Author: Luca P. De Cristofaro
Introduction
For decades, the Court of Justice of the European Union (CJEU) has been the focal point for European integration. Considering its powerful position as Europe’s highest court, through its judgments, it pushed forward the agenda of consolidation and the integration process of the Union. [1]
Many cases have shaped the doctrine of the EU, inter alias, the cases of Van Gend en Loos, Zambrano, Chen, and Grzelcyk have developed the jurisprudence on the direct effect of the rulings of the Court and EU citizenship. Nevertheless, the perception of the integrationist agenda of the CJEU was not well-received by its member states, fueling the debate of the Court doing “judicial activism” therefore stepping out of its primary task.[2] Some scholars believe that this freedom of interpretation of the CJEU can be seen as a continuation of politics. [3]
A court is defined as “activist” when it does not interpret the norm using a hermeneutic method, but the interpretation is broader and would deliver decisions that, in some way, would substitute the legislative procedure.[4] In a sense, it goes against the fundamental principle defined by Montesquieu in “De l’esprit de la loi”, in which the judges should be the bouche de la loi and act as “inanimate beings who cannot change its force or rigor”. However, according to scholars, the legal integration of the European Union has been possible because of its general principles that are “ like vehicles at the heart of what can be termed as a self-creational mechanism of legal integration through adjudication”.[5]
The CJEU has been a driving force behind key legislative advancements, notably in the areas of citizenship rights and economic integration, after the failed referenda on the Constitution of the EU and the general skepticism towards the court’s activism, the Court has been cautious when emanating verdicts. However, although in some cases in which the Court could have been more permissive to protect people’s fundamental rights, the Luxembourg-based Court has had many missed opportunities.
Three are the leading cases that shaped the jurisprudence of the CJEU concerning LGBTQI asylum seekers. The first is the joint cases X (C‑199/12), Y (C‑200/12), e Z (C-201/12) v. Minister voor Immigratie en Asiel. The three cases are about the definition of acts that constitute persecution if the concealment of their homosexuality could prevent the persecution if back to their home country and if homosexuals are considered as a “particular social group” as per the Qualification Directive. The second case is F v. Bevándorlási és Állampolgársági Hivatal, on psychological tests to assess an asylum seeker’s self-declared sexual orientation. The third case study of this chapter is the joint cases of A., B., and C. v. Staatssecretaris van Veiligheid en Justitie. Similar to the case mentioned above, the joint cases are also evaluating a claimant’s sexual orientation. More specifically, the questions posed to the CJEU are on the acceptance of video, phallometric tests, and sexually explicit questions as evidence.
The Court’s decision on A, B, C.
Firstly, it has to be noted that the Court of Justice of the EU affirms that the assessment of one’s declared sexual orientation should not go against the fundamental rights of the EU as stated in the 2001 Charter. The respect of human dignity and the right to respect for private (and family) life are guaranteed by articles 1 and 7 of the Charter, as mentioned earlier.
Self-declaration of one’s sexual orientation is a starting point in the process of assessing the stated sexual orientation as per article 4 of the Qualification Directive [6] (par. 49). Competent authorities should evaluate on an individual basis and “must take account of the individual situation and personal circumstances of the applicant, including factors such as background, gender, and age […]” ( par. 57).
On assessing the sexual orientation, the judge declares that the evaluations cannot be based on pseudo-scientific tests, ask sexually explicit questions, or allow the applicant to submit videos of intimate acts (par. 59). In the first place, allowing the methods mentioned above of assessment would be against the right of respect for private life and human dignity of the CFREU. In the second place, authorizing pseudo-scientific tests and films of the applicant’s sexual acts as evidence to establish a declared sexual orientation could lead to praxis. Other applicants would have to submit such pieces of evidence to prove their claims (par. 66). Furthermore, the judge believes that such methods of assessing one’s sexual identity do not necessarily have a probative value.
On the late disclosure of one’s sexual orientation, the Luxembourg-based Court affirms that the authorities conducting the interview should still be reminded to consider the applicants’ personal circumstances. (par. 70). Even though the asylum seeker has to submit all the details to substantiate its application “ as soon as possible”. Therefore, considering the sensitive nature of one’s sexuality, an application cannot be rejected for lack of credibility due to late disclosure. It would mean that the competent authorities did not consider the applicant’s personal circumstances (par. 71).
The ruling’s overall reception is quite positive as it significantly impacted the national courts’ assessment of an applicant’s sexual orientation. However, instead of suggesting the guidelines on international protection no. 9 of the UNHCR [7] to give the member states a clear guide on the possible approaches to the matter, the judge states in the judgment the behaviors not to assume. Furthermore, although the Court clarifies that assessing one’s sexual orientation exclusively on stereotyped notions would mean not considering individual situations and personal circumstances, it does state that the concepts mentioned above can be a useful element for competent authorities (par. 62). Accepting the “partial” use of stereotyped notions to assess one’s sexual orientation can put in jeopardy the claims of applicants, especially in homophobic countries as it does not consider the various facets of sexual expression. [8] A lack of definition of which stereotyped notions can be “useful” could incur in an unharmonized and unbalanced way of assessing an applicant’s claim.
Another missed opportunity?
On July 17th, 2014, almost five months before the official ruling of the CJEU, the advocate general Sharpston delivered her opinion on A, B and C. .Her opinion is more progressive than the judgment of the Court as she added to her conclusion that competent authorities should not base interviews on stereotypical questions as they are inconsistent with assessing the facts relating to a particular social group as per article 4(3)(c) of the 2004 Qualification Directive. Furthermore, the advocate general endorsed the guidelines on international protection no. 9 of the UNHCR.
One of the few occasions in which the Court’s judgment and the Advocate General’s opinion overlap are about the declaration of the claimant’s sexual orientation as a starting point for the assessment. Furthermore, Sharpston included the existing case laws of the Strasbourg-based European Court of Human Rights. In particular, the advocate general defined as an essential principle the notion of personal autonomy, which is an underlying interpretation of the right to respect private life. [9]
According to a 2017 report of the European Council on Refugees and Exiles (ECRE), the impact of A., B., and C. was quite significant considering new public guidelines were issued in some countries following the judgment, while in others, the old guidance was updated to match the CJEU ruling. [10] In various EU Member States, before the reception of the judgment, stereotyped questions have always played a significant role in the assessment of the sexual orientation of the applicant. The questions would include the familiarity of the claimant with the LGBTQI local or international scene. Besides, questions about one’s sexual activity played an essential part in the assessment in countries such as Italy and Belgium.[11]
Despite widespread opposition from member states to accepting “medical tests” to evaluate the applicant’s sexual orientation, in countries like Sweden, immigration courts accepted videos depicting homosexual acts as evidence of one’s self-assessed sexual orientation. [12]
It has to be acknowledged that there is a “culture of disbelief” that is diffused through some competent authorities on asylum applications based on the grounds of sexual orientation. [13] Such skepticism could also play a determining factor in the application process. As shown by the ECRE report, some progress has been made by the reception of the judgment. However, due to the lack of clarification on the definition of “stereotyped notions”, some countries still question the applicant’s sexual life, covered as a stereotypical question.[14] If the Luxembourg-based Court’s ruling had followed the line of the advocate general Sharpston, loose ends left out by the judgment would have been less impactful, and the decision could have been more progressive.
CONCLUSION
Stating that the Court of Justice of the European Union has done nothing for the LGBTQI community would be an inexact declaration. Over the years, the Court has had many preliminary proceedings regarding LGBTQI issues, and the reaction to the judgments has never been overwhelmingly negative.
However, the Court can be blamed for its very restrictive decision that makes the harmonization of LGBTQI rights go at a snail’s pace. Yet, it must be noted that the Court tries not to tip on countries’ toes, especially after being labeled an activist over the years.
The European Union has great potential to become a “safe harbor” for LGBTQI asylum seekers and guarantee them a safe space to live their lives without the fear of being persecuted for their sexual orientation or gender identity.[15] The CJEU could have pushed such potential if it had been more daring, or activist. Considering the current political climate in the European Union, it is not a surprise that the CJEU does not dare to be more progressive in its judgments. The court should be more daring because member states are more conservative and have political views that preclude a normal life for LGBTQI people. If “the general principles of EU law are, and have been, like vehicles at the heart of what can be termed an auto-poetic or self-creational mechanism of legal integration through adjudication”, [16] then the protection of human rights should be a core principle of the Union and the Court could do more to protect LGBTQI rights, especially from more conservative member states’ laws.
In the last decades, the judicial activism of the CJEU has weakened, not only on an LGBTQI level but in every field in which it has competence. Consequently, the Court has adopted a more literal interpretation of the law, aligning with Montesquieu’s view of the judge as “la bouche de la loi”, potentially impacting the efficiency of its judgments.
[1] Grimmel, A., “ Judicial Interpretation or Judicial Activism? The Legacy of Rationalism in the Studies of the European Court of Justice”, European Law Journal, Vol. 18, No. 4, July 2012, p. 520.
[2] Adams, Maurice, Henri De Waele, Johan Meeusen, and Gert Straetmans, eds. Judging Europe’s Judges: The Legitimacy of the Case Law of the European Court of Justice. Oxford: Hart Publishing, 2015, p. 121.
[3] Gunnar, B., “Judicial Activism in the Court of Justice of the EU,” University of Queensland Law Journal 36, no. 2, 2017, p. 353.
[4] Adams, Maurice, Henri De Waele, Johan Meeusen, and Gert Straetmans, eds. Judging Europe’s Judges: The Legitimacy of the Case Law of the European Court of Justice, 2015, p. 121
[5] Adams, Maurice, Henri De Waele, Johan Meeusen, and Gert Straetmans, eds, 2015, p. 68
[6] Council Directive 2004/83/EC of 29 April 2004, no longer in force. The recast is in force, Directive 2011/95/EU of the European Parliament and the Council of 13 December 2011.
[7] UNHCR, GUIDELINES ON INTERNATIONAL PROTECTION NO. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 2012.
[8] Nuno Ferreira, “Reforming the Common European Asylum System: Enough Rainbow for Queer Asylum Seekers?”, GenIus, Protezione internazionale e SOGI:2018/2, Nov. 2018
[9] Article 8 of the European Convention on Human Rights; Article 7 of the EU Charter of Fundamental Rights.
[10] European Council on Refugees and Exiles, Preliminary Deference? The impact of judgments of the Court of Justice of the EU in cases X.Y.Z., A.B.C. and Cimade and Gisti on national law and the use of the EU Charter of Fundamental Rights, Belgium, March 2017
[11] ECRE, Preliminary Deference?, 2017, p. 45
[12] ECRE, Preliminary Deference?, 2017, p. 47
[13] Ferreira, N, “Reforming the Common European Asylum System: Enough Rainbow for Queer Asylum
Seekers?”, 2018, p. 37
[14] ECRE, 2017, pp. 50, 51
[15] Danisi, C., “What ‘Safe Harbours’ are There for People Seeking International Protection on Sexual Orientation and Gender Identity Grounds? A Human Rights Reading of International Law of the Sea and Refugee Law”, GenIus 2018:2, 2018
[16] Adams, Maurice, Henri De Waele, Johan Meeusen, and Gert Straetmans, eds, 2015, p. 68
– Written in the framework of the EMJMD “Euroculture” in 2020
