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.