Professor Steve Peers, Law School, University of Essex

The Court of Justice of the European Union (CJEU) issued its first ruling on same-sex marriage within the framework of EU free movement law in the case of Coman. This case involved a Romanian citizen, Mr. Coman, who married his American husband in Belgium while residing there. When they attempted to return to Romania, the Romanian government, which does not legally acknowledge same-sex marriage, refused residency to Mr. Coman’s husband. The question before the Court was whether EU free movement law granted Mr. Coman the right to family reunification with his spouse despite Romania’s stance.

The CJEU concluded that EU free movement law, while not directly applicable to a Romanian citizen within Romania, could be applied by analogy in this situation since Mr. Coman had previously resided in another EU Member State. The Court referenced its 2014 ruling in O and B, stating that exercising free movement rights requires “genuine residence” in another Member State, fulfilling the criteria for stays exceeding three months as outlined in the citizens’ Directive.

A key question arose concerning the definition of “spouse” under the citizens’ Directive, which does not provide a specific definition. The Court affirmed that a “spouse” constitutes “a person joined to another person by the bonds of marriage,” emphasizing that this term is gender-neutral and encompasses same-sex spouses. It further clarified that while Member States retain the right to apply their own laws regarding registered partnerships, this does not apply to the recognition of spouses.

The CJEU acknowledged that marital status falls under the competence of individual Member States. However, it emphasized that Member States must exercise this freedom in a manner consistent with EU law, including the right to free movement. The Court argued that permitting Member States to apply their national laws to the residency of non-EU same-sex spouses would create inconsistencies in the application of free movement rights for EU citizens.

Addressing objections rooted in “public policy” or “national identity,” the CJEU reiterated that the “public policy” exception to free movement is subject to strict interpretation and is applicable only when a genuine and significant threat to a fundamental societal interest exists. It maintained that recognizing same-sex marriage for the sole purpose of upholding EU law rights does not meet this threshold, as it neither undermines the institution of marriage within individual Member States nor compels them to legalize same-sex marriage nationally.

The Court further highlighted that any restrictions on free movement must align with the human rights enshrined in the EU Charter of Rights, interpreted in harmony with the European Convention on Human Rights. It referenced the European Court of Human Rights’ case law, which establishes that same-sex relationships can be recognized as “private life” and “family life” similarly to heterosexual relationships under comparable circumstances.

Having determined the meaning of “spouse” in this context, the Court found it unnecessary to define “partner” within the scope of the Directive. This deviated from the Advocate General’s opinion, which suggested that if Mr. Coman’s marriage was not recognized under Romanian law, he should be classified as a “partner” or “family member.”

Comments

While this judgment does not create a general obligation for Member States to legalize same-sex marriage, as seen in the US Supreme Court’s Obergefell decision, it holds significant implications for the progression of same-sex marriage rights within and beyond the EU.

The application of EU free movement law in this context requires movement between Member States. Consequently, this ruling would not directly apply to movements within the UK between regions with differing stances on same-sex marriage, such as Great Britain and Northern Ireland. It is important to note that the judgment specifically addresses residency rights and not the broader issue of marriage equality. The residency status of an EU citizen in a same-sex marriage with another EU citizen is unlikely to be contested.

It is also worth noting that the CJEU, unlike the Advocate General, imposed further limitations. The ruling applies exclusively to marriages formalized within an EU Member State, leaving the legal position unclear regarding same-sex marriages performed outside the EU. Additionally, the Court emphasized a minimum requirement of three months of genuine residence in another Member State to activate these rules.

Despite these limitations, the ruling’s strong emphasis on free movement and human rights should not be understated. The Court chose to provide a robust definition of “spouse” rather than taking the easier route offered by the Advocate General’s “Plan B.” This approach suggests an intention to engage with and potentially persuade those opposed to same-sex marriage rather than imposing a top-down ruling.

From a broader perspective, the right of individuals to move freely within the EU with their same-sex marriage recognized as an equal affirmation of family life represents a significant step forward in the ongoing struggle for LGBTQ+ equality.

Barnard & Peers: chapter 13, chapter 9

Photo credit: UK Student Life