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