EU law and LGB rights65

As the founding Community Treaties did not contain any reference to fundamental (human) rights, they also did not make any reference to LGB rights either.⁶⁶ Despite this, some tentative steps aiming to protect the rights of this segment of the population were taken by the EU already in the 1980s although, until 1999, all initiatives to this effect consisted of the adoption of soft law measures which, whilst of symbolic value, achieved very little in practical terms.⁶⁷

61 Article 6(1) TEU.

62 P. Craig and G. de Búrca, above n. 3, 462.

63 See, inter alia, Case C-617/10, Fransson ECLI:EU:C:2013:105; Case C-390/12, Pfleger ECLI:EU:C:2014:291. For comments see B. de Witte, ‘The scope of application of the EU Charter of Fundamental Rights’ in M. González Pascual and A. Torres Pérez (eds), The Right to Family Life in the European Union (Routledge, 2017).

64 See, inter alia, Garcia Avello, above n. 55, para. 24: ‘The situations falling within the scope ratione materiae of Community law include those involving the exercise of the fundamental freedoms guaranteed by the Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 18 EC’. For an explanation see A. Tryfonidou, The Impact of Union Citizenship on the EU’s Market Freedoms (Hart, 2016) 34.

65 A large part of the analysis in this section is taken from A. Tryfonidou, ‘Law and sexual minority rights in the EU:

navigating a political minefield’ in P. J. Cardwell and M-P. Granger (eds), Research Handbook on the Politics of EU Law (Edward Elgar, 2020).

66 G. de Búrca, ‘The Language of Rights and European Integration’ in J. Shaw and G. More (eds), New Legal Dynamics of European Union (OUP 1995) 36-37.

67 A. Tryfonidou, ‘The Impact of the Framework Equality Directive on the Protection of LGB Persons and Same-Sex Couples from Discrimination under EU law’ in U. Belavusau and K. Henrard, EU Anti-Discrimination Law Beyond Gender (Hart, 2018) 231-232.

Nonetheless, the gradual development of EU anti-discrimination law has, clearly, contributed to the protection of LGB persons and same-sex couples from discrimination under EU law.⁶⁸ The foundations for this protection were laid on 1 November 1999, when the Treaty of Amsterdam entered into force and introduced a new legal basis – now Article 19 TFEU – giving competence to the EU to make legislation prohibiting discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.⁶⁹ This provision – which made the EC Treaty the first international agreement to explicitly make reference to discrimination based on sexual orientation – was the legal basis for Directive 2000/78, which is still in force today and prohibits discrimination on a number of grounds, including sexual orientation.⁷⁰ The Directive, nonetheless, has a limited material scope – it only applies in the context of employment and vocational training (including university-level education). For this reason, there have been calls for another Directive which would prohibit discrimination on the same grounds, but in a broader number of areas: education, social protection (including healthcare and social security), social advantages, and access to goods and services (including housing). These calls led to a proposal for such a Directive in 2008 (the ‘proposed Equality Directive’), however the opposition of a number of Member States has meant it has yet to be adopted and remains in a state of political limbo.⁷¹

The interpretation of Directive 2000/78 has been the CJEU’s focus in the majority of its rulings involving claims by LGB persons.⁷² In the first group of rulings involving same-sex couples (Maruko, Römer, Hay),⁷³ the Court held that in situations where a Member State has not opened marriage to opposite-sex couples but national legislation treats same-sex registered partnerships as equivalent to marriage for a certain purpose (e.g. pensions), employers must extend – for that purpose – the treatment they afford to married couples to registered partners. If they do not, there is direct discrimination on the ground of sexual orientation contrary to the Directive. It is interesting to note that, in these three cases, the Court’s approach has positively evolved, from giving, initially, a carte blanche to national courts to determine whether they would extend the treatment afforded to (opposite-sex) married couples to (same-sex) registered partners, to one where this determination was

68 A. Tryfonidou, ‘Discrimination on the Grounds of Sexual Orientation and Gender Identity’ in S. Vogenauer and S. Weatherill (eds), General Principles of Law: European and Comparative Perspectives (Hart, 2017).

69 For an analysis of the steps that led to the introduction of this provision see M. Bell and L. Waddington, ‘The 1996 Intergovernmental Conference and the Prospects of a Non-Discrimination Treaty Article’ (1996) 25 Industrial Law Journal 320; M. Mos, ‘Of Gay Rights and Christmas Ornaments: The Political History of Sexual Orientation Non-discrimination in the Treaty of Amsterdam’ (2014) 52 Journal of Common Market Studies 632.

70 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16. For an analysis of the prohibition of discrimination on the grounds of sexual orientation under the Directive see D. Pudzianowska and K. Smiszek, Report ‘Combating Sexual Orientation Discrimination in the European Union’, European Network of Legal Experts in the Non-discrimination field (2015) available at: https://op.europa.eu/en/publication-detail/-/publication/c01db252-847d-474b-b397-d0f41eccecd1.

71 Commission Proposal for a Council Directive Implementing the Principle of Equal Treatment between Persons Irrespective of Religion or Belief, Disability, Age or Sexual Orientation (2008) COM 426 final. This was accompanied by a Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions ‘Non-Discrimination and Equal Opportunities: A renewed commitment’ (2008) COM 420.

72 To date, the prohibition of discrimination on the ground of sexual orientation laid down in the Directive, has been interpreted by the CJEU in the following cases: Case C-267/06, Maruko ECLI :EU:2008:179 ; Römer, above n.

53; Case C-267/12, Hay ECLI:EU:C:2013:823; Case C-81/12, Asociația Accept ECLI:EU:C:2013:27; Case C-443/15, Parris ECLI:EU:C:2016:897; Case C-258/17, E.B. ECLI:EU:C:2019:17 ; Case C-507/17, NH ECLI:EU:C:2020:289.

73 Maruko, above n. 72; Römer, above n. 53; Hay, above n. 72.

taken out of the hands of national judges and placed in the hands of the CJEU. Whereas in the first two judgments (Maruko and Römer), the Court left it to the national court to assess whether for a specific purpose national law treated registered partnerships as equivalent to marriage, in the third judgment (Hay), the CJEU conducted the equivalence assessment itself.

More recently, in the Coman and Hamilton case,⁷⁴ the CJEU was asked for the first time to rule on the interpretation of Directive 2004/38 and, in particular, the availability of family reunification rights to same-sex couples, in a case involving a same-sex married couple who had exercised EU free movement rights. The judgment delivered by the Court will be analysed extensively in chapter 4 of the study, and for this reason no further explanation of the case will be provided here.

Finally, it should be noted that, despite the advances made in some of the Court’s rulings in relation to the protection of the rights of LGB persons and same-sex couples, there was no primary EU legislation provision which aimed to protect the rights of sexual minorities. This, nonetheless, changed with the entry into force of the Treaty of Lisbon in 2009, which brought two important developments.

The first is that the Treaty of Lisbon inserted into the TFEU a new mainstreaming provision – Article 10 – which provides that, in defining and implementing its policies and activities, the Union shall aim to combat discrimination based on, inter alia, sexual orientation. This is hugely important because it obliges the EU, not only to provide reactive protection to sexual minorities after their rights have been violated, but also to ensure that in all its activities it takes into account their rights.

The second development is that the Treaty of Lisbon amended Article 6 TEU to provide – as we saw earlier – that the Charter has the same legal value as the Treaties, meaning that the Charter is legally binding. This is important because Article 21 of the Charter provides that any discrimination based on, inter alia, sexual orientation shall be prohibited,⁷⁵ in this way also reinforcing the argument that LGB rights are human rights. Moreover, it means that Article 21 serves as an important complement to the prohibition of sexual orientation discrimination laid down in Directive 2000/78. This is because the Directive, as noted earlier, has a limited material scope (it applies only in the context of employment and vocational training, including university-level education), whereas the Charter is not limited in this way: Article 21 can be relied on in situations outside the employment context.⁷⁶ It is important to emphasise, nonetheless, that, as we saw in the previous section, the scope of application of the Charter is not unlimited either: its Article 51 provides that it applies to all actions of the EU institutions, bodies, and agencies, and to Member States only when they are implementing EU law.

74 Above n. 21.

75 Article 21(1) of the Charter provides: ‘Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political of any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited’.

76 The CJEU only had the opportunity to rule once on the prohibition of discrimination on the ground of sexual orientation under Article 21 of the Charter in one case, Case C-528/13, Léger ECLI:EU:C:2015:288, paras. 47-51.