scholarly journals After the celebration: Marriage equality in EU Law post-Coman in eight questions and some further thoughts

2020 ◽  
Vol 27 (5) ◽  
pp. 549-572
Author(s):  
Dimitry Vladimirovich Kochenov ◽  
Uladzislau Belavusau
Keyword(s):  
Critical Analysis ◽  
The State ◽  
Marriage Equality ◽  
Eu Law ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Court Of Justice ◽  
Near Future ◽  
Opening Up ◽  
The Eu

This paper provides a detailed critical analysis of the case of Coman, where the Court of Justice clarified that the meaning of the term ‘spouse’ in Directive 2004/38 was gender-neutral, opening up the door for same-sex marriage recognition for immigration purposes all around the EU, thus destroying the heteronormative misinterpretations of the clear language of the Directive practised in a handful of Member States. The state of EU law after Coman is still far from perfect, however: we underline a line of important questions which remain open and which the Court will need to turn to in the near future to ensure that marriage equality moves beyond mere proclamations in the whole territory of the Union.

Marriage Equality, Public Accommodations Laws, and Religious Exercise

2019 ◽  
Author(s):  
Susan Gluck Mezey
Keyword(s):  
First Amendment ◽  
Religious Beliefs ◽  
Business Owners ◽  
The State ◽  
Marriage Equality ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Free Exercise ◽  
Same Sex Couples ◽  
Antidiscrimination Law

Opposition to same-sex marriage in the United States is frequently based on the religious belief that marriage should be reserved for a man and a woman. With most of the attention focused on wedding vendors, the clash between religious liberty and marriage equality has largely manifested itself in efforts by business owners, such as photographers, florists, caterers, and bakers, to deny their services to same-sex couples celebrating their marriages. Citing state antidiscrimination laws, the couples demand the owners treat them as they do their other customers. Owners of public accommodations (privately owned business open to the public) who object to facilitating the weddings of same-sex couples do so typically by asserting their personal religious beliefs as defenses when charged with violating such laws; they argue that they would view their participation (albeit indirect) in wedding ceremonies as endorsing same-sex marriage. As the lawsuits against them began to proliferate, the business owners asked the courts to shield them from liability for violating the laws prohibiting discrimination because of sexual orientation in places of public accommodation. They cited their First Amendment right to the free exercise of their religion and their right not to be compelled to speak, that is, to express a positive message about same-sex marriage. With conflicts between same-sex couples and owners of business establishments arising in a number of states, the focus of the nation’s attention was on a New Mexico photographer, a Washington State florist, and a Colorado baker, each of whom sought an exemption from their state’s antidiscrimination law to enable them to exercise their religious tenets against marriage equality. In these cases, the state human rights commissions and the state appellate courts ruled that the antidiscrimination laws outweighed the rights of the business owners to exercise their religious beliefs against marriage equality by refusing to play a role, no matter how limited, in a same-sex marriage ceremony. In June 2018, in Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission, the U.S. Supreme Court affirmed the state’s antidiscrimination law that guaranteed equal treatment for same-sex couples in places of public accommodations but reversed the Commission’s ruling against the Colorado baker. In a narrow decision, the Court held that the Commission infringed on the baker’s First Amendment right to free exercise by uttering comments that, in the Court’s view, demonstrated hostility to his sincerely held religious beliefs. The ruling affirmed that society has a strong interest in protecting gay men and lesbians from harm as they engage in the marketplace as well as in respecting sincerely held religious beliefs.

scholarly journals Compatibility of the State Aid Recovery Order with the General Principles of EU Law

2017 ◽  
Vol 5 (1) ◽  
pp. 73
Author(s):  
Marek Rzotkiewicz
Keyword(s):  
Member State ◽  
General Principle ◽  
Case Law ◽  
State Aid ◽  
The State ◽  
Current Paper ◽  
Eu Law ◽  
Eu Legislation ◽  
Court Of Justice ◽  
The Eu

According to the Article 16.1 of Regulation 2015/1589 the Commission shall not require recovery of the aid if this would be contrary to a general principle of EU law. The potential existence of such a contradiction can be then of un utmost significance to a Member State and aid beneficiaries. However, notwithstanding its significance, the notion of a general principle of EU law has not been defined in the EU legislation, has been derived from the case law of the Court of Justice. The current paper strives to analyze different sorts of general principles of the EU law and their impact on the recovery obligation, especially as such an obligation differs between particular principles. Some of those principles have no significance at all on the existence of the recovery order, while others can, and sometimes even should, bar the Commission from ordering a Member State to recover an aid.

scholarly journals The ECJ's Coman judgment: Recognition of same-sex marriage indirectly?

2021 ◽  
Vol 3 (2) ◽  
pp. 77-93
Author(s):  
Milena Petrović
Keyword(s):  
Case Law ◽  
Eu Law ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Eu Member States ◽  
European Court ◽  
To Come ◽  
Union Citizen ◽  
The Right ◽  
The Eu

In the Coman case, the European Court of Justice was asked whether the term "spouse" - for the purpose of EU law - includes the same-sex spouse of an EU citizen who has moved between EU Member States. The ECJ answered this question affirmatively, holding that a refusal to recognise a same-sex marriage and the resultant refusal to grant family reunification rights to a Union citizen who moves to another Member State, would constitute an unjustified restriction on the right to free movement that Union citiyens enjoy under EU law. This case comment analyses the judgment, arguing that the Court's pronouncement is a very welcome first step towards marriage equality at a cross-border level in the EU. At the same time, the case poses a number of important questions, which will only be answered in case law and practice in the years to come.

The CJEU Crossing the Rubicon on the Same-Sex Marriages? Commentary on Coman Case

2018 ◽  
Vol 18 (2) ◽  
pp. 85-99
Author(s):  
Václav Stehlík
Keyword(s):  
Human Rights ◽  
Family Law ◽  
Eu Law ◽  
Same Sex ◽  
Court Of Justice ◽  
National Family ◽  
Extended Interpretation ◽  
The Eu

Abstract The article analyses the decision of the EU Court of Justice in Coman in which the Court derived residence rights for spouses in the same-sex marriages. The article outlines the basic grounds of the judgement and critically appraises them in the context of EU primary as well as secondary law and especially Directive 2004/38. The article raises concerns about the division of competences between the EU and its Mem­ber States, extended interpretation of the term “spouse” in the context of EU law, human rights considerations as well as potential effects of the decision on national family law.

Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU

2015 ◽  
Vol 16 (6) ◽  
pp. 1663-1700 ◽  
Author(s):  
Clelia Lacchi
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Constitutional Review ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Remedy ◽  
The Eu

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

scholarly journals Territoriality Beyond the State: The EU’s Territorial Claims and the Search for Their Legitimacy

2021 ◽  
Vol 22 (4) ◽  
pp. 650-672
Author(s):  
Josef Weinzierl
Keyword(s):  
The State ◽  
Political Community ◽  
The Other ◽  
Main Question ◽  
Eu Law ◽  
European Level ◽  
Territorial Claims ◽  
The One ◽  
The Individual ◽  
The Eu

AbstractQuite a few recent ECJ judgments touch on various elements of territorial rule. Thereby, they raise the profile of the main question this Article asks: Which territorial claims does the EU make? To provide an answer, the present Article discusses and categorizes the individual elements of territoriality in the EU’s architecture. The influence of EU law on national territorial rule on the one hand and the emergence of territorial governance elements at the European level on the other provide the main pillars of the inquiry. Once combined, these features not only help to improve our understanding of the EU’s distinctly supranational conception of territoriality. What is more, the discussion raises several important legitimacy questions. As a consequence, the Article calls for the development of a theoretical model to evaluate and justify territoriality in a political community beyond the state.

Legal conflict between the EU and the republic of Poland regarding polish judicial reform

2021 ◽  
Author(s):  
Ivan Yakovyuk ◽  
Suzanna Asiryan ◽  
Anastasiya Lazurenko
Keyword(s):  
European Union ◽  
Judicial Reform ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Legal Nature ◽  
Constitutional Tribunal ◽  
The Republic ◽  
The Eu

Problem setting. On October 7, 2021, the Constitutional Tribunal of the Republic of Poland ruled in favor of Polish law over European Union law, which in the long run may violate the principles according to which the Union operates and the rights enjoyed by citizens of the state. Such a precedent can further serve as a basis for identical decisions of the bodies of constitutional jurisdiction of those states that have problems in fulfilling their obligations in the European community. Analysis of recent researches and publications. The problems of the functioning of the bodies of the European Union, the implementation of their decisions and the general status in EU law are widely studied in national science. In particular, many scholars have studied the legal nature of the EU, including: TM Anakina, VI Muravyov, NM Ushakov, A. Ya. Kapustina, NA Korolyova, Yu. Yumashev, BN Topornin, OYa Tragniuk, SS Seliverstov, IV Yakovyuk and others. Target of research is to establish the foundations of EU law in the functioning of Union bodies, especially the Court, as well as to determine the hierarchy of national law and EU law. Article’s main body. Over the years, the Court has, within its jurisdiction, issued a large number of judgments which have become the source of the Union’s Constituent Treaties and of EU law in general. Over the last two decades, the powers of the Court of Justice have changed significantly. In particular, this is due to the adoption of the Lisbon Treaty, which amended the EU’s founding treaties on the powers of the Court, then the reform of the European Court took place in 2015-2016, which concerned a change in the organizational structure of the Court. Despite the generally well-established case law of the Court of Justice of the European Union on the unification of the observance by the Member States of the basic principles of the European Union, the Constitutional Tribunal of the Republic of Poland adopted a decision on 7 October. Conclusions and prospects for the development. Following the decision of the Constitutional Court, the Polish authorities found themselves in a situation that significantly complicated its internal and external situation. The way out of which requires answers to fundamental questions about the legal nature of the EU. Undoubtedly, this is an issue not only between Poland and the EU, but also between other member states.

The Role of the CJEU in the Strengthening of the Participation of Third-Country Nationals in the Academic Life in the EU – Analysis of the Ruling of the CJEU in Case M.A. v Consul of the Republic of Poland in N

2021 ◽  
pp. 91-106
Author(s):  
Anna Magdalena Kosińska
Keyword(s):  
National Court ◽  
Eu Law ◽  
Foreign National ◽  
Residence Permit ◽  
Voluntary Service ◽  
Court Of Justice ◽  
The Republic ◽  
New Student ◽  
The Eu

The analyzed ruling is the first judgement which the Court of Justice passed in order to provide interpretationfor the new Student Directive (2016/801 of 11 May 2016 on the conditions of entry and residence ofthird-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemesor educational projects and au pairing). Due to its judiciary activism, the Court was able to find a connectionbetween the case pending before a national court and EU law in the case of M.A. In the end, the Court finallydecided that in the case at issue, regarding the rights of a foreign national to apply for a residence permit for thepurpose of enrolling in second-cycle studies programme in Poland, the procedure of applying for a long-stay visaon the grounds of national law must be safeguarded by the guarantees under Article 47 of the Charter of FundamentalRights. The guarantees apply to the actual states in which EU law is applicable – in this case the “StudentDirective.” It seems that the ruling in the case of M.A. will play a crucial role in facilitating students’ – TCNs’ – entryinto the territory of the Republic of Poland, while the Polish legislator, in all probability, will be obliged to changethe provisions of the national law in such a way as to make it possible for future students to access a full array oflegal remedies against the negative decisions of consuls.

Square Pegs and Round Holes: The Free Movement of Persons Under EEA Law

2017 ◽  
Vol 19 ◽  
pp. 165-186
Author(s):  
Christian NK FRANKLIN
Keyword(s):  
Free Trade ◽  
Case Law ◽  
Fundamental Principle ◽  
Free Movement ◽  
Trade Association ◽  
Eu Law ◽  
European Free Trade Association ◽  
Court Of Justice ◽  
Free Movement Of Persons ◽  
The Eu

AbstractWhilst the European Union’s aim of achieving an ‘ever closer Union’ is not an objective of EEA cooperation, homogeneity demands that we follow the same path: as the Union gets ever closer, so too does EEA cooperation, in light of the demands of the fundamental principle of homogeneity. This is particularly well demonstrated by looking at developments in the field of the free movement of persons. The case law of the Court of Justice of the European Free Trade Association (EFTA Court) in this field shows that in situations where homogeneity is put to the test, there seems little to suggest that a more national sovereignty-friendly approach has been adopted than under EU law. Notwithstanding the integral differences between the EU and EEA legal constructs, the EFTA Court has proven highly adept at keeping pace with EU developments in the field through a number of bold and creative interpretations of EEA law, and by using different tools to arrive at uniform conclusions.

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