By: Dr. Chiara Raucea
Introduction: EU Law Strategies to Address Fundamental Rights Interferences As Obstacles to EU Integration
Since its inception, EU Law has been marked by a very strong economic focus. Even the interpretation and protection of fundamental rights in EU law have developed through a marked-oriented logic. This feature is also partially the key ingredient of EU law’s success. Over the years, the Court of Justice of the European Union (hereinafter CJEU) - the key interpreter of EU law - has extended its scope thanks to its capacity to convincingly present EU law as a system of legal rules, which is designed to harmonise markets rather than to solve conflicts of values.
For instance, the CJEU established that Member States have the obligation to set aside their domestic migration rules to pay respect to family life by granting derived residence rights to family members. To achieve this objective, the litigants and the national courts, as well as the CJEU had to depict the possibility of enjoying family life as part and parcel of the “advantages” that encourage workers and other economic actors to move and conduct business across borders (see Case C-370/90, Singh; Case C-60/00, Carpenter).
Another well-known example of how EU law used an economic lens to de-escalate potential conflicts between the different sensitivities of Member States on contentious issues having a significant impact on individual rights is Grogan (C-159/90). In that case, the CJEU was confronted with the issue of whether Member States that outlaw abortion can also ban campaigns informing women about how to access abortion in another Member State. The CJEU managed successfully to rule on that case without deciding on the disagreement about whether access to abortion should be protected as a right under EU law. To do so, the legal question presented to the CJEU was framed as focusing solely on the right to provide information about medical treatments legally available in another Member State. If the CJEU had ruled on the right to abortion, it might have undermined its legitimacy by overstepping its jurisdiction beyond the scope of EU law and blurring the division of competences between the EU and its Member States as established in the EU Treaties. The right to provide information can be acknowledged as ancillary to the freedom to provide services. Therefore, it undoubtedly falls within the remit of the EU legislator and the CJEU to regulate and protect the establishment of a well-functioning EU internal market.
These few examples show that, historically, the capacity of EU law to address and regulate contentious issues involving fundamental rights, which often generate disagreements based on conflicting values and views among Member States, depended on whether the interference with fundamental rights could be framed as an obstacle to exercising an EU market freedom. More recently, EU law has expanded its protective scope to include interferences with fundamental rights that may also potentially interfere with Union citizens' right to freely move and reside within the EU (established by Art 21 Treaty on the Functioning of the European Union, hereinafter TFEU).
For instance, this more recent development is of special significance for the right of rainbow families to relocate across the Union and access protection for their family rights even in Member States that refuse marriage and adoption to same-sex couples. The EU does not have competence in family law matters, and Member States consider family regulation a very sensitive field. Even the case law of the European Court of Human Rights (ECtHR) acknowledges the broad discretion of Member States in this area. The ECtHR has in fact established that the positive obligations on States to respect family life do not require them to grant specific forms of legal recognition to de facto families in domestic law (Case Law Guide on Art 8 ECHR - Respect for Private and Family Life, last update 31/08/24, pp 88-89).
Currently, the ECtHR recognises that there is no European consensus on certain aspects of regulating rainbow families, such as the registration of same-sex marriages contracted abroad (Case Law Guide on Rights of LGBTI persons, last update 31/08/24, pp 20-21). In contrast, EU law, by protecting Union citizens' right to freely move and reside in the EU, has successfully imposed obligations on Member States to respect family life, even in those countries that do not permit same-sex marriages. For instance, in June 2018, in Case C‑673/16, Coman, the CJEU ruled that Union citizens who established a genuine family life with a same-sex partner and lawfully contracted a same-sex marriage in a host EU country have the right to return to their country of nationality with their partner. Although the Member State of nationality is not obliged to register the same-sex marriage contracted abroad, EU law requires that the same-sex spouse be granted residence rights based on family life to avoid discouraging the exercise of EU free movement.
In December 2021, in Case C-490/20, Pancharevo, the CJEU ruled that when a host EU country recognises a parental relationship between a child and her same-sex parents, the Member State of nationality must also recognise this relationship, regardless of its domestic laws on rainbow families. This recognition includes providing the child with an identity card and adequate travel documents, enabling her to exercise her freedom of movement with each of her parents. The CJEU based its conclusion on the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union (CFR EU), which protects family life and the child's best interests. The Court argued that refusing to issue identity and travel documents to the child, due to non-recognition of same-sex parenthood in domestic law, would deprive the child of a relationship with one of her parents when exercising her right to move and reside freely within the EU. This refusal would make it impossible or excessively difficult for the child to exercise this right, solely because her parents are of the same sex (see Paranchevo, para 65).
These cases confirm a key limitation of EU law: under its constitutional framework, which is grounded in the principle of conferral, the EU cannot impose supranational standards or force consensus among Member States in areas beyond its designated competences. This constraint is especially evident in sensitive domains, such as family life and gender identity, where national regulations vary widely and can deeply affect individuals, raising concerns about undue interference with fundamental rights. In Part II, we will explore whether the EU right to freely move and reside within the Union can be invoked by trans Union citizens to demand recognition, across Member States, of a legal gender recognition procedure lawfully completed in one Member State.
Bio:
Dr. Chiara Raucea works as an Assistant Professor of EU law at the Department of Public Law and Governance at Tilburg Law School (the Netherlands). At Tilburg University, she teaches an LL.M. course on Migration and the Rule of Law and a bachelor's course on European Union Law. Her research is multidisciplinary and combines interests in doctrinal EU law with legal and political philosophy. In her work, she explores questions about the relationship between legal status and access to rights, as well as the rights of migrants in host communities. Dr. Chiara Raucea is currently working on a project enquiring about the political dimension of the right to private life. She explores the argument that the right to private life may offer a solid ground to claim access to naturalisation, permanent residence, and regularisation of migration statuses.