INTRODUCTION

In the previous chapters, I noted that the courts of the examined states may normally order a foreign litigant to disclose a document on the basis of their state’s procedural laws. This means that these courts may even grant such an order when the document is located outside the forum state, or if a litigant must disclose a document in violation of a foreign state’s law. Whilst I have also illustrated that minor or major differences do exist between the different states’ rules on legal privilege, it is clear that information that is privileged according to a foreign state’s laws can become discoverable during provisional or main proceedings that take place before another state’s court. This is due to the fact that most courts of the examined legal systems seem to apply the lex fori conditio registrii conflict rule. Accordingly, it is presumed that these courts only apply their state’s legal privilege rules if the lawyer with whom the communications were shared has been admitted to the bar of a foreign state. Consequently, most of the examined courts seem not to be willing to apply a foreign state’s privilege laws on the basis of an alternative conflict rule instead. This restrictive attitude may become problematic if the rules on legal privilege of the state in which the auxiliary or forum court is located differ from that of a foreign state.

Accordingly, during transnational civil proceedings four different situations can in my opinion arise, in which the level of protection that is granted by a legal privilege rule of the addressed court’s state is either comparable to or diff ers from the level of protection that is given by the privilege rule of a foreign state. These situations are illustrated in the table above. Considering that the level of protection that is granted by the different states’ rules is equal in situations C and D, there is in my view no problem here. In such cases, the foreign litigant will expect a certain level of privilege protection based on the foreign state’s privilege rules, the application of which he relies on.

INTRODUCTION

In the previous chapters, I noted that US district courts are notorious for their cross-border discovery orders. Moreover, I showed that these US courts may also order a foreign litigant to disclose documents that have to remain confidential according to foreign law. As such, it does not come as a surprise that several continental European states – such as France and Germany – have questioned the legality of the US courts’ injunctions in light of the international legal principle of state sovereignty, especially when the addressee was domiciled within their state. Accordingly, in reaction to the US cross-border discovery practice, several states have argued that courts must use the Evidence Convention instead, in the event that the evidence needs to be taken from a litigant who is domiciled within another Contracting State.

Apart from the fact that this argument does not hold, it is interesting to see that the courts of some of these Continental European states have granted orders that are somewhat similar to the aforementioned US cross-border discovery orders. Th is can be clearly seen, for instance, in the following judgment of the French Supreme Court (Cour de cassation):

Introduction to the Chapter

This chapter is aimed at readers interested in theory of private international law, and in particular, the theoretic understanding of the concept of ordre public. Specific rules of national or European law, or case-law of supranational European courts, are only mentioned in this particular chapter for the sake of illustration of the theoretic discussion. A more in-depth analysis can be found in other relevant chapters. Here, traditional theoretic understanding of ordre public in private international law and its internal limitations are discussed ( section 2.2 ). The restrictions on the national use of the ordre public safeguard are overviewed ( section 2.3 ) and the sui generis notion of the European ordre public is introduced next ( section 2.4 ). Concepts of qualification and incidental question are analysed in relation to ordre public ( section 2.5 ). The chapter finishes with concluding remarks ( section 2.6 ). Throughout the chapter, the analysis includes a critical approach to tendencies of overusing ordre public.

National Use and Understanding of the Ordre Public Reservation

The Traditional Concept of Ordre Public

The ordre public safeguard is traditionally understood as a measure used by authorities of the forum State in exceptional cases, when the result of applying otherwise applicable foreign law would be “shocking” in the respective State because of the contradiction to its fundamental policies. The ordre public reservation aims to protect only the most important principles of justice of the State of the forum, which could be infringed as a result of application of foreign law in a concrete situation. This allows for the possibility to refuse the recognition of a family status that would manifestly infringe ordre public of the State.

In evaluating whether the criteria for the use of ordre public are fulfilled, the national standards of the forum have traditionally been decisive. This understanding could be claimed as still relevant. Ralf Michaels writes that it can be “disheartening” to understand that private international law can never be completely neutral in respect of value judgements:

Introduction: Why Recognize a Civil Status in Full?

The European supranational courts have explicitly abstained from rulings on the issue of status validity, choosing instead to underline the obligations of States in narrowly defined areas. Meanwhile, in their previous case-law on cross-border recognition of civil status, they have not explicitly disengaged from private international law, or ruled that their rulings are only relevant “for the sole purpose of” a narrow effect.

The “whole status” approach, which is discussed as de lege ferenda in this chapter, illuminates the essence of cross-border recognition in private international law and also gives clarity to the legal effects of a status lawfully concluded abroad. If the status is recognized as a whole and in full, that is, both in substance and in form, there is a strong presumption that certain effects must follow. Separate choice-of-law rules determine the law applicable to a certain effect, and adequately, the extent of the legal effects.

Most of this chapter will concern suggestions on how the future of European law should arguably develop or be interpreted in the future. The interpretation is mostly suggested as to be developed in case-law, rather than a set of legal rules to be adopted at EU level. There is no plan to adopt such a set of rules in the future. The EU LGBTIQ Equality Strategy, adopted in November of 2020, envisages choice-of-law rules on cross-border recognition of parenthood of same-sex couples, but not choice-of-law rules on recognition of marriages or registered partnerships.

The said case-law interpretation has not yet been developed. The chapter first discusses EU primary law and Articles of the ECHR, which in the future should be of utmost significance in cross-border recognition of same-sex marriages (section 7.2). The chapter then includes an analysis of the possibility of crossborder recognition of registered partnerships ( section 7.3 ). Furthermore, the analysis of dissolution of the status is discussed, considering that it encompasses the issue of validity of status ( section 7.4 ).

Introduction to the Chapter

This part of the book presents a very short background to contextualization of private international law. Discussions on conceptualization of private international law have been ongoing for hundreds of years. This chapter mentions the most relevant aspects of the discussion and explains the stance taken in this book. First, the chapter focuses on legal rules and approaches in private international law ( section 11.2 ), understandings of justice in terms of private international law ( section 11.3 ), the interrelations between public and private international law ( section 11.4 ) and attempts to define the values of private international law which relate to the book’s central theme ( section 11.5. Ordre public is the concept closely related to contextualization, fluidity, local cultures and politics ( section 11.6 ). In that respect, its use becomes problematic when populisms are on the rise ( section 11.7 ).

“Rules” and “Approaches”

In many States, autonomous private international law rules are codified to varying degrees. In other States, rules are not codified but developed by courts. A group of thinkers in modern private international law suggest replacing rules with flexible “approaches”, insisting on more discretion to judges. There is also a strand of thought in the discipline that rejects the idea of rules altogether; instead, it follows a “non-law” approach. The latter strand of thought stresses the need for a political awareness that decisions in private international law are based on necessary fictions:

From this point of view, “marriage” is only a word before it is recognized. Nevertheless, rules include such terms as “marriage”, despite the fact that the law applicable to the relationship might lead to the result that the said legal relationship cannot be treated as a valid marriage.

Introduction to the Chapter

Chapter 5 discussed how the ECJ found, in the Coman case, that the national identity of the Member State is not threatened by recognition of a same-sex marriage solely for the purposes of Directive 2004/38/EC. However, Directive 2004/38/EC does not exhaust the concept of public policy under EU law. It does not exhaust the concept of freedom of movement either.

The ECtHR ruled in the Orlandi case that refusal of inclusion into the civil status of same-sex marriages concluded abroad could not be justified under the Convention. The decision was adopted solely for that purpose and without consequences on private international law. Cross-border rights related to “recognition” of the civil status that had already been lawfully concluded have not been restricted to inclusion into civil registry in previous case-law.

This chapter opens with section 6.2 focusing on EU primary law applicable in the situation of cross-border recognition under supranational European law. It explores constitutional and international aspects of EU law and explains why it is not sufficient to adopt a purely constitutional or purely internationalist approach. Fundamental rights are general principles of EU law, and a special role is given to the ECHR, hence three “key cases” of the ECtHR are presented in section 6.3. The case-law establishes the minimum standards of the general principles of the EU. Next, the chapter focuses on the previous case-law of the ECJ ( section 6.4 ) and the ECtHR ( section 6.6 ) on cross-border movement of civil status. The case-law did not concern same-sex marriages or registered partnerships but different-sex marriages, surnames, and affiliation.

Analysis of justifications for non-recognition of the status is included in sections 6.5 (EU primary law) and 6.7 (the ECHR). Justifications that are not found acceptable or measures that are disproportionate may be considered as exceeding the necessary limits of the ordre public externe in private international law. The chapter reveals that the EU Charter has been used as a filtering instrument for justifications.

Recognizing Validity of “The Foreign”

An Example

Two persons are married in Sweden, a Member State of the European Union, where they habitually reside, build a family and buy a family home. Both are nationals of Member States of the EU, which means that each of them has citizenship of the European Union (EU). For professional and personal reasons, the spouses are considering moving to Poland – another EU Member State and a Contracting Party to the European Convention of Human Rights. There they could spend some time in the Polish spouse’s country of origin and take care of her aging parents. There is just one concern. Their relationship is perceived as part of a political plot against the Polish State itself. The reason for this is that they are two women, married to each other.

LGBT (lesbian, gay, bisexual, transgender) rights in Poland and the neighbouring region of the Baltic States have developed into an issue of political polarization. In June of 2020, Andrzej Duda, the then-campaigning President of Poland announced:

The approach of the Polish President to LGBT rights is not new but echoes the ideas of the leader of the ruling party, Jarosław Kaczyński, who stressed in 2019 that ideas about LGBT rights are coming from “outside” and they are potentially harmful to the Polish State:

The guided rhetoric raises serious issues about the responsibility of State leaders who stigmatize a minority group as “one of the main threats to morality, family and nation”. A survey undertaken by the European Union Agency for Fundamental Rights (FRA) revealed that only 4% of LGBT persons in Poland believe that their government is combating prejudice and discrimination against them. 68% of the Polish LGBT respondents considered that intolerance has gradually increased.

The International Lesbian, Gay, Bisexual, Trans and Intersex Association rank States according to the degree of progress achieved for the rights of LGBT people.

Cross-Border Recognition of Formalized Same-Sex Relationships: Choice-of-Law Method Remains Relevant

Substantive family laws of European States have undergone changes over the last 30 years. A new institute of registered partnership has emerged and marriage has become available to couples of the same sex. Private international law is well-suited for negotiating and balancing the old with the new, and the local with the foreign. The issue of cross-border validity of a same-sex marriage or registered partnership is usually approached under the forum’s choice-of-law rules on validity of marriage or registered partnership.

It is desirable to take into consideration the development of substantive laws of the forum State, while designing its choice-of-law rules. As a result of changes in the forum’s substantive family law, its private international law may also change. That does not mean that private international law rules should mirror substantive family law of the forum and permit only the recognition of marriages which could also have been concluded in the forum State. Such an approach would render private international law devoid of its purpose to accommodate the foreignness.

Private international law is designed to accommodate the laws of another State closely linked to the situation, e.g., a marriage to be concluded or already concluded. Choice-of-law rules allow application of foreign law in respect of marriages to be concluded or already concluded abroad, based on either the principle of personal law, or on the principle of territoriality.

It appears that in the long term, it would be of practical significance to gradually decrease the plurality of connecting factors that determine the law applicable to substantive validity of marriages and registered partnerships already concluded abroad. Decreasing these factors would, at least, be possible on a European Union level. It would contribute to increased legal certainty not only for the individuals involved, but also from the point of view of the Member States which allow or do not allow same-sex marriages, as well as from the point of view of the European Union promoting free movement of individuals and prohibiting discrimination.

Any specific private international law solution on substantive validity of marriage or registered partnership is currently up to the EU Member States as well as State parties to ECHR.

Introduction

This chapter is structured as follows: First, the importance of treaties on the issue of cross-border recognition of marriages and registered partnerships is explained ( section 8.2 ). The old Hague Conventions are not directly relevant to same-sex marriages in the Baltic States and Poland. They should be mentioned, however, as a valuable example of supranational choice-of-law rules and due to the fact that some Member States did not denounce the said Conventions. More than a hundred years ago, these Conventions were agreed upon and ratified by many European States, hence they are discussed in section 8.3. The next section focuses on the treaties on cross-border recognition of marriages and registered partnerships ( section 8.4 ). These treaties are most the specific sources of law as to cross-border recognition of formalized family status, besides the national provisions. The States analysed in this book have not participated in these treaties. The treaties analysed in section 8.4 are a valuable source of inspiration for the EU legislator. In section 8.5, the treaties which are relevant to effects of marriage are discussed. An overview of other important global sources is presented in section 8.6. The chapter ends with concluding remarks on the impact of treaties and their prospects for the future ( section 8.7 ).

The Importance of Treaties on Crossborder Recognition of Civil Status

Treaties as Useful Examples

The Hague Conference on Private International Law (HCCH) is a global organization that unites 84 States worldwide and, additionally, the European Union. Its aim is “is to work for the progressive unification of the rules of private international law”. The International Commission on Civil Status (ICCS) is an international organization that, until recently, worked on a European level. It was founded in 1948 and focused on international harmonization of legal rules related to civil status. The International Commission on Civil Status also produced a number of Conventions, most of which were of a technical nature. With the expanded EU competence in the area of cross-border movement of civil status documents, EU Member States have gradually ceased their membership of the ICCS.

Introduction to the Chapter

This chapter focuses on legal effects of marriages and registered partnerships under EU law and the ECHR. The structure of the chapter is as follows: first, an explanation of the different points of departure, that is, when the status itself is recognized in full and when it is not ( section 9.2 ). The chapter then analyses a series of examples: section 9.3 examines a request for spousal maintenance in a cross-border dispute; then in section 9.4 , an example of succession following the death of a same-sex spouse or partner and in section 9.5, the last example being a request to divide the property of same-sex spouses or partners. In these parts, scenarios related to the analysed States are described, but the focus is first and foremost on the EU Regulations, with the national perspective and national rulings on these issues analysed in chapter 10. In section 9.6, the chapter focuses on the possibility of granting cross-border effects to same-sex marriages and registered partnerships under the ECHR, including analysis of previous caselaw of the ECtHR and suggestions for the interpretation in the future. Section 9.7 focuses on the general future direction of granting the requested effects under primary and secondary EU law. Finally, section 9.8 concludes the chapter.

Cross-Border Recognition of Legal Effects in Different Situations

If The Civil Status as Such is Recognized in Full

Cross-border recognition of the civil status “in full” would mean that once recognized, the civil status is, in principle, to be followed by all usual legal effects of that civil status. The precise nature and the extent of legal effects are to be determined by applicable law, found through the application of a choice-of-law rule on that particular legal effect.

If the status has not been recognized in full in the forum State, certain legal effects may still be granted but only as an exception, rather than consistently (recognition in part). That is because the extraterritorial recognition of a concluded civil-law status, and the legal effects of that status are two different questions in private international law, governed by different sets of rules.

Introduction to the Chapter

Two Examples: The Cases of Coman and Orlandi

A self-restrictive approach emerges from the case-law on cross-border recognition of same-sex marriages examined by the supranational European courts. The current approach can be illustrated by the following examples:

Example 1: The Coman case

In the first example, Mr. Coman and Mr. Hamilton, two men legally married to each other, have been considering settling in Romania. This Member State was the former home and the State of nationality for one of the spouses, Mr. Coman. His spouse, however, was refused a residence permit because they were not recognized as married. Romanian law provided for non-recognition of samesex marriages concluded abroad. In 2018, the European Court of Justice (ECJ) ruled that the concept of the “spouse” shall be understood autonomously under the Directive 2004/38/EC, and may include spouses in formalized same-sex marriages moving across the borders of EU Member States. The ECJ underlined:

The formulations and language of the Court were cautious and limited solely to the discussed situation. More precisely, the situation concerned the right to free movement of EU citizens, who had lawfully married with third country nationals in another EU Member State, and had a “genuine residence” in the State of conclusion of the marriage, which was different to his nationality.

Example 2: The Orlandi case

In the second case, twelve married same-sex spouses requested their marriages to be included into the civil registry in Italy, the State of nationality of most of the spouses. The ECtHR ruled that the refusal of the Italian authorities to do so infringed Article 8 – the right to private and family life – of the European Convention on Human Rights (ECHR).

The ECtHR reasoned that the “States are still free … to restrict access to marriage to different-sex couples”.

Introduction to the Chapter

This chapter does not focus on cross-border “recognition” of validity of marriages or registered partnerships in private international law as such, but on closely interrelated topics of inclusion of the civil status into civil registry and the right of entry and residence in the State together with a same-sex partner or spouse. First, the reason for choosing these particular topics is discussed, and the explanation is provided on how they are interconnected with private international law ( section 4.2 ). Second, the chapter focuses on the regulation of these issues in each of the analysed States, in alphabetical order: section 4.3–4.4 on Estonia, section 4.5–4.6 on Latvia, section 4.7–4.8 on Lithuania and section 4.9–4.10 on Poland. The chapter ends with conclusions ( section 4.11 ).

The Interplay of the Chosen Topics With Private International Law

Why This Focus of Attention?

The reason for the choice of these particular topics, that is, the right to entry and residence with the spouse or registered partner, and the inclusion into civil registry of the marriages or partnerships concluded abroad, should be explained. The reason is simply that so far, these issues have been the focus of attention for the supranational European courts and the national courts.

Issues of “entry and residence” and “inclusion into civil registry” are at the frontiers chronologically, that is they arise first. There are no serious conflicts of interests and judicial disputes between the spouses or registered partners. The dispute is between the private individuals and State authorities. It is inevitable that conflicts of interests between spouses or registered partners will arise, and in about a decade a greater variety of cases might be expected.

Another reason why the issues of “entry and residence” with the spouse, and “inclusion of the status” into the national civil registry arise at this moment is the specificity of these issues. When a State authority adopts a decision not to issue a residence permit or not to include the marital status into the registry, this decision produces results in physical reality.