Love and coronavirus: reflections on the current European limits around the right to love and the right to circulate

Temps de lecture : 8 minutes

Love and coronavirus: reflections on the current European limits around the right to love and the right to circulate

15.10.2020

Written by Adèle Monod

Translated by Julie Penverne

In this singular time, the question of love and borders is essential. It has already been studied and dealt with in numerous articles. Yet, it has never been studied from a legal point of view? This article will study the different ways of loving that exist in our societies and how European law apprehends them.

While freedom of movement has changed the way we live, work, travel, love, what impact has the closing of borders had on our lifestyles? This question more broadly challenges the legal force of fundamental rights and freedoms within the European Union (EU): during quieter times, they are assured – not without hiccups – but in times of crisis, what about them?

La crise sanitaire du Covid-19 a révélé que ce que nous croyons impossible était en réalité possible : les gouvernements ont fait de la liberté l’exception, et de la restriction le principe. Pendant le confinement, dans de nombreux États en Europe, les citoyens ne pouvaient plus sortir librement, ne pouvaient plus voyager librement et ne disposaient ainsi plus de la liberté de circuler et de séjourner, fondamentale au droit européen.

Pre-COVID-19 Health Crisis 

In order to understand the importance of the right to circulate and, ultimately, the right to love in the European space, it is necessary to understand that the EU is not competent in family law. Nevertheless, with the consecration of the free movement of persons in 1992, EU law has inevitably encroached on certain areas of family law^[1]Article 308 of the Treaty on the Functioning of the European Union provides that the European Union may have competence if it is “necessary to attain, in the course of the operation of the … Continue reading.

To the extent that people can move, reside, work freely on the European territory, they can also meet someone, fall in love, marry, and found a family freely on the European territory. Love is the inevitable correlation – the “useful effect” in legal jargon – of freedom of movement and residence. In other words, if European law cannot ensure that a European citizen can stay with his or her family in any EU member state, his or her freedom of movement and residence loses its meaning and effectiveness.

There are numerous legal texts and provisions of interest to the family and the couple within the EU^[2]They derive from primary law: the Treaties (Article 3 of the Treaty on European Union, Articles 20 and 21 of the Treaty on the Functioning of the European Union) and the Charter of Fundamental Rights … Continue reading.

Does this abundance of consecration of the freedom of movement and love reveal the intangible value of a right that would be fundamental?

• The right to marry and start a family

The Charter of Fundamental Rights enshrines the right to marry and found a family (Article 9) as well as the right to freedom of movement (Article 45). While the consecration of these rights in a text of quasi-constitutional value suggested that they were fundamental rights for women or men, the reality of their application is quite different. At first glance, the rights enshrined in the Charter apply only in situations where European law is applied^[3]Charter of Fundamental Rights, Article 52..

However, since freedom of movement is by definition guaranteed in the European area, the Court of Justice of the European Union was able to ensure the citizen’s right to marry and found a family through Article 9.

Nevertheless, the Court prefers economic freedoms and the useful effect of the right to family reunification to fundamental rights. The principle of useful effect is ultimately a legal instrument that gives the Court the possibility of generating a conception of the family that is more respectful of human rights, without infringing on the sovereignty of States^[4]M. HO-DAC “The European conception of the family – Study of the couple”, Obs. Bxl, 2019/2, n° 116, pp. 10-15.. In the end, the intervention of European law in family law rests solely on economic legal bases^[5]Directory of European Law, Dalloz, points 24 to 31.

The fact that the Court bases its advances on European directives, and not on the Charter of Fundamental Rights, reveals the fragility of the rights of transgender or homosexual people. Although the preambles of Directives 2003/86/EC and 2004/38/EC require member states to respect the fundamental rights of individuals and not to discriminate on the basis of gender or sexual orientation, among other things, the directives do not expressly grant the right to family reunification to homosexual couples, partners or spouses.

Section 9 of the Charter could potentially have ensured access to the matrimonial institution to any person insofar as the terms used do not refer to specific genders^[6]Ibid.. Moreover, the wording of Article 9 allowed the European Court of Human Rights to depart from Article 12 of the European Convention on Human Rights, which expressly referred to the union of a woman and a man, and to consider that there is “no reason why transsexuals should be deprived in all circumstances of the right to marry^[7]European Court of Human Rights, Case Christine Goodwin v. United Kingdom, July 11, 2002, Req. n°28957/95.”. In the Coman judgment^[8]Court of Justice of the European Union (ECJ), Relu Coman ruling, Robert Clabourn Hamilton, Asociația Accept v. Inspectoratul General pentru Imigrări, Ministerul Afacerilor Interne, June 5, 2018, … Continue reading, the Court of Justice of the European Union considered that Romania, whose law did not provide for marriage for all, should recognise the derived right of residence of the third-country national Mr. Hamilton, husband of Mr. Coman, in the name of freedom of movement, so that he could return to his own country with his husband. This judgment reveals that the legal instrument of useful effect is a double-edged sword. Certainly, it allows the Court to make advances in family law^[9]The Court expressed in this decision that “a national measure that is likely to impede the exercise of the free movement of persons can only be justified where that measure complies with the … Continue reading – while only thirteen countries have authorized same-sex marriage within the EU. As such, the Coman decision appeared novel and bold. Nevertheless, it also confines these advances to a very limited framework: the Court limits itself to asking for the recognition of the right to secondary residence and not of marriage as such^[10]Carlier, J.-Y., “Article 45. – Freedom of Movement and Residence” in Charter of Fundamental Rights of the European Union, Brussels, Bruylant, 2019, pp. 1099-1117..

This recognition of the derived right to residency can only be established if the national has made use of his freedom of movement.

• Other forms of union: cohabitation and partnership

Although being the most traditional, marriage is not the only form of union: cohabitation and partnership must also be taken into account. The Court invites the Member States to “give an advantage^[11]Court of Justice of the European Union, Judgment Secretary of State for the Home Department v. Rozanne Banger, July 12, 2018, Aff. C-89/17.” to the granting of residence permits to cohabitees of European citizens “over other nationals of third States^[12]Ibid.”.  Nevertheless, this invitation does not provide a concrete protection of the right to love. Moreover, the directive on family reunification does not consider the cohabitee as a potential beneficiary of the derived right of residence for citizenship^[13]Directive 2004/38/EC of the European Parliament and of the Council of 29 Ap ril 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of … Continue reading.

Since partnership is not common to all Member States, nor is it commonly used, the EU leaves a large margin of appreciation to the States: it is up to them to decide whether the qualification of partner corresponds to the conditions of national law for issuing a right of residence derived from the citizen.

Thus, these two forms of union – which are the only possible forms of union for homosexuals in some EU member states – remain fragile. They do not guarantee the right to family reunification and therefore do not ensure the possibility for anyone to join the person he/she loves.

Lockdown: border closures and their exceptions

The return of internal borders is an unexpected and unprecedented phenomenon, which had not happened since 1992. Provided for by the Schengen Code, the temporary reintroduction of borders had previously been decided by some member states^[14]For example, France after the attacks of 2015.. However, the fact that all the states are reintroducing their borders is unique. Although this decision was the only one available to the States, the reintroduction of borders has created an irreparable and irreversible damage on the conception of borders and freedom of movement^[15]C. BORIES, « Quand l’Union européenne reconsidère la question de ses frontières par temps de coronavirus. Etat des lieux par pays », Revue de l’Union européenne, 2020, p. 296..

While some authors have been able to consider that “Union law does not ignore common-law couples, insofar as they lead a lasting and documented life as a couple^[16]M. HO-DAC, op. cit. 4”, the health crisis implications no longer lead to the same conclusion. Indeed, the lovers most affected by the health crisis are unmarried binationals, who do not have the right to family reunification^[17]Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of … Continue reading. In July 2020, the Commissioner for Home Affairs called on the competent authorities of EU Member States to adopt the “widest possible definition^[18]R. KORDA, « Le coronavirus met des frontières à leur amour », Aujourd’hui, 3 July 2020.” of romantic relationships, considering that “the partner or sweetheart with whom the citizen or legal resident of the Union has a duly documented durable relationship should be exempt from travel restrictions^[19]Ibid.”. This political demand is nevertheless difficult to apply: what does “duly documented durable relationship^[20]Ibid.” mean? What kind of evidence would have to be provided?

Moreover, without legal constraint, the decision rests entirely with the States, which seems paradoxical in the era of free movement on European territory. However, some European States have indeed considered solutions during the lockdown. This is the case of Denmark, which required its citizens to sign a declaration on their honor^[21]Ibid.. Other Member States have implemented different measures after lockdown. For instance, France recently granted the first passes to bi-national couples^[22]Le Figaro with AFP, « Premiers « laissez-passer » imminents pour les couples binationaux séparés par la pandémie », Le Figaro, 17 September 2020.. This late solution implies the procurement of evidence, which may prove difficult^[23]In order to obtain these passes, couples will have to provide proof of “common activities over time,” or proof of previous stays in France, brought by bills, plane tickets, etc. Ibid.. The European Union, for its part, has not taken any decisions at the legal level.

 Post health crisis: a requalification of freedom of movement and the right to love?

The closure of borders has undeniably affected families and couples, potentially violating the right to privacy and family life^[24]Charter of Fundamental Rights of the European Union, Article 7 and European Convention on Human Rights, Article 8.^[25]J.-P. MARGUENAUD, « Regards décalés sur le confinement », RTD Civ. 2020, p. 329.. The seriousness of this attack and its permanent consequences will undoubtedly give rise to numerous court decisions. Already, the League for Human Rights has filed a lawsuit to ask questions to the European Court of Justice on the application of the right to family reunification during the health crisis. However, the Council of State did not follow up on its request^[26]C. COLLIN, « Le coronavirus : une crise à précédents pour l’Union européenne », Revue de l’Union européenne, 2020, p. 290..

This is a missed opportunity to answer all these questions that are emerging at a time when Europe is witnessing a resurgence of cases in several Member States.

If the advance of the right to love anyone, beyond borders, has been able to develop through free circulation in the European space, the arrival of Covid-19 reveals its fragile nature. Although enshrined as a fundamental right, the rights to move and to found a family are in reality rights specific to the EU, which apply only within a precise framework and are not inherent to women and men.

This observation reveals the dangers of advances within the EU: although they are to be applauded, they should not be considered sufficient. If, with the advent of freedom of movement, European citizens aspire to the Europeanization of the family^[27]See in particular: op. cit. 4 and P.J. ABASCAL MONEDERO, “Family Law in the European Union”, Socialiné téorija, empirija, politika ir praktika, 2019, pp. 87-94. as some studies show, it is essential to integrate gender issues into it. Indeed, the progressive decisions of the Court of Justice of the European Union are currently based on unspoken words or subtleties linked to the drafting of articles of European law. This conclusion should open the reflection on the external borders of the European Union. The re-establishment of internal borders highlights the reality faced by many populations. People who migrate and leave their country because they cannot live their love or they wish to join their loved one, are confronted with similar or even greater difficulties than European nationals at the time of Covid-19.

To cite this article: Adèle MONOD, “Love and coronavirus: reflections on the current European limits around the right to love and the right to circulate”, 15.10.2020, Gender in Geopolitics Institute.