Introduction to the Chapter

Chapter 5 discussed how the ECJ found, in the Coman case, that the national identity of the Member State is not threatened by recognition of a same-sex marriage solely for the purposes of Directive 2004/38/EC. However, Directive 2004/38/EC does not exhaust the concept of public policy under EU law. It does not exhaust the concept of freedom of movement either.

The ECtHR ruled in the Orlandi case that refusal of inclusion into the civil status of same-sex marriages concluded abroad could not be justified under the Convention. The decision was adopted solely for that purpose and without consequences on private international law. Cross-border rights related to “recognition” of the civil status that had already been lawfully concluded have not been restricted to inclusion into civil registry in previous case-law.

This chapter opens with section 6.2 focusing on EU primary law applicable in the situation of cross-border recognition under supranational European law. It explores constitutional and international aspects of EU law and explains why it is not sufficient to adopt a purely constitutional or purely internationalist approach. Fundamental rights are general principles of EU law, and a special role is given to the ECHR, hence three “key cases” of the ECtHR are presented in section 6.3. The case-law establishes the minimum standards of the general principles of the EU. Next, the chapter focuses on the previous case-law of the ECJ ( section 6.4 ) and the ECtHR ( section 6.6 ) on cross-border movement of civil status. The case-law did not concern same-sex marriages or registered partnerships but different-sex marriages, surnames, and affiliation.

Analysis of justifications for non-recognition of the status is included in sections 6.5 (EU primary law) and 6.7 (the ECHR). Justifications that are not found acceptable or measures that are disproportionate may be considered as exceeding the necessary limits of the ordre public externe in private international law. The chapter reveals that the EU Charter has been used as a filtering instrument for justifications.