided between the (mostly northern and western) Member States which have opened marriage to same-sex couples,[i]and the (mostly central and eastern) Member States which have not,[ii]with some Member States having a constitutional ban on opening marriage to same-sex couples.[iii]

Does the EU Require Member States to Recognise Same-Sex Marriages Lawfully Performed In Another Member State?

Even when the EU does not have the competence to make legislation in a certain area, this does not mean that the Member States have a carte blanche when exercising their powers in that field. This is because Member States must ensure that when they take action in an area which falls to be regulated exclusively by them, they comply with their obligations under EU law.

The next important question, therefore, is what happens to married same-sex couples comprised of (at least) one Union citizen, who move between Member States? If they move to a Member State which has not opened same-sex marriage to its own nationals, do they lose their status as a married couple and, with it, the automatic EU law right to move and reside to the host State together as a couple? Also, once they are within that State’s territory, are they not treated as a married couple for all legal purposes and, hence, are they refused benefits and advantages that are only available to married couples? Or does EU law require Member States which do not offer the option of marriage to same-sex couples in their own territory, to, nonetheless, recognise the status of same-sex couples who lawfully contracted their marriage in another Member State? The answer to this question is not entirely clear.

The reason behind this uncertainty is that the EU legislation which makes provision for the rights (including family reunification rights) of mobile Union citizens, uses the gender- and sexual orientation-neutral term ‘spouse’, without clarifying that this term – at least in this context – refers to both same-sex and opposite-sex spouses. This has proved problematic, because it has been read by some Member States as a licence to refuse to recognise same-sex marriages contracted in other Member States.

More specifically, Directive 2004/38, which lays down the conditions governing the exercise of the right of Union citizens and their family members to move and reside in the territory of another Member State, provides, in its Article 2(2)(a), that ‘family member’ for the purposes of this Directive means, inter alia, ‘the spouse’, and, thus, Union citizens can be accompanied or joined by their ‘spouse’ in the host Member State. One would have thought that a marriage – whether comprised of persons of the same or the opposite sex – lawfully contracted in a Member State, would be considered valid in all other Member States. After all, Recital 31 of the Directive, provides that ‘In accordance with the prohibition of discrimination contained in the Charter, Member States should implement this Directive without discrimination between the beneficiaries of this Directive on grounds such as … sexual orientation’. This, on its own, should suffice for making it clear to the Member States that when implementing the Directive, they must ensure that they do not act in a way which is (directly) discriminatory on the ground of sexual orientation, and, thus, just as they recognise (all) opposite-sex marriages lawfully performed in other Member States they must, also, recognise (all) such same-sex marriages.

In any event, refusing to an LGB Union citizen the right to be joined or accompanied in the host Member State by his or her same-sex spouse can, without a doubt, constitute an obstacle to that person’s fundamental right to move and reside in the territory of another Member State, which stems from the free movement provisions of the FEU Treaty. The rationale of the EU legislature – and the ECJ – for granting family reunification rights to mobile Union citizens, has always been that the refusal of such rights will give rise to a restriction on the exercise of free movement rights (Singh; Carpenter; Metock). It goes without saying that such a restriction will emerge, whether the spouse of a Union citizen is of the same or the opposite sex and hence it appears entirely arbitrary to treat same-sex couples differently from opposite-sex couples. Although the ECJ has not, yet, had the opportunity to rule on whether the refusal of the host State to admit within its territory the same-sex spouse of a mobile Union citizen amounts to a breach of the free movement provisions of the Treaty, a case is currently pending before it (Cocaj), where one of the questions referred is whether ‘registered partnerships’ under Article 2(2)(b) of Directive 2004/38, include same-sex registered partnerships.

 

Once it is found that the refusal to recognise same-sex marriages contracted in other Member States amounts to an obstacle to free movement, the onus will then fall on the recalcitrant Member State to justify its refusal. It seems, nonetheless, that it will be unable to rely on the public policy exception, which is one of the Treaty derogations from the free movement provisions, and this will be so for two reasons. Firstly, since it is engaging in a block refusal to recognise same-sex marriages contracted elsewhere, the requirement laid down in Article 27 of Directive 2004/38, that the measure which limits the exercise of free movement rights is based on the personal conduct of the individual concerned, will not be satisfied. Secondly, national measures can be justified under the Treaty derogations only if they are compatible with fundamental human rights protected under EU law (ERT) and, as will be explained below, a refusal to recognise same-sex marriages contracted in other Member States seems to amount to a breach of Article 21 of the EU Charter of Fundamental Rights and, in particular, the prohibition of discrimination on the ground of sexual orientation, and of the right to human dignity.

A restriction on the exercise of free movement rights is, also, likely to emerge from the simple fact that a same-sex married couple will lose its status or will have its status converted into a ‘lesser’ one (namely, registered partnership), something which will, obviously, have important (negative) implications once the couple is admitted into the territory of the host State. Apart from the hurt feelings and uncertainty that such a loss or ‘downgrading’ of status will cause, it shall, also, give rise to a substantial degree of (practical) inconvenience which, in turn, can lead to an obstacle to the exercise of free movement rights, since the couple – although lawfully married in another Member State – will not be entitled to benefits and advantages reserved to married couples.[iv] For instance, hospital visitation rights or pensions, and tax, social or other advantages, which, under national law, are only available to married couples, will not be granted to the spouses, since in the eyes of the law of the host State, they are not married.

Apart from Article 21 of the EU Charter of Fundamental Rights (see the analysis below) and/or the free movement provisions of the Treaty, some relief in this context can, also, be offered via Directive 2000/78, which prohibits discrimination on, inter alia, the ground of sexual orientation, in the areas of employment, occupation and vocational training. In particular – and applying in this context the principles established in case-law involving stagnant Union citizens (Maruko; Römer; Hay) – same-sex spouses who move to another Member State where they are ‘downgraded’ to registered partners, can rely on the Directive to require the host State to extend to them benefits reserved to opposite-sex spouses, provided that the benefits relate to employment, occupation or vocational training, and provided that the host State considers the two categories of couples (opposite-sex spouses and same-sex registered partners) to be in a comparable situation for the purposes of the claimed benefit. Nonetheless, this is, only, a partial solution to the problem, since it will not offer any remedy to same-sex spouses who move to Member States which do not grant any legal recognition to same-sex relationships or Member States which do not consider – for the specific benefit that is claimed or more generally – opposite-sex spouses to be in a comparable situation with same-sex registered partners. Furthermore, it will not offer any remedy in situations where the claimed benefit or advantage does not relate to employment, occupation or vocational training.

The refusal of the host Member State to recognise same-sex marriages contracted in other Member States of the EU is, also, in breach of fundamental (human) rights that are protected under the Charter and/or as general principles of EU law.

Article 21(1) of the Charter, provides that ‘Any discrimination based on any ground such as … sexual orientation shall be prohibited’. Since all Member States automatically recognise (opposite-sex) marriages contracted in other Member States, a refusal to recognise same-sex marriages, amounts to (direct) discrimination on the ground of sexual orientation. In its Article 51(1), the Charter provides that its provisions are addressed ‘to the Member States only when they are implementing Union law’. Recent ECJ rulings have interpreted this broadly, by noting that ‘The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter’ (Fransson). Accordingly, it would seem that situations which involve measures that lead to an obstacle to the exercise of EU free movement rights can fall within the scope of the Charter. Union citizens can, therefore, rely on Article 21 of the Charter in order to require the Member State to which they move to recognise their same-sex marriage and to admit them within its territory and treat them as a married couple. Of course, Member States may wish to try to justify this instance of differential treatment (e.g. on the need to protect the traditional notion of marriage as a union between a man and a woman), but given that – as made clear in the ECHR context – only ‘particularly serious reasons’ can justify discrimination on the ground of sexual orientation (Dudgeon v. United Kingdom; Smith & Grady v. United Kingdom; Karner v. Austria), they will be faced with an uphill struggle, and, in practice, it is unlikely that they will be able to successfully rely on a justification.

Stripping a same-sex married couple of its legal status seems to be, also, a breach of the right to human dignity of the persons comprising it, which is protected under Article 1 of the Charter and which is, also, a general principle of EU law.[v]Forming intimate relationships with other individuals and choosing to formalise such relationships is an exercise of personal autonomy, which is an aspect of the dignity of every human being. The EU, by prohibiting discrimination on the ground of sexual orientation, (tacitly) admits the equal worth of all individuals irrespective of their sexual orientation, and, with it, the equal moral worth of opposite-sex and same-sex relationships. When a Member State refuses to give effect to the choices of individuals as regards their same-sex relationships and the legal status attached to them, it treats such relationships differently from opposite-sex relationships and it treats them as inferior – and as not having the same moral worth – as the latter. Accordingly, it fails to respect the autonomy and dignity of the individuals who have formed and formalised such relationships. The right to human dignity appears, in fact, to have formed the backbone of the majority Opinion in Obergefell v. Hodges which, taking as its basis that ‘the right to personal choice regarding marriage is inherent in the concept of individual autonomy’ and that ‘[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices’, concluded that the US Constitution should be read as granting to same-sex couples the fundamental right to marry in the same terms that this has always been granted to opposite-sex couples.

Accordingly, it is obvious from the above analysis that the refusal of the host Member State to recognise the same-sex marriages of mobile Union citizens, amounts to an unjustified breach of a number of fundamental rights (free movement and residence rights; non-discrimination on the ground of sexual orientation; human dignity) that these individuals derive from EU law.

Conclusion

As things stand, it is clear that the EU cannot require Member States to open marriage to same-sex couples. Nonetheless, a number of EU law provisions appear to require Member States to recognise same-sex marriages lawfully entered into in the territory of another Member State. Accordingly, Union citizens who move to another Member State should be allowed to be accompanied or joined there by their same-sex spouse andshould be treated as ‘spouses’, once they are admitted into the territory of the host State. Accordingly, the EU can no longer stand idle, turning a blind eye to the violation by some Member States of the fundamental rights of a segment of the EU population (i.e. the LGB population). The ECJ (when given the opportunity) and the EU legislature, should make it clear that EU Member States are required by EU law to recognise the same-sex marriages of mobile Union citizens, just as they do in situations involving Union citizens who are married to an opposite-sex partner.

Further Reading

A. Tryfonidou, ‘EU Free Movement Law and the Legal Recognition of Same-Sex Relationships: The Case for Mutual Recognition’ (2015) Columbia Journal of European Law (forthcoming)

C. Casonato and A. Schuster (eds), ‘Rights on the Move: Rainbow Families in Europe: Proceedings of the Conference:  Trento, 16-17 October 2014’ available at http://eprints.biblio.unitn.it/4448/

D. Gallo, L. Paladini and P. Pustorino (eds), Same-Sex Couples before National, Supranational and International Jurisdictions (Springer, 2014)

R. Wintemute and M. Andenas (eds), Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law (Hart, 2001)

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[i]  The Netherlands (2001), Belgium (2003), Spain (2005), Sweden (2009), Portugal (2010), Denmark (2012), France (2013), UK (2014) (apart from Northern Ireland), Luxembourg (2015), Finland (from 2017), Ireland (popular referendum yielded a positive result; awaiting for the law to be passed), Slovenia (proposal for same-sex marriage currently under discussion).

[ii]  Austria, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Germany, Greece, Hungary, Italy, Malta, Latvia, Lithuania, Poland, Romania, Slovakia. Some of these Member States (i.e. Austria, Croatia, Czech Republic, Estonia, Germany, Hungary, Malta), however, offer to same-sex couples the option of a registered partnership/cohabitation.

[iii]  Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland, Slovakia.

[iv]  A parallelism can be drawn here with ECJ case-law where it was held that the refusal to recognise a surname registered in another Member State or in accordance with the practice followed in another Member State leads to a substantial degree of inconvenience which, in its turn, can impede the exercise of free movement rights. See, most prominently, Case C-148/02 Garcia Avello ECLI:EU:C:2003:539 and Case C-353/06 Grunkin and Paul ECLI:EU:C:2008:559. This parallelism was first drawn in G. Biaggioni, ‘On Recognition of Foreign Same-Sex Marriages and Partnerships’ in D. Gallo, L. Paladini and P. Pustorino (eds), Same-Sex Couples before National, Supranational and International Jurisdictions (Springer, 2014), 376-377.

[v] This right was, also, used by the Court (together with other the right to respect for private and family life protected under Article 7 of the Charter and Directive 2004/83) in order to limit the freedom of national authorities to use various practices when seeking to establish the sexual orientation of LGB asylum-seekers – see A., B, C case (for comments on the case see the piece by Steve Peers in this blog here). 

Barnard & Peers: chapter 13, chapter 20

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Is repealing the Human Rights Act compatible with EU law?

 

Steve Peers

 

The new British government has indicated that it is determined to repeal the UK’s own Human Rights Act (HRA) in the near future. There are a number of legal and political problems with this idea, which are aptly summarised (with many links to further discussion) in a new Jack of Kent blog post. But the issue of the overlap between the HRA and EU law isn’t discussed there. I blogged last year on how the Conservative party’s strategy document on this issue fit very awkwardly with the UK’s EU law obligations, but it’s a good time to update this analysis.

 

First of all, let’s simplify the analysis by assuming that the UK will not withdraw from the European Convention on Human Rights (ECHR), although as discussed in the prior blog post, the strategy document did raise the possibility that the UK will withdraw from that Convention if the Council of Europe raises too many objections to its plans. As I blogged previously, withdrawal from the ECHR could impact upon the UK’s EU membership, but we are not at that stage yet.

 

Secondly, we have not yet seen the details of the government’s proposals to repeal the HRA, but I will assume for now that they will not aim to disapply the EU’s Charter of Rights in the domestic laws of the UK. I have separately bloggedon the reasons why this would be unfeasible, but let’s assume for now (until we see those proposals) that this is not the government’s intention.

 

The core of the government plan (if it follows the template set out in the previous strategy document) is to weaken the domestic system of human rights protection, decouple it from the ECHR system and introduce new rules which weaken substantive protection of human rights for any group of people whom the government deems to be sufficiently despicable (for more details, see my critique of the plan here). How does that relate to EU law?

 

The key questions here are: is the plan to repeal the HRA compatible with EU law? If not, to what extent? And what are the consequences?

 

At the outset, we should note that the EU Charter of Rights and the rights protected by the ECHR don’t always overlap. So repeal of the HRA could not create any conflict where (a) the Charter applies, but the ECHR does not (as regards social rights, for instance), or (b) the ECHR applies, but the Charter does not – because the Charter only applies where there is a link to EU law, as the CJEU set out in the judgment in Fransson. There’s only a possible conflict where both the Charter and the ECHR apply to an issue.

 

What sort of cases would these be? I suggest three examples, although this isn’t an exhaustive list. First of all, any limitations on the right to a fair trial granted to criminal suspects which resulted from repeal of the HRA could conflict with the EU legislation on their rights  to interpretation and translation, and their rights to information about proceedings, which the UK has opted in to. (There are other EU measures and proposals in this area, but the UK hasn’t opted in to them).

 

Secondly, any requirement that telecommunications service providers retain data for handing over to law enforcement authorities falls within the scope of EU law, since that would constitute a derogation from the rule in the EU’s telecom privacy Directive. Derogations from EU law fall within the scope of the Charter, as the CJEU recently ruled in Pfleger; I have discussed this point (as regards national data retention laws) in detail earlieron this blog.

This is relevant not just to the ‘DRIP’ Act passed by the UK Parliament last year (as I pointed out at the time), but also to any requirement that telecommunications providers retain and hand over the content of communications, which form part of the government’s plans for a so-called ‘Snooper’s Charter’. On the other hand, interception of communications directly by the police or security services would not fall within the scope of EU law, since there are no EU measures dealing with such issues in a purely domestic context.

 

Thirdly, the original plan for HRA repeal would strip ‘illegal’ immigrants and foreign criminals of the possibility of invoking at least some (if not all) human rights. Due to the UK’s opt-outs from EU justice and home affairs law, not all EU measures dealing with immigration issues apply to the UK. But depending on how these demonised groups are defined, this could result in a conflict with EU rules on the free movement of EU citizens and their family members, or with EU legislation on asylum (the UK is still bound by the first phase of this legislation, and has also opted in to parts of the second phase of it).

 

In most of these cases, we can’t be certain that the new plans would conflict with EU law until we see the exact text of the proposals. However, it’s already clear, in my view, that the DRIP Act conflicts with the EU Charter in part.

 

What happens in the event of a conflict? There are two issues here. First of all, the EU Charter refers to the ECHR as regards those Charter rights which ‘correspond’ to ECHR rights, such as the right to a private and family life and the prohibition on torture. It says that the relevant Charter rights have the same ‘meaning and scope’ as their ECHR equivalents. The explanations to the Charter make clear that the case law of the European Court of Human Rights also applies in this context.

 

Secondly, the Treaties provide for the EU itself to become a party to the ECHR. This process has been stalled because in December 2014, the CJEU ruled that the draft treaty to this effect was not compatible with EU law (as discussed here). However, since that judgment the EU has reopened discussions on how to accede to the ECHR.

 

The earlier policy document recognised that there might be a conflict between EU law and the Conservative party’s plans. It stated that the document’s position will be ‘reflected in the rules that will govern the EU’s interaction with the [Human Rights] Court’ (these rules have not yet been agreed, pending a deal on accession of the EU to the ECHR). The policy document also threatened a veto over the ratification of the EU’s accession treaty to the ECHR if ‘the UK’s new human rights framework is [not] respected’.

 

More generally, the strategy document concluded that human rights issues might be an issue forming part of the overall renegotiation of the UK’s role in the EU which the government is about to embark upon. It stated that if there is anything in EU law which ‘encroaches upon our new human rights framework’, then the renegotiation will have to address it. However, an immediate repeal of the HRA would likely take effect before the renegotiation of EU membership (if successful) takes effect.

 

What are the systemic implications of the government’s repeal of the HRA for EU law?

 

First of all, to the extent that EU law applies to a particular issue, the government’s plans are in principle incompatible with EU law, in the form of the Charter as interpreted in light of the ECHR, and the jurisprudence of the European Court of Human Rights, by the CJEU.  The CJEU’s case law for many years has insisted that EU law must be interpreted not only in light of the Convention but in light of the other Court’s case law. But these are precisely the two elements of the UK’s Human Rights Act which the Conservative strategy paper most strongly opposes. So the new proposals would only be compatible with EU law if they explicitly or implicitly make the new ‘British Bill of Rights’ entirely subject to the special role for EU law in the UK as set out in the European Communities Act. 

In practice, this will mean that despite the repeal of the HRA and the existence of a replacement ‘British Bill of Rights’ in its place, a strong form of human rights protection will still exist in the UK’s domestic law. Wherever there is a sufficient link to EU law, it will remain possible to invoke the rights set out in the Charter. In fact, the Charter has stronger legal force than the HRA, since it can be used by any court to disapplyActs of Parliament, whereas the HRA can only be used by higher courts to declarethat other Acts of Parliament are ‘incompatible’ with the HRA. We have seen recent examples of the strong legal effect of the Charter in the UK in the Benkarbouche and Vidal-Hall judgments (see my discussion of these cases hereand here). And since the Charter has stronger legal effect than the HRA, it is very likely also to have a stronger legal effect (as well as a substantively higher level of human rights protection) than the future ‘British Bill of Rights’.

Indeed, the strategy document implicitly foresaw these problems, when it suggested that human rights protection will likely be on the negotiation table when the UK renegotiates its EU membership. The problem with this is that human rights protection is a general legal rule that forms part of the constitutional foundations of EU law. As such, the impact of the Charter in the UK could not be addressed without a Treaty amendment – and it currently seems likelythat the renegotiation will not result in an immediate Treaty amendment.

Secondly, it seems possible that the government’s plans will complicate the process of the EU’s accession to the ECHR. This will be clearer once the draft UK Bill is unveiled, and further steps are taken as regards the EU’s accession to the ECHR. There would be no conflict if the EU internal rules on ECHR accession provide that the judgments of the European Court of Human Rights will have, after the EU’s accession to the Convention, as weak an impact on EU law (and Member States’ actions within its scope) as the Conservative party suggests should be the case for the UK. Time will tell whether this is the case.

Overall, then, it is not easy to provide for a general exemption from human rights protection in EU law (as the failed attempt to do so for the UK already, the infamous Protocol 30 attached to the Treaty of Lisbon, confirms). Nor is it very likely that other Member States would be keen to allow it if it were. So quite apart from the other complications relating to the repeal of the HRA, the government would have to accept the continued existence of a strong form of human rights protection in the UK as long as such cases are linked to EU law, at least until the UK is able to renegotiate its EU membership – and probably after that point too.

 

Barnard & Peers: chapter 9

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Block exclusion on blood donation by gay and bisexual men: a disappointing CJEU ruling

 

Alina Tryfonidou, Associate Professor in EU Law, School of Law, University of Reading

In a much awaited judgment delivered earlier this week in Case C-528/13 Léger, the Court of Justice ruled that permanent Member State bans on the donation of blood by gay and bisexual men which are based merely on the fact that they had had sexual relations with another man, may, in certain circumstances, be justified by the need to ensure a high level of health protection. Below, I will explain why this is a disappointing ruling which may, fairly, subject the Court to accusations of, at best, not going far enough in the protection of LGB rights and, at worst, deep-seated homophobia. Before exploring the reasons behind these accusations, nonetheless, I shall summarise the legal and factual background to the case and the main parts of the Court’s judgment.

The Law

In order to minimise any risk of transmission of infectious diseases as a result of blood transfusion, Directive 2002/98 (‘the 2002 Directive’) sets standards of quality and safety for the collection, testing, processing, storage and distribution of human blood and blood components. The above instrument is implemented by Directive 2004/33 (‘the 2004 Directive’), which, in its Annex III, sets out the criteria for excluding certain categories of persons from blood donations: Point 2.1 of the Annex provides that a permanent ban can be imposed on, inter alia, ‘persons whose sexual behaviour puts them at high risk of acquiring severe infectious diseases that can be transmitted by blood’ (‘the 2.1 category’), whilst Point 2.2.2 of the same Annex, provides that a temporary ban may be imposed on ‘persons whose behaviour or activity places them at risk of acquiring infectious diseases that may be transmitted by blood’ (‘the 2.2.2. category’). The contested French measure – L’Arrêté du 12 Janvier 2009 fixant les critères de selection des donneurs de sang (‘the Decree’) – which was adopted in 2009 in implementation of the 2004 Directive, and which, as its name suggests, sets the criteria for selection of blood donors in France – provides a permanent contraindication to blood donation (only) for a ‘man who has had sexual relations with another man’; other categories of persons, such as persons who have had unprotected sex with a casual partner or who have had multiple partners in the last four months, are only temporarily banned from giving blood.

The Facts

The judgment under examination was a response to a request for a preliminary ruling made to the ECJ from the Tribunal administrative, Strasbourg. The question referred arose in proceedings brought by Mr Geoffrey Léger against the French Blood Agency and the French Minister for Social Affairs, Health and Women’s Rights, challenging the refusal (which was based on the impugned Decree) of the healthcare professional responsible for donations at the French Blood Agency, to accept Mr Léger’s blood donation, on the sole ground that he had had sexual relations with another man. The question that emerged was whether the permanent ban on blood donation by a man who had had sexual relations with another man laid down by the Decree was consistent with the 2004 Directive. In other words, can the fact that a man has sexual relations with another man in itself amount to a valid reason for permanently excluding him from being a blood donor?

The Judgment

The Court began its judgment by noting that permanent deferral from blood donation under the 2004 Directive requires the existence of a greater risk (‘high risk’) of acquiring severe infectious diseases that may be transmitted by blood than that for temporary deferral. The Court, then, explained, that the main question is whether a man who has had sexual relations with another man satisfies the requirement of a ‘high risk’ which justifies the imposition of a permanent ban on blood donation.

The Court explained that this question must be answered by the referring court, which must take into account for this purpose current medical, scientific, and epidemiological knowledge about France. In answering that question, the national court must ensure that the way that it interprets the 2004 Directive is not contrary to the fundamental human rights protected in the EU legal order and, in particular, that it does not breach the prohibition of discrimination on the basis of sexual orientation which is provided in Article 21 of the EU Charter of Fundamental Rights (‘the Charter’). The Court pointed out that the Decree may discriminate on grounds of sexual orientation contrary to the above provision, as it ‘determines the deferral from blood donation on the basis to [sic] the homosexuality of the male donors who, on account of the fact that they have had homosexual sexual relations, are treated less favourably than male heterosexual persons.’ The Court then proceeded to note that this may, nonetheless, be justified under Article 52(1) of the Charter. It noted that although the permanent contraindication provided for in the contested Decree contributes to minimising the risk of transmitting an infectious disease to recipients of blood transfusion and, thus, to the general objective of ensuring a high level of health protection, this needs to be proportionate in order to be justified. In particular it noted that, firstly, the referring court must verify whether scientific or technical progress in the field of science or health (which enables the detection of HIV) now allows a high level of health protection for recipients to be ensured in situations involving men who have had sexual relations with other men and, secondly, even if this cannot be verified, it stressed that ‘a permanent deferral from blood donation for the whole group of men who have had sexual relations with other men is proportionate only if there are no less onerous methods of ensuring a high level of health protection for recipients.’ In particular, as regards the latter, the ECJ pointed out that the referring court must determine whether the questionnaire and individual interview with a medical professional (which are mentioned in the 2004 Directive as methods which enable the determination of the level of risk of individual blood donors) may, in fact, enable medical staff to identify the type of behaviour presenting a risk for the health of recipients and in this way impose a more limited exclusion, which does not cover the entire group of men who have had sexual relations with a man.

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This case comes at a time when a number of countries – both within and outside the EU – have relaxed, or consider relaxing, their blanket bans on blood donation by gay and bisexual men. In fact, France itself has, in recent months, begun to examine whether it should relax the ban at issue in this case. Bans on blood donation by gay and bisexual men were introduced back in the 1980s, in response to the AIDS epidemic, as it was widely considered that men having sex with men were more likely to contract HIV, which is the virus that causes AIDS. It is worth pointing out that recent studies have shown no change in the safety of blood supply in countries which have relaxed restrictions on blood donations by gay and bisexual men.

At first glance, one may view the judgment in Léger favourably, in that the Court does admit that blood donation bans which are purely based on the fact that a man has had sex with another man are discriminatory on the ground of sexual orientation and, thus, are contrary to Article 21 of the Charter, unless justified. In fact, the Court not only provides detailed guidance to the national court for determining whether such bans are justified but, also, prompts the latter to apply a strict proportionality test, by examining whether it is possible to achieve the same aim (i.e. a high level of health protection) by adopting less restrictive measures, this demonstrating that a finding that a ban is considered by the national authorities (merely) reasonable does not suffice for justifying it. Accordingly, the judgment makes it clear that Member States no longer have a carte blanche when determining whether – and to what extent – they will ban or restrict blood donations by gay and bisexual men but they must ensure that they comply with EU law and, in particular, with EU fundamental human rights and the principle of proportionality.

Nonetheless, a closer look at the judgment reveals that there is a fundamental flaw in the Court’s reasoning and this is that it perpetuates stereotypical assumptions about the sexual behaviour of gay and bisexual men, which contribute to the continuing stigmatisation of this segment of the EU society. In particular, by holding that in certain circumstances permanent bans on blood donation which are imposed automatically when a man declares that he is gay or bisexual are permitted under EU law, the Court implies that it is acceptable to use a person’s sexual orientation for the purpose of making assumptions about his sexual behaviour, in this context the assumption being that all gay and bisexual men engage in promiscuous, unprotected, sex. Moreover, maintaining a complete ban on blood donations by all gay and bisexual men appears to entail a significant contradiction when this is done in Member States like the Netherlands or Belgium, which have been pioneers in permitting same-sex marriage. Isn’t it contradictory to recognise that some gay and bisexual men may wish to marry their long term partner and have a stable, committed, and monogamous relationship with him, whilst at the same time a permanent ban on blood donations by all gay and bisexual men is maintained, because it is assumed that they are (all) engaging in promiscuous sexual behaviour which places them at a high risk of contracting serious disease? Accordingly, instead of reinforcing stereotypes which lead to inaccurate assumptions about a certain part of the population (gay and bisexual men), the Court should come to terms with reality and recognise that there is a wide range of sexual behaviours among men and women, and among LGB and heterosexual individuals and, thus, the sexual behaviour of an individual depends neither on his or her sex nor on his or her sexual orientation. This means that the sexual orientation of a person should not be treated as the factor that defines his or her sexual behaviour and, hence, it is inappropriate to consider that a person engages in sexually risky behaviour onlybecause of their sex or sexual orientation.

Another problematic aspect of the judgment is that, unlike the Advocate General, the Court does not appear concerned at all by the fact that the contested measure draws a (completely unjustifiable) distinction between gay and bisexual men, on the one hand, and other segments of the population which engage in behaviour which puts them at a high risk of contracting a serious disease, on the other. More specifically, the contested French Decree appears to be singling out gay and bisexual men as the only category of persons that deserves to be permanently excluded from blood donations. Sex workers, heterosexual persons who have unprotected sex with multiple partners, and intravenous drug users are, clearly, categories of persons who are in high risk of contracting a serious disease that can be transmitted via blood transfusion. Why, then, is it acceptable that the French Decree does not permanently exclude these categories of persons from blood donation? Doesn’t this fact, in itself, demonstrate that the permanent ban imposed on gay and bisexual men is unjustifiable and disproportionate? Moreover, given that the 2004 Directive and the French Decree require blood donors to answer questions about, inter alia, their sex life, and to have an interview with medical professionals, the latter are able to single out individuals (rather than categories of individuals) who in actual fact(rather than as a result of a mere assumption) engage in behaviour that places them at a high risk of contracting a serious disease. This is another factor that demonstrates that maintaining a blanket and permanent ban on blood donation by gay and bisexual man is disproportionate in all circumstances and cannot be considered justified in certain contexts (which is what the Court appears to suggest in its judgment).

Accordingly, and agreeing with the Advocate General, the Court should rule that ‘the mere fact that a man has had or has sexual relations with another man does not, in and of itself, constitute a sexual behaviour placing him at a high risk of acquiring severe infectious diseases which can be transmitted by blood’. The correct approach would, hence, be for the Court to respond in this case by saying that Member States should under no circumstances be permitted to impose a permanent ban on blood donation on men simply and merely because they are gay or bisexual. The sexual orientation of an individual can under no circumstances be considered a sufficient reason for including him or her within a category of persons who engage in risky sexual behaviour; rather, the inclusion in such a category should be strictly dependent on the actualbehaviour of the individual. This means that Member States should be required to provide in their laws that medical professionals should, in all instances, use the interviews and questionnaires which are, already, provided in the 2004 Directive, as a means to identify persons who should either permanently or temporarily be prevented from donating blood.

Barnard & Peers: chapter 20, chapter 21 

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Vidal-Hall v Google: Strengthening EU law remedies

 

Steve Peers

There are many laws which exist on paper, but cannot easily be enforced practically. One example is data protection law, which relies largely for its enforcement on overworked data protection authorities. Individual ‘data subjects’ whose data protection rights have been infringed can sue the infringing companies directly, but they face a number of barriers in this respect.

In particular, if they have not suffered any direct economic loss, can they sue for non-economic loss? If not, there is probably little point in bringing legal proceedings – and the infringing company faces fewer constraints upon its breach of the law concerned.

Of course, this issue is not unique to data protection law. But this was the subject-matter of the important judgmentof the Court of Appeal in Vidal-Hall v Google last week, which relied upon the EU Charter of Rights to strike down UK legislation which limited the ability to sue for non-economic losses as regards EU data protection law. This ruling could have broad implications not only on the enforcement of data protection rights, but also other rights protected by EU law.

Judgment

The case concerned allegations that Google had infringed the data protection rights of users of Apple’s Safari browser, by getting around protections against tracking which were intended to prevent Google from collecting information on those users’ behaviour online. American litigation on the same issue had foundered due to the inability of plaintiffs to obtain damages for non-economic losses under American law, although Google had reached a settlement with federal and state regulators which entailed payment of a large penalty.

As regards UK/EU law, the Court of Appeal had to address four issues: (a) is there a tort of ‘misuse of private information’; (b) whether it was possible to sue for non-economic damage; (c) whether the information involved was ‘personal data’ for the purposes of data protection law; and (d) whether there was an arguable case in tort and data protection law. The Court decided all four issues in favour of the plaintiffs, but that does not mean they have won the case yet: at this stage, the Court of Appeal was only deciding whether documents could be served on Google in the first place.

Remedies for breach of EU law

This judgment raises many important questions of privacy rights and data protection law, and substantially advances the enforcement of those rights and that law in the UK. There are excellent discussions of these finer points already by Jon Baines, Christopher Knight and Alexander Hanff. My focus here is on the broader importance of this judgment for the enforcement of EU law rights.

The starting point in this case is the EU’s data protection Directive, which provides that any person who has suffered damage due to breach of the Directive can receive compensation from the data controller for that breach. The UK Data Protection Act implements that rule by providing (in s. 13) for separate claims for damages and distress, imposing conditions (a link to damages, or data processing for special purposes) upon any claim for distress. UK courts have interpreted s. 13 of the Act to mean that ‘damages’ can only refer to economic loss, with non-economic loss subject to the more restrictive rules relating to ‘distress’.

However, the Court of Appeal ruled that the rule in the EU Directive had a wider meaning, covering both economic and non-economic loss, basing itself on CJEU case law relating to the EU’s package holidays Directive. It based this argument on its interpretation of the aim of the Directive (protecting privacy rights), read alongside the right to privacy in Article 8 ECHR and the data protection rights in Article 7 of the EU Charter of Fundamental Rights.

But what were the consequences of this finding? First of all, the Court of Appeal rejected the possibility of using the CJEU’s principle of indirect effect, set out in case law since Marleasing, to strike down s. 13(2) of the UK Act.  This is undoubtedly correct: CJEU case law makes clear that the principle of indirect effect is a rule of interpretation, requiring national courts to stretch the interpretation of national law on the books as far as possible to ensure that it implements EU law correctly. That principle reaches its limits when national law cannot be interpreted consistently with EU law, as the Court of Appeal determined in this case.

So the Court of Appeal rightly relied instead on Articles 7 and 8 of the Charter (privacy and data protection rights), applying Article 47 of the Charter (the right to a fair trial and effective remedy) to strike down national law, just as it had recently done in Benkharbouche (discussed here). That case involved a claim for employment law rights against foreign embassies, and the Court struck down the relevant provisions of the State Immunity Act to allow the suit to continue (insofar as the claims were based on EU law). The Court of Appeal did limit the impact of Article 47 of the Charter by confirming that it could not be used to strike down legislation where that would involve the courts rewriting a legislative scheme and making complex choices that should be left to the legislature to make. But that was not the case here.

As in Benkharbouche, this judgment offers confirmation of the significant possibilities of using the Charter in human rights litigation. Unlike the prior judgment, it was not necessary in Vidal-Hallto distinguish between claims linked to EU law (where the Charter applies) and claims not connected to EU law (where the Charter does not apply), because all of the claims in this case are linked to EU law. The crucial relevance of that distinction is that the Charter can be used to disapply Acts of Parliament, whereas the Human Rights Act cannot. (Moreover, any UK court can disapply an act of Parliament conflicting with the Charter, whereas only the higher courts can issue declarations of incompatibility with the Human Rights Act).

It is clear from Vidal-Hall that Article 47 can be used not just to strike down Acts of Parliament that confer immunity upon defendants, but also to strike down rules that limit heads of damage that can be recovered. It follows that many other types of restrictions on remedies could be challenged: other forms of standing rules, time limits and restrictions on legal aid, for instance. It is also clear that the ‘complex legislative scheme’ exception should not be interpreted widely: plaintiffs should target their challenges to Acts of Parliament against very precise and specific limitations in order to ensure that the exception does not apply.

The existence of this exception does mean, however, that it might be significantly more difficult to use Article 47 to ask the courts to create an entirely new remedy for breach of EU law, because the counter-argument would be that the creation of new remedies is a complex issue best left to Parliament. On the other hand, plaintiffs in such cases could also argue that the common law should develop to create new forms of remedy to ensure effective protection of Charter rights, just as tort law relating to privacy rights was clarified in Vidal-Hall.  

It should be noted here that the Vidal-Hall litigation concerns the application of a Directive between private parties. The judgment thus clearly demonstrates the importance of the Charter in overcoming the traditional restriction on applying Directives against private parties, where national law is incompatible with the Directives (ie, the lack of ‘horizontal direct effect’ of Directives). The alternative option of bringing a Francovich damages action against the state for its breach of EU law is not even discussed here. Obviously it will always be simpler and cheaper for the plaintiffs to follow the direct route of disapplying the Act of Parliament in the main litigation, as compared to having to bring an action against the State instead – especially in cases like Vidal-Hall, where the merits of the case have not even been tried yet.

Furthermore, it should be emphasised that the court was applying Article 47 of the Charter to disapply UK law, not Articles 7 and 8 of the Charter, which set out the substantive rights to privacy and data protection. That is an important distinction because according to last year’s CJEU ruling in AMS(discussed here), not all Charter rights can be enforced by setting aside national law. The CJEU has yet to rule on whether Articles 7 and 8 can be enforced by this route (it dodged this bullet in Satamedia), but it will be hard to avoid it forever.

Finally, what other areas of EU law could this judgment be relevant to? A lot of EU law concerns economic damages in any event (cf the case law on private damages for breach of EU competition law). Even consumer law is largely about economic loss, too: the package holiday judgment referred to by the Court of Appeal is an exception, because in the case of holidays, consumers’ distress arises from being unable to spend their money on holiday as they had planned.

There is at least one obvious other area of EU law where this judgment may also be relevant: the free movement of EU citizens. It is possible to claim for economic loss in such cases, for instance where a person has lost his job as a result of breach of EU free movement law (see the discussion of a recent Irish judgment here). However, often the loss is purely personal: the inability to spend time with a spouse and children. There may also be some economic costs (due to the need to travel to visit a family member, or a job which is lost or cannot be applied for due to breaches of free movement law), but the inherent loss of family life is surely highly significant too. Moreover, the root human right being protected in such cases is in part the same right as that being protected in Vidal-Hall: the right to private and family life (Article 7 of the Charter, Article 8 ECHR).  The next UK government should ensure full compliance with the law on ‘Surinder Singh’ cases (as discussed here), if it does not wish to expose taxpayers to considerable liability.

Photo credit: milanox.eu 

Barnard & Peers: chapter 6, chapter 9

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