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To the lighthouse : same sex marriages after Lisbon treaty

To the lighthouse : same sex marriages after Lisbon treaty. Avv . Marinella Baschiera Pisa 89 th of July 2014 “Come now,” said Mr. Ramsay, suddenly shutting his book. Come where? To what extraordinary adventure? She woke with a start. To land somewhere, to climb somewhere? Where

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To the lighthouse : same sex marriages after Lisbon treaty

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  1. To the lighthouse: same sex marriagesafterLisbontreaty Avv. MarinellaBaschiera Pisa 89th of July 2014 “Come now,” said Mr. Ramsay, suddenly shutting his book. Come where? To what extraordinary adventure? She woke with a start. To land somewhere, to climb somewhere? Where as he leading them? For after his immense silence the words startled them. But it was absurd. He was hungry, he said. It was time for lunch. Besides, look, he said. “There’s the Lighthouse. We’re almost there.” ( Virginia Wolf, To the lighthouse) Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  2. To the lighthouse: same sex marriagesafterLisbontreaty • The window or The fundamental right to marry as recognised in treaties and charters • Time passes or How case law of ECHR and ECJ influenced the process of recognition and enforcement of the right to marry (SSM) • To the lighthouse or How the Lisbon treaty changed the scenario: federalization of Fundamental rights recognition • Case study: Windsor vs. United States Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  3. To the lighthouse • The window or The fundamental right to marry as recognised in treaties and charters • Time passes or How case law of ECHR and ECJ influenced the process of recognition and enforcement of the right to marry (SSM) • To the lighthouse or How the Lisbon treaty changed the scenario: federalization of Fundamental rights recognition • Case study: Windsor vs. United States Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  4. To the lighthouse: the window • Partitions of fundamental rights: • Liberty rights, civil rights, social rights, “new generation rights” • Right to marry as a civil right: the liberty of the individual as a human being to make a life choice. Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  5. The Window: International Conventions/Treaties/Charters • A) protection of family as an institution • B) protection of non traditional families: heterosexual couples outside the wedlock and same sex marriages • Art. 8 European Convention of Human Rights (ECHR): Right to respect for private and family life • 1. Everyone has the right to respect for his private and family life, his home and his correspondence. • 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  6. The window: European Charter of Fundamental Rights • Article7: Respect for private and family life • Everyone has the right to respect for his or her private and family life, home and communications • Article9: Right to marry and right to found a family • The right to marry and the right to found a family shall be guaranteed in accordance with the nationallawsgoverning the exercise of these rights. Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  7. The window: European Charter of Fundamental Rights • Article10: Freedom of thought, conscience and religion • 1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance. • 2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right. Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  8. Time passes: How case law of ECHR influenced the process of recognition and enforcement of the right to marry (SSM) • Niemietz vs. Germany (1993): the Court refused to define private life, stating that it would be neither possible nor necessary to do so. • Botta vs. Italy (1996) : the Court makes clear that the right to respect for private life certainly comprises the right to establish and develop relationships with other human beings Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  9. Time passes: How case law of ECHR influenced the process of recognition and enforcement of the right to marry (SSM) c) Mata Estevez vs. Spain (2001): • long term homosexual relationship do not fall within the scope of art. 8 of the Convention • margin of wide appreciation/ discretionality of states adhering to the Convention Turning point in the Court case law: the bond recognised in d) Burden vs. United kingdom (2005)”what is determinative id the existence of a public undertaking” Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  10. Time passes: How case law of ECHR influenced the process of recognition and enforcement of the right to marry (SSM) d) Schalk and Kops vs. Austria(2001) applicants sought protection fromviolation art. 12 ECHR, sinche the expression “men and women” should be interpreted as “every person” The Court : 1 in the light of recent developments of the right to marry enshrined in art. 12 cannot be limited “in all circumstances to marriage between two persons of the opposite sex” - But also acknowledges that since the institution of marriage has deep social roots and cultural connotations national authorities are best placed to assess and respond to the need of society. Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  11. To the lighthouse: ECJ and the Lisbon Treaty • Pre- Lisbon Treaty: • Case 29/69 Stauder [1969] ECR--‐419) ECJ affirms fundamental (human) rights form an integral part of the general principles of EU law whose observance the Court ensures • 1 When MS act as EU agents • 2 When MS apply EU LAW • 3 When MS derogates EU LAW Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  12. To the lighthouse: ECJ and the Lisbon Treaty • 1 When MS act as EU agents : • ECJ clarified in Wachauf (Case 5/88) and reaffirmed in Case C--‐2/92 Bostock [1994] that national authorities, when implementing EU measures, must indeed comply with EU fundamental rights as they form an integral part of the general principles of EU law protected by the Court. Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  13. To the lighthouse: ECJ and the Lisbon Treaty • 2 When MS apply EU Law: • ECJ releases two judgments in 2003 Rundfunk and LindqvistCases C--‐465/00, C--‐138/01 and 139/01: EU fundamentalrightsbindMemberStates/National Authorities not only when they adopt administrative or legislative acts in order to implement EU rules but more generally, when they interpret or apply any domestic legal provision that falls within the scope of EU law. Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  14. To the lighthouse: ECJ and the Lisbon Treaty • 3 When MS derogates EU Law: a long story • Balance between the exercise of residual powers by MS (principle of sovereignity) and EU obligations • In the ERT Case (the Greek television case) Case C--‐260/89 ECJ maintained: • “In particular, where a Member State relies on the combined provisions of Articles 56 and 66 [now 52 and 62 TFEU] in order to justify rules which are likely to obstruct the exercise of the freedom to provide services, such justification, provided for by Community law, must be interpreted in the light of the general principles of law and in particular of fundamental rights. Thus the national rules in question can fall under the exceptions provided for by the combined provisions of Articles 56 and 66 only if they are compatible with the fundamental rights the observance of which is ensured by the Court” Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  15. To the lighthouse: the Lisbon Treaty • Article 6 (1) and (3) TEU provides for the Charter and general principles as Union norms ensuring the protection of fundamental rights in the EU • “recognisesthe rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties” Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  16. To the lighthouse: the Lisbon Treaty Changes: • A) potential federalising effect of the charter • B) Horizontal application of fundamental rights • A) art. 51 (1) ECFR: Article51 Scope • 1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers. • 2. This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties. Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  17. To the lighthouse: the Lisbon Treaty • Art. 51 is not paralizing: a prohibited national action may be interpreted by the ECJ as falling within the scope of application of EC law without the Community necessarily having legislative power to act in that field ( De Burca 1999 JCMS) • Zambrano Case (Case C‐34/09 ): Article 20 TFEU precludes national measures which have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status as EU citizens. Because a refusal to grant a right of residence and a work permit to a third country national with dependent minor children in the Member State where those children are nationals and reside has such an effect, the Court decided that it was irrelevant that the children never exercised his right to free movement within the territory of the Member State. • Belgium’s decisionfellwithin the scope ofUnionlaw Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  18. To the lighthouse: the Lisbon Treaty • As regards Horizontal application of fundamental rights. • The research question is whether the legally binding status of the Charter may increase the opportunities for individuals to invoke EU fundamental rights in the context of legal proceedings between private parties. Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  19. To the lighthouse: the Lisbon Treaty • ECJ Mangold Case (Case C-129/96): • the generalprinciplesofUnion law, including fundamental rights, can be relied in the context of legal disputes between private parties when they are further developed in directives regardless of whether the deadline for transposition of the directives had passed or not • itisthe responsibility of the national court hearing a dispute involving the principle of non discrimination in respect of age, to provide the legal protection which individuals derive from rules of Union law to ensure that those rules are fully effective, even if this means setting aside any provision of national law which may conflict with EU law. Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

  20. This is not the lighthouse, but only a Case Study: Windsor vs. United States Fabbrini “Fundamentals rights in Europe: Challenges and Transformations in Comparative perspective” 2014 Comparative methodology Comparison EU/ US more appropriate post Lisbon Treaty Conclusions Fundamental Rights and Private Law after the Lisbon Treaty Summer School 2014

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