JUNE 2015
  • Differing Treatment of Same Sex Couples by
    European Union Law and the European Convention
    on Human Rights: The European Union Concept of

    Frances Hamilton

Same-sex couples’ rights when it comes to marriage can be best advanced through equal enjoyment of citizenship status. Protections through the concept of private life will be of limited effect in this context. Comparison of the jurisprudence of the European Union (EU) and the European Convention on Human Rights (ECHR) demonstrates the contrasting approaches to the treatment of same-sex couples and highlights the preferable path. Both systems have traditionally had restrictive roles in the legal protections offered to gays and same-sex couples. Differences in treatment remain despite the fact that the two systems have started to converge and offer more generous protections. The European Court of Human Rights has led the way in the protection of rights for gays and same-sex couples. The EU concept of citizenship together with a closer interplay with the ECHR may offer the greater support for those who favour same-sex marriage.

discrimination; same-sex marriage; European Union; citizenship; margin of appreciation.
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At the European level despite many links between the European Union (EU) and the European Court of Human Rights (ECtHR), there has been dual and differing treatment of same-sex couples by these institutions. The treaties have different purposes. The ECtHR is of course a specialist court in the area of human rights and is recognised as a world leader in that area. Historically the EU concentrated entirely on economic measures. More recently with the Citizenship Directive 2004/38 and other key legislation there has been a focus on human rights. The EU currently has 28 member states. All EU states are members of the European Convention on Human Rights (ECHR) and the EU is committed to accede to the ECHR. In contrast the ECHR system has a much wider range in membership and includes 47 countries of more divergent backgrounds. The ECHR system does not have the law-making functions assigned to the EU and therefore proceeds on a case-law basis.

This article will explore the divergence in approach which has grown between the EU and the ECtHR in their treatment of gays and same-sex couples. The purpose of this analysis is to offer the best positive way forward in this area and to stress the need for greater interaction between these organisations. Three themes are explored that illustrate the strategies used by the EU and ECtHR in attempting to eliminate discrimination in this area. First, the treaties are constructed to achieve different purposes and have used varying interpretative methods. The ECtHR has used an incremental case-based approach driven by an evolutive and dynamic protection of human rights, which has led to an expansion of the rights offered to gays and samesex couples. This is limited by the margin of appreciation. Through legislative expansion, the EU has developed a keener focus on human rightswhich has also expanded the rights offered to gays and same-sex couples. The EU has to operate strictly within its competences and is also limited by the doctrine of subsidiarity.

Second, the European Court of Justice (ECJ) and ECtHR have taken different approaches with reference to recognition of non-conformist types of “family life”. While both were initially reluctant to recognise unconventional types of “family life” traditionally, the ECtHR has been more receptive. In Schalk and Kopf v Austria, the ECtHR finally recognised co-habiting same-sex couples as having a right to family life. The ECJ remains influenced by a hierarchal structure of family statuses, but it is the EU concept of citizenship which offers greater potential for those who favour same-sex marriage.

Third, a contrast is drawn between the ECtHR emphasis on “private life” to protect gays as compared with the EU concentration on citizenship which is a concept very much on the public stage. The ECHR emphasis on private life has limitations when it comes to asserting rights in public, such as marriage, which has a close connection with citizenship. An understanding of the concept of citizenship shows the potential for its further development regarding gays and same-sex couples. Several authors emphasise the connection between citizenship and equality enacted on a public stage, which in turn leads to a strong symbolic and practical argument for gays wishing to advance the cause of same-sex marriage. Equality arguments are useful in making a successful case for same-sex marriage. This can be seen by international courts in relying upon equality arguments to recognise same-sex marriage. Authors have commented on the concepts of “sexual citizenship” and the legal rights of same-sex couples to enter marriage forming a “constitutional character in many jurisdictions”. There is a connection between citizenship and marriage with Angela Harris viewing this as a “right central to citizenship”.16 By granting EU nationals’ citizenship status this not only governs what type of family member can move with an EU citizen when exercising the right of free movement between states but also shows the potential to give extensive protections to same-sex couples. Same-sex couples’ rights when it comes to marriage can be best protected through equal enjoyment of citizenship status. Protecting same-sex couples’ right to a private life will be of limited effect in this context.

Finally a positive conclusion will be drawn. Same-sex couples’ rights can best be advanced by equal enjoyment of EU citizenship status. In this context, it is essential that the EU works in combination with the ECHR. Currently, the ECHR is limited by both the margin of appreciation doctrine and the emphasis on privacy. As public opinion evolves, a consensus in favour of same-sex marriage across the Europe may emerge at which point it will be possible for the ECtHR to recognise same-sex marriage. Furthermore, while the ECtHR has developed protections for same-sex couples under the ambit of private life, recent cases have stressed equality arguments. If Protocol 12 of ECHR, which is a free-standing equality clause, were to be ratified by more contracting states, this would also greatly strengthen the position of the ECtHR. The EU concept of citizenship, combined with the growing interplay with the ECtHR, means that the EU is in the strongest position for those who favour same-sex rights.

The next section considers the dynamic case law-driven interpretative methods developed by the ECtHR, coupled by the limiting factor of a continued emphasis on the margin of appreciation. This is contrasted to the legislation-driven approach of the EU which historically concentrated on economic rights, although more recently there has been a focus on human rights. It is argued that it is the concept of EU citizenship which could offer the best way forward for those gays supporting samesex marriage. The fact that both systems are now prepared to operate more closely together is a positive development.