Dr Alina Tryfonidou explores a landmark EU Court of Justice ruling which provides greater clarity and legal certainty for same-sex couples who get married in an EU member state, in a new post for The Conversation. 

Image credit: May S Young (Flickr), CC-BY-2.0

In an historic ruling for the rights of same-sex couples, the EU Court of Justice (ECJ) has held that for the purposes of EU free movement law, the notion of a “spouse” includes the same-sex spouse of an EU citizen.

The case was referred to the ECJ from the Romanian Constitutional Court which was confronted with a dispute between a couple, Adrian Coman, a Romanian national, and Claibourn Hamilton, a US national, and the Romanian authorities. After living for a number of years in Belgium, where the couple married, Coman wished to return to Romania with his spouse. But Hamilton was refused the right to reside in Romania as Coman’s husband, on the grounds that Romania does not recognise same-sex marriage.

The case was referred to the ECJ as EU law requires member states to grant a right of residence to the “spouse” of an EU citizen who moves there in exercise of EU free movement rights. The ECJ was asked whether the term “spouse” should include same-sex spouses – and it ruled that it should.

As the ECJ underlined, EU member states still remain free to decide whether or not to allow marriage for persons of the same sex in their territory. But in situations where an EU citizen, who has been living in another EU member state, wants to return to their country of origin, their same-sex marriage must now be recognised under EU law. The same law applies for EU citizens moving to any other EU member state – so for example if Coman had wanted to move to Poland with his husband, he would be allowed to.

Rights clarified

The ruling provides much-needed clarity and legal certainty for same-sex couples who get married in an EU member state. It makes clear that wherever they wish to move in the EU, their union should be recognised as a marriage for the purposes of family reunion, irrespective of whether the host state allows same-sex couples to formalise their relationship in its territory.

Currently, 12 out of the EU’s 28 member states do not permit same-sex marriage, including Romania, Hungary, Poland and Slovakia. The court had comforting words for these countries, that its ruling “does not require” them to provide for “the institution of marriage between persons of the same sex”. But the ruling appears to have the potential of initiating a process of “voluntary harmonisation” whereby all member states will realise they need to recognise – and make provision – for same-sex spouses, even in situations when this is not required by EU law. The ruling offers an interpretation of “spouse” for the purposes solely of family reunification in cross-border situations. However, once a member state accepts that a same-sex married couple are “spouses” for the purposes of EU family reunification – and are therefore entitled to a right of residence in its territory – it would appear anomalous to strip them of this status for other legal purposes, regardless of whether those situations fall within the scope of EU law. This could include rights regarding taxation, inheritance, pensions, hospital visitation rights, childbearing and childrearing.

Currently, 12 out of the EU’s 28 member states do not permit same-sex marriage, including Romania, Hungary, Poland and Slovakia. The court had comforting words for these countries, that its ruling “does not require” them to provide for “the institution of marriage between persons of the same sex”. But the ruling appears to have the potential of initiating a process of “voluntary harmonisation” whereby all member states will realise they need to recognise – and make provision – for same-sex spouses, even in situations when this is not required by EU law. The ruling offers an interpretation of “spouse” for the purposes solely of family reunification in cross-border situations. However, once a member state accepts that a same-sex married couple are “spouses” for the purposes of EU family reunification – and are therefore entitled to a right of residence in its territory – it would appear anomalous to strip them of this status for other legal purposes, regardless of whether those situations fall within the scope of EU law. This could include rights regarding taxation, inheritance, pensions, hospital visitation rights, childbearing and childrearing.

Not open to ‘marriage tourism’

At the same time, the court repeatedly stressed in its ruling, that an EU citizen can only claim family reunification rights upon moving countries if they have taken up genuine residence in the territory of another member state – and during that time have established and strengthened their family life. In previous case law, the court clarified that such genuine residence can only exist when the EU citizen has settled in another member state for more than three months.

This should put to rest fears that the ruling can lead to “marriage tourism”. It ensures that EU citizens living in a member state that does not permit same-sex marriage cannot move to another member state simply in order to marry and then return to the first state claiming the right to be recognised as a married couple. They will need to show that they have taken up genuine residence in that member state and during that period they established and strengthened their family life.

The court should be applauded for its audacious approach, in a case which involved an admittedly delicate matter.

The ruling, nonetheless, leaves a question unanswered. It emphasises that the obligation imposed on member states is to recognise same-sex marriages lawfully concluded in another EU country. The marriage of Coman and Hamilton satisfied this requirement because it took place in Belgium. Would they be in the same position if their marriage was concluded in, say, the US? This is a question that will have to wait for another ECJ ruling.

Dr Alina Tryfonidou is Associate Professor in EU Law at the University of Reading. This post was first published on The Conversation, 6 June 2018.