European Court of Justice rules that EU Member States must recognise same-sex marriages concluded in other EU Member States when Union citizens who move between Member States claim family reunification rights

Guest post by Dr Alina Tryfonidou, Associate Professor, School of Law and Co-Chair of our LGBT Plus Staff Network

With its landmark ruling yesterday 5 June 2018 in the case of Coman, the EU Court of Justice (ECJ) has taken the historic step of requiring all EU Member States to recognise same-sex marriages contracted in other EU Member States in situations where the spouse of a Union citizen who moves to their territory claims the right to join the latter there.

The case was referred to the EU Court of Justice (ECJ) from the Romanian Constitutional Court. The Romanian Civil Code prohibits marriage between persons of the same sex and provides that such marriages entered into or contracted abroad shall not be recognised in Romania. This has proved problematic for Mr Adrian Coman, a dual Romanian and US national, and his spouse – Mr Hamilton – a US citizen (the couple in the picture). The couple have been together since 2002 and married in Brussels – where Mr Coman lived at the time – in 2010. In 2012, they contacted the Romanian General Inspectorate for Immigration to request information on the procedure and conditions under which Mr Hamilton, in his capacity as member of Mr Coman’s family, could enforce his right to reside lawfully in Romania for more than three months, only to be informed that the latter could not be granted such a right as he was not recognised as the spouse of Mr Coman given that the marriage was between two persons of the same sex. The couple together with the Romanian LGBT NGO Asociatia Accept brought an action against the decision of the Inspectorate before the Court of First Instance in Bucharest, raising a plea of unconstitutionality against the Romanian Civil Code. The First Instance court subsequently requested the Romanian Constitutional Court to rule on that plea of unconstitutionality, which, in its turn, decided that the matter raised issues involving EU law and thus stayed the proceedings and made a reference for a preliminary ruling to the Court of Justice asking, in essence, if the term ‘spouse’ in EU legislation which grants family reunification rights to Union citizens who move between Member States (namely, Article 2(2)(a) of Directive 2004/38) includes a same-sex spouse.

The ECJ noted that the term ‘spouse’ should be read to include the same-sex spouse of a Union citizen who exercises EU free movement rights: although EU Member States remain free to decide whether or not to allow marriage for persons of the same sex in their territory, in situations involving a Union citizen who returns to his State of nationality after having exercised free movement rights, the marriage contracted in another Member State by that person to a person of the same sex during his period of genuine residence in another Member State must be recognised, as otherwise an obstacle to the exercise of free movement rights will arise. The Court then proceeded to explain why a refusal by a Member State to recognise a same-sex marriage contracted in another Member State could not be justified on grounds of public policy and nationality identity, concluding that an obligation for such a recognition does not undermine the institution of marriage in Member States which have not opened marriage to same-sex couples as it is merely an obligation to recognise same-sex marriages concluded abroad for the sole purpose of enabling Union citizens to exercise the free movement rights they enjoy under EU law. The Court also added that, in any event, national measures which amount to restrictions on free movement may be justified only if they are consistent with the fundamental rights guaranteed by the EU Charter of Fundamental Rights (EUCFR), the relevant right here being the right to respect for private and family life guaranteed by Article 7 EUCFR, which – read in line with Article 8 of the European Convention on Human Rights (ECHR) – covers the relationship between a same-sex couple. Hence, a measure – like the one contested in Coman – which impedes the exercise of EU free movement rights and breaches the right to private and family life of a married same-sex couple, cannot be justified on the grounds of public policy and national identity.

The ruling is hugely important not merely from a symbolic point of view, in that the EU’s supreme court has ruled explicitly that marriage for the purposes of EU law includes both same-sex and opposite-sex marriage, but also for a number of practical reasons.

The judgment provides much-needed clarity and legal certainty for same-sex couples who conclude a marriage in an EU Member State and who wish to exercise EU free movement rights. The case makes it clear that wherever they wish to move to the EU, their marriage should be recognised as a marriage, and that both spouses should be allowed to reside on the territory of the Member State of destination, irrespective of whether that State allows same-sex couples to formalise their relationship in its territory. In fact, by requiring the couple to be recognised as ‘spouses’, the ECJ seems to have gone further than its Strasbourg counterpart – the European Court of Human Rights – which in its judgment in Orlandi last December, it interpreted Article 8 ECHR as merely requiring ECHR signatory States to provide some form of legal recognition to married same-sex couples from abroad, without, nonetheless, there being a requirement that they recognise them as ‘spouses’.

Although the ruling offers an interpretation of the term ‘spouse’ for the purposes solely of family reunification in situations when a Union citizen moves between Member States, it is likely to have (much) wider implications: once a Member State accepts – for the purposes of EU family reunification – that a same-sex married couple are ‘spouses’ and are, thus, as such entitled to a right of residence in its territory, it would appear anomalous to strip them of this status for other legal purposes (e.g. taxation, pensions, inheritance, hospital visitation rights, childbearing and childrearing), whether this relates to situations that fall within the scope of EU law or not. Accordingly, and despite the Court’s comforting words for each Member State that has not opened marriage to same-sex couples that the obligation imposed by its judgment ‘does not require that Member State to provide, in its national law, for the institution of marriage between persons of the same sex’, the judgment appears capable of having wider implications than it seems to have at first glance, with the potential of initiating a process of ‘voluntary harmonisation’ whereby all Member States will have to recognise – and make provision – for same-sex spouses, even when this is not required by EU law.

At the same time, it should be highlighted that, as the Court repeatedly stressed in its judgment, 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, exactly, can put to rest fears that the ruling can lead to ‘marriage tourism’, as the above safeguard ensures that Union citizens cannot simply 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.

Finally, the Court should be applauded for its audacious approach, in a case which involved an admittedly delicate matter. Unlike in other cases involving matters where there is a wide divergence in opinion among (and within) the Member States (e.g. cases involving pornography, abortion, gambling), the Court has not washed its hands by leaving it to the national court to perform the balancing exercise when considering the arguments put forward by Romania to justify the contested decision (see here for my comments on this approach); instead, the Court was bold enough to make it clear that the contested measure amounted to a restriction contrary to EU free movement law which cannot be justified under any circumstances.

The ruling, nonetheless, leaves us with a question mark. The Court in its judgment repeatedly emphasises that the obligation imposed on Member States is to recognise same-sex marriages lawfully concluded in an EU Member State. The marriage of Mr Coman and Mr Hamilton satisfied this requirement as it was entered into in Belgium. Would they be in the same position, nonetheless, if their marriage was concluded in, say, the US? This is a question that will have to wait for another EU ruling.

Cross-border recognition of same-sex marriages in the EU

Guest post by Dr Alina Tryfonidou, Associate Professor in EU Law, University of Reading

Since 2001, when the Netherlands opened marriage to same-sex couples, a number of other countries have taken the same step. At the moment of writing, marriage is open to same-sex couples in 24 countries around the world, with 15 of those being in Europe, and 13 in the European Union (EU).

Photo: Mr Adrian Coman (right) with his spouse, Mr Claibourn Robert Hamilton (left)

As more and more countries have opened marriage to same-sex couples, the number of same-sex couples who are married is increasing every year. What happens, however, when a married same-sex couple moves from a country that recognises same-sex marriages to a country that does not? Is the latter obliged to recognise a same-sex marriage contracted elsewhere? This question has been answered affirmatively in the US context: in 2015, in the Obergefell v. Hodges case, the US Supreme Court held that marriages lawfully performed in one US State must be fully recognised in all other US States.

Although the above question has been lingering in the EU context for almost two decades now, the EU’s highest court (the European Court of Justice ‘ECJ’) has only recently been called to adjudicate on this matter, in a case (C-673/16 Coman) where a same-sex couple that married in an EU Member State (Belgium) was faced with a refusal by the EU Member State to which they wished to move (Romania) to recognise their marriage. Mr Coman (a Romanian national and thus EU citizen, who had left Romania and was living abroad for a number of years) married his same-sex partner (a US national) in Belgium in 2010. The couple wished to move to Romania and when they contacted the Romanian authorities for this purpose, they were told that Mr Coman’s spouse could not join him in Romania, as same-sex marriages are not valid in that state. The couple brought an action before a Romanian court arguing that this refusal amounted to a breach of EU law. The Romanian court referred a number of questions for a preliminary ruling to the ECJ, asking it, in essence, whether EU law requires Romania to recognise the same-sex marriage of an EU citizen who has exercised his EU free movement rights.

EU law provides nationals of EU Member States (i.e. EU citizens) with the right to move freely between EU Member States. In order to ensure that this right can be exercised without any restrictions, EU law requires the State to which an EU citizen moves to accept within its territory certain family members of the latter; these family members include ‘the spouse’ of the EU citizen. This is laid down in secondary EU legislation, namely Directive 2004/38.

Given that the word ‘spouse’ is sex- and sexual orientation-neutral, one of the main questions that the ECJ has been called to answer in Coman, is whether this term (as used in the above Directive) includes both the opposite-sex and the same-sex spouse of an EU citizen who has exercised his/her EU right to move freely between Member States.

As argued elsewhere, it is clear that this should be answered in the affirmative, and this is so for the following reasons.

  1. Directive 2004/38 provides (Recital 31) that it ‘respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union’. Accordingly, the provisions of the Directive, including the provision stating that the ‘spouse’ of an EU national must be allowed to join the latter in the host Member State, must be read in a way which does not violate fundamental human rights, including the right not to be discriminated against on the ground of sexual orientation, as this is laid down in Article 21 of the EU Charter of Fundamental Rights. This means that the term ‘spouse’ in this instrument, must be interpreted in a way which does not discriminate on the ground of sexual orientation and, thus, it should not exclude same-sex spouses from its scope.
  2. Directive 2004/38 requires Member States to implement it without any discrimination on, inter alia, the ground of sexual orientation (Recital 31). Therefore, national legislation which provides for the family reunification rights of EU citizens must include the ‘spouse’ of EU citizens within the category of family members that can automatically accompany them in its territory, and must make it clear that this includes both opposite-sex and same-sex spouses.
  3. The refusal of an EU Member State to recognise the same-sex marriage of an EU citizen who wishes to move to its territory and the consequent refusal to accept within its territory the spouse of that national, can clearly discourage EU citizens from exercising their right to free movement and residence in any EU Member State, which is a right that is bestowed on them by the EU free movement provisions . Accordingly, such a refusal can constitute a breach of the EU free movement provisions.
  4. The failure of an EU Member State to recognise the same-sex marriage of an EU citizen who moves to its territory may, also, amount to a breach of a number of fundamental human rights, as these are protected under the EU Charter of Fundamental Rights, namely, the right to family life (Article 7 of the Charter) and the right to human dignity (Article 1 of the Charter).

The hearing of the Coman case was scheduled for November 2017, and it is expected that the Opinion of the Advocate General and the Court’s judgment will be delivered in 2018. The case has attracted extensive media coverage and a number of LGBT NGOs have intervened. The judgment is, therefore, awaited with great interest as the question at issue involves a delicate matter with huge constitutional implications