Same-sex marriages and European private international law

Trojan is the future

Abstract

The Court of Justice of the European Union’s Trojan judgment consolidates the architecture of EU private international law regarding the recognition of cross-border personal statuses. The Court reaffirms that a legal status validly established in one Member State must produce effects in others when the effective exercise of free movement depends on it. The response is articulated through the principle of mutual recognition and the direct application of fundamental rights enshrined in the EU Charter of Fundamental Rights. In particular, Articles 7 and 21 guarantee the continuity of private and family life and the prohibition of discrimination based on sexual orientation. Recourse to national public policy (ordre public) is notably weakened—even crushed and rendered inert—in favor of the stability of legal statuses created in an EU Member State. The Court introduces the idea that a legal institution validly created in one Member State is like a lit torch in one State that automatically illuminates all others. Belonging to the EU ‘club’ implies accepting that free movement is not limited to people, goods, and services, but also extends to the legal institutions that structure the personal status of citizens.