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

Photo credit: CNN.com

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The CJEU rules on obesity and discrimination law

 

Katharina O Cathaoir

In its judgment today in Kaltoft, the European Court of Justice has confirmed that obesity is neither a protected ground of discrimination under EU employment law nor a disability per se. However, in certain circumstances the EU’s Directive banning discrimination in employment on grounds of disability could apply. (Note that EU law does not ban disability discrimination outside the workplace, so today’s judgment will only be relevant to employment disputes.)

Obesity as a protected ground

The case concerned a man who alleged that he lost his job due to his obesity (for more details of the facts, and a discussion of the opinion of the Advocate General, see here). The Court agreed with the Advocate-General that obesity is not a protected ground under EU employment law. There is no mention of obesity in the TFEU or TEU. Neither is there a general prohibition of discrimination. The protected grounds of religion or belief, disability, age or sexual orientation are exhaustive and it is not for the Court to extend these by analogy (there are also EU rules on sex, race and nationality discrimination). However, Member States may provide for increased protection under national law.

Obesity as a disability

The Court adopted a functionality test whereby obesity can only amount to a disability when accompanied by an impairment of the individual’s ability to work on an equal basis to others. Individuals do not have to be incapable of fulfilling their employment tasks, but their ability to do so on the same basis as others must be impaired. The Court suggested that individuals with obesity and decreased mobility or resulting diseases that hinder work ability or cause discomfort that does so, may have a disability under EU employment law. Thus, it is the effect of obesity, not obesity in itself, which is of importance in deciding whether an individual has a disability.

The Court avoided the AG’s suggestion that individuals at the upper most level of obesity (BMI 40+) could be assumed to have functionality issues and thereby, a disability. The Court instead made no mention of BMI as a measure of disability and concentrated on the effect of obesity, not the degree to which an individual is obese.

It will be for the Danish court, which referred these questions to the CJEU, to decide whether Mr. Kaltoft’s obesity entailed a limitation that affected his ability to do his work on an equal basis to others.

Implications

Although we are may be flooded with inaccurate headlines, the position of individuals with obesity under EU law seems to remain unchanged. Employers are likely to breathe a sigh of relief that a BMI test has been avoided. Indeed, this could have led to an appearance based test whereby employers felt pushed to keep an eye on their employees’ size. How and should an employer have access to this kind of personal information?

The case has brought obesity to the fore. Given the level of obesity in Europe, employers may begin to rethink their work practices. The employer has a role to play in his or her employee’s health. For example, employers may reconsider the food they serve in their canteens or the extent to which they make physical exercise accessible to their employees, if it will have ramifications for their legal obligations under discrimination law.

 

Barnard & Peers: chapter 20

 

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More back-slapping than soul-searching: The European Commission’s reflections on the UN Convention on the Rights of Persons with Disabilities

Dr. Charlotte O’Brien, Lecturer in Law, York Law School, University of York

More than seven years on from signing the UN Convention on the Rights of Persons with Disabilities (UNCRPD), and three and a half years on from conclusion of the Convention, how is the EU doing on protecting the disability rights contained therein? Extremely well, according to the European Commission. So well, in fact, it seems the UNCRPD was barely necessary at all, since the EU was doing the right things anyway. But this self-analysis – in the Commission’s first report on implementation of the UNCRPD – is unsurprisingly partial, in both senses of the word, being both predisposed to the Commission’s viewpoint, and incomplete.

The report is a series of responses to each article of the Convention, capturing some element of EU activity. There is no section addressing the overall picture, or what is missing, or what needs to be done. The focus is on the patchy assemblage of areas in which disability has been (however peremptorily or indirectly) considered by EU law – and not on the significant gaps. It is tricky to differentiate between those activities that the Commission consider to follow from the UNCRPD, and those that were happening anyway, especially as there is a heavy reliance on the EU Disability Strategy. The Strategy document does refer to the UNCRPD several times – but makes only one mention of it in the ‘areas for action’ of accessibility, participation, equality, employment, education and training, social protection and health.

The message does seem to be that substantive Convention duties were largely being discharged, and the Convention has inspired some procedural refinement.  For example, on assessing the Commission’s internal rules and practices, the Commission ‘concluded that they were in line with the letter and the spirit of the CRPD. However, the review highlighted the need to offer additional guidance to services on the application of reasonable accommodations.’

Some of the most significant issues which emerge from, but are not engaged with in, the report are: (i) the difficulty EU institutions have had breaking away from a medical model of disability; (ii) the continued exclusion of disabled migrants from free movement rights; (iii) the limits of discrimination law; (iv) the detrimental impact of the EU-wide austerity agenda on disabled citizens; and (v) the use of non-justiciable measures and initiatives, combined with a dearth of impact evidence. 

(i)  The EU’s persistently medical model of disability

The report states that in the HK Danmark cases the CJEU adopted the UNCRPD definition of disability, combining medical impairment with ‘physical, mental or psychological impairments which in interaction with various barriers’ create limitations that ‘hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers’.

But this was not unproblematic adoption of a more social model – the Court then conflated impairment with the limitation (i.e. the disability) that ensues following interaction with social and environmental barriers – a confusion repeated in this report. Despite the references to social and environmental barriers, the Advocate General and the Court focused on impairment and barriers were not considered.

The same approach of name-checking the UNCRPD definition without engaging with its substance was taken in the surrogacy case (C-363/12 Z), in which a woman whose medical condition prevented her from carrying children was to have a baby through a surrogate mother and wished to take maternity leave. The exclusion of such women from maternity leave rights presented an ideal opportunity to engage with the idea of socially created disability – as here was a condition that in itself might not be disabling, but on interaction with employment rules became a source of disadvantage, or limitation, in the workplace. But the Court insisted that an impairment must be a disability in itself  - finding that ‘it is not apparent from the order for reference that Ms Z.’s condition by itself made it impossible for her to carry out her work or constituted a hindrance to the exercise of her professional activity.’

It is not just the Court that struggles. The report refers to the ‘social concept of disability’, but relies throughout upon a very medico-economic standpoint – necessarily reflecting the impairment-centric approach of the legislation cited. The General Block Exemption Regulation (a key measure in EU state aid law) defines disability as someone recognized under national law as disabled, or someone who has ‘a recognised limitation which results from physical, mental or psychological impairment’. 

(ii) Cross border mobility

The report is a little evasive and misleading as to the free movement rights of disabled EU citizens. After noting the exclusion of EU migrants form social assistance for the first 3 months in a host state, it goes on to add that ‘if they lawfully reside there for period longer than three months, EU citizens are entitled to social assistance benefits on an equal footing with nationals of the Member State concerned.’ But in the UK, EU migrants have to fit in to one of the categories of Article 7 of Directive 2004/38 of the citizens’ Directive (ie, the grounds for an EU citizen to reside for more than three months in another Member State) in order to be considered lawfully resident. So someone considered economically inactive (and disabled persons are disproportionately more likely to be so considered) will not be entitled to social assistance. The Report does add the caveat that ‘in specific cases where authorities have a reasonable doubt that the EU citizens concerned may become an unreasonable burden on their social assistance system, they may assess the individual situation taking into account all relevant circumstances and the principle of proportionality, and could, on this basis, terminate the right of residence of the persons concerned.’ But, certainly in the UK, refusal of benefits to economically inactive EU migrants is routine, and mandated by law – it is not just in ‘specific cases’. Nor is there recourse to a discretionary assessment of ‘all the relevant circumstances’ or use of ‘proportionality’.

Disabled persons are also disproportionately more likely to be in receipt of special non-contributory benefits (SNCBs), but following the CJEU’s judgment in Case C-140/12 Brey, they cannot rely on this entitlement to argue that they are self sufficient and not reliant on social assistance, and so can also be excluded from equal access to SNCBs. Equal access to benefits in the hoststate is not the only obstacle. The social security coordination regime also excludes social assistance and SNCBs from exportation rules, so that recipients are helped by neither home nor host state.

(iii) The limits of discrimination law

Disability equality rights are limited to Directive 2000/78, the employment equality Directive, which ensures equality on grounds of disability, age, sexual orientation and religion as regards employment and occupation. The report notes that in 2008 the Commission put forward a proposalto extend non-discrimination beyond employment, and merely concludes that ‘the proposal is under negotiation in the Council, where the unanimous vote of the Member States is required for its adoption’. It does not enter into the protracted, tortuous route it has taken, or its period of dormancy, or its recent revival, the continued Council controversy, or the apparently vanishing likelihood of unanimous approval ever being reached. As of this month, the disability provisions as a whole were still one of the ‘outstanding issues’.

(iv) Austerity and poverty

In pushing an austerity agenda, the EU draws upon the logic of flexicurity and activation, to pressure Member States into reducing their welfare expenditure and focus on pushing the disabled into the workplace. The Report notes that the position of the Disability Strategy is that ‘quality jobs [are] the best protection against poverty for disabled people’. However, welfare retrenchment strategies tend not to promote ‘quality’ jobs, but any jobs, and penalize those whose circumstances make it harder for them to find work.  The report notes that severe material deprivation increased amongst disabled people between 2010 and 2011, from 10.9 to 12%; an increase 2.75 times greater than that experienced by non-disabled people.  But the report does not suggest a response to this disability-inflated poverty risk increase or connect it to social protection policies. Moreover, many welfare reforms will have only started to bite since 2011.

On top of this, there are important questions about the disproportionate impact of poverty upon persons with disabilities, who without financial means may be more likely to be disempowered through family-based support or institutionalization. On being asked in the European Parliament about the prospects of increased institutionalization, Commission Vice-President Viviane Reding has suggested that the remedy lies in the Commission’s employment policies, which in the context of persons requiring substantial care, and in an employment environment still very poorly adapted to disability, seems to be an example of ardent ideological faith rather than realistic projection.

(v) Measures without impact evidence

The report is replete with references to not-easily-actionable sources, and softer measures, such as those which ‘encourage Member States’, without explanation as to the degree – or the success – of ‘encouragement’. It relies fairly heavily on the Charter of Fundamental Rights, but does not engage with the question of if and how disabled people can actually access the rights declared within, given the limitations built into the Charter and the wariness of courts to find it can create any right that does not exist elsewhere. The Charter could well still prove a valuable interpretative prism – but it would be helpful had the report engaged in the practical utility question. Where more clearly justiciable instruments are referred to, the relevant text as it affects disabled people is often plucked from recitals, suggesting that they do not reside in the more easily invoked Article based provisions, and raising questions over the degree to which individuals can rely solely on recitals.

Some of the activities cited are conspicuously outcome-light – such as the preparation of the now-stymied Directive extending non-discrimination law, or the mandates to draft accessibility standards for the built environment issued in 2007 and 2010. The report notes that they have not yet led to the standards being drafted, and does not offer any insight into whether attempts are being made to do so. While pointing to (excellent) reports by the Fundamental Rights Agency on issues such as rights to independent living and political participation, the report does not highlight the conclusions or recommendations of those reports, or suggest what follow up action is to be taken. The frequent references to the European Disability Strategy, and associated awareness campaigns (33 mentions of raising awareness), lead us to ask what effects these are actually having, and how the Commission is measuring the impact of its activities.  The report does list the Commission’s generic data gathering activities, but there is no mention of indicators of the success of its own policies and ‘soft’ measures.

As anyone who has been through the recent Research Excellence Framework process in a UK university will know, impact is not simply about saying you will make things available, or tell people stuff. We have to show that doing so makes a difference; it does not seem unreasonable to expect the same of the Commission. Such a task might avoid the pitfall of constructing a complacent defence of the status quo, and might instead encourage an active identification of things that need changing.

Some of the ideas presented here are developed in more detail in ‘Article 26: Integration of persons with disabilities’ in Peers, Hervey, Kenner and Ward (eds), Commentary on the EU Charter of Fundamental Rights (Hart: Oxford, 2014), and ‘Union citizenship and disability: restricted access to equality rights and the attitudinal model of disability’ in D. Kochenov (ed) Citizenship and Federalism in Europe, CUP, forthcoming.

Barnard & Peers: chapter 9, chapter 20 

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The new Directive on discrimination against EU citizen workers: spitting into the wind?

Steve Peers

Surprisingly enough, despite the public controversy about the number of EU citizens who are workers ('EU workers') who move between Member States, the Council and the European Parliament have recently agreed on new legislation on this issue. This new Directive, which concerns the enforcement of the rules banning discrimination against EU workers, was approved by the European Parliament this week, and will likely be formally adopted by the Council shortly. Member States will have two years to transpose it.

The Directive makes clear that its subject matter is the enforcement and application of the rights conferred by Article 45 TFEU and Regulation 492/2011 upon EU workers. In other words, it doesn't amend the substantive rights on this issue. This presumably explains why it has not run into opposition from the Member States with more misgivings about free movement, such as the UK.

As for the scope of the Directive, it applies to the rules on access to employment, working conditions, social advantages, trade unions, training, housing and the education of children for EU workers. Notably, it doesn't apply to family reunion issues. Nor does it apply to EU citizens more generally.

Next, the rules on enforcement first of all oblige Member States to make available judicial procedures to enforce these rights. They also require Member States to permit associations, organisations or other legal entities to enter into legal proceedings, either in support of or on behalf of the worker and his/her family. But these rules are without prejudice to national rules on time limits, as along as those limits do not render the application of EU law virtually impossible or excessively difficult. There is no reference to legal aid.

More generally, Member States must ensure that a body of some sort promotes equal treatment, as well as the abolition of non-discriminatory obstacles to free movement, for EU workers and their family members. This may be an existing equality body. The equality bodies must have competence as regards the provision of legal advice or assistance (in which case, their assistance must be free of charge), the conduct of independent surveys, the publication of independent reports, and the publication of relevant information. There shall also be a dialogue with relevant actors at national level. Finally, Member States must disseminate information on issues relating to the free movement of EU workers.

Comments

This Directive is obviously inspired by EU legislation on sex equality and race equality in particular. However, as compared to that legislation, it is missing provisions on compensation (as compared to the sex equality law) and burden of proof. So while the Directive does provide for access to court, some key aspects of the litigation process (evidence rules and concrete remedies) are not addressed. In some ways it is stronger than the general framework employment equality Directive (which lacks rules on equality bodies), but in other ways weaker (since the framework Directive includes rules on the burden of proof). The lack of a general rule on legal aid will also prevent some workers from accessing courts in practice, except where they are able to obtain the support of an equality body. But it is unlikely that such bodies will have a huge budget to spare on litigation. 

The comparison with other equality laws suggests an attempt to change the mindset of the debate - implicitly equating discrimination against EU workers with discrimination on grounds of sex, race et al, which has become widely regarded as socially unacceptable. But while the EU legislation as regards those issues to some extent followed the trend of public opinion, the new Directive arguably pushes against the prevailing trend, at least in some Member States. We will see in practice whether an equality Directive can still have an impact when it is spitting into the political wind.

The new Directive will also have the consequence of making EU workers' rights easier to enforce in practice, and to that extent it can only be welcomed. However, it is questionable why the Directive should not address the position of EU citizens more broadly, and of the admission of workers' family members in particular. For many years, EU law has moved towards a global model of EU citizenship, in place of categorising different groups of citizens depending on their type of activities, although admittedly those EU citizens who exercise economic activities are a relatively privileged category under the EU citizens' Directive. In that context, the additional relative privilege conferred upon workers in this new Directive is a step backwards.

It might also be questioned, since free movement of workers has been guaranteed in principle since 1968, why it took so long for the EU Commission to propose this legislation. Surely the difficulty in practice of enforcing EU workers' rights in practice is not a phenomenon of the last few years?  At least, why was this issue not addressed when the current comprehensive legislative framework on equality rights was established by the EU, over a decade ago?

Finally, to the extent that the new Directive borrows concepts from other equality Directives, the relevant case law should be relevant by analogy. This could lead to interesting results, given that hostility to EU workers has become more openly expressed in some Member States than prejudice against workers on grounds of sex, race, religion and so on. For instance, in the Feryn judgment the CJEU ruled that an employer advertising that it would not hire ethnic minorities was in breach of the race equality Directive. What would it now make of a British Prime Minister who declares, "British jobs for British workers"?


Barnard & Peers: chapter 13 

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Fixed-term workers: protection against unfair dismissal and abuse

Steve Peers

The growth of atypical forms of work in recent years has increasingly been addressed by EU measures, in particular the social partners agreements on part-time and fixed-term work, followed by a more recent Directive on agency work. The fixed-term work rules have led to much litigation before the Court of Justice of the European Union (CJEU). However, before today the Court had not yet had a chance to address fully the key issue of the relationship between these rules and national law on unfair dismissal. Furthermore, the Court had not addressed the particular issues facing university researchers.

The fixed-term work agreement has two key provisions: a requirement to ensure equal treatment between fixed-term workers and comparable permanent workers, and a restriction on the abuse of fixed-term work contracts. The latter rule requires Member States to put in place some effective system to control such abuse, for instance by limiting the total number or duration of such contracts, or by providing for objective reasons for renewal of those contracts. Member States can also take other measures, such as providing for damages actions, but there is no obligation to ensure that fixed-term contracts must be converted into permanent contracts.

Two judgments today have addressed the application of each of these rules. First of all, in the case of Nierodzik, a fixed term worker whose contract was terminated early by her employer, the CJEU ruled that rules concerning notice periods are 'employment conditions' for the purposes of the fixed - term work agreement, and so are therefore covered by the equal treatment rule. Assuming that Ms Nierodzik could be compared to a permanent worker working for the same employer (it was left to the national court to decide this), she was therefore entitled to equal treatment as regards the notice period for the termination of the contract (in this case meaning one month notice instead of two weeks).

However, the agreement provides for a possible justification of unequal treatment. The Polish government argued that the temporary nature of the contract was a justification, but the CJEU rejected this argument, in line with prior case-law. The Court also rejected a bizarre argument that fixed - term contracts promote stable employment. Obviously, they do just the reverse.

In the second case, Marquez Samohano, the question arose whether the frequent renewal of a lecturer's fixed term contract constituted an abuse. The CJEU ruled that it did not, because national law restricted such renewals to the case of specialists, along with further conditions. However, the national court still had to decide whether the use of fixed term contracts was in fact substituting for permanent needs of the employer.

Comments

The Nierodzik judgment makes a significant contribution to ensuring stability of employment for workers with fixed term contracts. While it does not extinguish the fundamental distinction between the two forms of contract, it does mean that during the term of the fixed term contract, the worker in principle has the same protection against dismissal as a permanent worker. Logically this rule should equally apply to the rules on other aspects of dismissal, such as the grounds and procedures for dismissal, the calculation of damages for unfair dismissal, and the calculation of redundancy payments.

In practice, fixed term workers will often receive modest protection in the event of early termination of the contract, due to the short period of their employment.  However, it is arguable that if their contract has been renewed, the entire period of the successive contracts must count for the purpose of applying the equal treatment rule.

On that point, the Marquez Samoharo judgment makes it easier to justify the renewal of such contracts. This is dubious on the facts of that case, where the renewal of the contract for four years - such frequent renewals being common in the academic world - surely suggests that the renewal was indeed an indication that the fixed term contract was actually a means of satisfying the employer's permanent needs. It would have been better if the CJEU had given some indication of the factors which the national courts have to take into account when considering this issue, perhaps by analogy with the equal pay case-law.


Barnard & Peers: chapter 20

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Violence against women: Can EU law play a bigger role in combatting it?

Steve Peers

Today's report from the EU's Fundamental Rights Agency (FRA) on the scale of violence against women within the European Union is simultaneously an enormously impressive attempt to collect standardised data on this important issue, and a very upsetting indication at how prevalent such forms of violence are. The FRA report makes a large number of detailed and useful recommendations to Member States and the EU about how to address this issue, as regards changes to national law, the interpretation of existing EU laws, and the role of education and awareness-raising. Yet it does not suggest that the EU adopt legislation on the specific subject. In my view, the EU could - and should- do so. So despite the great value of the FRA's report, it is, in my view, unfortunate that it did not take this opportunity to advocate EU legislation.

The EU's ability to act

No matter how desirable a particular law might be, the EU can only act when powers have been conferred upon it. To what extent can it act to deal with violence against women? First of all, Article 83(1) TFEU gives the EU power to adopt criminal law measures on specific offences which were deemed by the Treaty drafters to have a EU-wide impact. This includes legislation concerning 'trafficking in human beings and the sexual exploitation of women and children'. Indeed, as the FRA report points out, the EU has adopted Directives on trafficking in persons and sexual offences against children.

The EU has also used its power to adopt a Directive on the protection of crime victims generally, which, as the report points out, contains specific provisions on protection against gender-related violence. However, this Directive does not address issues of substantive criminal law. Neither does the EU legislation on cross-border enforcement of criminal law protection orders or civil law protection orders.

Could the EU adopt a substantive criminal law measure on other aspects of violence against women? It does have power to adopt criminal law measures on offences not listed in Article 83(1), if (according to Article 83(2)) this is 'essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures'. As regards gender equality, there is (inter alia) EU law on sex equality in employment and sex equality as regards goods and services. It seems obvious that violence against women could impact in practice upon their equal access to employment or goods and services. The FRA report mentions in particular the fear of crime that deters women from moving freely. Of course, violence against women shouldn't normally be examined in such utilitarian terms, but it is necessary to do in the particular context of proving the EU's competence to act. And this analysis would apply equally as regards EU legislation concerning racial hatred, which I discussed in a previous blog post.

Should the EU use its powers?

The FRA report makes many references to the Council of Europe's recent Convention on violence against women, and encourages Member States and the EU to ratify it. Of course, this would be desirable, since the Convention is a comprehensive recent instrument which is moreover open to non-EU Member States.  But is it enough? Certainly the EU did not simply rely on the Council of Europe Conventions on trafficking in persons or the exploitation of children when it adopted its own legislation on the issue, or upon the UN Convention on the Elimination of Discrimination Against Women when it adopted its sex equality laws.

The fact is, while ratification of the Convention should be encouraged, most Member States have not yet ratified it. Moreover, EU law has an inherent advantage over international treaties in terms of its enforceability, given that the Commission can bring proceedings against Member States for non-application or incorrect application of the law, and individuals can rely on it before the national courts.

What specific issues could EU legislation address? Here, the FRA report points to some failings in national law which could be addressed by an EU measure, ensuring that the EU measure would add value compared to the existing legal position. In particular: some national laws have a restrictive definition of sexual violence; one Member State does not criminalise rape of married women; some Member States do not address repeat victimisation; some national laws do not address psychological violence, stalking or cyber-harassment; and current EU anti-discrimination law only concerns sexual harassment at the workplace, not in other contexts. This represents a significant catalogue of issues which EU law could usefully address.

Conclusion

The FRA's suggestion that the EU ratify the Council of Europe Convention presents an opportunity to bring the two issues (can the EU act, and should it act) together. According to EU external relations law, the EU can ratify treaties not just as regards its competence which it has already exercised (as regards crime victims' rights, for instance), but also in respect of competences which it has not exercised. Furthermore, a treaty which the EU has not yet ratified can be sent to the Court of Justice of the European Union, in order to examine its compatibility with EU law, including as regards EU competences. So the European Parliament, the Council, the Commission or a Member State could use this process to ask the Court to clarify the exact extent of the EU's powers to conclude the Convention as regards substantive criminal law.


Barnard & Peers: chapter 20, chapter 25

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When does the EU Charter of Rights apply to private parties?

Steve Peers

The Court of Justice of the European Union (CJEU) has today further clarified the circumstances in which the EU's Charter of Rights can be invoked against private parties.

In Association de Mediation Sociale (AMS), trade unions challenged a private employer's refusal to establish worker consultation pursuant to an EU Directive. The employer had acted consistently with French law, which had implemented the EU Directive but allowed exclusions for apprentices and other forms of special employment contract.

The judgment

First of all, the CJEU ruled that the French law breaches the Directive, which does not provide for the exclusion of such categories of employee from its scope. But how can this breach of EU law be remedied, on the facts of this case? The Court states that while the relevant rule in the Directive is precise enough to have direct effect, Directives (following well-known and long-established case law) cannot be invoked against private parties.

Also, the CJEU confirms prior case law which states that the principle of indirect effect (as it is usually called), ie the requirement for national courts to interpret national law to be consistent with EU Directives, meets its limits where (as in this case) there is an unambiguous contradiction between the national law and the relevant EU Directive.

Towards the end of the judgment, the Court mentions the long-established prospect of suing a Member State for damages for its failure to implement a Directive correctly. However, on the facts of this case, it's hard to see how that remedy could work well. Perhaps the union or an employee could argue that if worker consultation had been established, it could have persuaded the employer not to make redundancies (for instance). But really what the unions seek to achieve here is to have worker consultation established in the first place.

So this brings us to the heart of the matter: does the EU Charter of Fundamental Rights affect the issue? Article 27 of the Charter states that:

'Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices.’

Previously, in the judgment in Kucukdeveci, building on its prior judgment in Mangold, the CJEU had stated that employees could invoke the principle of non-discrimination on grounds of age against private employers, and this principle is set out in the Charter (Article 21(1)). Can Article 27 of the Charter also been invoked against private employers?

No it can't. According to the Court, it's 'clear from the wording of Article 27 of the Charter that, for this article to be fully effective, it must be given more specific expression in European Union or national law'. More precisely, 'It is not possible to infer from that Article or the explanations to it' that the rule in the Directive is a 'directly applicable' rule which addresses a prohibition to Member States from excluding categories of employees when implementing the relevant Directive.

The CJEU distinguishes its prior judgment in Kucukdeveci, on the grounds that the principle of non-discrimination on grounds of age laid down in the Charter 'is sufficient in itself to confer on individuals an individual right which they may invoke as such.' Finally, the Court states that the Charter Article and the Directive cannot be combined to require that the national law breaching the Directive has to be set aside, because 'that [Charter] article by itself does not suffice to confer on individuals a right which they may invoke as such', so 'it could not be otherwise if it is considered in conjunction with that directive'.

Comments

The Court's judgment has clarified some key points. The old argument that the Charter can never apply to private parties at all, since Article 51 of the Charter (which sets out its scope) states that it is addressed to EU institutions and other EU bodies, plus the Member States only when they implement EU law - and so implicitly not to private parties - has surely been rejected by the Court here. While the Court does not reject this argument expressly, its judgment obviously assumes that the Charter can apply to private parties in some cases, otherwise why distinguish between Articles 21(1) and 27 of the Charter? The key point is that the underlying challenge here (as in Kucukdeveci) is to a law adopted by a Member State which breaches an EU obligation, so the Charter still applies to the dispute even on a narrow interpretation of Article 51.

The Court has also expressly rejected the argument - which was a reasonable extrapolation of its judgments in Mangold and Kucukdeveci - that somehow the legal effect of a Directive could be 'supercharged' when combined with a relevant provision of the Charter. Rather, the Court makes clear that the Charter Article must be judged separately.

Most importantly, we now have a test for determining whether Charter provisions can apply against private parties - whether the Charter provision requires 'more specific expression' in national or EU law on the one hand, or on the other hand whether the Charter Article is 'sufficient in itself to confer on individuals an individual right which they may invoke as such'.

The Court elaborates upon the first test, but not the second. It seems that Article 27 requires 'more specific expression' because neither that Article nor the explanations concerning it indicate that the key clause in the worker consultation Directive is a directly applicable prohibition against excluding categories of employees from that Directive.

With great respect, the Court's explanation cannot be taken literally. After all, the Charter and the explanations to it make few references to EU legislation, and none of those references indicate that the key rules in the legislation concerned are directly applicable. Most importantly, neither Article 21(1) of the Charter nor the explanations to it make any reference to the framework employment equality Directive (Directive 2000/78); and yet the Court confirms that Article 21(1) can be invoked in litigation brought against private parties.

Perhaps the key point is that Article 27 refers to the 'conditions' of national or EU law. Several other Charter provisions refer to national or EU law, but without using the word 'conditions' (for instance, Articles 28 and 30, concerning trade union rights and unfair dismissal). Some key provisions do not refer to national or EU law at all: for instance, Article 31, on the right to 'fair and just working conditions', including regulation of working time.

Also, there's a dog that didn't bark in this judgment. Article 52(5) of the Charter sets out a distinction between the legal effect of 'rights' on the one hand, and 'principles' on the other. This distinction is the subject of much academic literature, and was extensively discussed in the Advocate-General's opinion, but the Court doesn't mention it. Neither - for obvious reasons - does the Court mention the Protocol limiting the legal effect of the Charter in the UK and Poland. But of course it could arguably be relevant in litigation in those countries which seeks to apply the Charter against employers.

Conclusions

The Court has begun to answer some key questions about the horizontal effect of the Charter. This is an improvement from the most recent judgment on this issue (Case C-282/10 Dominguez), which avoided answering any of them. But the answers in the ASM judgment raise many further questions in turn, which the Court will surely be called upon to resolve in future.


Barnard & Peers: chapter 9, chapter 20

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