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Sharpening the Teeth of EU Social Fundamental Rights: A Comment on Bauer

Tuesday was a big day in Luxembourg. The Court of Justice rendered what is probably the most important set of judgments on fundamental rights in a long time. Since the days of Akerberg Fransson, Digital Rights, Melloni, etc…, the Grand Chamber had not delivered such a principled decision on the thorny issue of fundamental rights, and it has done so in a field that has traditionally been managed with caution and circumspection by the Court: employment and social fundamental rights.

In the cases of Bauer et al (C-569/16 and C-570/16, and a total of three judgments, but dealing with the same question of principle), the Court stated that Article 31(2) of the Charter, which includes the right of “every worker […] to an annual period of paid leave”, is directly effective and has the ability to empower national courts to set aside incompatible national provisions.

It might sound rather technical, but it is a tremendous development for the sources of EU law and for fundamental rights protection in the field of social policy.

The judgment must be put in its proper context. In 2005, in the case of Mangold, the Court introduced a notable exception to its long-standing case-law on direct effect of directives. In Mangold the Court argued that, despite its traditional case-law, directives that “concretize” a general principle of EU law have direct effect and therefore can be invoked between private parties. This approach caused an uproar in several Member States, but it was basically digested and confirmed in further case-law. The approach worked perfectly well in the case of discrimination, which had several Directives applicable in the field of employment that interacted with Treaty provisions and general principles of EU law. The Court was concerned that the enactment of Directives would in the long run undermine the effectiveness of those Treaty provisions and principles on discrimination. Thus, the Mangold case-law prevailed.

Four years later, the Charter of Fundamental Rights entered into force, and as of 1 December 2009 the full array of general principles enshrining fundamental rights became written primary law. And the obvious question was: if a Directive concretizes a provision of the Charter, does the Mangold rationale apply as well? Also, the issue of horizontal protection of fundamental rights ensued, mostly inspired by the Court’s reluctance to embrace horizontal direct effect of directives. As of 2009 an interesting debate began. A debate that resonated strongly in national legal orders, which have all struggled in one way or another with the issue of enforceability of fundamental rights between private parties. This time the debate took a different twist as a result of the peculiar idiosyncrasies of EU law and its sources of law.

In Association de Médiation Sociale (AMS) the Court sent a first and worrying message. When dealing with a provision of the Charter such as Article 27 (workers’ right to information and consultation in the workplace), the Court argued that it was not a directly applicable provision and therefore its concretization by Directive 2002/14 did not deploy a Mangold effect. The Court was eager to highlight that AMS was in stark contrast with Mangold precisely because of the general principles involved: in Mangold it was a directly invokable provision (no discrimination on the grounds of age), in AMS the provision of the Charter needed further legislation to be cognizable as an invokable rule of law. The Court seemed to agree with the Advocate General by hinting that Article 27 is a “principle” and not a “right” in the sense of Article 51.2 of the Charter. But that was not explicitly nor clearly stated in the judgment.

On Tuesday, the Court seems to have reversed its restrictive approach in AMS and it has embraced a full Mangold approach for certain social fundamental rights. The case concerned Article 31(2) of the Charter and the right to paid leave, in the context of a German law disproportionately restricting the worker’s ability to claim compensation for not enjoyed days of leave prior to the termination of the contract. The Court agreed with the referring court that German legislation was not in line with Directive 2003/88, but the main proceedings concerned litigation between a worker and his employer. Thus, in a horizontal situation, the standard and traditional case-law would rule that the Directive could not be invoked directly against the employer.

The Court reversed its traditional stance and bluntly argued that Article 31(2) of the Charter is an imperative rule that can be directly invoked, even between private parties. The interaction between the Charter right and Directive 2003/88 produces that result. Thus, in a single stroke the Court allowed the national court to set aside national legislation contrary to Article 31(2), and in proceedings between private parties. It is quite an achievement, considering the history and circumstances of social rights in EU law.

On the point of horizontal effect of Article 31(2), the Court refers to its recent decision in Egenberger, in which it confirmed the horizontal application of the right to freedom of religion. However, in Bauer there is an important development, because the Court explicitly argues that in the case of social rights there is a direct reference in the written provision of the Charter to “the worker” and “the employer”. Thus, when the written rule of the Charter individualizes the addressees, it appears that there is a strong presumption in favor of horizontal application. That seems to be a first in the case-law.

And on the point of direct effect and the setting aside of national law, the Court has finally extended the Mangold rationale to social rights different to discrimination, thus opening a new playing-field in the enforcement of social rights in Europe. It is true that in Egenberger the Court extended the Mangold approach to the fundamental right to an effective legal protection. However, that right is not used in horizontal situations, but in vertical contexts between a party and a court. In Bauer et al, the Court has undergone a genuine expansion of the Mangold approach in a purely horizontal right, the right to paid leave. If AMS appeared to have cornered Mangold and leave it in the specific and isolated territory of discrimination law, Bauer et alhas reversed that situation and it has now put AMS in the isolated corner instead. Now there is a strong presumption that other Charter social rights, if “concretized” by proper EU law, will have direct effect in horizontal relations, thus empowering national courts to set aside any provision of national law in breach of the Charter right.

These are good news for the protection of social rights in Europe. These are badly needed rights not only for vulnerable groups, but also for the EU itself. The social pillar of European integration cannot be limited to vaporous rhetoric by good-willed politicians. It must also be able to bite, and sometimes it needs to bite hard. In Bauer et al the Court has taken the first step in sharpening the teeth of EU social law. Now we must wait and see if it will have the courage, in a nearby future, to take a nice bite.

Interim Revolutions

The decision of 19 October of the Vice-President of the Court of Justice, ordering the Republic of Poland to suspend the effects of the Judiciary Reform Act and, in particular, to ensure that no sitting judge is removed as a result of the new retirement age, is revolutionary to say the least. The Court has entered a terra incognita, a place where no previous European court had ever entered into, forcing a sovereign Member State to choose between its membership to the club of European integration, or to walk away and follow the path of authoritarian illiberalism. To do this in an Order of interim measures, without hearing the defendant Member State, and two days before a crucial regional and local election in Poland, is quite a gamble on the part of the Luxembourg court.

However, the stakes are so high that the Court was left with hardly any other choices. Unfortunately the Polish government has triggered a process and a style of governance that has eventually cornered it into an untenable position, a no-prisoners approach in which EU Institutions have now no other choice but to stand firm and keep calm. In contrast with other illiberal governments within the Union, notably Hungary, the Polish crisis is acutely visceral and radical.

Looking at the Order from a strictly legal angle, the decision is quite an event and a ground-breaking precedent. Interim measures are exceptional means to ensure the effectiveness of a procedure, but they are mostly used to suspend the effects of EU acts. Challenges before the Court will usually involve private applicants questioning the legality of, for example, Commission decisions. The scenario in which a Member State acts as a defendant to which an interim measure can be imposed, is basically limited to infringement procedures brought by the Commission or by another Member State on the grounds of Article 258 TFEU. These kinds of interim measures are hardly ever requested, for the Commission is well aware of the reluctance of the Court to order Member States to act or refrain from acting in provisional terms. Such interim relief is granted on the grounds of Article 279 TFEU, a provision that gives the Court ample discretion to be creative about the kind of interim measure that the case deserves, but in practice they are scarcely requested and, as a result, hardly ever granted.

In Friday’s Order, the Vice-President has not granted ordinary interim relief on the grounds of Article 279 TFEU, but a particularly urgent kind of relief. The Order relies on Article 160(7) of the Rules of Procedure, which allows the Court to rule prior to hearing the defendant Member State. These interim measures are used when the urgency is such, that the order must be granted immediately and therefore with no time to hear the defendant party. Therefore, there will be another decision on the interim measures soon, once Poland has been heard in writing and, most probably, in the course of an oral hearing.

Furthermore, the Order is retroactive. The Judiciary Reform Act introduced a new retirement age for judges set at 65 years of age, and since its entry into force it has already served as a legal cover for the retirement of several sitting judges. Despite the fact that the Act had been suspended by the Supreme Court as a result of a preliminary reference sent to Luxembourg this summer, some of its provisions have already produced effects. Therefore, the Order imposes on Poland a retroactive suspension of effects that deploys the rulings’ effects from the moment of entry into force of the Act.

And finally, the Order steps into a terrain which has traditionally been handled with the utmost care by the Court, but which is now an arena in which the Court seems comfortable to rule in far-reaching ways. When a similar action was brought by the Commission against Hungary’s reform of the judiciary in 2012, the grounds of review were linked to Directive 2000/78 and discrimination on the grounds of age. A rather low-profile approach for a case that involved very special “workers”, as is the case of national judges. However, this time around the Commission has brought the case against Poland on the grounds of Article 19 TEU, which states that the EU’s judiciary is composed of both EU and national courts, acting in conformity with fundamental rights and in full independence. This independence is now being questioned by the Polish reforms. There is hardly any other provision of EU law at stake, but this has been deemed to be sufficient by the Commission to bring such a case, and the Court appears willing to play ball. There are good arguments about competence that could be used against the Commission, but it seems that one thing is to reform a national judiciary, and quite another to launch a full-blown attack on the independence of all the high courts of the land. The Commission appears to be committed to fight the latter, but Poland will certainly argue that the competence of the Union is shaky to say the least.

Nevertheless, last week’s Order has been slowly and carefully brewed in the Luxembourg futuristic anneau. In the landmark case of the Portuguese judges, rendered in early 2018, the Court set the tone for this new ground of review, and stated that Article 19 TEU, including its reference to independence, is a relevant parameter of review of national measures. Shortly before, in the case of the Polish forest of Białowieża, the Court ruled that in case of breach of an interim measure addressed to a Member State, penalty payments and pecuniary sanctions can be imposed by the Court at the request of the Commission, on a careful but daring interpretation by analogy with Article 260 TFEU. Before the 2018 summer holiday, in the LM case, the Court sent yet another powerful message by stating that judicial cooperation with Poland in the field of criminal law could come to an end In Poland if the European Council finally triggers Article 7 TEU proceedings against the Member State. Last week’s Order seems to be another piece in this terribly complex jigsaw puzzle that the Polish challenge is proving to be.

But the stakes are high and the Polish government knows it. It is no coincidence that the Polish Prosecutor’s Office has recently brought an action before the Constitutional Court arguing that the suspension of effects enacted by the Supreme Court is unconstitutional. If the Constitutional Court sides with the Prosecutor (and the new composition of the Court inclines me to think that it will), the argument could be well extended to Friday’s Order. With that ruling from the Constitutional Court, the Polish argument will probably argue that proceedings in Luxembourg are ultra vires and not applicable in Poland.

At that stage, the showdown will be inevitable and the Commission will have no other choice but to request the enforcement of the Order through Article 260 TFEU. Penalty payments will be imposed and Poland will refuse to pay following the ultra vires rationale. The Financial Regulation will have to be interpreted creatively so that the amounts receivable are offset by forthcoming payments to Poland. After all, Poland is a net beneficiary of the EU budget and it will not be difficult to ensure that the penalty payments effectively end in the coffers of the EU budget and not in the pockets of the Polish government. At that point, the Polish government will have to explain to its citizens why the generous contributions coming from Europe start to decline. The blame game might work for a time, but at some point the Polish people will realize that their government is not only risking their benefits, but even their European membership.

Whatever the result might be, the Court seems committed to playing the role that it has been anticipating for several months now. Nothing appears to be stopping the Court from playing hardball in this new chapter of European integration, in which “integration through law” has now turned, to the surprise and concern of us all, into “integration through the rule of law”. A nice but worrying twist that puts Europe on the eve of a new chapter, in its always bumpy road towards peace and prosperity in the continent.

Judicial Infringements at the Court of Justice – A brief comment on the phenomenal Commission/France (C-416/17)

One of the fascinating features of EU law is that no matter how well established its classics may be, they are revisited over and over again. If you thought you had seen it all about preliminary references, think twice. Always think twice, because you can never be fully sure until the Court’s next judgment.

Last week, many of us saw something that could have happened years ago, but which has taken more than six decades to occur. For the very first time, the Court of Justice has ruled that a Member State failed to fulfil its obligations under Article 267 TFEU in an infringement action, as a result of the decision of a national Supreme Court to refuse to make a preliminary reference. It’s a first that could become a ground-breaking development for the future. It’s also a first that could alter the way in which Supreme Courts cooperate with the Court of Justice and their executives. The complex repercussions of this judgment are still early to envisage, but it is clear that the decision is a tremendous step forward in the development of a coherent system of remedies in Europe.

But first, the facts and the background of the case.

In the year 2011, in the judgment in the case of Accor (C-310/09), the Court ruled that France had breached the Treaties due to the difference in tax treatment of dividends according to the Member State of residence of subsidiaries. The Court also ruled on the conditions in which the evidence required by the tax authorities could be established. Shortly after, the Conseil d’État followed the Court’s decision, but it ruled on a point that had not been addressed in Accor: the tax treatment applicable for the case of sub-subsidiaries. Even though the Court rendered a decision after Accor on this point, the Conseil d’État considered that the precedent was distinguishable. As a result, and with no prior preliminary reference to the Court, the Conseil d’État ruled that the tax paid by a sub-subsidiary did not have to be taken into account in determining advance payments to the parent company. The Conseil d’État also established certain conditions on the evidence that must be provided by the company to the tax authorities, in terms not fully coincidental with the ones enunciated by the Court in Accor.

Following the judgments of the Conseil d’État, the Commission received several complaints from undertakings unable to request reimbursements of advance payments made by French companies which had received dividends of foreign origin. The Commission sent a letter of formal notice to the French authorities and eventually sent a reasoned opinion which, finally, ensued in an action of infringement on the grounds of Article 258 TFEU. Among the grounds of review, the Commission introduced a novelty. For the first time, a Member State was brought before the Court of Justice due to a failure of its supreme court to make a preliminary reference pursuant to the third paragraph of Article 267 TFEU.

In a groundbreaking judgment rendered on 4 October 2018, the Court sided with the Commission and declared that the Conseil d’État had erred in law when refusing reimbursements of the advance payments of sub-subsidiaries in another Member State. However, the Court rejected the Commission’s concerns on the grounds based on the evidentiary requirements imposed by the Conseil d’État. But having declared one of the three alleged breaches on the substance of the case, the Court went on to determine whether the Conseil d’État should have made a preliminary reference in the case at hand.

According to the Court, the Conseil d’État faced a legal framework in which the judgment in Accor made no specific reference to sub-subsidiaries. Therefore, despite the fact that the Court had later rendered a ruling on the matter, it had not done so on the specific point in question before the French court. In addition, the Conseil d’État decided to depart from the case-law of the Court following Accor, with the argument that the said case-law concerned UK law, which differed from French law. The Court rejected this approach and stated that, precisely because the Conseil d’État had confirmation that the Court’s case-law was developing in a different direction to the one that the Conseil had in mind, it was under a particularly imperative duty to make a preliminary reference. As a result, the French Republic (ie, the Conseil d’État) failed to fulfil its obligations under the third paragraph of Article 267 TFEU.

This might sound like a rather obscure and technical judgment, but it hides a revolutionary development for the EU’s judiciary.

First, the Court has sent a powerful message to national supreme courts, a message that complements its decision in Ferreira da Silva (C-160/14), a case in which, for the first time, it declared a breach of the Cilfit doctrine of acte claire. Now the Court takes a step forward and goes as far as declaring a breach by a Member State, in the context of an infringement action, when the Cilfit doctrine is breached by a supreme court. Therefore, Cilfit has fully sharpened its teeth and the Court is willing to bite with it.

Second, the Court has come full circle in a process that has taken almost fifteen year to develop. In Commission/Italy (C-129/00), the Court dealt for the first time with the tricky question of whether a national judiciary’s decisions can trigger a Member State’s breach of EU law in the context of an infringement procedure. The case was deliberated at the same time as Köbler, but the ruling tried to strike a balance: the Court stated that indeed, a case-law of the national judiciary could entail a breach of EU law subject to infringement proceedings, but not as a result of isolated judgments, but as the outcome of a consolidated case-law, or a principled single decision. In the case at hand, Italy was declared in breach of EU law, but not due to the judgments of the judiciary, but to the legislature’s ambiguous rules (which led the judiciary to a set of decisions in breach of EU law).

A few years later, in Commission/Spain (C-154/08) the Court declared a breach of EU law as a result of a single judgment of a national supreme court. That was the first time that the Court took such a step, but the breach only concerned the substance of the case. Although the Commission has raised the fact that the Spanish Supreme Court made no reference to the Court, the judgment argued that the Commission had not raised this ground of review until the action was filed. Thus, the new ground of review was declared inadmissible.

And now, at last, almost fifteen years later, we have the final piece of the puzzle. The Court is clear when it states that the French Republic is in breach of the Treaties for having failed to comply with the duty imposed on the third paragraph of Article 267 TFEU.

Third, the Court has sent the Commission a very clear signal: if national supreme courts misbehave, and they do so without making a reference, the last chance for the losing party will be an infringement action, a remedy that is in the sole hands of the Commission (as well as a Member State, but we all know the use of that). Unfortunately, it is not uncommon to find judgments of national supreme courts that openly depart from the Court’s case-law. It is very frustrating to see that the only alternative to that outcome is an action for damages against the Member State for breach of EU law, particularly when the action has to be brought against the judiciary itself. In such cases, the helping hand of the Commission can be a very valuable tool in overcoming arbitrary or simply erroneous judicial decisions of supreme courts (which every now and then, unfortunately, do happen).

This last point leads me to a final observation, which raises a more conceptual issue. If the Commission is entitled to bring an action before the Court as a result of a supreme court’s failure to interpret EU law correctly and to make a preliminary reference,  the infringement procedure thus becomes a pseudo-direct appeal against national court decisions before the Court of Justice. It is exactly the kind of remedy that the Treaties avoided for decades: direct actions against national judgments. A system of the kind would fully integrate national judiciaries with the EU court system, and the Member States, when drafting the Treaties, were well aware of the impact of such development and had the caution to not step so far.  But after Commission/France, with the help of the Commission and motivated litigants, we are on the road towards a system in which national judicial decisions can be subject to review, in a direct and transparent way, by the Court. The EU judicial system is certainly more federal as of 4 October 2018. And in genuine EU method, the decision was hardly noted, it did not make the news, it was rendered by a chamber of five judges and, nevertheless, its effects will be felt for years and years to come. That’s a classic methodology, the methodology of discrete disruption, that will never die at the Court.

 

Religion at the Court

The European Union is no longer a community of interests, it is a community of values. If anyone had any doubts about it, a brief look at the cases being brought before the Court of Justice on the thorny issue of religion provides a very blunt answer. In sixty years of European integration, religion has been a missing part of Europe’s narrative, both in policy and in law. Religion only made its appearance in very discreet cases, when, for example, the right of a staff member to practice his or her religion was constrained by staff regulations, or when a national court questioned if the data gathered for a web page of the local parish was subject to data protection rules. Religion was not an issue at the heart of the discussions on integration, and the Court of Justice made no effort in bringing the subject to the forefront of the debate.

This has changed radically in the shortest of time-spans.

In only a year and a half, the Court of Justice has been forced to deal with crucial issues such as the Islamic headscarf at work (Achbita and Bougnaoui), the scope of constitutional autonomy of religious organizations (Egenberger), the due protection of religious rites in EU regulatory provisions (LMIOPA), the enforcement of State Aid rules to religious schools (Congregación de Escuelas Pías), as well as issues of data protection applied to door-to-door activities by religious organizations (Tietosuojavaltuutettu). It’s not a bad record for a court that has kept a conscious distance from the issue for six decades. Out of the blue, to the surprise of many, religion is now a source of key societal issues being brought at the forefront of the Court’s agenda.

First, it’s important to focus on the way in the way in which the cases are reaching the Court. All the cases are being brought through preliminary references made by national courts. There is not a single infringement action or action of annulment. National courts are the promoters of this new trend in the case-law, not EU Institutions nor Member State governments. Once again, it is thanks to the dialogue between judges that key societal issues make it to the Luxembourg court.

Second, all the cases (with the exception of Congregación de Escuelas Pías) focus on the Charter and how it can condition the interpretation or validity of EU secondary rules. National judges are not so much concerned about the data protection Directive, or the equality Directive. What they really are questioning is the interpretation of these instruments in light of the Charter, because they are aware that the Charter has introduced change. The barrage of cases on religion is good proof that the Charter is not business as usual, but quite the contrary.

Third, it is interesting to see how Member States are shying away from these cases in the course of the proceedings. The judgments show that Member States do not really want to be involved in these discussions and therefore they do not submit written or oral observations. The governments of the Member States from where the reference comes will usually intervene, but considering the stakes at hand it is surprising to watch how other countries that struggle with many of these issues at home prefer to keep a low profile at the European level. The only Member State that seems to have an interest and intervenes in most of the cases is the United Kingdom.

Fourth, it is also striking to see how the Court of Justice deals with the very well-established case-law of the European Court of Human Rights, either by ignoring it or minimizing its relevance. There is an odd citation here and there, but that is it. It is obvious that the Court of Justice wants to have its own say in the matter, but at the same time it is aware that it cannot fully ignore the findings of the Strasbourg court, which has been dealing with these matters for decades. There is no engagement with the Strasbourg case-law, only a diplomatic gesture recognizing its existence, but not much more. This is, yet again, another example of how the Court of Justice, as a general rule, wants to keep an autonomous interpretation of the Charter, using Strasbourg as a minimal reference for basic orientation and not much more.

And lastly, what about the substance of the rulings? What is the Court of Justice really saying about religion and, more specifically, freedom of religion? In this regards, I am afraid to say that the answer is: “not much”! Once again, the Court of Justice is relying on the effectiveness of EU law and other familiar tools as a means to avoid the thorny issues. In Egenberger it is quite clear: the substance of the case is relegated to the question of whether the fundamental right to an effective judicial protection must be safeguarded, thus allowing labor courts to review the hiring decisions of religious schools in Germany. Therefore, in the eyes of the Court it is not so much about religious autonomy, but mostly about effective judicial protection. The same applies to Achbita and Bougnaoui, in which a key issue, such as the wearing of the headscarf at work, is handled as a question of discrimination on the grounds of religion, not religious freedom, and eventually it is dealt through a rather poor proportionality test. And of course, if there are superfundamental rights involved, freedom of religion will not stand a chance and will be sacrificed in the name of the what seems to be Court’s true religion: privacy.

Unfortunately, we are not really grasping what is the Court’s vision of religion, but at the same time we are envisioning how a fundamental right is born, takes its first steps and slowly evolves in EU law. It is always a sluggish and gradual process in which the Court hides under its more familiar tools, but eventually it is dragged (mostly by national courts) into taking a stance. I am optimistic and I believe that it will take some time, maybe a few years, until religion becomes another relevant pillar of the Court’s fundamental rights case-law. But for the time being, it is work in progress.

The Legal Acrobatics of Fundamental Rights – Coman and Gay Marriage as a Case Study

The Court of Justice rendered yesterday a landmark judgment in the case of Relu Adrian Coman, in which the Court ruled that gay marriage must be recognized in all Member States for the purposes of free movement of persons and the right to legal residence under EU Law. It is a fair decision that confirms a trend in the West in favour of gay rights and equality on the grounds of sexual orientation and identity. When tolerance prevails, the world is a better place. And Europe is a better place today than yesterday thanks to Mr. Coman, his husband, the Romanian Constitutional Court (that had the courage to make the reference to Luxembourg) and the Court of Justice.

This post is not about the substance and specifics of the Coman case, a matter that will be undergone in detail by commentators in the months and years to come. Coman will stand as a leading case in the Court’s fundamental rights case-law and rightly so. Therefore, this post is not about the place of Coman in the Court’s overall citizenship and fundamental rights case-law, but about the audacity of the Court’s legal reasoning. In fact, Coman is a rich recollection of the argumentative tricks and somersaults that the Court can play in order to reach a specific outcome. As a case study on the Court’s legal acrobatics, Coman is an excellent case study.

First, there is the issue of the relationship between primary and secondary law. Coman has been portrayed as a standard free movement of persons case, but in fact it raises a tricky issue that the Advocate General handled with care and eloquence. Mr. Coman is not an outbound free mover, but quite the opposite: he is a Romanian returning back to Romania, and thus he is not an EU citizen in a host Member State. Of course, this is not a new scenario for free movement law and the Court has handled it many times in the past (see Kraus, O and B, Dereci, McCarthy, etc…) but it is (at least to my knowledge) the first time it happens in a context in which the Member State invokes national identity against its own nationals. An awkward situation indeed: my citizens are upending the identity of the nation by means of EU law.

The Court has solved this in the same way that it solved similar situations in the past: relying on the Treaties in the absence of a Directive. Inasmuch Directive 2004/38 does not apply to cases of inbound free-movers, Article 21 TFEU is the relevant rule that allows the Court to give an answer to rule on Mr. Coman’s case. The acrobatics begin when the Court has to set limits to Article 21 TFEU, and it is quite surprising to see that such limits are found in… Directive 2004/38! In past cases the Court went as far as to argue that Article 21 TFEU had to be interpreted in light of Directive 2004/38, a troubling approach that was rightly criticized by AG Szpunar in his Opinion in the McCarthy case. The Court has learned better and has now stopped referring to Directive 2004/38 as the source of interpretation of the Treaties, but the outcome is pretty much the same. Mr. Coman’s husband will have a derivative right of residence under Article 21 TFEU, but it will be under the terms of Article 7 of Directive 2004/38, a provision that is not applicable to the case, but… voilà!

The second acrobatic exercise appears in the way in which the Court introduces the fundamental rights argument. It is a very welcome development that the Court is willing to openly state that the recognition of gay marriage has a fundamental rights dimension. But the way it does it is a good example of how tricky the implementation of fundamental rights can be in EU Law. Because Coman is a free movement case, the issue of fundamental rights appears when the Court explores the justification to a restriction. But Coman is not so much about restrictions on the grounds of fundamental rights (Omega, Schmidberger, etc…), it is a more sophisticated case which has its roots in the ERT case-law. Coman raises the issue of fundamental rights as a means of review of the justifications invoked by Member States. In other words, the question is not whether Romania could invoke the protection of fundamental rights to restrict Mr. Coman’s free movement rights, but whether such restrictions are in line with fundamental rights. It is a much more incisive approach that puts the Member State under a fundamental rights scrutiny by the Court of Justice in light of EU law (usually coined as the “derogation situation”). And that’s exactly what the Court does, although in such a cryptic way that we hardly know what standard it is aiming at. Nevertheless, we now know that gay marriage is a legal status covered and subject to protection under Article 7 of the Charter, as part of the fundamental right to private life.

The next somersault is the use of the European Convention of Human Rights. The Strasbourg court has dealt in the past with issues concerning gay rights, but its stance has been very cautious. There is no right under the ECHR to gay marriage and signatory States, according to the Strasbourg court, retain a large margin of discretion in this field. However, the Strasbourg case-law does recognize that in certain situations, when gay marriage or civil partnerships are recognized under domestic law, equality applies and so does the protection to private life. The Court of Justice has picked up a very cautious case-law and turned it into a more aggressive standard by silencing the real scope of the Strasbourg approach and making a muted reference to the cases of Vallianatos vs. Greece and Orlandi vs. Italy, two cases quoted in the judgment in Coman, but with no mention of the actual content of such decisions. When one reads those two judgments, it is obvious that the relevance of Article 8 ECHR was the result of very specific circumstances that differ from the case of Mr. Coman. But their appearance in the judgment of the Court of Justice reinforce a very blunt assertion on the part of the Luxembourg court: Member States have to comply with fundamental rights when they restrict free movement rules, and as long as gay marriage can be covered by the protection of family life, Romania’s decision to not recognize Mr. Coman husband’s residence right under EU law breached Article 7 of the Charter. I wonder if Strasbourg would have reached the same outcome in light of Article 8 ECHR only. But what is interesting is that now, through the means of EU law, in its complex but sophisticated acrobatic means of reasoning, Article 7 of the Charter, with the help of Article 8 ECHR, is probably going further than Strasbourg has gone before.

The fourth juggling exercise has to do with national identity and Article 4.2 TEU. Romania relied on this clause to protect its decision not to recognize gay marriage under its domestic law. Once again, the Coman judgment is not breaking any new ground, because the Court has handled national identity in the past in the free movement cases (remember Sayn-Wittgenstein?). However, if we contrast the reasoning in Coman with the reasoning in Sayn-Wittgenstein (surprisingly omitted in the Coman judgment), the outcome is quite surprising.

In Coman, the Court argues that EU law is not imposing gay marriage in Romanian law, it is only setting a duty to recognize the legal status of the couple under the law of another Member State in Romania. That is very reasonable and I completely agree with it. But take a look at Sayn-Wittgenstein and the reader will notice that the Court came to exactly the opposite conclusion. Although the name acquired under German law was perfectly in line with the provisions of that Member State, a prohibition of registration of aristocratic names under Austrian law found a justification on the grounds of… national identity! The Court was very sensitive to the fact that Austria’s republican form of State under its Constitution had specifically provided for an ad hoc treatment to the use of aristocratic treatments and names, and therefore the national identity clause was triggered with success. Of course, EU law would have not overruled those constitutional provisions in Austria, it would have only required Austrian law to recognize a name as granted under the law of another Member State. The parallelisms are so obvious that they need no further comment, but it seems clear to me that the Court is departing from the national identity clause when fundamental rights are at stake. And that’s a very important development.

Overall, the Coman judgment comes to a fair and reasonable outcome, but through very complex elaborations that only EU lawyers are used to. Considering how relevant this judgment is for free movement law and EU fundamental rights, I tend to worry that EU law is becoming too obscure and ungraspable for non-EU lawyers. In the same way that crucial areas of EU law, such as the direct effect of Directives, are becoming oversaturated with exceptions, derogations and subtle developments, fundamental rights law in the EU is following a similar path. It might be an inevitable outcome, considering the complexity and sensitivity of the issue, but we should not lose track of the fact that the final audience are generally not the EU experts. The main reader of this case-law is a national judge sitting in a court-house in a distant town in norther Sweden or in southern Italy. And I sincerely wonder if the acrobatics of our Luxembourg intellects are becoming too sophisticated for the audience to follow.

Welcome Mr. Coman and welcome yesterday’s ruling of the Court of Justice. But a little more simplicity, and less legal acrobatics, will do just as good to the noble cause of fundamental rights protection in Europe.