4.6. The ‘personal’ sphere: private and family life, adoption, home and marriage – Handbook on European non-discrimination law

Handbook on European non-discrimination lawContents

Under both EU law and the ECHR, the right for respect for private and family life is guaranteed (Article 8 of the ECHR[381] and Article 7 of the EU Charter of Fundamental Rights).

Under the ECHR, over the years the ECtHR developed its case law under Article 8 covering a variety of issues related to private and family life. The ECtHR set out the general reach of Article 8:

“the notion of “private life” within the meaning of Article 8 of the Con- vention is a broad concept which encompasses, inter alia, the right to establish and develop relationships with other human beings […] the right to “personal development” […] or the right to self-determination as such. It encompasses elements such as names […] gender identification, sexual orientation and sexual life, which fall within the personal sphere protected by Article 8 […] and the right to respect for both the decisions to have and not to have a child”.[382]

Example: In Cusan and Fazzo v. Italy,[383] a married couple was unable to give their child the mother’s surname because, under domestic legislation, legitimate children were automatically given the father’s surname at birth. The ECtHR found that the choice of surname of legitimate children was determined solely on the basis of discrimination arising from the parents’ sex. While the rule that the husband’s surname was to be handed down to legitimate children could be necessary to respect the tradition of family unity by giving to all its members the father’s surname, the fact that it was impossible to derogate from this rule when registering a new child’s birth was excessively rigid and discriminatory towards women.

The ECtHR has examined a number of cases involving differential treatment regarding rules on inheritance, access of divorced parents to children, adoption and issues of paternity.[384]

The cases of Mazurek v. France,[385] Sommerfeld v. Germany[386] and Rasmussen v. Denmark[387] involved consideration of differential treatment in relation to rules on inheritance, access of fathers to children born out of wedlock, and paternity issues. Article 8 will also extend to matters of adoption. Many cases, such as

E.B. v. France (discussed in Section 5.3), illustrate that adoption may fall within the scope of the ECHR, even though there is no actual right to adopt in the ECHR.

Example: In Gas and Dubois v. France,[388] a biological mother’s homosexual civil partner was refused simple adoption of her partner’s child. Under French law, a simple adoption resulted in all the rights associated with parental responsibility being removed from the child’s father or mother in favour of the adoptive parent, except where an individual adopted the child of his or her spouse. The ECtHR held that the situation of the applicants was not comparable to that of married couples because under French law, marriage conferred a special status on those who entered into it and the ECHR did not go so far as to compel states to provide for same-sex marriage. The ECtHR noted that a heterosexual couple in a civil partnership would also have had their application refused under the relevant provisions and as such, while the applicants were in a comparable legal situation, there was no difference in treatment based on their sexual orientation and consequently, no violation of Article 14 in conjunction with Article 8 of the ECHR.

Example: In X and Others v. Austria,[389] the applicants were also an unmarried same-sex couple in which one partner wished to adopt the other partner’s child. Unlike in Gas and Dubois v. France, the relevant provisions of Austrian law allowed for second-parent adoption for unmarried heterosexual couples. Given that the law contained an absolute prohibition on second-parent adoption by a same-sex couple, the national courts did not examine the

merits of the adoption request, nor did the father’s refusal to consent to the adoption play any role in the national courts’ considerations of the applicants’ case. The ECtHR found that this fact constituted a difference in treatment of the applicants in comparison to heterosexual unmarried couples, which had not been reasonably and objectively justified.

Example: In A.H. and Others v. Russia,[390] the applicants, US nationals, were couples in the final stage of adopting Russian children when a new law was adopted by the Russian Duma, banning the adoption of Russian children by US nationals. The ongoing procedures were stopped. The applicants complained that this ban violated their right to respect for family life and was discriminatory on the grounds of their nationality. The ECtHR found that the legislative ban on the adoption of Russian children was imposed only to US prospective parents. The government had failed to show that there were compelling reasons to justify the blanket ban being applied retroactively and indiscriminately to all prospective adoptive parents from the US, irrespective of the stage of the adoption proceedings and their individual circumstances. The ECtHR therefore concluded that there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention.

States have a relatively broad margin of appreciation in organising their immigration policy. Although the ECHR does not guarantee the right of an ‘alien’ to enter or to reside in a particular country, in some cases a refusal to allow family reunification might breach the rights guaranteed by Article 8.

Example: In Pajić v. Croatia,[391] the applicant had applied for a residence permit on the grounds of family reunification with her partner. The national authorities had refused the request because the relevant domestic law excluded such a possibility for same-sex couples. By contrast, a residence permit would have been allowed for an unmarried different-sex couple in a similar situation. The ECtHR found that the domestic authorities had not advanced any justification or convincing and weighty reasons to justify the difference in treatment between same-sex and different-sex couples in obtaining family reunification. Indeed, a difference in treatment based solely or decisively on the applicant’s sexual orientation amounted to a distinction, which was not acceptable under the Convention.[392]

The ambit of Article 8 is extremely wide. The ECHR also has implications for other areas, such as entering into a civil union or marriage, which is specifically protected under Article 12.

Example: In Muñoz Díaz v. Spain,[393] the authorities had refused to recognise the validity of the applicant’s Roma marriage when establishing her entitlement to a survivor’s pension, despite having previously treated her as if she were married. The ECtHR found that because the state had treated the applicant as if her marriage was valid, she was in a comparable situation to other ‘good faith’ spouses (those who were not validly married for technical reasons, but believed themselves to be so), who would have been entitled to a survivor’s pension. Although the ECtHR found that there was no discrimination in the refusal to recognise the marriage as valid (within the meaning of Article 14 taken in conjunction with Article 12), there was discrimination in refusing to treat the applicant similarly to other good faith spouses and accord the pension, in breach of Article 14 taken in conjunction with Article 1 of Protocol No. 1.

Example: The case of Vallianatos and Others v. Greece[394] was lodged to challenge Greek law, which in 2008 introduced a possibility for different-sex couples to enter into a civil union, which was less formal and more flexible than marriage, but which excluded same-sex couples from its scope. The ECtHR noted that 19 out of 47 Council of Europe member states had authorised registered partnerships and that 17 of those 19 states had recognised both heterosexual and homosexual couples. It further concluded that there were no convincing and weighty reasons to prohibit same-sex couples from entering into a civil union. In other words, when a state introduces a form of registered partnership it must be accessible to all couples regardless of their sexual orientation. A violation of Article 14 taken in conjunction with Article 8 was found.

Subsequently, the ECtHR had to determine whether Article 8 encompassed a positive obligation on a state to introduce a legal framework providing for the recognition and protection of same-sex couples.

Example: In Oliari and Others v. Italy,[395] three homosexual couples complained that under Italian law they had no possibility to get married or enter into any other type of civil union. The ECtHR noted European and international trends towards legal recognition of same-sex couples. It also observed that the Italian Constitutional Court had repeatedly called for a legal recognition of the relevant rights and duties of homosexual unions. Therefore, the ECtHR held that in those circumstances, Italy was under a positive obligation to ensure effective respect for the applicants’ private and family lives by official recognition of same-sex couples. The legal framework for recognition of same-sex couples must at least provide for the “core rights relevant to a couple in a stable and committed relationship”.[396] In conclusion, the ECtHR held that, by failing to enact such legislation, Italy had overstepped its margin of appreciation and failed to fulfil their positive obligation in breach of Article 14 read in conjunction with Article 8 of the ECHR.

While protection of the core of human dignity customarily calls for a narrower margin of appreciation by the ECtHR, this had to be balanced against the concerns of protecting others in a position of vulnerability whose rights might be abused.

Example: In Kacper Nowakowski v. Poland,[397] the applicant was a deaf and mute father whose contact with his son, who also had a hearing impairment, was restricted. The applicant complained in particular about the domestic courts’ refusal to extend this contact. The ECtHR found that the domestic courts had failed to consider any means that would have assisted the applicant in overcoming the barriers arising from his disability, and had thus not taken all appropriate steps that could have been reasonably demanded with a view to facilitating contact. Therefore, the ECtHR concluded a violation of Article 8 of the Convention, considering it unnecessary to separately examine the complaint under Article 14, taken together with Article 8 of the Convention.

In the above case, the ECtHR considered that the interests of the father went hand in hand with those of the child – that is, it was in the child’s interests to have contact with the father. However, where the child’s interests potentially conflict with those of the parent, the state enjoys a wider margin of appreciation in determining how best to protect the child.

Example: In Rasmussen v. Denmark,[398] a father complained of a statute of limitations barring him from contesting paternity. The ECtHR found that this did amount to differential treatment on the basis of sex, but was justified. This pursued the legitimate aim of providing the child with security and certainty over their status, by preventing fathers from abusing the possibility of contesting paternity later in life. Since there was little uniformity of approach to this issue among the member states of the ECHR, the ECtHR accorded the state a wide margin of appreciation, finding the differential treatment was justified.[399]

Under EU law, the substantive family law remains under the sole competence of EU Member States. However, some issues with cross border implications are covered by the EU law. The case law of the CJEU regarding the right to family life developed mainly in the field of free movement of persons with regard to family members of EU citizens.[400] The CJEU held that “if Union citizens were not allowed to lead a normal family life in the host member state, the exercise of the freedoms they are guaranteed by the Treaty would be seriously obstructed”.[401] Another area where family considerations and principle of non-discrimination can play a role is in the field of asylum and immigration law. For example, in determining who qualifies as beneficiaries of international protection, states must ensure protection for family life.[402] Furthermore, relevant case law of the CJEU for family rights concerns discrimination between men and woman as

regards parental rights. In a case concerning the right of a father to parental leave, the CJEU held that the different condition attached to the entitlement to parental leave “is liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties” and found that it constituted direct discrimination on grounds of sex.[403]

Example: In Pedro Manuel Roca Álvarez v. Sesa Start España ETT SA,[404] the claimant was refused so-called ‘breastfeeding’ leave, because his child’s mother was self-employed. The CJEU held that this constituted discrimination against men.

Example: In Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v. Vilniaus miestosavivaldybės administracija and Others,[405] the applicants were a Lithuanian national belonging to the Polish minority and a Polish national. They complained that the spelling of their names on the marriage certificate issued by the Vilnius Civil Registry Division was incorrect. According to the applicants, this spelling was not in accordance with the applicant’s official national language. The CJEU held that Article 21 of the TFEU does not preclude a refusal to amend surnames and forenames appearing on certificates of civil status, on condition that such a refusal is not liable to cause serious inconvenience to those concerned.[406]

Example: In Mircea Florian Freitag,[407] Mr Mircea Florian, a man with Romanian nationality, was born in Romania under the surname ‘Pavel’. His mother divorced his father and married a German national, Mr Freitag. Mircea Florian thus obtained dual nationality, and his surname was changed to ‘Freitag’. Years after, Mircea Florian, still habitually residing in Germany, went to Romania to change his surname back to the original ‘Pavel’. He then requested that the German Registry Office change his name and update

the civil register accordingly so that his name change was recognised under German law. However, under German law, this was only possible if the name in question had been acquired during a period of habitual residence in another EU Member State. The CJEU stressed that:

i. the rules governing the way in which a person’s surname is entered on certificates of civil status are matters coming within the competence of the Member States;

ii. national legislation which places certain nationals of the Member State concerned at a disadvantage, simply because they have exercised their freedom to move and to reside in another Member State is a restriction on the freedoms conferred by Article 21 (1) of the TFEU;

iii. the discretion enjoyed by the competent authorities must be exercised by in such a way as to give full effect to Article 21 of the TFEU.

Consequently, the CJEU held that refusing to recognise a legally acquired surname, and the same as birth name, in a specific Member State, on the basis that the name was not acquired during a period habitual residence in that other Member State, hinders the exercise of the right, enshrined in Article 21 of the TFEU, to move and reside freely in the territories of the Member States.

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381. An explanation as to the scope of Article 8 ECHR can be found on the ECHR website: Roagna, I. (2012), Protecting the right to respect for private and family life under the European Convention on Human Rights.

382. ECtHR, E.B. v. France [GC], No. 43546/02, 22 January 2008, para. 43.

383. ECHR, Cusan and Fazzo v. Italy, No. 77/07, 7 January 2014.

384. See also FRA and CoE (2015), Handbook on European law relating to the rights of the child, Luxembourg, Publications Office.

385. ECtHR, Mazurek v. France, No. 34406/97, 1 February 2000.

386. ECtHR, Sommerfeld v. Germany [GC], No. 31871/96, 8 July 2003.

387. ECtHR, Rasmussen v. Denmark, No. 8777/79, 28 November 1984.

388. ECtHR, Gas and Dubois v. France, No. 25951/07, 15 March 2012.

389. ECtHR, X and Others v. Austria [GC], No. 19010/07, 19 February 2013.

390. ECtHR, A.H. and Others v. Russia, Nos. 6033/13 and 15 other applications, 17 January 2017.

391. ECtHR, Pajić v. Croatia, No. 68453/13, 23 February 2016.

392. See also ECtHR, Taddeucci and McCall v. Italy, No. 51362/09, 30 June 2016.

393. ECtHR, Muñoz Díaz v. Spain, No. 49151/07, 8 December 2009.

394. ECtHR, Vallianatos and Others v. Greece [GC], Nos. 29381/09 and 32684/09, 7 November 2013.

395. ECtHR, Oliari and Others v. Italy, Nos. 18766/11 and 36030/11, 21 July 2015.

396. Ibid., para. 174.

397. ECtHR, Kacper Nowakowski v. Poland, No. 32407/13, 10 January 2017.

398. ECtHR, Rasmussen v. Denmark, No. 8777/79, 28 November 1984.

399. Ibid.

400. See for example, CJEU, C-165/14, Alfredo Rendón Marín v. Administración del Estado [GC], 13 September 2016, discussed in Section 5.7.

401. CJEU, C-127/08, Blaise Baheten Metock and Others v. Minister for Justice, Equality and Law Reform [GC], 25 July 2008, para. 62.

402. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, OJ L 337, 20.12.2011,
pp. 9–26.

403. CJEU, C-222/14, Konstantinos Maïstrellis v. Ypourgos Dikaiosynis, Diafaneias kai Anthropinon Dikaiomaton, 16 July 2015, discussed in Section 5.1.

404. CJEU, C-104/09, Pedro Manuel Roca Álvarez v. Sesa Start España ETT SA, 30 September 2010.

405. CJEU, C-391/09, Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v. Vilniaus miesto savivaldybės administracija and Others, 12 May 2011.

406. Compare with CJEU, C‑438/14, Nabiel Peter Bogendorff von Wolffersdorff v. Standesamt der Stadt Karlsruhe and Zentraler Juristischer Dienst der Stadt Karlsruhe, 2 June 2016, where the CJEU held that a name containing several tokens of nobility and freely chosen by a German in another Member State of which he also holds the nationality does not necessarily have to be recognised in Germany, if it is justified on public policy grounds, in that it is appropriate and necessary to ensure compliance with the principle that all citizens of that Member State are equal before the law.

407. CJEU, C‑541/15, Proceedings brought by Mircea Florian Freitag, 8 June 2017.

Contents

4. Selected areas of protection

4.1. Employment

4.2. Access to welfare and social security

4.3. Education

4.4. Access to supply of goods and services, including housing

4.5. Access to justice

4.6. The ‘personal’ sphere: private and family life, adoption, home and marriage

4.7. Political participation: freedom of expression, assembly and association, and free elections

4.8. Criminal law matters

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