By Alina Tryfonidou
In its much-awaited judgment in Coman, delivered earlier this month, the Court of Justice ruled that the term ‘spouse’ for the purpose of the grant of family reunification rights under EU free movement law, includes the same-sex spouse of a Union citizen who has moved between Member States. This means that in such situations, the Union citizen can require the State of destination to admit within its territory his/her same-sex spouse, irrespective of whether that State has opened marriage to same-sex couples within its territory.
This is a landmark ruling of great constitutional importance which has the potential of changing the legal landscape for the recognition of same-sex relationships within the EU. It is, also, a judgment which is hugely significant at a symbolic level, as through it the EU’s supreme court made it clear that it considers same-sex marriages as equal to opposite-sex marriages, in this way reversing the discriminatory stance it had adopted in the early 00’s, when it ruled in D and Sweden v. Council that ‘[i]t is not in question that, according to the definition generally accepted by the Member States, the term marriage means a union between two persons of the opposite sex’.
Mr Adrian Coman is a Romanian (and US) national. In 2002 he met Mr Hamilton – a US national – in New York and they started a relationship. The couple lived together in New York from 2005 to 2009 but Mr Coman subsequently left the US to take up residence in Brussels, where the couple married in 2010. When the couple requested the Romanian authorities for information on the procedure and conditions under which Mr Hamilton could obtain the right to reside lawfully in Romania for more than three months as Mr Coman’s husband, they were informed that Mr Hamilton did not have such a right, because under the Romanian Civil Code, marriage between persons of the same sex is not recognised. This led the couple to bring an action against the decision of the national authorities before a first instance court in Romania. One of the arguments made was that the Romanian Civil Code is unconstitutional in that its failure to recognise marriages between persons of the same sex entered into abroad constitutes infringement of certain provisions of the Romanian Constitution. The first instance court felt that it needed to refer the matter to the Romanian Constitutional Court, which, in its turn, considered it necessary to make a reference for a preliminary ruling to the ECJ asking, in essence, whether EU law requires the EU Member State to which a same-sex married couple moves, to recognise the couple as married and – as such – to grant them family reunification rights.
EU law allows Union citizens to move and reside freely within the territory of the Member States. This right is derived from the free movement provisions in the FEU Treaty (currently Arts. 21, 45, 49, 56 TFEU) which are supplemented by, inter alia, Directive 2004/38. The Directive – which applies to all Union citizens who move to a Member State other than that of their nationality – provides that Union citizens and their family members, enjoy the right to move and reside in the territory of another Member State, and lays down the conditions for the exercise of this right. For the purposes of the Directive, Article 2(2) provides a list of family members which includes ‘the spouse’ of the Union citizen. These family members have the automatic right to accompany or join the Union citizen in the host Member State, and this is so irrespective of their nationality and, in particular, irrespective of whether they are Union citizens. In practice, such family reunification rights are claimed by the third-country national family members of Union citizens, as family members who are Union citizens already enjoy the right to move and reside freely within Member States on their own right. Although Directive 2004/38 (like its predecessors) applies only to Union citizens who move to a Member State other than that of their nationality, the ECJ has held that Union citizens who return to their Member State of nationality after having exercised free movement rights (like Mr Coman), derive the same rights directly from the EU free movement provisions (Singh), and, in particular, the family reunification rights stemming from the Directive are applicable to returnees by analogy (O. and B).
The Court held that the refusal of a Member State to recognise, for the purpose of the grant of family reunification rights, the same-sex marriage of a third country national and a Union citizen, which has been concluded in another Member State during the Union citizen’s period of genuine residence in that State, can impede the exercise of the right to free movement of the Union citizen. Following the usual structure of free movement judgments, the Court then proceeded to consider possible justifications. The Court held that an obligation to recognise a same-sex marriage for the purpose of family reunification rights ‘does not undermine the national identity or pose a threat to the public policy of the Member State concerned’, as ‘such recognition does not require that Member State to provide, in its national law, for the institution of marriage between persons of the same sex’. The Court then added that a national measure that amounts to an obstacle to free movement may, anyway, be justified only where it is consistent with the fundamental rights guaranteed by the Charter, such as the right to respect for private and family life, but refrained from analysing this point any further.
With its audacity in this judgment, the Court has pleasantly surprised LGBT organisations, lawyers and academics interested in LGBT rights, as well as married same-sex couples who had been disappointed by the lack of clarity that prevailed prior to this judgment as regards the protection they enjoy under EU law.
With this ruling, the Court made it clear that EU Member States are now obliged to recognise same-sex marriages concluded lawfully in the EU, irrespective of whether they have opened marriage to same-sex couples in their own territory. It is likely that the ruling will lead Member States that want to avoid its effects to introduce – as is currently discussed in Romania – a constitutional ban on same-sex marriage. However, Member States will be advised that such a ban would not shield them from the effects of Coman: the EU principle of supremacy provides that EU law prevails even over constitutional provisions of a Member State, in case there is a conflict between the two (Internationale Handelsgesellschaft) and, thus, Coman requires even Member States that have a constitutional ban on same-sex marriage to recognise such marriages in situations that fall within the scope of EU law. In this way, the Court has gone further than its Strasbourg counterpart which in its judgment in Orlandi last December, interpreted Article 8 ECHR as merely requiring states to provide some form of legal recognition to married same-sex couples from abroad.
Unlike in previous cases (see e.g. Léger) where the Court, refrained from conducting the balancing exercise at the justification stage itself and tossed this ‘hot potato’ to the referring court instead, in this ruling, it did proceed to explain that obstacles to free movement rights which emerge from a refusal to grant family reunification rights to same-sex spouses, can under no circumstances be justified. The Court should, clearly, be applauded for taking this step as it demonstrated that it has zero tolerance for Member States’ attempts to impose their own views on same-sex marriage in situations which fall within the scope of EU law. Following the path trodden – in the US context – by the US Supreme Court three years earlier in the landmark Obergefell judgment, the Court in Coman made it clear that EU law requires that the exercise of the primary and fundamental right to move and reside freely in another Member State can under no circumstances lead to the loss by a Union citizen of the marital status (s)he has acquired in the Member State from which (s)he moves, at least for the purposes of the grant of EU family reunification rights.
The words ‘at least’ in the previous paragraph have been italicised for a reason. This is to highlight the fact that although the case raised the rather narrow question of whether same-sex marriages must be recognised by the Member State of destination only a) when there is an exercise of free movement rights and b) for the purposes of the grant of family reunification rights under EU law, it clearly has the potential to create the need for such marriages to be recognised in a broader range of circumstances, even when this is not required by EU law. If we consider the Coman case itself, the ruling simply requires Romania to recognise Mr Hamilton as the spouse of Mr Coman and, as such, to allow him to reside in its territory for a period of longer than three months. However, from the moment that Romania recognises Mr Hamilton as the spouse of Mr Coman for one purpose (i.e. his admission and residence in its territory), wouldn’t it appear anomalous to refuse to treat the couple as married for other legal purposes? We can clearly imagine a scenario whereby Mr Hamilton is asked by a taxation department the basis of his residence in Romania – to which he will reply that this is his marriage to Mr Coman, as recognised by Romania – only to be subsequently told that he is not entitled to receive a tax advantage available only to married couples, on the basis that under other provisions of Romanian law, the couple is not recognised as ‘married’.
What I’m arguing here, therefore, is that although the scope of the judgment appears rather limited, its potential implications are huge, with the real possibility arising that Member States will be ‘forced’ – in practice – to recognise same-sex marriages for all legal purposes and even in situations that this is not required by EU law. At the same time, it should be underlined that – as the Court itself has repeated in a number of its rulings (e.g. Römer, Parris, and in Coman itself) – the EU continues not to have the competence to require Member States to open marriage to same-sex couples in their territory (though, following Oliari, they are required under ECHR to provide some kind of legal recognition to same-sex couples). Accordingly, the possibility of recognition of same-sex marriages for all legal purposes and in situations that do not fall within the scope of EU law, can only take the form of ‘voluntary harmonisation’ undertaken by the Member States themselves.
Finally, whilst the judgment in Coman should be applauded for its breadth and boldness, there are admittedly two limitations to it. The first is that although the Advocate General emphasised in his Opinion that the term ‘spouse’ is ‘independent of the place where the marriage was contracted’, the Court has made repeated references in its judgment to marriages that were ‘concluded in a Member State in accordance with the law of that state’. Does this mean that same-sex marriages concluded lawfully in, say, the US or Canada, cannot benefit from the Coman ruling? In other words, if Mr Hamilton and Mr Coman happened to marry in the US instead of Belgium, would the ECJ rule that Romania was not obliged to recognise them as spouses? The second limitation – which is not specific to this case, as the Court simply repeated a principle established in previous case-law – is that it is only when a Union citizen has taken-up genuine residence in the territory of another Member State and during that period of genuine residence has established and strengthened family life, that he can claim family reunification rights on his return to his Member State of nationality. In previous case-law (O. and B), the Court clarified that such genuine residence can only exist when the Union citizen has settled in another Member State for more than three months. This ensures that Union citizens who reside in a Member State that has not opened marriage to same-sex couples cannot side-step the law of their Member State of residence, by moving to another Member State to marry and then return to that State, claiming the right to be recognised as a married couple on the basis of Coman.